BELL -v- VAN MAANEN [2005] WASC 108

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 108
Case No:	SJA:1078/2004	Heard:	26 APRIL 2005
Coram:	JENKINS J	Delivered:	1/06/05
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JASON EDWARD BELL PETER JASON VAN MAANEN
Catchwords:	Criminal law Appeal against sentence One count of burglary committed whilst on parole for prior offences including aggravated burglary Effect of a sentence of 15 months' imprisonment without parole eligibility concurrent with other sentences Whether the Magistrate intended the sentence to have that effect Relevance of balance of prior sentences that appellant was required to serve due to cancellation of parole order
Legislation:	Criminal Code (WA), s 401(2)(c) Sentence Administration Act 2003, s 67(1), s 69(1), s 69(5) Sentencing Act 1995 (WA), s 89(1), s 89(4)(d)
Case References:	Jarvis v The Queen (1993) 20 WAR 201 McLean v The Queen [1999] WASCA 209 State of Western Australia v Anderson [2004] WASCA 157 Garlett v The Queen (2000) 111 A Crim R 336 Harvey v Ingles (2004) 40 MVR 398 Herbert v The Queen [2003] WASCA 61 Kirby v The Queen [2003] WASCA 239 Lowndes v The Queen (1999) 195 CLR 665 Messiha v Royce [2004] WASCA 87 Nevermann v The Queen (1989) 43 A Crim R 347 Woods v Cecchele [2004] WASCA 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BELL -v- VAN MAANEN [2005] WASC 108 CORAM : JENKINS J HEARD : 26 APRIL 2005 DELIVERED : 1 JUNE 2005 FILE NO/S : SJA 1078 of 2004 MATTER : Justices Act 1902 BETWEEN : JASON EDWARD BELL

Appellant

AND

PETER JASON VAN MAANEN

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR P G MALONE SM

File No : PE 27088 of 2004

Result : Guilty of Burglary - 15 months' Imprisonment Imposed

(Page 2)

Catchwords:

Criminal law - Appeal against sentence - One count of burglary committed whilst on parole for prior offences including aggravated burglary - Effect of a sentence of 15 months' imprisonment without parole eligibility concurrent with other sentences - Whether the Magistrate intended the sentence to have that effect - Relevance of balance of prior sentences that appellant was required to serve due to cancellation of parole order

Legislation:

Criminal Code (WA), s 401(2)(c)

Sentence Administration Act 2003, s 67(1), s 69(1), s 69(5)
Sentencing Act 1995 (WA), s 89(1), s 89(4)(d)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr E J Cade

Respondent : Ms S M De Maio

Solicitors:

Appellant : Aboriginal Legal Service

Respondent : State Director of Public Prosecutions

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

Jarvis v The Queen (1993) 20 WAR 201
McLean v The Queen [1999] WASCA 209
State of Western Australia v Anderson [2004] WASCA 157

(Page 3)

Case(s) also cited:

Garlett v The Queen (2000) 111 A Crim R 336
Harvey v Ingles (2004) 40 MVR 398
Herbert v The Queen…

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 Bell v Van Maanen

Details

AGLC: Bell v Van Maanen [2005] WASC 108
Case: [2005] WASC 108
Decision Date

CaseChat Overview and Summary

Jason Edward Bell appealed against his sentence for burglary committed while on parole for prior offences, arguing that the Magistrate intended to add three months to his sentence but the effect of the 15-month concurrent sentence without parole eligibility extended his time in custody. The Court of Petty Sessions Magistrate sentenced Bell to 15 months' imprisonment concurrent with other sentences, declining to order parole eligibility. Bell's appeal was dismissed by Jenkins J of the Supreme Court of Western Australia. The court held that the Magistrate did not intend to add three months to the sentence but imposed a 15-month concurrent sentence which did not extend the total term Bell was liable to serve. The court also found that the sentence did not offend the totality principle, as the Magistrate considered the appellant's liability to serve the whole of the balance of the fixed term imposed on 6 November 2000. The appeal was dismissed.

Orders