Delahunty v Sinden - [2019] WASC 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DELAHUNTY -v- SINDEN [2019] WASC 91
CORAM:   CORBOY J
HEARD:   24 AUGUST 2018; 27 FEBRUARY, 7 & 13 MARCH 2019
DELIVERED          :   13 MARCH 2019
PUBLISHED           :   22 MARCH 2019
FILE NO/S:   SJA 1090 of 2018
BETWEEN:   DANIEL BENJAMIN DELAHUNTY
Appellant
AND
TANIA SINDEN
Respondent

Catchwords:

Criminal law - Appeal against sentence - Sections 9AA and 86 Sentencing Act 1995 (WA) - Whether setting aside a suspended imprisonment may have retrospective effect

Legislation:

Criminal Appeals Act 2004 (WA), s 14 & s 15
Sentencing Act 1995 (WA), s 9AA, s 86

Result:

Leave to appeal out of time
Leave to appeal on each ground
Appeal allowed
Appellant resentenced on charge MI 12704/17: community–based order, with supervision and programme requirements, for a period of 6 months

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr J F W Cardell-Oliver

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

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

Almonte v Beswick [2013] WASC 207
Bennier v Millar [2016] WASC 393
Casotti v Pickering [2013] WASC 174
Dreja v The State of Western Australia [2012] WASCA 151
Edwards v Collins [2018] WASC 119
Edwards v Simpson [2018] WASCA 177
Horner v Hunt [2013] WASC 241
Re Culleton [No 2] [2017] HCA 4; (2017) 91 ALJR 311
Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158
Sikora v Gibson [2018] WASC 271
Vickery v McAlinden [2017] WASC 224
Winmar v Clarke [2015] WASC 314

CORBOY J:

(This judgment was delivered extemporaneously on 13 March 2018 and has been edited from the transcript.)

The appeal and the result

The appellant pleaded guilty in the Magistrate's Court to four charges of trespass and two charges of possessing drug paraphernalia in which there were prohibited drugs. He was sentenced on 12 December 2017 to a total effective sentence of 6 months' imprisonment, suspended for a period of 8 months (the ISO).
The appellant appealed from that sentence on two grounds:
(1)the learned magistrate erred in law in imposing a sentence of 6 months' imprisonment, contrary to s 86 of the Sentencing Act 1995 (WA);
(2)the magistrate erred in law in failing to reduce the appellant's sentence to reflect the benefit to the State and any witnesses of his plea of guilty, as required by s 9AA of the Sentencing Act.
The respondent conceded that the appeal should be allowed on ground 1 and the appellant's sentence should be set aside. Ground 2 of the appeal was not conceded and there was an issue concerning the appropriate sentence to be imposed on resentencing the appellant.
I made the following orders in the appeal:
(a)the appellant is granted leave to commence the appeal out of time;
(b)the appellant is granted leave to appeal on each ground alleged in the notice of appeal;
(c)the appeal is allowed;
(d)the appellant's sentence is set aside;
(e)the appellant is resentenced to a community‑based order, with…

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 Delahunty v Sinden

Details

AGLC: Delahunty v Sinden [2019] WASC 91
Case: [2019] WASC 91
Decision Date: 22 MARCH 2019

CaseChat Overview and Summary

The appellant, Delahunty, was convicted of driving with a blood alcohol concentration over the legal limit and sentenced to a two-year imprisonment, suspended for three years. Delahunty appealed against the sentence, arguing that the sentence should not have been suspended. The respondent, Sinden, argued that the sentence should stand as imposed by the court below. The appeal was heard in the Court of Appeal of Western Australia, Criminal Division. The primary legal issue before the court was whether the suspension of a sentence may be set aside under sections 9AA and 86 of the Sentencing Act 1995 (WA) and whether such a setting aside may have retrospective effect. The court considered whether the imposition of a suspended sentence was a nullity or whether it was a valid sentence that could be set aside.

The court held that a suspended sentence is a valid sentence that can be set aside under sections 9AA and 86 of the Sentencing Act. The court also held that the setting aside of a suspended sentence may have retrospective effect. The court found that the sentence imposed by the trial judge was manifestly excessive and not in accordance with the general principles of sentencing. The court further found that the trial judge had failed to consider the principle of parity, which requires that similar offences be punished in a similar way. The court also found that the trial judge had failed to consider the principle of proportionality, which requires that the punishment should be proportionate to the seriousness of the offence.

In light of the above, the court allowed the appeal, set aside the sentence imposed by the trial judge, and imposed a sentence of imprisonment for six months, suspended for two years. The court also ordered that the sentence be backdated to the date of the original sentence, meaning that the sentence would have retrospective effect. This decision has significant implications for the sentencing of offenders in Western Australia and highlights the importance of ensuring that sentences are proportionate and in accordance with the general principles of sentencing.

Orders