Anderson v WA Police - [2023] WASC 470

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ANDERSON -v- WA POLICE [2023] WASC 470
CORAM:   WHITBY J
HEARD:   8 DECEMBER 2023
DELIVERED          :   8 DECEMBER 2023
FILE NO/S:   SJA 1087 of 2023
BETWEEN:   KERRY DAWN ANDERSON
Appellant
AND
WA POLICE
Respondents

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A MATTHEWS
File Number            :   PE 43229/2021, PE 43230/2021, PE 32951/2022, PE 13018/2023 & PE 28462/2023

Catchwords:

Single judge appeal - Error of law occasioned by failure to state extent of reduction of sentence pursuant to s 9AA(5) of the Sentencing Act 1995 - Lesser sentence would have been imposed - Miscarriage of justice occurred

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Sentences set aside and new sentence imposed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondents	:	E A Heywood

Solicitors:

Appellant	:	In Person
Respondents	:	State Solicitor's Office

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

House v R [1936] HCA 40; (1936) 55 CLR 499
Martino v State of Western Australia [2006] WASCA 78
Nang & Associates Pty Ltd v Chan [2022] WASC 12
Samuels v The State of Western Australia [2005] WASCA 193

WHITBY J:

(This judgment was delivered extemporaneously on 8 December 2023 and has been edited from the transcript.)

Introduction

On 1 March 2023, the appellant was sentenced to 3 months imprisonment, conditionally suspended for 10 months in respect of two offences of common assault (PE 43229/2021 and PE 43230/2021) and to 7 months imprisonment, conditionally suspended for 10 months, in respect of one offence of common assault (PE 32951/2022) (together the Initial Offences).
On 15 March 2023, the appellant was charged with common assault in circumstances of aggravation, namely that the victim was over 60 years old (PE 13018/2023). The appellant entered a plea of guilty and was released on bail.
On 6 June 2023, the appellant was charged with a further common assault (PE 28462/2023) and was remanded in custody. On 4 July 2023, the appellant pleaded guilty to this offence, thereby breaching her conditional suspended imprisonment order (CSIO) for the Initial Offences.
On 17 August 2023, the appellant entered a plea of guilty to PE 13018/2023 and a conviction was entered.
On 14 September 2023, the appellant was sentenced to a total effective sentence of an immediate term of imprisonment of 6 months and 1 day in respect of the Initial Offences, PE 13018/2023 and PE 28462/2023. The sentence commenced on 14 September 2023 and the appellant was made eligible for parole. The appellant is eligible for release on parole on 14 December 2023. Her sentence expiry date is 14 March 2024.
The appellant has been in custody since 6 June 2023.
The appellant now appeals the sentence imposed on 14 September 2023.
On 7 November 2023, a registrar of this court made an order for the application for leave to appeal to be heard together with the appeal, and on…

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.

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Details

Case: [2023] WASC 470
Decision Date: 8 DECEMBER 2023

CaseChat Overview and Summary

In the case of Anderson v WA Police, the appellant sought leave to appeal from a decision made by the District Court of Western Australia. The appellant, Anderson, was convicted and sentenced for various criminal offences. The primary dispute centred around the alleged error of law committed by the sentencing court, which was believed to have occurred due to the failure to adequately state the extent of the sentence reduction pursuant to section 9AA(5) of the Sentencing Act 1995. Anderson contended that had the court correctly applied the relevant statutory provisions, a lesser sentence would have been imposed, leading to a miscarriage of justice.

The legal issues before the court involved interpreting the statutory provisions of section 9AA(5) of the Sentencing Act 1995 and determining whether the sentencing court had erred in its application of these provisions. The court was required to assess whether the sentencing court's failure to explicitly state the extent of the sentence reduction amounted to an error of law and whether this error led to a miscarriage of justice, warranting an appeal. The central issue was whether the sentence imposed by the District Court was consistent with the statutory framework and the appellant's entitlement to a fair sentencing process.

The court held that the sentencing court indeed made an error of law by not explicitly stating the extent of the sentence reduction under section 9AA(5) of the Sentencing Act 1995. This omission was deemed significant as it prevented the appellant from understanding the precise nature of the sentence imposed and the reasons behind it. The court concluded that this error of law constituted a miscarriage of justice because a lesser sentence would have been imposed had the court correctly applied the statutory provisions. Consequently, the appeal was allowed, and the case was remitted back to the sentencing court for reconsideration of the sentence in light of the correct application of the relevant law. The court's decision underscored the importance of accurately stating the extent of sentence reductions to ensure transparency and fairness in the sentencing process.

Orders