WUNGUNDIN -v- BARNDON [2013] WASC 28

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 28
Case No:	SJA:1146/2012	Heard:	25 JANUARY 2013
Coram:	McKECHNIE J	Delivered:	25/01/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence of imprisonment quashed Fine imposed
Category:	B
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Parties:	STEVEN WUNGUNDIN WADE TREVOR BARNDON
Catchwords:	Criminal law Sentencing Assault in domestic relationship Prior offences No real injury Drunkenness made manifest Imprisonment last resort No new principles
Legislation:	Nil
Case References:	Harrison v Hunter [2012] WASCA 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : WUNGUNDIN -v- BARNDON [2013] WASC 28 CORAM : McKECHNIE J HEARD : 25 JANUARY 2013 DELIVERED : 25 JANUARY 2013 FILE NO/S : SJA 1146 of 2012 BETWEEN : STEVEN WUNGUNDIN

Applicant

AND

WADE TREVOR BARNDON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S R MALLEY

File No : DY 613 of 2012

Catchwords:

Criminal law - Sentencing - Assault in domestic relationship - Prior offences - No real injury - Drunkenness made manifest - Imprisonment last resort - No new principles

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Sentence of imprisonment quashed
Fine imposed

Category: B

Representation:

Counsel:

Applicant : Ms N R Sinton

Respondent : Ms J N Harman

Solicitors:

Applicant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

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

Harrison v Hunter [2012] WASCA 166

(Page 3)

1 McKECHNIE J: In the early hours of 30 March 2012 the appellant, then aged 38, and his wife of many years were staying in Derby. They were lying together on a rug when, after an argument, the appellant hit his wife with a closed fist in the ribs from the rear. The says this was because: 'She was jealousing me and I don't like it'.

2 He had done this sort of thing before, having been convicted three times of assaulting his wife. An ambulance was called because the victim felt strong pain and shortness of breath, but she was cleared of injury at the hospital.

3 He did not appear in court until 7 November 2012. He pleaded guilty to unlawful assault in circumstances of aggravation, namely the accused and the victim are in a domestic relationship.

4 The magistrate sentenced him to 8 months' imprisonment, reducing the sentence from 12 months, presumably for the plea of guilty. He said:

Mr Wungundin, for those who behave like this and persistently behave like this, I have to send a very strong message to the community that they will not be tolerated and simply repeat offenders who continue to assault their partners, as I say, once is unforgivable but more than one requires, in my view, the strongest form of deterrent whether it be - you say, 'Well, it's at the lower end of the scale'. Well, it's the lower end of the scale depending on whether you're the giver or the receiver. If you're…

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 Wungundin v Barndon

Details

AGLC: Wungundin v Barndon [2013] WASC 28
Case: [2013] WASC 28
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Steven Wungundin, the appellant, filed an appeal against Wade Trevor Barndon, the respondent, contesting the sentence imposed by the Magistrates Court of Western Australia. The appellant had been found guilty of unlawful assault in a domestic relationship and was sentenced to eight months' imprisonment. The appeal raised issues regarding the appropriateness of the sentence, particularly in light of the nature of the offence and the appellant's history of similar conduct. The court was tasked with determining whether the sentence was excessive given the circumstances, including the lack of serious injury and the appellant's repeated history of violence against his partner.

The court examined the principles of sentencing, focusing on the need for punishment, deterrence, and the circumstances of the offence. The magistrate's decision to impose immediate imprisonment was based on the need for strong deterrence against repeat domestic violence. However, the court considered whether the sentence was proportionate to the offence, which involved a single punch causing temporary pain but no lasting injury, within a relationship marked by recurring violence and reconciliation. The sentencing act in Western Australia stipulates that imprisonment should be a last resort, and the court needed to assess whether this principle had been properly applied in this case.

The Supreme Court found that the sentence imposed was manifestly excessive. Given the nature of the assault and the lack of serious injury, the court concluded that imprisonment was not warranted. The court allowed the appeal, setting aside the term of imprisonment and imposing a nominal fine of $50, considering the appellant had already served nearly two months in custody, which was deemed sufficient punishment. The court's decision emphasized the need to balance the principles of deterrence and punishment with the specific facts and circumstances of the offence.

Orders