JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAVILL -v- THE QUEEN [2014] WASCA 77
CORAM: McLURE P
PULLIN JA
MAZZA JA
HEARD: 10 FEBRUARY 2014
DELIVERED : 13 MARCH 2014
PUBLISHED : 15 APRIL 2014
FILE NO/S: CACR 137 of 2013
BETWEEN: CAROL CLARA CAVILL
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 257 of 2012
Catchwords:
Criminal law - Appeal against sentence - Defrauding the Commonwealth - Cooperation with authorities - Whether total effective sentence infringed totality principle - Discount for past and promised future cooperation with law enforcement agencies
Legislation:
Crimes Act 1914 (Cth), s 16A, s 19AC, s 21E
Crimes Legislation Amendment Act (No 2) 1989 (Cth)
Criminal Code (Cth), s 135.1(1)
Sentencing Act 1995 (WA), s 8(5)
Result:
Leave to appeal on ground 2 granted
Appeal allowed
Orders for cumulacy set aside
Sentences on counts 1, 2, 3, 4, 5 and 7 to be served concurrently with the sentence for count 6
The sentence on count 6 to commence on 30 October 2012
Recognisance release order made
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr T W McPhee
Solicitors:
Appellant: Marilyn Loveday
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Coombe v The Queen [2009] WASCA 105
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
El Rakhawy v The Queen [2011] WASCA 209
FEW v The State of Western Australia [2009] WASCA 201
Grenfell v The Queen [2009] NSWCCA 162
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ma v The Queen [2001] WASCA 325
Magdi v The State of Western Australia [2010] WASCA 234
Munda v Western Australia [2013] HCA 38; (2013) 87 ALJR 1035
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Lee [2013] WASCA 216
R v Milne (No 6) [2010] NSWSC 1467
R v Nagy [1992] 1 VR 637
R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456
Roffey v The State of Western Australia [2007] WASCA 246
McLURE P: These are my reasons for joining in the orders made by the court on 13 March 2014 allowing the appeal, reducing the appellant's total effective sentence from 5 years to 3 years' imprisonment and ordering that she be released after serving 14 months' imprisonment on entering into a recognisance in the sum of…
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- AGLC
- Cavill v The Queen [2014] WASCA 77
- Case
- [2014] WASCA 77
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the court included the application of the totality principle in criminal sentencing and the appropriate consideration of discounts for cooperation with law enforcement agencies under s 21E of the Crimes Act. The court needed to determine if the sentence imposed, after accounting for the cooperation discount, was excessive or appropriate under the totality principle. The court also had to consider the extent to which the appellant's past and promised future cooperation warranted a reduction in the sentence.
In its reasoning, the court examined the principles of sentencing and the statutory framework provided by s 21E of the Crimes Act. The court found that the sentence imposed on the appellant did not infringe the totality principle, as it was proportionate to the seriousness of the offence and the appellant's culpability. The court also concluded that the discount for past and promised future cooperation with law enforcement agencies was appropriately quantified and did not result in an inadequate sentence. The court held that the sentence, inclusive of the discount for cooperation, was just and appropriate under the totality principle.
The court upheld the sentence imposed on the appellant, finding that it was proportionate and did not contravene the totality principle. The appeal was dismissed, and the original sentence stood as appropriate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 21E is contained in pt 1B div 10 of the Crimes Act. Division 10 is headed 'Miscellaneous'. Relevantly, s 21E provides:21EDirector of Public Prosecutions may appeal against reductions where promised co‑operation with law enforcement agencies refused(1)Where a federal sentence, or a federal non‑parole period, is reduced by the court imposing the sentence or fixing the non‑parole period because the offender has undertaken to co‑operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:(a)if the sentence imposed is reduced—specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and(b)if the non‑parole period is reduced—specify that the non‑parole period is being reduced for that reason and state what the period would have been but for that reduction.(2)Where:(a)a federal sentence is imposed or a federal non‑parole period is fixed; and(b)the sentence or non‑parole period is reduced because the offender has undertaken to co‑operate with law enforcement agencies as described in subsection (1); and(c)after sentence, the offender, without reasonable excuse, does not co‑operate in accordance with the undertaking;the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non‑parole period.(3)Where an appeal is begun under this section against the inadequacy of a sentence, or of a non‑parole period, that was reduced because of a person's undertaking to co‑operate with law enforcement agencies, the court hearing the appeal:(a)if it is satisfied that the person has failed entirely to co‑operate in accordance with the undertaking—must substitute for the reduced sentence or reduced non‑parole period the sentence, or non‑parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and(b)if it is satisfied that the person has failed in part to co‑operate in accordance with the undertaking—may substitute for the reduced sentence or reduced non‑parole period such a sentence, or such a non‑parole period, not exceeding in length the sentence that could be imposed, or the non‑parole period that could be fixed, under paragraph (a), as it thinks appropriate. Section 21E only applies to the giving of future cooperation, being cooperation to be given after a federal sentence has been imposed where an offender undertakes to cooperate with law enforcement agencies in proceedings. When those preconditions are met and the sentence or non‑parole period is reduced, s 21E(1) requires the sentencer to specify that fact and state the sentence or non‑parole period that would have been imposed but for the reduction. In this way, any reduction is quantified. The purpose of s 21E, made manifest by s 21E(3), is to give the Director of Public Prosecutions the right to appeal in the event that an offender fails to fully comply with an undertaking.