Legal Research
Cases
WILLIAMS v Pennuto

WILLIAMS v Pennuto

Case [2016] WASC 325 10 October 2016

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

Type to search within this case.

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 Respondent
KELLIE DIANE LAMOND
Second Respondent
BLAIR 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
Bropho v Hall [2015] WASC 50
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.

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.

Continue reading WILLIAMS v Pennuto

Details

AGLC: WILLIAMS v Pennuto [2016] WASC 325
Case: [2016] WASC 325
Decision Date: 10 OCTOBER 2016

CaseChat Overview and Summary

The matter of Williams v Pennuto involved an appeal against the sentencing of the appellant, Williams, for multiple offences including aggravated assault. Williams was sentenced in the County Court and subsequently appealed to the Court of Appeal, arguing that an error in one of the sentences for his series of offences should be corrected. The Court of Appeal was tasked with determining whether the sentence imposed was appropriate and whether any error in one of the sentences warranted reconsideration in light of the totality of the sentences imposed.

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