Criminal law and procedure - Sentencing - Eligibility for parole - Earlier breaches of probation orders and parole - Cumulative terms of imprisonment - Use of stolen motor vehicle for attempted bank robbery - Parity with sentence of co-offender - Backdating of sentence after suspension of parole - Sentence not manifestly excessive

Legislation:

Sentencing Act 1995 (WA), s 87

Result:

Application for leave to appeal refused

Representation:

Counsel:

Applicant: Ms J G Fordham
Respondent: Mr R E Cock QC & Ms J A Girdham

Solicitors:

Applicant: Leonard Cohen & Co
Respondent: State Director of Public Prosecutions

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

Lowe v The Queen (1984) 154 CLR 606

Case(s) also cited:

Cook v The Queen, unreported; CCA SCt of WA; Library No 960395; 25 July 1996
De Jesus v The Queen [2000] WASCA 128
Duncan v The Queen (1983) 47 ALR 746
Eades v The Queen (1990) 47 A Crim R 385
Miles v The Queen (1997) 17 WAR 518
Palmer v The Queen [1999] WASCA 253
Pezzino v The Queen (1997) 92 A Crim R 135
R v Jones, unreported; SCt of WA (Scott J); Library No 970210; 7 May 1997
R v Olbrich (1999) 166 ALR 330
Ratcliffe v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997
Riley v The Queen [2000] WASCA 111
Shaharuddin v The Queen [1999] WASCA 229
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
The Attorney-General v Tichy (1982) 30 SASR 84
Thompson v The Queen (1993) 8 WAR 387
Thomson & Owen v The Queen, unreported; CCA SCt of WA; Library No 980482; 28 August 1998
Trotman v The Queen, unreported; CCA SCt of WA; Library No 950639; 24 November 1995
Wongawol v The Queen (1998) 101 A Crim R 350
Youil v The Queen (1995) 80 A Crim R 1

MURRAY J: I have read in draft the reasons to be published by Heenan J, to which I have nothing to add. I agree that the application for leave to appeal should be refused.
PARKER J: I have read in draft the reasons to be published by Heenan J and for those reasons I agree that the application for leave should be refused.
HEENAN J: The applicant seeks leave to appeal from a sentence of imprisonment for a total of four years imposed upon him in the District Court at Perth on 31 August 1999.
The charges against the applicant arose out of the following circumstances. On the evening of Monday 21 December 1998…

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 Edwards v The Queen

Details

AGLC: Edwards v The Queen [2000] WASCA 211
Case: [2000] WASCA 211
Decision Date: 10 AUGUST 2000

CaseChat Overview and Summary

In the case of Edwards v The Queen, the appellant was convicted of various criminal offences, including the use of a stolen motor vehicle in an attempted bank robbery, and was sentenced to a term of imprisonment. The central issue before the court was whether the sentence imposed by the lower court was manifestly excessive, particularly in light of the appellant's prior breaches of probation orders and parole conditions. The court was also required to consider whether the sentence should be adjusted to reflect the parity principle with that of the co-offender and whether the backdating of the sentence after the suspension of parole was appropriate.

The court examined the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing relevant to the case. It was noted that the appellant had previously breached parole conditions and probation orders, which indicated a pattern of non-compliance with the terms set by the court. The court assessed whether these breaches warranted a cumulative term of imprisonment in addition to the sentence for the current offences. The court also considered the principle of parity, which requires that co-offenders receive sentences that reflect the relative seriousness of their respective roles in the crimes committed. In this case, the appellant's sentence was compared to that of the co-offender to ensure fairness and proportionality.

Upon reviewing the evidence and arguments presented, the court concluded that the sentence imposed was not manifestly excessive. The court found that the cumulative terms of imprisonment were justified due to the appellant's history of breaching parole and probation orders. The court also determined that the backdating of the sentence after the suspension of parole was appropriate given the appellant's continued non-compliance with the conditions set. The court emphasised that the sentence reflected the seriousness of the offences committed and the appellant's criminal history, and that it was proportionate to the co-offender's sentence. The appeal was therefore dismissed, and the original sentence was upheld.

In conclusion, the court found that the sentence imposed on the appellant was not manifestly excessive, taking into account the appellant's prior breaches of parole and probation orders, the nature of the current offences, and the principle of parity with the co-offender's sentence. The backdating of the sentence after the suspension of parole was also deemed appropriate. The appeal was dismissed, and the original sentence was upheld.

Orders