Benck v Wilkinson - [2022] WASC 229

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   BENCK -v- WILKINSON [2022] WASC 229
CORAM:   DERRICK J
HEARD:   ON THE PAPERS
DELIVERED          :   18 JULY 2022
FILE NO/S:   SJA 1047 of 2022
BETWEEN:   SAMUEL BARRY BENCK
Appellant
AND
JAMES WILKINSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E CAMPIONE
File Number            :   PE 49431 of 2020, PE 49432 of 2020, PE 49435 of 2020

Catchwords:

Criminal law - Appeal against sentence - Failure by magistrate to order under s 87(1)(a)(ii), 87(1)(b) and s 87(1)(d) of the Sentencing Act 1995 (WA) the backdating of the commencement date of a sentence of immediate imprisonment imposed on the appellant to take account of time spent in custody by the appellant for another offence while on bail for the offences for which he was sentenced

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment Act 2016 (WA)

Result:

Application for leave to appeal allowed
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Not applicable
Respondent	:	Not applicable

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	State Solicitor's Office

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

Harding v The State of Western Australia [2015] WASCA 27
Harper v Page [2004] WASCA 267
Hiemstra v The State of Western Australia [2021] WASCA 96
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Neach v Hobbs [2021] WASC 135
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Willenberg v Downey [2015] WASC 282

Introduction

By an appeal notice dated 30 May 2022, the appellant applied for leave to appeal against a total effective sentence of 7 months immediate imprisonment imposed on him by Magistrate Campione for one offence of failing to comply with a direction to stop in a circumstance of aggravation contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA) (PE 49431/2020), one offence of driving without authority contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (RTA) (PE 49432/2020) and one offence of reckless driving to escape pursuit by police contrary to s 60(1A)(b) of the RTA (PE 49435/2020) (offences).[1] The sole ground of appeal was expressed in the following terms:[2]
The learned Magistrate erred in the exercise of discretion by failing to take into account time that the Appellant had spent in custody for another offence, while on bail for the offences for which the Appellant was sentenced pursuant to s 87(1) of the Sentencing Act 1985 which resulted in the Appellant suffering a miscarriage of justice.[3]
[1] The application was made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
[2] By reason of s 6(f), s 7(1) and s 8(1)(b) of the CAA a person who is aggrieved by a sentence imposed by a magistrate may appeal against the sentence imposed…

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 Benck v Wilkinson

Details

AGLC: Benck v Wilkinson [2022] WASC 229
Case: [2022] WASC 229
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appellant, Samuel Barry Benck, appealed against the sentence imposed on him by Magistrate Campione. The appellant was sentenced to a total effective sentence of 7 months immediate imprisonment for three separate offences. The sole ground of appeal was that the magistrate erred in failing to take into account the time the appellant had spent in custody for another offence while on bail for the offences for which he was sentenced. The respondent conceded the ground of appeal, leading to the allowance of the appellant's application for leave to appeal and the appeal itself. The court considered the matter on the papers and exercised its discretion to backdate the commencement date of the appellant's sentence by 243 days, taking into account the time spent in custody for the other offence. The effect of this decision was that the appellant, assuming he had been granted bail for the other charge, was to be released from prison forthwith.

The court examined the magistrate's sentencing remarks and found that there was a reasonable possibility that the magistrate had made an error of law by not considering the time spent in custody under the correct section of the Sentencing Act. The court noted that the magistrate might have been relying on a previous version of the Act that no longer existed. Given the concession by the respondent, the court exercised its discretion afresh and determined that it was appropriate to backdate the commencement date of the appellant's sentence by 243 days. The court also noted that if the appellant was ultimately acquitted of the other charge, the time spent in custody would be "wasted" if not taken into account.

Orders