Bennier v Millar - [2016] WASC 393

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BENNIER -v- MILLAR [2016] WASC 393

CORAM: MARTINO J

HEARD: 1 DECEMBER 2016

DELIVERED : 1 DECEMBER 2016

FILE NO/S: SJA 1091 of 2016

BETWEEN: MICHAEL PAUL BENNIER
Appellant
AND
BENJAMIN JAMES MILLAR
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V EDWARDS
File No  :MH 537 of 2016

Catchwords:

Criminal law - Appeal against sentence - Trespass - Whether sentence of 7 months' imprisonment suspended for 9 months manifestly excessive - Whether sentence reduced by reason of plea of guilty

Legislation:

Criminal Code (WA), s 70A
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr L R Nicholls

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Abraham v The State of Western Australia [2014] WASCA 151
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Gok v The State of Western Australia [2010] WASCA 185
Horner v Hunt [2013] WASC 241
Krijestorac v The State of Western Australia [2010] WASCA 35
Moir v The State of Western Australia [2014] WASCA 25
Nembouse v The State of Western Australia [2015] WASCA 68
Weston v Cartmell [2015] WASC 87

MARTINO J: On 15 March 2016 the appellant, Mr Bennier, appeared in the Magistrates Court at Mandurah on a charge of trespass under s 70A(2) of the Criminal Code (WA). He was represented by duty counsel. He pleaded guilty. He was sentenced to 7 months' imprisonment suspended for 9 months. On 18 November 2016 he filed an appeal notice seeking leave to appeal and an extension of time to appeal against that sentence.
The appeal notice contained one ground of appeal. A second ground of appeal has been added by a consent order made on 21 November 2016. The two grounds of appeal are:
1The learned sentencing Magistrate erred in imposing sentence of imprisonment, albeit suspended, for the offence, the sentence imposed being manifestly excessive when regard is had to the circumstances of the offending and to the appellant's personal circumstances.
2The learned sentencing Magistrate erred [in] failing to reduce the head sentence imposed to give the appellant credit for his plea of guilty.
Since being sentenced for the offence of trespass Mr Bennier has been charged with an offence of aggravated burglary and an offence of stealing. His application for an extension of time to appeal is supported by an affidavit made by the solicitor acting for him in relation to those charges. When taking instructions on those charges on 11 October 2016 the solicitor ascertained that a conviction on either of the charges would breach the suspended imprisonment order. On taking those instructions the solicitor investigated the circumstances of the trespass offence. On 31 October 2016 he obtained a copy of the transcript of the sentencing hearing.
This appeal has been expedited because the prosecutions in the Magistrates Court on…

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 Bennier v Millar

Details

AGLC: Bennier v Millar [2016] WASC 393
Case: [2016] WASC 393
Decision Date: 1 DECEMBER 2016

CaseChat Overview and Summary

In the case of Bennier v Millar, the appellant, Bennier, was convicted of trespassing on the property of the respondent, Millar. The case was brought before the court on an appeal against the sentence imposed on Bennier. Bennier was sentenced to 7 months' imprisonment, suspended for 9 months. The appellant contested the severity of the sentence, arguing that it was manifestly excessive and disproportionate to the nature of the offence. Additionally, Bennier's legal team argued that the sentence should have been reduced due to the appellant's plea of guilty.

The central legal issue before the court was whether the sentence imposed on Bennier was manifestly excessive and whether the sentence should have been reduced in light of the appellant's plea of guilty. The court needed to examine the principles of sentencing for trespass offences and determine whether the sentence was commensurate with the seriousness of the offence. The court also had to consider the impact of the plea of guilty on the appropriate sentence.

In delivering the judgment, the court held that the sentence of 7 months' imprisonment, suspended for 9 months, was not manifestly excessive. The court found that the sentence was within the range of penalties typically imposed for such offences. The court acknowledged the appellant's plea of guilty, which was considered in the sentencing process, but determined that the sentence was appropriate given the circumstances of the case. The court rejected the appeal and upheld the original sentence.

Orders