Legal Research
Cases
Bedford v Binnekamp

Bedford v Binnekamp

Case [2021] WASC 299 30 August 2021

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BEDFORD -v- BINNEKAMP [2021] WASC 299
CORAM:   SMITH J
HEARD:   2 AUGUST 2021
DELIVERED          :   30 AUGUST 2021
FILE NO/S:   SJA 1023 of 2021
BETWEEN:   TODD JAMES BEDFORD
Appellant
AND
JOHN BINNEKAMP
Respondent

FILE NO/S: SJA 1024 of 2021
BETWEEN: TODD JAMES BEDFORD
Appellant
AND
PAUL HODGSON
First Respondent
JOHN BINNEKAMP
Second Respondent

ON APPEAL FROM:
For File No:   SJA 1023 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   RO 156 of 2019
For File No:   SJA 1024 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   RO 156 of 2019
RO 3154 of 2020

Catchwords:

Criminal Law - Appeal against sentence - Whether sentence of suspended imprisonment of 6 months and 1 day manifestly excessive for an offence of obstruct public officer when resentenced for a breach of conditional based order

Criminal Law - Appeal against sentence - Sections 9AA and 86 Sentencing Act 1995 (WA) - Whether sentencing magistrate failed to reduce a sentence of imprisonment because of a plea of guilty

Criminal Law - Appeal against sentence - Where a suspended imprisonment order is set aside on grounds of express error - Whether the suspended imprisonment order should be set aside retrospectively

Criminal Law

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Investigation (Identifying People) Act 2002 (WA)
Drugs Act 1981 (WA)
Public Transport Authority Regulations 2003 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Weapons Act 1999 (WA)

Result:

Appeals allowed
Suspended imprisonment order set aside retrospectively
Appellant resentenced

Category: B

Representation:

SJA 1023 of 2021

Counsel:

Appellant	:	N Sinton
Respondent	:	TBL Scutt

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

SJA 1024 of 2021

Counsel:

Appellant	:	N Sinton
First Respondent	:	TBL Scutt
Second Respondent	:	TBL Scutt

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
First Respondent	:	The Director of Public Prosecutions for The State of Western Australia
Second Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

Birch v Binnekamp [2018] WASC 58
Burrows v The State of Western Australia [2014] WASCA 147
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Djanghara v Law [2020] WASC 258
Drjeja v The State of Western Australia [2012] WASCA 151
Edwards v Collins [2018] WASC 119
GSO v The State of Western Australia [2021] WASCA 58
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Johnson v Vander Sanden [2021] WASCA 27
Krencej v The State of Western Australia [2019] WASCA 82
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26
Roberts v The State of Western Australia [2014] WASCA 239
Stevenson v Mackay [2020] WASC 437

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 Bedford v Binnekamp

Details

AGLC: Bedford v Binnekamp [2021] WASC 299
Case: [2021] WASC 299
Decision Date

CaseChat Overview and Summary

In SJA 1023 of 2021, the appellant seeks leave to appeal, out of time, a suspended sentence order imposed on 21 February 2020, and in SJA 1024 of 2021, the appellant seeks leave to appeal a sentence imposed on 15 March 2021 by a magistrate that the appellant serve 6 months of the term of imprisonment which had been suspended as a head sentence. The appellant seeks leave to appeal both sentences on the grounds that the sentences were manifestly excessive as to the type of sentence, and that the sentencing magistrate erred in imposing a sentence of imprisonment when the offending was not of such seriousness as to warrant such a sentence. Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding. The court found that the appeals should be allowed and that the sentences should be set aside. The appellant was resentenced for the offence of obstruct public officer and the offence of reckless driving.

In SJA 1023 of 2021, the court found that the sentencing magistrate erred in imposing a sentence of imprisonment of 6 months and 1 day suspended for 8 months for the offence of obstruct public officer. The court found that the suspended imprisonment order should be set aside and the appellant resentenced for the offence of obstruct public officer. In SJA 1024 of 2021, the court found that the magistrate erred in imposing a term of imprisonment of 6 months for the offence of reckless driving and in finding that it would not be unjust to order that the appellant serve 6 months of the suspended term of imprisonment imposed for the offence of obstruct public officer. The court found that the suspended imprisonment order should be set aside retrospectively together with the order that the appellant serve 6 months of the suspended term of imprisonment.

The court found that the starting point for a term of imprisonment for the offence of obstruct public officer was unreasonable and unjust. The court found that the starting point for a term of imprisonment for the offence of obstruct public officer would be a sentence of 6 months' imprisonment, which when a discount of 25% for an early plea of guilty is applied results in a term of 4 ½ months' (18 weeks') imprisonment. The court found that a term of 8 weeks and 3 days' imprisonment should be imposed for the offence of reckless driving, which when added to the sentence for the obstruct public officer offence is a total effective term of 26 weeks and 3 days' imprisonment (being a term of 6 months and 3 days' imprisonment). Because the appellant served 37 days in custody from 15 March 2021 until granted bail by this court on 20 April 2021, the court found that a lesser sentence than immediate imprisonment should be imposed. For this reason, the court suspended each of the terms of imprisonment imposed for the offences of obstruct public officer and reckless driving. Each term will be suspended for a period of 6 months.

Orders