DPJB v The State of Western Australia
[2010] WASCA 12 (S)
•22 JANUARY 2010
DPJB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 12 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 12 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:133/2008 | ON THE PAPERS | |
| Coram: | McLURE P OWEN JA PULLIN JA | 22/01/10 | |
| 3/02/10 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | DPJB THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Multiple convictions One count quashed on appeal Reconsideration of sentence Turns on own facts |
Legislation: | Nil |
Case References: | DPJB v The State of Western Australia [2010] WASCA 12 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DPJB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 12 (S) CORAM : McLURE P
- OWEN JA
PULLIN JA
DECISION : 3 FEBRUARY 2010 FILE NO/S : CACR 133 of 2008 BETWEEN : DPJB
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : IND 478 of 2008
(Page 2)
Catchwords:
Criminal law - Sentencing - Multiple convictions - One count quashed on appeal - Reconsideration of sentence - Turns on own facts
Legislation:
Nil
Result:
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Sharmini Chelvanayagam
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DPJB v The State of Western Australia [2010] WASCA 12
(Page 3)
JUDGMENT OF THE COURT:
Background
1 The appellant was charged on indictment with 25 offences. After a trial by jury he was convicted on five of the counts and was sentenced to immediate imprisonment for 8 years and 6 months, with eligibility for parole. The appellant appealed against his convictions and in DPJB v The State of Western Australia [2010] WASCA 12 the members of the Court delivered reasons for dismissing the appeal, save for the guilty verdict on one of the counts (count 6), which was quashed.
2 Although there was no appeal against the sentence, the setting aside of the conviction on count 6 had the inevitable result that the sentence fell to be reconsidered. At the request of the Court both the Director of Public Prosecutions and the appellant gave written notice of their respective attitudes to the question raised by the appeal court's decision in so far as it affected the sentence. Both parties indicated that the sentence for count 6 should be quashed and the sentences imposed for the other four counts on which the guilty verdicts were returned should stand.
3 This Court has an obligation to reach its own conclusion on the proper disposition of the matter and is not bound by the fact that the parties are of a similar mind as to the appropriate sentence. However, having considered all of the circumstances of this case the Court is of the view that the approach indicated by the parties can be accepted.
4 The trial judge sentenced the appellant to terms of immediate imprisonment (after making allowances for the transitional provisions then in force) as follows:
(a) count 6: 2 years;
(b) count 8: 2 years;
(c) count 19: 6 months;
(d) count 22: 16 months;
(e) count 23: 4 years.
5 In accordance with the 'one transaction principle', the trial judge made the terms for counts 22 and 23 concurrent, but cumulative on the other terms. His starting point for count 19 was 2 years but to take
(Page 4)
- account of the 'totality principle' he reduced it to 6 months. This is how the effective total sentence of 8 years and 6 months was arrived at.
6 If the sentence on count 6 is quashed and the terms on the other counts are left undisturbed, the effective total sentence is 6 years and 6 months. In our view it represents a disposition that is appropriate to the altered circumstances.
Conclusion
7 The sentence of 2 years immediate imprisonment for count 6 is quashed. The sentences of immediate imprisonment for 2 years for count 8, 6 months for count 19, 16 months for count 22 and 4 years for count 23 stand. The order that the terms for count 22 and 23 be concurrent but be served cumulatively on the other terms remains undisturbed. The commencement date of the terms (11 August 2008) and the order for parole eligibility also stand. This means that the total sentence is 6 years and 6 months. The appellant can be considered for release on parole after serving 4 years and 6 months.
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