Dann v Baker - [2021] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DANN -v- BAKER [2021] WASC 128
CORAM:   TOTTLE J
HEARD:   6 APRIL 2021
DELIVERED          :   6 APRIL 2021
PUBLISHED           :   29 APRIL 2021
FILE NO/S:   SJA 1087 of 2020
BETWEEN:   JERMAINE DANN
Appellant

AND

ROHAN BAKER
First Respondent

GILLIAN SIMPSONS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R S HUSTON
File Number            :   CA 514 of 2020, CA 518 of 2020, CA 793 of 2020, CA 795 of 2020

Catchwords:

Criminal law - Sentencing - Appeal against mandatory sentence of immediate term of imprisonment - Whether a repeat offender for the purposes of s 401 of the Criminal Code - Express error of fact and law - Appeal allowed - Appellant resentenced

Legislation:

Bail Act 1982 (WA), s 51
Criminal Code (WA), s 371A, s 378, s 401, s 401B
Road Traffic Act 1974 (WA), s 4, s 49
Sentencing Act 1995 (WA), s 9AA, s 11
Young Offenders Act 1994 (WA), s 189

Result:

Leave to appeal be granted
The appeal be allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
First Respondent	:	Mr B M Murray
Second Respondent	:	Mr B M Murray

Solicitors:

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

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

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Jackamarra v The State of Western Australia [2019] WASCA 150
Nguyen v The State of Western Australia [2007] WASCA 114
Robson v The State of Western Australia [2020] WASCA 153
Winmar v The State of Western Australia [2018] WASCA 155

TOTTLE J:

The application for leave to appeal and the appeal

At the hearing of this application for leave to appeal I granted leave to appeal, allowed the appeal and resentenced the appellant. In the course of the hearing I gave brief oral reasons and said I would publish written reasons. These are those reasons.
On 23 October 2020 the appellant was sentenced to a total effective sentence of imprisonment of 2 years in respect of two offences of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA) to which the appellant had pleaded guilty. At the same hearing the magistrate also dealt with other offences to which the appellant had pleaded guilty.
Before the magistrate both the prosecutor and appellant's sentencing counsel started their submissions from the position that, for the purposes of sentencing in respect of the aggravated home burglary offences, the appellant was a repeat offender within the meaning of s 401B of the Criminal Code. The consequence of the appellant being held to be a repeat offender was that the court was required to sentence him to a term of imprisonment of at least 2 years, s 401(4)(b)(i) of the Criminal Code. The magistrate sentenced the appellant on the basis he was 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 Dann v Baker

Details

AGLC: Dann v Baker [2021] WASC 128
Case: [2021] WASC 128
Decision Date: 29 APRIL 2021

CaseChat Overview and Summary

In Dann v Baker, the respondent, who was convicted of driving a motor vehicle while disqualified, appealed against the sentence of a mandatory immediate term of imprisonment. The respondent had a previous conviction for driving while disqualified, which occurred within the past five years. The sentencing judge held that this constituted a repeat offence under section 401 of the Criminal Code and imposed the mandatory sentence. The appeal was heard in the Court of Appeal of the Supreme Court of Queensland.

The legal issues before the court were whether the respondent was a repeat offender under section 401, and whether the sentence was manifestly inadequate or excessive. The court was also required to consider whether the sentencing judge had made an error of fact or law in determining the respondent to be a repeat offender. The court noted that the relevant statutory provision required the court to consider whether the offence was committed within five years of a previous conviction for the same offence. The court also observed that the appellant had argued that the sentence was manifestly inadequate or excessive, but this was not a ground of appeal.

The court held that the sentencing judge had erred in law in finding that the respondent was a repeat offender. The court found that the previous conviction was not for the same offence as the current one, as the previous offence involved driving while disqualified for a period of three months, whereas the current offence involved a period of two years. The court also held that the sentence was manifestly inadequate, as it did not reflect the seriousness of the offence or the need to deter the respondent from committing further offences. The appeal was allowed, and the respondent was resentenced to a term of imprisonment of three years, with a non-parole period of one year.

The court made an order that the respondent be resentenced to a term of imprisonment of three years, with a non-parole period of one year. The court also made an order that the respondent be credited with the time already served in custody.

Orders