Bell (Dec) v The State of Western Australia

[2015] WASCA 236

BELL (Dec) -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 236

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 236
Court:	THE COURT OF APPEAL (WA)	Published:	24/11/2015
Case No:	CACR:7/2015	Heard:	23 OCTOBER 2015
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	23/10/15
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	MERVYN KENNETH DOUGLAS BELL (Dec) THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Appellant died before hearing Whether appeal has abated
Legislation:	Coroners Act 1996 (WA) Criminal Appeals Act 2004 (WA) Criminal Code (WA) Rules of the Supreme Court 1971 (WA) Sentencing Act 1995 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA)
Case References:	JS v The State of Western Australia [2014] WASCA 177 Quartermaine v The Queen [2002] WASCA 345 R v Jefferies [1969] 1 QB 120 Sen v The Queen (1991) 102 ALR 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BELL (Dec) -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 236 CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 23 OCTOBER 2015 DELIVERED : 23 OCTOBER 2015 PUBLISHED : 24 NOVEMBER 2015 FILE NO/S : CACR 7 of 2015 BETWEEN : MERVYN KENNETH DOUGLAS BELL (Dec)

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : McKECHNIE J

File No : INS 220 of 2013

Catchwords:

Criminal law - Appeal against sentence - Appellant died before hearing - Whether appeal has abated

Legislation:

Coroners Act 1996 (WA)

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Rules of the Supreme Court 1971 (WA)
Sentencing Act 1995 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Not applicable
Respondent : Mr J McGrath SC

Amicus Curiae : Mr S Vandongen SC

Solicitors:

Appellant : Not applicable
Respondent : Director of Public Prosecutions (WA)

Amicus Curiae : Mr S Vandongen SC

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

JS v The State of Western Australia [2014] WASCA 177
Quartermaine v The Queen [2002] WASCA 345
R v Jefferies [1969] 1 QB 120
Sen v The Queen (1991) 102 ALR 71



1 McLURE P: On 23 October 2015 the court ordered that the appellant's appeal against sentence be dismissed. These are my reasons for making that order.

2 The appellant was convicted after a trial by judge alone of one count of murder and one count of sexual penetration of a de facto child, for which offences he was sentenced to life imprisonment with a non-parole period of 27 years.

3 After commencing the appeal against sentence but before it was heard, the appellant died in Casuarina Prison on 8 September 2015. His death certificate is before the court. His death is subject to an inquest pursuant to s 22 of the Coroners Act 1996 (WA).

4 The appellant's counsel at the time of the commencement of the appeal, Mr Sam Vandongen SC, was given leave to appear as amicus curiae. Joint supplementary written submissions contended that the appeal against sentence abated upon the death of the appellant and should be dismissed.

5 An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derives solely from the governing legislation, in this case the Criminal Appeals Act 2004 (WA): JS v The State of Western Australia [2014] WASCA 177.

6 The Criminal Appeals Act does not expressly address the consequences of the death of an appellant after the commencement of an appeal against conviction or sentence but prior to its determination. The relevant rules, being the Supreme Court (Court of Appeal) Rules 2005 (WA) and the Rules of the Supreme Court 1971 (WA) are silent on the subject.

7 The appellant's appeal against sentence was commenced under pt 3 of the Criminal Appeals Act. Section 23(1) of the Criminal Appeals Act relevantly provides:

An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the offender or any order made as a result of the conviction.

8 The sentencing options are contained in s 39(2) of the Sentencing Act 1995 (WA). One sentencing option is the imposition of a fine. It is appropriate to confine consideration of the statutory framework by reference to an appeal against a sentence of imprisonment.

9 Section 23(1)(b) of the Criminal Appeals Act is the source of the appellant's right of appeal to this court. It is a personal, statutory right. There is no statutory provision extending the right to any other person. In the circumstances, on the appellant's death, no-one has standing to conduct the appeal against his sentence of imprisonment, whether for or on behalf of the appellant or otherwise. That conclusion is supported by the statutory scheme as a whole.

10 Section 31(5) contains this court's powers in the event it allows an appeal against sentence. The court may impose a new sentence that is either more or less severe, or send the charge back to the court that imposed the sentence to be dealt with further. Neither option is arguably appropriate in circumstances where the appeal relates to a term of imprisonment imposed on an offender who is deceased.

11 Section 41 identifies the court's powers once it has decided to impose a new sentence under s 31(5)(a). There is nothing in s 41 to undermine the conclusion relating to the inapplicability of s 31(5) in this case.

12 It follows that, on a proper construction of the Criminal Appeals Act as a whole, the appeal instituted by the appellant against his sentence of imprisonment abated upon his death. That conclusion is consistent with authority in this jurisdiction relating to the repealed s 688 of the Criminal Code (WA) (Quartermaine v The Queen [2002] WASCA 345) and in other jurisdictions (Sen v The Queen (1991) 102 ALR 71, R v Jefferies [1969]1 QB 120). Accordingly, the only proper course was to dismiss the appeal.

13 BUSS JA: I joined in the order made by the court on 23 October 2015 for the reasons to be published by McLure P.

14 MAZZA JA: I agree with McLure P.