COOPER -v- YATES [2005] WASC 34

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 34
Case No:	SJA:1112/2004	Heard:	4 FEBRUARY 2005
Coram:	MCKECHNIE J	Delivered:	4/02/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence of 12 months cumulative reduced to sentence of 4 months concurrent
Category:	D
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Parties:	ANTHONY JOHN COOPER FRANK YATES
Catchwords:	Criminal law Sentencing Disparity arising from later sentence on cooffender Totality Lengthy term still to be served Sentencing Act 2003 transitional provisions Whether maximum sentence is reduced Irrelevant
Legislation:	Sentencing Act 2003 (WA)
Case References:	Hayden v The Queen [2003] WASCA 210 Jarvis v The Queen (1993) 20 WAR 201 Postiglione v The Queen (1997) 189 CLR 295 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : COOPER -v- YATES [2005] WASC 34 CORAM : MCKECHNIE J HEARD : 4 FEBRUARY 2005 DELIVERED : 4 FEBRUARY 2005 FILE NO/S : SJA 1112 of 2004 BETWEEN : ANTHONY JOHN COOPER

Appellant

AND

FRANK YATES

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR K T FISHER SM

File No : BU 3378 of 2004

Catchwords:

Criminal law - Sentencing - Disparity arising from later sentence on cooffender - Totality - Lengthy term still to be served - Sentencing Act 2003 transitional provisions - Whether maximum sentence is reduced - Irrelevant

Legislation:

Sentencing Act 2003 (WA)

(Page 2)

Result:

Appeal allowed

Sentence of 12 months cumulative reduced to sentence of 4 months concurrent

Category: D

Representation:

Counsel:

Appellant : Mr D S Hunter

Respondent : Mr M A Perrella

Solicitors:

Appellant : Legal Aid of Western Australia

Respondent : State Director of Public Prosecutions

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

Hayden v The Queen [2003] WASCA 210
Jarvis v The Queen (1993) 20 WAR 201
Postiglione v The Queen (1997) 189 CLR 295

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: On 20 September 2004 the appellant pleaded guilty in the Court of Petty Sessions at Bunbury to one count of receiving items of stolen property to a value totalling $5000. None of the property was recovered. He was sentenced to a term of 12 months' imprisonment cumulative on a sentence of imprisonment he was then serving. A parole eligibility order was made.

2 Andrew Bryan Shenton, who had committed the burglary resulting in the goods being received by the appellant, was sentenced by a different Magistrate to a term of 12 months' imprisonment with a parole eligibility order one week later.

3 The appellant appeals against the sentence on three grounds which may be summarised as follows:

• First, there was a sentencing disparity which left the appellant with a justifiable sense of grievance.

• Second, the order for accumulation of sentences resulted in a sentence which was manifestly excessive.

• Third, the Magistrate erred in the application of the transitional provisions of the Sentencing Act 1995 (WA) by discounting the maximum penalty available by one-third rather than the…

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 Cooper v Yates

Details

AGLC: Cooper v Yates [2005] WASC 34
Case: [2005] WASC 34
Decision Date

CaseChat Overview and Summary

In the matter of Cooper v Yates, the appellant, Anthony John Cooper, appealed against his sentence for receiving items of stolen property, totaling a value of $5000. The sentence imposed by the Court of Petty Sessions at Bunbury was 12 months' imprisonment, cumulative on the sentence of imprisonment the appellant was already serving. The respondent, Frank Yates, was the person who committed the burglary that resulted in the stolen goods. The appeal was heard in the Supreme Court of Western Australia by McKechnie J on 4 February 2005. The legal issues in this case were whether the sentencing disparity was justified, if the order for accumulation of sentences was appropriate, and if the Magistrate erred in the application of the transitional provisions of the Sentencing Act 1995 (WA) by discounting the maximum penalty available by one-third rather than the actual sentence.

The court found that the sentencing disparity was justified, as the roles of the appellant and the co-offender, Shenton, were different, and the overall criminal conduct required a different sentence for each. The court also found that the order for accumulation of sentences was inappropriate, as the Magistrate had overlooked the need to consider the total sentence to be served and its proportionality to the entire criminal conduct. The court further found that the Magistrate's consideration of the transitional provisions of the Sentencing Act 1995 (WA) was ambiguous and did not affect the outcome of the case.

The final orders of the court were that the appeal be allowed, the sentence of 12 months' imprisonment cumulative, with parole eligibility, be set aside, and in lieu thereof the appellant is sentenced to a term of 4 months' imprisonment to be served concurrently with any term of imprisonment now being served.

Orders