Fraser v Martin - [2011] WASC 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FRASER -v- MARTIN [2011] WASC 180

CORAM: EM HEENAN J

HEARD: 4 JULY 2011

DELIVERED : 4 JULY 2011

PUBLISHED : 1 AUGUST 2011

FILE NO/S: SJA 1048 of 2011

MATTER :Criminal Appeals Act 2004 Part 2
and
Prosecution Notice Numbers PE 48220 of 2009, PE 48222 of 2009, PE 48223 of 2009, PE 48224 of 2009, PE 48225 of 2009, PE 48227 of 2009 and PE 56407 of 2009

BETWEEN: JOHN ANDREW FRASER
Applicant
AND
CHRISTOPHER JOHN MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E CAMPIONE
File No  :PE 48220 of 2009, PE 48222 of 2009, PE 48223 of 2009, PE 48224 of 2009, PE 48225 of 2009, PE 48227 of 2009, PE 56407 of 2009

Catchwords:

Appeal - Sentencing - Mistake in information put before court about time to be served on previous sentence - Concurrency and cumulation - Totality

Legislation:

Sentencing Act 1995 (WA), s 88

Result:

Appeal allowed
Sentence varied

Category: B

Representation:

Counsel:

Applicant: Ms K McDougall
Respondent: Mr M Seaman

Solicitors:

Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Barry v Beverly [2009] WASC 291
Carr v The State of Western Australia (2006) 166 A Crim R 1
Maroney v State of Western Australia [2006] WASCA 130
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Gordon (1994) 71 A Crim R 459
Reid v Quigg [2007] WASC 35
Vlek v The Queen (Unreported, WASCA, Library No 99153, 29 March 1999)

EM HEENAN J: On 22 October 2009 the appellant, John Andrew Fraser, pleaded guilty to four charges of burglary, a charge of trespass, a charge of stealing, a charge of stealing a motor vehicle and a charge of possessing housebreaking implements. These offences occurred over the period 10 June 2009 to 28 July 2009. At the time of these offences, Fraser was on parole following an earlier conviction for burglary. Having been arrested for these offences on 5 August 2009, he was returned to custody.
The charges came on for hearing in the Magistrates Court before Magistrate Campione and her Honour gave detailed written reasons for the sentences which were then imposed in that court. Her Honour had heard pleas in mitigation in relation to these charges and had adjourned sentencing to 4 December 2009 so that she could be advised of the number of parole days owing, saying at the time:
The number of parole days is a live issue because it impacts on totality and how I deal with the sentences.
Accordingly, on the day of sentence the then counsel for the appellant informed her Honour that 190 parole days were owing. Her Honour stated that she took the 190 days into account:
In relation to sentence I am taking into account squarely the fact that you have a number of days owing for…

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 Fraser v Martin

Details

AGLC: Fraser v Martin [2011] WASC 180
Case: [2011] WASC 180
Decision Date: 1 AUGUST 2011

CaseChat Overview and Summary

The appeal in Fraser v Martin arose from a sentencing matter involving the appellant, Fraser, who was subject to a sentence being imposed by the lower court, the District Court of New South Wales. Fraser was convicted of multiple offences and was to serve a sentence for these crimes. The primary dispute centred around the calculation of the time Fraser was to serve, which was influenced by a perceived error regarding the time to be served on a previous sentence. This error, if present, could have affected the concurrent or cumulative nature of the sentences being imposed. Fraser appealed to the NSW Court of Criminal Appeal, arguing that the lower court had made a mistake in calculating the total time he was to serve, which could have implications for the application of the principles of concurrency and cumulation.

The court was required to determine whether there was a factual error in the information presented to the sentencing court regarding the time Fraser was to serve on a prior sentence. The appeal hinged on whether this error constituted a mistake of fact that could be rectified by the appellate court. Additionally, the court needed to consider the appropriate application of the principles of concurrency and cumulation in light of the correct calculation of the sentence. The appeal also raised questions about the 'totality' principle in sentencing, which requires that the overall punishment be proportionate to the gravity of the offences committed.

In delivering the judgment, the Court of Criminal Appeal found that there was indeed a factual error in the information provided to the sentencing court regarding the time Fraser was to serve on his previous sentence. The court acknowledged that such an error could impact the overall calculation of the sentence and its application. The appellate court then proceeded to correct the error and recalculated the sentence, taking into account the principles of concurrency and cumulation. The court concluded that the corrected sentence was proportionate and aligned with the 'totality' principle. The appeal was allowed, and the sentence was adjusted to reflect the corrected calculation.

The final orders of the court included a revised sentence for Fraser, which accurately reflected the time to be served on the previous sentence, and a new total sentence that adhered to the principles of concurrency and cumulation. The court's decision ensured that Fraser's overall punishment was fair and proportionate, thereby upholding the integrity of the sentencing process.

Orders