Fleay v The State of Western Australia

[2012] WASCA 219

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FLEAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 219

CORAM:   MAZZA JA

HEARD:   ON THE PAPERS

DELIVERED          :   29 OCTOBER 2012

FILE NO/S:   CACR 152 of 2012

BETWEEN:   JAMES FRANCIS FLEAY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STONE DCJ

File No  :IND BUN 111 of 2011

Catchwords:

Criminal law - Application to supply a report to the court - Section 40(1)(h) of the Criminal Appeals Act 2004 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(h)

Result:

Application granted

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     Young & Young

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. MAZZA JA: Before the court is an application in an appeal made by the appellant for an order requiring the learned sentencing judge to supply a report to this court detailing all matters that were taken into account in determining the sentence imposed upon the appellant pursuant to s 40(1)(h) of the Criminal Appeals Act 2004 (WA). The parties have filed written submissions and have agreed that the application can be determined on the papers. The respondent does not oppose the application.

2. The background to the application is as follows.  On 22 May 2012 following a trial in the District Court at Bunbury the appellant was convicted of possession of cannabis with intent to sell or supply it to another and cultivation of cannabis with intent to sell or supply it to another.  On the same day the appellant was sentenced to a total effective sentence of 2 years' imprisonment.

3. On 26 June 2012 the appellant filed an appeal notice in respect of the sentence.  The draft grounds of appeal allege implied error by the sentencing judge.

4. The appellant has not filed his appellant's case.  This is because there is no transcript of his Honour's sentencing remarks.  Enquiries undertaken by the parties reveal that the sentencing proceedings were not transcribed.  It appears that there was no recording of them.  The reason for this is unclear.  In the absence of a transcript, the appellant's counsel has not been able to ascertain whether any express error in the sentencing proceedings occurred. 

5. Section 40(1)(h) of the Criminal Appeals Act provides:

   40.General powers to deal with appeals

   (1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

   ...

   (h)require the person or persons who constituted the lower court to supply a report about the decision or the case in which it was made or any aspect of either.

6. In my opinion the plain language of this subsection permits this court to make, in its discretion, an order of the type sought by the appellant. 

7. The provision of a report by the person who made the decision the subject of the appeal is, nowadays, a rare event.  This is because proceedings are almost invariably recorded and there is no dispute about the decision or its surrounding circumstances.  However, sometimes, technology fails or human error occurs and this court is required to seek the assistance of the decision‑maker in the lower court. 

8. In my view it is appropriate to require the learned sentencing judge to provide this court with a report setting out his findings and reasons for imposing the sentences upon the appellant. 

9. I make the following orders:

   (1)His Honour Judge Stone provide this court on or before 20 November 2012 with a report (including any notes his Honour may have made of his sentencing remarks) setting out his reasons for the sentences he imposed upon the appellant on 22 May 2012 in proceedings on IND BUN 111 of 2011; and

   (2)The parties shall have leave to inspect and copy his Honour's report.