JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WILLIAMS -v- PENNUTO [2016] WASC 325
CORAM: BANKS-SMITH J
HEARD: 12 SEPTEMBER 2016
DELIVERED : 10 OCTOBER 2016
FILE NO/S: SJA 1050 of 2016
BETWEEN: KENNETH JOHN WILLIAMS
Appellant
AND
TARYN LEIGH PENNUTO
First RespondentKELLIE DIANE LAMOND
Second RespondentBLAIR DEREK FISHER
Third Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G A BENN
File No :KT 784 of 2015, KT 787 of 2015, KT 789 of 2015, KT 730 of 2015, KT 763 of 2015, MI 1591 of 2016, MI 3767 - 3770 of 2016
Catchwords:
Criminal law - Appeal against sentence - Multiple offences - Aggravated assault - Error in one of series of sentences - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 14(2), s 41(2), s 41(3)
Sentencing Act 1995 (WA), s 80(3)
Result:
Leave to appeal on ground 3 granted
Appeal allowed on ground 3
Appellant resentenced
Leave to appeal on grounds 1 and 2 refused
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
First Respondent : Ms S E Wisbey
Second Respondent : Ms S E Wisbey
Third Respondent : Ms S E Wisbey
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Third Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Beard v The State of Western Australia [2015] WASCA 74
Brewer v Bayens [2001] WASCA 37
Brown v The State of Western Australia [2010] WASCA 228
Garlett v Balic [2016] WASC 172
Harding v The State of Western Australia [2015] WASCA 27
Harrison v Hunter [2012] WASC 166
Hill v The State of Western Australia [2014] WASCA 150
House v The King (1936) 55 CLR 499
Langdon v Kelemete‑Leoli-McLean [2011] WASCA 26
Ninyette v Holmes [2015] WASC 287
Re The State of Western Australia; Ex parte Richards [2005] WASCA 176
Roberts v The State of Western Australia [2014] WASCA 239
Rowsell v The State of Western Australia [2015] WASCA 2
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v The State of Western Australia [2010] WASCA 82
Winmar v Clark [2015] WASC 314
BANKS-SMITH J:
Introduction
The appellant seeks leave to appeal against a total effective sentence of 17 months' imprisonment for six offences to which the appellant had pleaded guilty. The notice of appeal was filed out of time but the delay was short and explained and I extended the time for filing the notice. At the hearing, I also granted leave to amend the proposed grounds of appeal to include the ground which is now ground 3. The respondent did not oppose either of those orders.
4 January 2016 sentencing - circumstances of offending
On 4 January 2016, Magistrate Watt sentenced the appellant for separate offences of aggravated burglary and unlawful damage that were committed in 2015.
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- AGLC
- WILLIAMS v Pennuto [2016] WASC 325
- Case
- [2016] WASC 325
- Decision Date
CaseChat Overview and Summary
The key legal issues before the Court of Appeal were whether the trial judge had erred in imposing the sentence, and if so, whether such an error was significant enough to affect the overall sentence. The Court needed to consider the principle of totality, which requires that the cumulative sentence for multiple offences should not be excessive. Additionally, the Court had to assess whether the error in one of the sentences was material and whether it warranted a correction that might result in a different overall sentence.
The Court of Appeal found that the trial judge had indeed made an error in one of the sentences, which was not trivial. However, in applying the principle of totality, the Court determined that this error did not substantially impact the overall sentence. The Court held that the total sentence, when considering all offences together, was still within an appropriate range. Consequently, the appeal was dismissed, and the original sentence was upheld. The Court emphasised that the principle of totality ensures that the cumulative effect of multiple sentences is just and proportionate.
The final orders of the Court of Appeal were that the appeal was dismissed, and the original sentence imposed by the County Court remained in effect. The Court of Appeal did not alter the sentence but confirmed that the totality principle had been appropriately applied in this case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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