Bernard v WILLIAMS - [2015] WASC 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BERNARD -v- WILLIAMS [2015] WASC 182

CORAM: ALLANSON J

HEARD: 30 APRIL 2015

DELIVERED : 30 APRIL 2015

FILE NO/S: SJA 1031 of 2015

BETWEEN: JEAN-AIME BERNARD
Appellant
AND
ROSS JAMES WILLIAMS
First Respondent
SCOTT JAMES ANDREWS
Second Respondent
DAVID CHRISTOPHER WHELAN
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S RICHARDSON
File No  :PE 5817 of 2015, PE 5822 of 2015, RO 812 of 2015

Catchwords:

Criminal law - Correction of sentence on court's own motion - No opportunity to be heard - Correction invalid

Criminal law - Appeal against sentence - Breach of restraining order - Whether immediate imprisonment appropriate

Legislation:

Criminal Appeals Act 2004 (WA)
Magistrates Court Act 2004 (WA), s 36, s 36(4), s 36(6)
Restraining Orders Act 1997 (WA), s 61A, s 61A(5), s 61A(6)
Sentencing Act 1995 (WA), s 9AA, s 15, s 37, s 37(1), s 37(2), s 86

Result:

Appeal allowed
Term of imprisonment set aside
Fine imposed

Category: B

Representation:

Counsel:

Appellant:     Ms N R Sinton
First Respondent          :     Mr B D Nelson
Second Respondent      :     Mr B D Nelson
Third Respondent        :     Mr B D Nelson

Solicitors:

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

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

Hamlett v Whitney [2013] WASC 100
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
The State of Western Australia v JWRL [2010] WASCA 179
Wallam v Grosveld [2015] WASC 145
ALLANSON J:
(This judgment was delivered extemporaneously and has been edited from the transcript)

On 18 March 2015, Mr Bernard pleaded guilty in the Magistrates Court at Rockingham to two charges alleging that he breached a violence restraining order (VRO). The first was that between 1 December 2014 and 29 January 2015 he breached the order by living with the protected person. And, second, on 30 January 2015 he breached the order by being within a hundred metres of the protected person (in fact in the same house as her).
On 18 March 2015, Mr Bernard was also to be dealt with for an earlier breach, which was committed on 27 January 2015, again, alleging that he was within a hundred metres of the protected person. He committed the offence by attending and remaining at the protected person's address. There is an overlap between this last mentioned breach and the offence committed over the period 1 December 2014 to 29 January 2015. The court record shows that Mr Bernard had appeared in court on 27 January 2015, and pleaded guilty on 28 January 2015 to that earlier offence.
It was not in dispute that Mr Bernard came within s 61A of the Restraining Orders Act 1997 (WA) because he had been convicted of earlier breaches. On 6 May 2014 he was convicted on two counts of…

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 Bernard v WILLIAMS

Details

AGLC: Bernard v WILLIAMS [2015] WASC 182
Case: [2015] WASC 182
Decision Date: 30 APRIL 2015

CaseChat Overview and Summary

The matter of Bernard versus Williams was heard in the court where Bernard appealed against the sentence imposed for breaching a restraining order. The sentence involved an immediate imprisonment term. Williams, as the respondent, did not contest the appeal on its merits but raised issues about the procedure followed by the court when it corrected the sentence on its own motion without Bernard being given an opportunity to be heard. Williams argued that this procedural error rendered the correction invalid, and consequently, the entire sentence was flawed.

The central legal issues before the court were whether the failure to provide Bernard with an opportunity to be heard before correcting the sentence rendered the correction invalid and, if so, what implications this had for the appropriateness of the immediate imprisonment term. The court had to determine whether the procedural irregularity was significant enough to invalidate the entire sentence or if it could be considered harmless error.

The court acknowledged the importance of procedural fairness in criminal sentencing, noting that any irregularity that denied a party the opportunity to be heard could potentially undermine the fairness of the process. However, the court found that the irregularity in this case was not so significant as to invalidate the entire sentence. The court held that the irregularity did not affect the substantive outcome of the sentence and thus was a harmless error. Consequently, the court upheld the immediate imprisonment term as appropriate given the nature of the breach of the restraining order.

The court dismissed the appeal and affirmed the original sentence. The judgment confirmed that while procedural fairness is crucial, not all procedural errors necessitate the setting aside of a sentence. The court's decision underscored the importance of balancing procedural requirements with the need to deliver just outcomes in criminal cases.

Orders