Legal Research
Cases
D v Edgar

D v Edgar

Case [2019] WASC 183 24 May 2019

Appeal

Sentencing

Mandatory Minimum Sentence

Repeat Offender

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   D -v- EDGAR [2019] WASC 183
CORAM:   ACTING JUSTICE STRK
HEARD:   8 MARCH 2019
DELIVERED          :   8 MARCH 2019
PUBLISHED           :   24 MAY 2019
FILE NO/S:   SJA 1101 of 2018
BETWEEN:   D
Appellant
AND
MARY EDGAR
First Respondent
CLARE KELLY
Second Respondent
CHRISTINE FLEAY
Third Respondent

ON APPEAL FROM:
For File No:   SJA 1101 of 2018
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B COLEMAN
File Number            :   CC BUN 1151 - 1154 of 2017; CC BUN 569 of 2017; CC BUN 571 of 2017; CC BUN 887 of 2017

Catchwords:

Criminal law - Appeal against sentence - Mandatory minimum sentence - Repeat offender after October 2015 - Aggravated home burglary - Young offender - Application made pursuant to the Young Offenders Act 1994 (WA) s 189(3) - Relationship between the Young Offenders Act 1994 (WA) s 189(2) and (3) and the mandatory minimum sentencing provisions of the Criminal Code for home burglary repeat offenders, as amended by proclamation of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA)

Legislation:

Children's Court Act of Western Australia 1988 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Criminal Code Amendment Act (No 2) 1996 (WA)
Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA)
Young Offenders Act 1994 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	G M G McIntyre SC
First Respondent	:	K I Goddard-Borger
Second Respondent	:	K I Goddard-Borger
Third Respondent	:	K I Goddard-Borger

Solicitors:

Appellant	:	Aboriginal Legal Service
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)
Third Respondent	:	Director of Public Prosecutions (WA)

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

AD v Western Australia [No 2] [2007] WASCA 207
B (a child) v Hepple [2013] WASC 303; (2013) A Crim R 436
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Colbung v Western Australia [2010] WASCA 217
Director General of Department of Transport v McKenzie [2016] WASCA 147
DLD (a child) v The State of Western Australia [2018] WACC 4
Harris v The State of Western Australia [2005] WASCA 147
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Lancaster v The Queen [1989] WAR 83
P (a child) v The Queen (1997) 94 A Crim R 593
R v GRC [2002] WACC 11; (2002) 31 SR (WA) 23
R v Mackay (Unreported, CCA SCt of WA, Library No 970689, 18 November and 10 December 1997)
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Storey [1988] 1 VR 359
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stark v Plant [2010] WASCA 74
The State of Western Australia v A…

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 D v Edgar

Details

AGLC: D v Edgar [2019] WASC 183
Case: [2019] WASC 183
Decision Date: 24 MAY 2019

CaseChat Overview and Summary

The case of D v Edgar involved the appellant, D, appealing against his sentence for aggravated home burglary, given his status as a repeat offender. The case was heard in the Court of Appeal of Western Australia. The appellant had previously been convicted and sentenced for home burglary, and was now facing a mandatory minimum sentence for a subsequent offence under the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA). The appellant sought relief under section 189(3) of the Young Offenders Act 1994 (WA), arguing that the mandatory minimum sentencing provisions should not apply to him because of his status as a young offender.

The central legal issue before the court was whether the mandatory minimum sentencing provisions for repeat home burglary offenders, as introduced by the 2015 amendment, applied to young offenders and if there was any conflict with the provisions of the Young Offenders Act 1994 (WA). Specifically, the court had to determine whether section 189(3) of the Young Offenders Act could provide grounds to avoid the mandatory minimum sentence. The court was also required to interpret the relationship between the sentencing provisions under the Criminal Code and the provisions of the Young Offenders Act.

The court held that the mandatory minimum sentencing provisions for repeat home burglary offenders under the Criminal Code did apply to young offenders, including the appellant. The court found that there was no conflict between section 189(2) and section 189(3) of the Young Offenders Act, as section 189(2) provides for the court's discretion in sentencing, while section 189(3) allows for consideration of the offender's age and other mitigating factors. However, these provisions did not exempt young offenders from the mandatory minimum sentencing provisions introduced by the 2015 amendment. The court concluded that the appellant's sentence, which included a mandatory minimum term, was appropriate given the nature of the offence and the appellant's criminal history.

The appeal was dismissed, and the appellant's sentence was upheld. The court emphasised the importance of considering the gravity of the offence and the need to protect the community, which mandated the imposition of the minimum sentence. The court did not grant the appellant's application under section 189(3) of the Young Offenders Act, as it did not find sufficient grounds to depart from the mandatory minimum sentence.

Orders