ANASTASIO v Mulroy

[2014] WASC 151

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   ANASTASIO -v- MULROY [2014] WASC 151

CORAM:   JENKINS J

HEARD:   9 APRIL 2014

DELIVERED          :   9 APRIL 2014

PUBLISHED           :  30 APRIL 2014

FILE NO/S:   SJA 1021 of 2014

BETWEEN:   VINCENZO ANASTASIO

Appellant

AND

ASHLEY JAY MULROY
OWEN MICHAEL RUCK
SCOTT GRAHAM STARKIE
Respondents

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE B C GLUESTEIN

File No  :JO 9236 of 2013, JO 9237 of 2013, PE 59808 of 2013, PE 59809 of 2013, PE 59811 of 2013, PE 59814 of 2013, PE 61257 of 2013, PE 61258 of 2013

Catchwords:

Criminal law - Appeal - Sentencing - Failure to take into account time spent in custody on remand - Sentence backdated

Legislation:

Sentencing Act 1995 (WA), s 87

Result:

Leave to appeal granted
Appeal allowed
Sentences backdated to commence on 20 November 2013

Category:    B

Representation:

Counsel:

Appellant:     Mr C J Miocevich

Respondents                 :     Ms T J McArthur

Solicitors:

Appellant:     C & G Miocevich Law Offices Pty Ltd

Respondents                 :     Director of Public Prosecutions (WA)

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

Nil

JENKINS J: 

(This judgment was delivered extempore on 9 April 2014 and has been edited from the transcript).

1. This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Perth on 31 December 2013.  The appeal is in respect of a number of sentences which the magistrate imposed for eight different offences.  The appellant had pleaded guilty to the charges on 30 December 2013 before the same magistrate.  The magistrate had then adjourned sentencing to the following day and ordered an oral pre sentence report.  On the following day, 31 December 2013, the magistrate heard the oral pre sentence report, heard the appellant who was unrepresented and proceeded to sentence.

2. The magistrate imposed separate periods of imprisonment in respect of the offences.  The total aggregate sentence imposed was one of 20 months' imprisonment.  The 20 months was comprised of the following separate sentences:

   (1)12 months' imprisonment on prosecution notice Perth 59809 of 2013 for one count of aggravated burglary;

   (2)4 months' imprisonment, cumulative, on prosecution notice Perth 59808 of 2013 for an offence of stealing; and

   (3)4 months' imprisonment, cumulative, on prosecution notice Perth 59811 of 2013 for an offence of stealing a motor vehicle.

3. There were concurrent sentences as follows:

   (4)2 months' imprisonment on prosecution notice Joondalup 9236 of 2013 for breaching a police order;

   (5)2 months' imprisonment on prosecution notice Joondalup 9237 of 2013 for breaching another police order;

   (6)4 months' imprisonment on prosecution notice Perth 59814 of 2013 for breaching a protective bail condition;

   (7)4 months' imprisonment on prosecution notice Perth 61257 of 2013 for fraud; and

   (8)4 months' imprisonment on prosecution notice Perth 61258 of 2013 for attempted fraud.

4. The appellant was made eligible for parole.

5. The sole ground of appeal is that the learned magistrate erred in law and fact by failing to consider or take into account the fact that the appellant had been in custody since 20 November 2013.  The particulars of that ground are:

   (1)that the appellant was arrested on 20 November 2013 and was refused bail on 21 November 2013;

   (2)that the appellant remained on remand until his sentence on 31 December 2013 when he became a sentenced prisoner; and

   (3)in sentencing the learned magistrate made no comment in relation to the time on remand and appears to have overlooked this time.

6. The respondents concede the appeal.

7. The transcript of proceedings before the magistrate does not reveal that the magistrate was told how long the appellant had been in custody on remand.  The magistrate did not make any comment, either expressly taking into account time spent on remand or, inferentially, taking into account time spent on remand.  Taking into account everything that was said on both 30 December 2013 and 31 December 2013 in the court and taking into account each of the prosecution notices and what is written or not written on them, I am satisfied that the magistrate did not take into account the time that the appellant had spent on remand when he imposed the sentences for these offences.  I am satisfied that that was an error in fact and in law.

8. The Sentencing Act 1995 (WA) s 87 provides that a court can take time spent on remand for the offences for which an offender is being sentenced into account by reducing the term of imprisonment that would otherwise be imposed or by backdating sentences. As I have said, the magistrate did not do either in this case. It is appropriate that the appellant be given credit for that time.

9. My orders are:

   (1)leave to appeal be granted on the sole ground of appeal;

   (2)the appeal be allowed; and

   (3)the sentences imposed by the magistrate be backdated to commence on 20 November 2013, the date that the appellant went into custody.