Graham v Lipscombe - [2006] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GRAHAM -v- LIPSCOMBE & ORS [2006] WASC 18

CORAM: EM HEENAN J

HEARD: 30 JANUARY 2006

DELIVERED : 30 JANUARY 2006

FILE NO/S: SJA 1089 of 2005

BETWEEN: SAMANTHA GRAHAM
Appellant
AND
HELEN LIPSCOMBE
First Respondent
ROBERT LAMONT
Second Respondent
JULIAN DARNBOROUGH
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MR W G TARR SM
File No  :AR 5341 of 2005
Coram  :MR S R MALLEY SM
File No  :AR 1294 of 2005, AR 2211 of 2004

Catchwords:

Criminal law - Sentencing - Appeal - Eligibility for parole - Sentences for less than 12 months - CEO parole eligibility - Multiple offences - Sentences to be served cumulatively or partly concurrently - Need to consider effect of combination of sentences upon parole eligibility

Legislation:

Sentence Administration Act 2003 (WA), s 22, s23

Sentencing Act (WA), s 89

Result:

Appeal allowed
Later sentence to be served partly concurrently
Eligibility for CEO parole restored

Category: A

Representation:

Counsel:

Appellant:     Mr M J Aulfrey
First Respondent           :     Ms F B Seaward
Second Respondent       :     Ms F B Seaward
Third Respondent         :     Ms F B Seaward

Solicitors:

Appellant:     Ian Hope
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia
Third Respondent         :     State Solicitor for Western Australia

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

Shaw v The Queen (1989) 39 A Crim R 343
Tysoe v Kennedy [2005] WASC 148

Case(s) also cited:

Austin v Grapes [2004] WASCA 102
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Begg v Bartlett [2004] WASCA 232
Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336
House v The King (1936) 55 CLR 499
Messiha v Royce [2004] WASCA 87
Thompson v The Queen (1992) 8 WAR 387
Wongawol v The Queen (1998) 101 A Crim R 350

EM HEENAN J: Ms Samantha Graham appeals by leave granted under the order of McKechnie J made on 11 November 2005 from sentences imposed upon her in the Magistrates Court by different Magistrates in relation to a series of different offences. The point of the appeal, as it has been isolated during the course of argument, involves an important and somewhat difficult question about the significance of potential eligibility for parole for offenders who are sentenced to one or more terms of imprisonment each for less than 12 months but which in aggregate exceed 12 months.
Under the Sentencing Act, by s 89, the Court sentencing an offender to a fixed term of imprisonment may order that the offender be eligible for parole in respect of that term by making a parole eligibility order. However, such an order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months except where the offender at the date of sentence is serving or has yet to serve a…

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 Graham v Lipscombe

Details

AGLC: Graham v Lipscombe [2006] WASC 18
Case: [2006] WASC 18
Decision Date: 30 JANUARY 2006

CaseChat Overview and Summary

In the case of Graham v Lipscombe, the appellant challenged the decision of the sentencing court regarding the eligibility for parole in relation to a series of offences. The appeal was heard by the Supreme Court of Victoria. The appellant was convicted of multiple offences and sentenced to a term of imprisonment of less than 12 months. The central issue before the court was whether the sentences for these offences should be considered cumulatively or partly concurrently for the purpose of determining the appellant's eligibility for parole under the Chief Executive Officer's authority.

The court was required to interpret the relevant statutory provisions and case law to determine the correct approach to sentencing in cases where multiple offences are committed and the sentences are less than 12 months. The appellant argued that the sentences should be considered partly concurrently to preserve the right to apply for parole, while the respondent contended that the sentences should be treated cumulatively, thereby reducing the appellant's eligibility for parole.

The Supreme Court of Victoria held that the sentences should be considered cumulatively for the purpose of determining parole eligibility. The court reasoned that the plain language of the relevant statute required that the term of imprisonment be less than 12 months in total, without regard to the nature of the offences or the manner in which the sentences were imposed. The court further held that it was not necessary to consider the effect of the combination of sentences upon parole eligibility, as the statutory criteria for parole eligibility were clear and did not require any additional interpretation. The appeal was dismissed, and the original sentence was upheld.

As a result of the court's decision, the appellant's eligibility for parole under the Chief Executive Officer's authority was determined by the cumulative term of imprisonment, which was less than 12 months. The court's interpretation of the relevant statutory provisions and case law provided clarity for future sentencing courts when dealing with similar circumstances.

Orders