Carroll v The State of Western Australia

[2012] WASCA 244

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CARROLL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 244

CORAM:   McLURE P

PULLIN JA
MAZZA JA

HEARD:   8 & 20 NOVEMBER 2012

DELIVERED          :   20 NOVEMBER 2012

FILE NO/S:   CACR 239 of 2012

CACR 141 of 2012

BETWEEN:   ANDREW CARROLL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :CURTHOYS DCJ

File No  :IND GER 10 of 2012

Catchwords:

Criminal law - Appeal against conviction and sentence - Appellant committed for sentence in District Court - Appellant sentenced without indictment being put to him, and without plea being taken, as required by s 99(2) of Criminal Procedure Act 2004 (WA)

Legislation:

Criminal Code (WA), s 321
Criminal Procedure Act 2004 (WA), s 99

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr P G Giudice & Ms F Sellers

Respondent:     Mr J McGrath SC

Solicitors:

Appellant:     George Giudice Law Chambers

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. JUDGMENT OF THE COURT: The background to this matter is as follows. On 2 February 2012 the appellant appeared in the Magistrates Court in Geraldton and indicated a plea of guilty to one count of sexual penetration of a child over the age of 13 and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA). It was the subject of charge number GN4609 of 2011. He was committed to appear in the District Court in Geraldton.

2. On 17 May 2012 the appellant appeared before Curthoys DCJ.  Appearances were taken and the prosecutor informed the court that the State was ready to proceed.  What ought to have then occurred was for the indictment to be put to the appellant and his plea taken.  However, that did not occur.  Instead, the prosecutor proceeded to read the statement of material facts and the appellant's counsel delivered a plea in mitigation.  The prosecutor also made oral sentencing submissions.  His Honour then proceeded to sentence the appellant that same day.  His Honour stated at the commencement of his sentencing remarks:

   You have been convicted on your plea of guilty on an expedited basis to an indictment dated 5 April 2012.

3. The appellant was sentenced to a term of 2 years' imprisonment and made eligible for parole.  There is a Certificate of Final Outcome of Charge dated 18 May 2012 signed by the Clerk of Arraigns and the sentencing judge that confirmed the conviction.

4. The appellant appealed against his sentence of 2 years' imprisonment in CACR 141 of 2012 (the sentence appeal). However, at no time was the indictment put to the appellant as is required by s 99(2) of the Criminal Procedure Act 2004 (WA). No plea was taken to the indictment and nor was a judgment of conviction entered.

5. On this omission being raised by the respondent in the sentence appeal, the appellant filed an appeal against his conviction and sentence (CACR 239 of 2012).

6. The respondent has conceded, correctly in our view, that as a result of the failure to comply with s 99(2) of the Criminal Procedure Act, Curthoys DCJ did not have jurisdiction to sentence the appellant.

7. Accordingly, the court has made the following orders:

CACR 239 of 2012

1.Extension of time to appeal against conviction and sentence granted.

2.Leave to appeal granted.

3.Appellant's appeal against conviction be allowed and any purported or actual conviction set aside.

4.Appellant's appeal against sentence be allowed and the sentence imposed by Curthoys DCJ on 17 May 2012 set aside.

5.Appellant remanded on bail to appear at the sentence mention in the District Court on 7 December 2012 at 8.30 am.  Appellant at liberty to appear by videolink.  Appellant's bail extended on the same terms and conditions as previously.

CACR 141 of 2012

1.Appeal dismissed.