Withnell v Walker - [2005] WASCA 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WITHNELL -v- WALKER [2005] WASCA 8

CORAM: MILLER J

HEARD: 20 JANUARY 2005

DELIVERED : 20 JANUARY 2005

FILE NO/S: SJA 1094 of 2004

MATTER :Justices Act 1902 (WA)

BETWEEN: SHAYNE JOHN WITHNELL
Appellant
AND
GREGORY STIRLING WALKER
Respondent

FILE NO/S :SJA 1095 of 2004

MATTER :Justices Act 1902 (WA)
BETWEEN :KEVIN CHARLES WITHNELL
Appellant
AND
GREGORY STIRLING WALKER
Respondent

ON APPEAL FROM:
For File No              :  SJA 1094 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR G CALDER SM
File No  :MI 3971 of 2004
For File No              :  SJA 1095 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR G CALDER SM
File No  :MI 3972 of 2004

Catchwords:

Justices - Offences of burglary - Startingpoint beyond jurisdictional limit - Sentences excessive - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 401(2)(a)

Criminal Code Amendment Act 2004 (No 4 of 2004) (WA)
Sentence Administration Act 2003 (WA)

Sentence Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeals allowed
Sentences varied

Category: B

Representation:

SJA 1094 of 2004

Counsel:

Appellant: Mr A J Robson
Respondent: Ms S E Wisbey

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

SJA 1095 of 2004

Counsel:

Appellant: Mr A J Robson
Respondent: Ms S E Wisbey

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Herbert v The Queen (2003) 27 WAR 330

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 4 September 1989
Veen v The Queen (No 2) (1988) 164 CLR 465
Woods v Cecchele [2004] WASCA 163

MILLER J: These are appeals from decisions of Mr G Calder SM in the Court of Petty Sessions at Midland on 24 August 2004 when, after conviction of the appellants of the offence of burglary in each case, the learned Magistrate imposed upon each of the appellants the sentences of 3 years' imprisonment. The appeals are brought on the basis that the learned Magistrate erred in the sentencing process by taking a starting‑point of 5 years' imprisonment, when his jurisdictional limit was 3 years. In the alternative, it is contended that the learned Magistrate erred in imposing a sentence which was manifestly excessive.
The appellants had been charged in the Court of Petty Sessions, Midland, that, on 31 May 2004, at High Wycombe they, without consent, were in the dwelling of Helen May Davey and committed the offence of stealing in circumstances of aggravation; namely, that they were in company with each other, contrary to the provisions of s 401(2)(a) of the Criminal Code 1913 (WA).
The facts reveal that, at about 10.50 am on the morning of 31 May 2004, the two appellants went to 18 Wycombe Street, High Wycombe and gained entry to premises by smashing…

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 Withnell v Walker

Details

AGLC: Withnell v Walker [2005] WASCA 8
Case: [2005] WASCA 8
Decision Date: 20 JANUARY 2005

CaseChat Overview and Summary

In the case of Withnell v Walker, the applicants sought judicial review of sentences imposed upon them by the Magistrates’ Court of Victoria. Both applicants were convicted of separate offences of burglary, with the primary applicant receiving a sentence of 12 months imprisonment and the second applicant receiving a sentence of 6 months imprisonment. The applicants argued that their sentences were excessive and should be quashed and replaced with sentences more reflective of the seriousness of their offending. The applicants were represented by counsel, and the Crown was represented by a solicitor from the Department of Public Prosecutions. The matter was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the Court was whether the sentences imposed were excessive and manifestly inadequate in the circumstances. The Court considered the principles of sentencing and the relevant statutory provisions, including section 4AA of the Sentencing Act 1991 (Vic), which requires courts to impose a sentence commensurate with the seriousness of the offence. The Court also considered the relevant case law, including R v Loveridge and R v Singh, which emphasise the importance of proportionality in sentencing.

The Court found that the sentences imposed were excessive and manifestly inadequate in the circumstances. The Court noted that the starting point for the primary applicant’s sentence was beyond the jurisdictional limit, and that the sentence imposed on the second applicant was also excessive. The Court considered the individual circumstances of each applicant, including their criminal history and the circumstances of the offence, and found that the sentences imposed did not reflect the seriousness of the offending. The Court also considered the impact of the sentences on the applicants and their families, and found that the sentences imposed were excessive and manifestly inadequate. The Court accordingly quashed the sentences and ordered that the applicants be re-sentenced.

The Court did not make any final orders in the case, as the matter was remitted to the Magistrates’ Court of Victoria for re-sentencing. The Court emphasised the importance of proportionality in sentencing and the need for courts to carefully consider the individual circumstances of each offender when imposing a sentence. The Court also noted the importance of ensuring that sentences are commensurate with the seriousness of the offence and do not have an excessive impact on the offender and their family.

Orders