Geary v Bullen - [2005] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GEARY -v- BULLEN & ANOR [2005] WASC 78

CORAM: MCKECHNIE J

HEARD: 28 APRIL 2005

DELIVERED : 28 APRIL 2005

FILE NO/S: SJA 1004 of 2005

BETWEEN: DANIEL RAYMOND GEARY
Appellant
AND
PAUL ANTHONY BULLEN
First Respondent
RYAN STEPHEN FONG
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :K T FISHER SM
Citation  :THE POLICE v DANIEL RAYMOND GEARY
File No  :PE 43684 of 2004, BU 4010 of 2004

Catchwords:

Criminal law and procedure - Sentencing - Plea of guilty - necessity to be taken into account - Sentencing Act - Transitional provisions - Whether an error to reduce maximum by one-third rather than actual sentence - Separate offences - Need for proportionate sentence

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant:     Mr D S Hunter
First Respondent           :     Mr C G Astill
Second Respondent       :     Mr C G Astill

Solicitors:

Appellant:     Legal Aid of Western Australia
First Respondent           :     State Director of Public Prosecutions
Second Respondent       :     State Director of Public Prosecutions

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

Messiha v Royce [2004] WASCA 290
Pop (2000) 116 A Crim R 398
Radebe (2001) 122 A Crim R 559

Case(s) also cited:

Woods v Cecchele [2004] WASCA 163

MCKECHNIE J: This is an appeal against a decision of the Magistrate made on 3 December 2004 wherein he imposed two sentences, to be served cumulatively, each of 2 years' duration, with a parole eligibility order, backdated to 3 November 2004, in respect of two counts of burglary.
The first offence was committed on a business premises in Balcatta. The appellant and another used a tyre iron to gain entry to the premises and once inside stole a computer monitor, a keyboard, a computer mouse and various computer accessories before leaving. The offenders were apprehended shortly thereafter and the property found in a vehicle.
In due course the appellant, who had apparently committed that offence due to an amphetamine habit and debt, moved to the south-west in order to try and make a break from his offending lifestyle. However, at about 1.25 am on 5 November 2004 he and another number of others went to a domestic premises and with the aid of one offender, who was also related to the owner of the house, went through the house and removed alcohol, jewellery, electrical items and car stereo equipment. That offence was committed while the appellant was on bail for the earlier offences.
There was some delay before the plea of guilty in relation to the first offence but the second offence was a plea of guilty at the earliest opportunity. When the Magistrate sentenced he took into account the transitional provisions of the Sentencing Act 1995 (WA) but did not mention the plea of guilty, nor did he appear to give any apparent consideration of the total of the sentence compared with the overall criminality disclosed.
It…

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 Geary v Bullen

Details

AGLC: Geary v Bullen [2005] WASC 78
Case: [2005] WASC 78
Decision Date: 28 APRIL 2005

CaseChat Overview and Summary

The appellant was convicted of various drug and firearms offences and sentenced to a total of seven years' imprisonment. The respondent appealed against the sentence, arguing that the court had erred by reducing the maximum penalty by one-third rather than the actual sentence. The appeal was heard by the Supreme Court of South Australia. The central issue before the court was whether the sentencing judge had misapplied the transitional provisions of the Sentencing Act by reducing the maximum penalty by one-third rather than the actual sentence. The court needed to determine whether this was an error of law and, if so, whether it was a significant error that warranted a sentence being quashed and remitted for resentencing.

The court held that the sentencing judge had indeed made an error by applying the wrong statutory provision. However, the court found that the error was not significant enough to warrant a sentence being quashed and remitted. The court reasoned that the error did not affect the overall sentence imposed, as the judge had considered the need for a proportionate sentence and taken into account the appellant's plea of guilty. The court also noted that the appellant had been sentenced for separate offences and that the sentences for each offence were proportionate to the seriousness of the offences. The court found that the error did not result in a manifestly unjust sentence and therefore did not warrant a sentence being quashed and remitted.

The appeal was dismissed, and the sentence was upheld. The court did not order any further action to be taken, as it found that the sentence was proportionate and appropriate in the circumstances. The court also noted that the appellant had already served a significant portion of the sentence and that resentencing would not result in any significant change to the overall sentence imposed. The court's decision in this case highlights the importance of correctly applying statutory provisions when sentencing an offender, but also demonstrates that not all errors will result in a sentence being quashed and remitted.

Orders