Barnett v Skehan

[2021] WASC 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BARNETT -v- SKEHAN [2021] WASC 53

CORAM:   MCGRATH J

HEARD:   25 FEBRUARY 2021

DELIVERED          :   5 MARCH 2021

FILE NO/S:   SJA 1091 of 2020

BETWEEN:   TANYA LESLYE BARNETT

Appellant

AND

DWAYNE SKEHAN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE TAVENER

File Number            :   MI 9266 of 2020

Catchwords:

Criminal law - Appeal against sentence - Creating a false belief - Whether sentence manifestly excessive - Express error of law - Punishment for uncharged acts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 171(1) and s 171(2)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA, s 39(2), s 39(3), s 76(1) and s 76(2)

Result:

Leave to appeal on grounds 1 and 2 refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Ms M J Ajduk
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Ashford v The State of Western Australia [No 2] [2016] WASCA 222

Cartwright v The State of Western Australia [2010] WASCA 4

Chan v The Queen (1989) 38 A Crim R 337

Jaw v The State of Western Australia [2012] WASCA 7

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

R v De Simoni (1981) 147 CLR 383

Rhatigan v Forbes [2009] WASC 368

Roberts v The State of Western Australia [2014] WASCA 239

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Webb v Savage [2007] WASC 103

Wiltshire v Mafi [2010] WASCA 111

MCGRATH J:

1. The appellant was convicted, upon her own plea, of one offence of creating a false belief contrary to s 171(2) of the Criminal Code (WA). The learned magistrate imposed a 7 month term of imprisonment conditionally suspended for 9 months. The appellant now seeks leave to appeal the sentence on two grounds. Firstly, the appellant contends that the learned magistrate erred in law by treating uncharged acts as separate offences for sentencing purposes and secondly, that the sentence imposed was manifestly excessive.

2. For the following reasons, I have determined that leave to appeal is not granted and the appeal is dismissed.

3. In these reasons for decision, I will consider the following:

   1.The Magistrates Court proceedings.

   2.The grounds of appeal.

   3.An assessment of the merits of the appeal. 

The Magistrates Court proceedings

1. The prosecution notice lodged on 14 August 2020 pleaded that on 4 July 2020 the appellant unlawfully made an emergency call with the intention of creating a false belief or suspicion, namely a belief or suspicion that human safety was or may have been endangered, contrary to s 171(2) of the Criminal Code.[1]

   [1] Prosecution notice lodged 14 August 2020,…