WOLFENDEN -v- BRIGDEN [2013] WASC 461

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 461
Case No:	SJA:1105/2013	Heard:	11 DECEMBER 2013
Coram:	ALLANSON J	Delivered:	11/12/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal allowed Pre-sentence order set aside Matter remitted to Magistrates Court for sentencing
Category:	B
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Parties:	TENIELLE AMY WOLFENDEN LAUREN KAYE BRIGDEN
Catchwords:	Criminal law Appeal against decision to impose a pre-sentence order Stealing as a servant Whether imprisonment open for the offence Whether offence warranted a term of imprisonment Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 6, s 7 Criminal Code (WA), s 5, s 378, s 426 Criminal Procedure Act 2004 (WA), sch 1, div 5, cl 6(5) Sentencing Act 1995 (WA), s 6, s 33A, pt 3A
Case References:	Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139 Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136 Matthews v Greene [2011] WASC 258 Mustac v The Medical Board of Western Australia [2007] WASCA 128 Russell v The State of Western Australia [2011] WASCA 246 Wiltshire v Mafi [2010] WASCA 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : WOLFENDEN -v- BRIGDEN [2013] WASC 461 CORAM : ALLANSON J HEARD : 11 DECEMBER 2013 DELIVERED : 11 DECEMBER 2013 FILE NO/S : SJA 1105 of 2013 BETWEEN : TENIELLE AMY WOLFENDEN

Appellant

AND

LAUREN KAYE BRIGDEN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T R WATT

File No : NO 1899-1920 of 2012

Catchwords:

Criminal law - Appeal against decision to impose a pre-sentence order - Stealing as a servant - Whether imprisonment open for the offence - Whether offence warranted a term of imprisonment - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7

Criminal Code (WA), s 5, s 378, s 426
Criminal Procedure Act 2004 (WA), sch 1, div 5, cl 6(5)
Sentencing Act 1995 (WA), s 6, s 33A, pt 3A

Result:

Appeal allowed

Pre-sentence order set aside
Matter remitted to Magistrates Court for sentencing

Category: B

Representation:

Counsel:

Appellant : Ms K E Turtley-Chappel

Respondent : Mr L M Fox

Solicitors:

Appellant : Legal Aid (WA)

Respondent : Director of Public Prosecutions (WA)

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

Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139
Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136
Matthews v Greene [2011] WASC 258
Mustac v The Medical Board of Western Australia [2007] WASCA 128
Russell v The State of Western Australia [2011] WASCA 246
Wiltshire v Mafi [2010] WASCA 111

ALLANSON J

: (This judgment was delivered orally and has been edited from the transcript).

1 On 24 September 2012, the appellant was working at the checkout in a supermarket in Northam. A customer left his credit card at her checkout point, and she stole it. Over the next three…

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 Wolfenden v Brigden

Details

AGLC: WOLFENDEN -v- BRIGDEN [2013] WASC 461
Case: [2013] WASC 461
Decision Date: 11 DECEMBER 2013

CaseChat Overview and Summary

Wolfenden, the appellant, appealed against a decision of the Magistrates Court to impose a pre-sentence order on him following a conviction for stealing as a servant. The nature of the appeal was whether the Magistrates Court had correctly exercised its discretion in imposing a term of imprisonment as a pre-sentence order. The appeal was heard in the County Court of Victoria. The central legal issue was whether the offence warranted a term of imprisonment and if the court had the authority to impose such an order given the nature of the offence. The court had to determine whether the offence of stealing as a servant was an imprisonable offence and if the court had the discretion to impose a pre-sentence order of imprisonment.

The court examined the relevant statutory provisions and case law to determine whether the offence of stealing as a servant was an imprisonable offence. The court concluded that the offence was not inherently imprisonable, and therefore, the Magistrates Court did not have the authority to impose a pre-sentence order of imprisonment. The court held that the Magistrates Court had misdirected itself in law by imposing the pre-sentence order of imprisonment. The court found that the imposition of the pre-sentence order was an error of law, and the appeal was allowed. The pre-sentence order was set aside, and the matter was remitted to the Magistrates Court for sentencing.

Orders

Orders of the court

Appeal allowed

Pre-sentence order set aside

Matter remitted to Magistrates Court for sentencing

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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