Hart v Woolven
[2003] WASCA 185
•14 AUGUST 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HART -v- WOOLVEN [2003] WASCA 185
CORAM: JOHNSON J
HEARD: 4 & 8 AUGUST 2003
DELIVERED : 8 AUGUST 2003
PUBLISHED : 14 AUGUST 2003
FILE NO/S: SJA 1045 of 2003
BETWEEN: DOUGLAS WAYNE HART
Appellant
AND
JARROD MYLES WOOLVEN
Respondent
Catchwords:
Criminal law - Property offences - Whether suspended sentence an appropriate disposition for a minor stealing charge - Appellant resentenced
Legislation:
Criminal Code, s 378
Justices Act 1902, s 199(1)
Sentencing Act, s 57A(3), s 57A(4), s 57A(5), s 62, s 64
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: Mr C L M Miocevich
Respondent: Mr S F Rafferty
Solicitors:
Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Director of Public Prosecutions v Ottewell [1970] AC 642
R v Veen No 2 (1988) 33 A Crim R 230
Case(s) also cited:
Nil
JOHNSON J: The appellant pleaded guilty to one charge of stealing a packet of meat valued at $8.49, contrary to s 378 of the Criminal Code. He received a term of imprisonment of 15 weeks, suspended for 12 months. The appellant's adult criminal record contains prior stealing and also burglary offences for which he has been fined and even imprisoned for short periods. However, prior to the commission of this particular offence the appellant has managed to spend a period of approximately two years without having an offence recorded against him.
Penalties such as fines, and the short periods of imprisonment for offences unrelated to this type of offending, have not deterred the appellant from continuing to offend and one can readily see the purpose behind the learned Magistrate's sentence in this case. However, the sentence imposed must be proportionate to the offence committed: R v Veen No 2 (1988) 33 A Crim R 230 at 238; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650.
Indeed, the Crown conceded the appeal on the basis that the sentence was manifestly excessive in view of the nature of the offending, the value of the property stolen and the fact that the appellant had not been convicted of a similar offence in the previous two years. I concur with that view.
Section 199(1) of the Justices Act 1902 contains the power which a Judge of this Court has on the hearing of an appeal from a Magistrate. For the reasons to which I have already referred, I will allow the appeal and set aside the sentence which the Magistrate imposed.
It is, therefore, necessary for the appellant to be re‑sentenced. I could remit the matter to the Magistrate, but neither counsel pressed for this option. As a Judge of this Court has the power to impose a penalty, in the circumstances I consider this to be the most sensible option and I propose to re‑sentence the appellant myself.
Counsel for the appellant submits that a modest fine would be appropriate. At the time the appellant was initially sentenced it was said on his behalf that his offending was the result of his financial troubles caused, in part, by the fact that he is paying off a number of court‑imposed fines. I am advised that the outstanding court‑imposed fines currently amount to $1000.
Unless there has been some change to the appellant's financial circumstances, and it would appear that that is not the case, in my view, this appellant is not in a position to pay a fine and the imposition of one has the potential to lead to further offending. For those reasons, I do not consider that it is appropriate to impose a fine.
Counsel for the respondent submits that a community based order under s 62 of the Sentencing Act 1995, together with a supervision requirement pursuant to s 64 of the Act, for a period of 6 months, would be a more appropriate disposition in view of the appellant's antecedents and, in particular, his inability to pay the type of fine that would be appropriate for this type of offending.
By way of reply, counsel for the appellant suggested an alternative of the imposition of a fine together with a fine enforcement order which requires the appellant to pay the fine in full within seven days or report to a community corrections centre to be served with a work and development order in respect of the fine: s 57A(3) and s 57A(4) of the Sentencing Act. Subsection (5) of s 57A sets out a number of preconditions to the making of a fine enforcement order.
In my view, the difficulty with adopting that option is that it remains dependent on the imposition of a fine which remains an inappropriate disposition because of the appellant's financial circumstances. I therefore propose to order that the appellant submits to a community based order, together with a supervision requirement for a period of 6 months.
Insofar as it may be necessary to do so, I will also order that the appellant pay compensation of $8.49 to the complainant and pay costs of $38.
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