Cleal v Grove - [2020] WASC 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CLEAL -v- GROVE [2020] WASC 54
CORAM:   SMITH J
HEARD:   20 FEBRUARY 2020
DELIVERED          :   26 FEBRUARY 2020
FILE NO/S:   SJA 1117 of 2019
BETWEEN:   BROCK MELVILLE ATHOL CLEAL
Appellant

AND

EMILY GROVE
PAUL DAVEY
Respondents

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S R MALLEY
File Number            :   AR 5777 of 2018, AR 2908 of 2019, AR 2909 of 2019, AR 2910 of 2019

Catchwords:

Criminal law - Appeal against sentence - Stealing a motor vehicle - Express error - Sentencing remarks traversed line between permissible consideration of circumstances of the offence and punishment for an offence not charged - Turns on own facts

Legislation:

Criminal Code (WA), s 371A, s 444(1)(a)

Result:

Leave to appeal on ground 4 granted
Appeal allowed
Sentence set aside
Charge remitted for re‑sentencing

Category: B

Representation:

Counsel:

Appellant	:	Mr T J McCulloch
Respondents	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid WA
Respondents	:	Director Of Public Prosecutions (WA)

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

Langdon v Kelemeti-Leoli-McLean [2011] WASCA 26

SMITH J:

The appeal and the result

This is an appeal against sentence.
At the hearing of this appeal, it was conceded on behalf of the respondents that leave to appeal on ground 4 should be granted, and the ground be allowed.
Ground 4 of the appeal relates to one charge of stealing a motor vehicle contrary to s 371A of the Criminal Code.[1]
[1] Prosecution notice AR 2910 of 2019.
Following a plea of guilty to the offence of stealing a motor vehicle on 7 June 2019, the appellant was sentenced to 12 months' imprisonment suspended for 18 months.
After hearing counsel for both parties on 20 February 2020, I agreed the concession made on behalf of the respondents was properly made and allowed the appeal on this ground. I also made an order that the sentence of 12 months' imprisonment suspended for 18 months, be set aside. I did not re‑sentence the appellant but instead remitted the charge to the Magistrates Court for re‑sentencing.
These are my reasons for granting leave to appeal on ground 4, allowing the appeal on this ground, and setting aside the sentence.

The facts stated by the prosecution in respect of the charge of stealing a motor vehicle and the sentencing remarks made by the magistrate

The appellant was charged that on or between 4 February 2019 and 5 February 2019 at Kelmscott, he stole a motor vehicle within the meaning of s 371A of the Criminal Code, namely a red Mack truck, to the value of $50,000, which had attached, a semi-trailer to the value of $60,000.
The facts read to the court at sentencing by the prosecutor were as follows:[2]
… between 11 pm on Monday, 4 February 2019, and 2 am, Tuesday, 5 February 2019, the accused drove co‑offender, Brenton, to Gillam Drive, Kelmscott. Dropped him outside the premises with the knowledge…

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 Cleal v Grove

Details

AGLC: Cleal v Grove [2020] WASC 54
Case: [2020] WASC 54
Decision Date: 26 FEBRUARY 2020

CaseChat Overview and Summary

The appeal in Cleal v Grove was brought by the appellant against a conviction for stealing a motor vehicle. The appellant argued that the sentence imposed by the primary judge was excessive and that there were errors in the sentencing remarks. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant contended that the primary judge had traversed the line between permissible consideration of the circumstances of the offence and punishment for an offence not charged. This argument hinged on the assertion that the sentencing remarks focused excessively on aspects of the offence that were not charged, thereby improperly influencing the severity of the sentence.

The central legal issue in this case was whether the primary judge had erred in the sentencing remarks to the extent that the sentence imposed was manifestly excessive. The court was required to determine if the remarks made by the primary judge constituted an error of law that warranted the intervention of the Court of Appeal. Specifically, the court needed to assess whether the sentencing remarks strayed beyond the permissible consideration of the offence's circumstances and whether they amounted to punishment for an offence that had not been charged. This involved a nuanced examination of the remarks in the context of the sentencing principles applicable to the crime of stealing a motor vehicle.

In delivering the judgment, the Court of Appeal found that the primary judge's sentencing remarks did indeed contain elements that were not strictly relevant to the offence of stealing a motor vehicle. The court concluded that these remarks had the effect of punishing the appellant for conduct that was not charged, thereby transgressing the boundary between permissible consideration and inappropriate punishment. Consequently, the court determined that the sentence was manifestly excessive due to the inclusion of these improper considerations. The appeal was thus allowed, and the matter was remitted to a different judge for resentencing.

Orders