Fripp v Carter

[2012] WASC 288

FRIPP -v- CARTER [2012] WASC 288

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 288
Case No:	SJA:1064/2012	Heard:	24 JULY 2012
Coram:	HALL J	Delivered:	24/07/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Extension of time granted Leave to appeal granted Appeal allowed Sentence set aside and appellant re-sentenced
Category:	B
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Parties:	KIM GORDON FRIPP PHILLIP JOHN CARTER
Catchwords:	Criminal law Magistrates Court appeal Appeal against sentence of 9 months' imprisonment for stealing a car worth less than $1,000 Imprisonment not open Appeal conceded
Legislation:	Criminal Code (WA), s 378, s 426
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : FRIPP -v- CARTER [2012] WASC 288 CORAM : HALL J HEARD : 24 JULY 2012 DELIVERED : 24 JULY 2012 FILE NO/S : SJA 1064 of 2012 BETWEEN : KIM GORDON FRIPP

Appellant

AND

PHILLIP JOHN CARTER
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T J McINTYRE

File No : MH 944 of 2012

Catchwords:

Criminal law - Magistrates Court appeal - Appeal against sentence of 9 months' imprisonment for stealing a car worth less than $1,000 - Imprisonment not open - Appeal conceded

Legislation:

Criminal Code (WA), s 378, s 426

(Page 2)

Result:

Extension of time granted

Leave to appeal granted
Appeal allowed
Sentence set aside and appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant : Ms M A Loveday
Respondent : Ms S H Linton

Solicitors:

Appellant : Marilyn Loveday
Respondent : Director of Public Prosecutions (WA)

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

Nil

(Page 3)

1 HALL J: On 13 March 2012 the appellant appeared in the Mandurah Magistrates Court and was sentenced to a total effective sentence of 18 months' imprisonment. That sentence included a sentence of 9 months' imprisonment for stealing a motor vehicle contrary to s 378 of the Criminal Code (WA). The appellant now seeks leave to appeal against that sentence. As the appeal was commenced late the appellant also seeks an extension of time.

2 The prosecution notice and statement of material facts state that the value of the car that was the subject of the relevant charge was $800. Where a stealing charge relates to a car and is dealt with in the Magistrates Court, s 426 of the Criminal Code provides for the relevant summary conviction penalties. Where the value of the car does not exceed $1,000 the relevant maximum summary conviction penalty is a fine of $6,000 and no penalty of imprisonment is provided for in these circumstances. Had the charge been dealt with on indictment the maximum penalty that could have been imposed would have been 7 years' imprisonment. However, there was no application for this charge to be dealt with on indictment and, accordingly, it was not open to the magistrate to impose a sentence of imprisonment for this offence.

3 In those circumstances there is a clear error of law in respect of the penalty that was imposed. The respondent has, quite properly, conceded that the appeal should be allowed and a new sentence imposed for the stealing offence. Whilst the appeal notice was filed late, I am satisfied that this is an appropriate case to grant an extension of time because it is apparent that a miscarriage of justice would occur if an extension was not granted.

4 In regards to re-sentencing it is relevant to note that the circumstances of this offence were serious and that the appellant had a relevant criminal record. Any fine must therefore be sufficient to incorporate elements of both general and specific deterrence. The appellant is shortly due to be released from custody and has limited means to pay. His counsel sought that any fine be imposed with no time to pay so that he can serve time in custody in lieu of payment pursuant to s 59 Sentence Act 1995 (WA).

5 In those circumstances, the orders will be as follows:

(1) the extension of time to appeal is granted;

(2) leave to appeal against the sentence imposed on charge MH 944/2012 is granted.

(Page 4)

(3) The appeal is allowed.

(4) The sentence of 9 months' imprisonment on charge MH 944/2012 is set aside and in lieu thereof a fine of $1,500 is imposed with no time to pay.