Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R JOHNSTON
File Number : AL 2755/2019
Catchwords:
Criminal law - Appeal against sentence - Sentence of immediate imprisonment imposed - Whether magistrate made a finding that certain conduct of the appellant aggravated the seriousness of the offence without according procedural fairness to the parties - Whether magistrate treated prior conviction of the appellant as an aggravating factor - Whether length of term of imprisonment imposed was manifestly excessive - Whether wrong type of sentence was imposed
On 27 December 2019 the appellant was charged with one offence…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
White v Toovey [2020] WASC 208
Case
[2020] WASC 208
Decision Date
CaseChat Overview and Summary
In the matter of White v Toovey, the appellant, White, appealed against the sentence imposed by Toovey, a magistrate, who had convicted him of a criminal offence and sentenced him to immediate imprisonment. White contended that the magistrate had erred in finding that certain conduct of the appellant aggravated the seriousness of the offence without providing procedural fairness to the parties. Additionally, White argued that the magistrate had improperly treated a prior conviction as an aggravating factor. White also submitted that the length of the term of imprisonment imposed was manifestly excessive and that the wrong type of sentence was imposed.
The legal issues before the court were whether the magistrate had failed to provide procedural fairness by making a finding that certain conduct of the appellant aggravated the seriousness of the offence, whether the magistrate had improperly treated a prior conviction as an aggravating factor, and whether the length of the term of imprisonment imposed was manifestly excessive and the wrong type of sentence was imposed. The court had to consider the principles of procedural fairness and the correct application of aggravating factors in sentencing.
The court found that the magistrate had not provided procedural fairness by making a finding that certain conduct of the appellant aggravated the seriousness of the offence. The court held that the magistrate had not given the parties an opportunity to address the issue of aggravation and that this constituted a failure to accord procedural fairness. The court also found that the magistrate had improperly treated a prior conviction as an aggravating factor. The court held that the prior conviction could not be considered as an aggravating factor because it had not been pleaded and proved as an aggravating factor at the time of sentencing. Finally, the court held that the length of the term of imprisonment imposed was manifestly excessive and that the wrong type of sentence was imposed. The court found that the sentence imposed was disproportionate to the offence committed and that a non-custodial sentence would have been more appropriate.
The appeal was allowed, and the sentence was quashed. The matter was remitted to the magistrate for resentencing.