Councillor v Hart - [2018] WASC 418

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   COUNCILLOR -v- HART [2018] WASC 418
CORAM:   CORBOY J
HEARD:   21 & 28 DECEMBER 2018
DELIVERED          :   28 DECEMBER 2018
PUBLISHED           :   26 FEBRUARY 2019
FILE NO/S:   SJA 1127 of 2018
BETWEEN:   DARRYL RONALD VINCENT HARRIS COUNCILLOR
Appellant
AND
CAMERON HART
Respondent

Catchwords:

Criminal law - Appeal against sentence - Whether error made in backdating sentences - Section 87 of Sentencing Act 1995 (WA) - Whether sentence for escaping lawful custody was manifestly excessive

Legislation:

Children's Court of Western Australia 1988 (WA), s 21(2)
Sentencing Act 1995 (WA), s 85, s 87
Young Offenders Act 1994 (WA), s 50B

Result:

Leave to appeal
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr H Glenister
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Cathal Smith Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Churnside v The State of Western Australia [2016] WASCA 146
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Lowndes v The Queen [1999] HCA 299; (1999) 195 CLR 665
Rhattigan v Forbes [2009] WASC 368
Wilson v The State of Western Australia [2010] WASCA 82

CORBOY J:

These reasons were delivered orally on 28 December 2018 and have been edited from the transcript and from documents filed in the appeal.
The appellant was born on 8 May 2000. On 16 October 2018, he was sentenced to a total effective sentence of 18 months' imprisonment to be immediately served for various offences committed as a juvenile and as an adult. The sentence was imposed by a magistrate sitting in the Geraldton Magistrates Court and in the Children's Court of Western Australia at Geraldton.
The offences for which the appellant was sentenced as a juvenile were as follows:
(1)On 5 October 2017, at Utakarra, the appellant wilfully and unlawfully damaged a window, the property of Carmel Meleasha Westbrooke (charge GN 391/17). The maximum and summary conviction penalties for that offence are 10 years' imprisonment and 3 years' imprisonment and a fine of $36,000. The appellant was sentenced to a term of imprisonment of 1 month cumulative.
(2)On 5 October 2017, at Utakarra, the appellant while in the place of April Healy without her consent, committed the offence of stealing in circumstances of aggravation, namely while in the company of another and the place being ordinarily used for human habitation (charge GN 419/17). The maximum and summary conviction penalties for that offence are 20 years' imprisonment and 3 years' imprisonment and a fine of $36,000. The appellant was sentenced to a term of 4 months' imprisonment concurrent. The appellant was also charged with stealing an iPod, watches and a knife to the value of approximately $775 the property of Ms Healy (charge GN 418/17). No penalty was imposed for that offence pursuant to s 11 of the Sentencing Act 1995 (WA).
(3)On 11 December 2017, at Rangeway, the appellant entered or was in the place…

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 Councillor v Hart

Details

AGLC: Councillor v Hart [2018] WASC 418
Case: [2018] WASC 418
Decision Date: 26 FEBRUARY 2019

CaseChat Overview and Summary

The appeal arises from a decision of the Magistrates Court of Western Australia, where Councillor brought an appeal against a sentence handed down to Hart, who was found guilty of escaping lawful custody. The appeal before the Court of Appeal centred on the issue of whether the sentence imposed was manifestly excessive, and whether there was an error in backdating the sentences as per section 87 of the Sentencing Act 1995 (WA). The appellant argued that the sentence was disproportionate and that the court erred in applying the sentencing provisions of the Act.

The central legal issues before the Court of Appeal were whether the sentence imposed by the Magistrates Court was manifestly excessive and whether the sentencing provisions of the Act were applied correctly by the court. The appellant argued that the sentence was disproportionate to the offence committed and that the Magistrates Court had made an error in backdating the sentences, which resulted in an increased sentence. The respondent, on the other hand, contended that the sentence was proportionate and that there was no error in the application of the sentencing provisions of the Act.

In its judgment, the Court of Appeal found that the sentence imposed by the Magistrates Court was not manifestly excessive and that the court had correctly applied the sentencing provisions of the Act. The Court noted that the appellant had a history of similar offending and that the Magistrates Court had considered the appellant's offending history in imposing the sentence. The Court further found that there was no error in backdating the sentences, as the Magistrates Court had correctly applied the provisions of section 87 of the Act. The Court of Appeal dismissed the appeal and upheld the sentence imposed by the Magistrates Court.

No further orders were made by the Court of Appeal. The sentence imposed by the Magistrates Court of Western Australia stands affirmed.

Orders