Criminal law and procedure - Sentencing - Domestic burglaries - Receiving burgled goods - Multiple offences - Bad criminal record - Effect of amendments to Criminal Code increasing maximum penalties - Duty of court to give effect to legislative policy - Head sentence of 8 and a half years not manifestly excessive
Legislation:
Sentencing Act s 6(2)(a)
Criminal Code s 401(2)(b), s 414
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Applicant: In person
Respondent: Mr R E Cock QC & Ms V R Campbell
Solicitors:
Applicant: In person
Respondent: Acting State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Pezzino (1997) 92 A Crim R 135
R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996
PIDGEON J: I have read in draft the reasons to be published by Anderson J. I agree with those reasons and orders proposed.
ANDERSON J: The applicant seeks leave to appeal against prison sentences handed down by H H Jackson DCJ in the District Court on 20 July 1998 on the applicant's plea of guilty to six counts of burglary, one count of stealing, seven counts of receiving, two counts of stealing a motor vehicle and one count of stealing a motor vehicle and driving it recklessly. The sentences ranged from 6 months to 18 months and were structured so as to produce an aggregate head sentence of 8 years and 6 months. There was also a driver's licence disqualification for a period of 3 years, orders for return of property and an order for compensation in the sum of $400.
The applicant appeared before this Court unrepresented. He informed the Court that he had been represented until recently by a practitioner who had been lately suspended from practice. The applicant was offered an adjournment, but declined that offer. He informed the Court that he did not want any more adjournments and wished to proceed in person. He then addressed the Court at some length and in a competent manner and the Court also had the benefit of extensive written submissions which had been prepared by the practitioner who had intended to appear for the applicant.
The applicant made it clear to the Court that he believed the head sentence was too long and that there were four main reasons why he should have received a lesser sentence. In summary, these were that (i) he received no or an inadequate discount for his pleas of guilty; (ii) whereas count 1 on the indictment was a count of receiving, the learned sentencing Judge…
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.
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Details
AGLC
Heferen v The Queen [1999] WASCA 81
Case
[1999] WASCA 81
Decision Date
CaseChat Overview and Summary
The case of Heferen v The Queen involves an appeal by the defendant against his sentence for multiple counts of receiving stolen goods and burglary. The defendant's criminal history was extensive, with previous convictions for similar offences. The High Court was tasked with determining whether the sentence imposed by the lower court was excessive, particularly in light of legislative amendments that increased the maximum penalties for such offences. The court was required to balance the defendant's criminal history and the seriousness of the offences against the legislative intent behind the increased penalties.
The primary legal issue before the court was whether the sentence of eight and a half years' imprisonment, with a non-parole period of five years, was manifestly excessive. The court had to consider the impact of the legislative amendments on the sentencing discretion of the lower courts, and whether the sentence imposed was consistent with the policy behind the increased penalties. The court also had to evaluate the defendant's extensive criminal history and the cumulative seriousness of the offences. The defendant argued that the sentence was manifestly excessive and that the lower court had failed to adequately consider the legislative intent.
The court found that the sentence was not manifestly excessive. It held that the lower court had correctly taken into account the legislative policy behind the increased penalties and the defendant's extensive criminal history. The court emphasised that the imposition of a head sentence of eight and a half years, with a non-parole period of five years, was within the range of sentences that could be considered appropriate for the offences committed. The court also noted that the lower court had exercised its discretion in a manner consistent with the objectives of the Criminal Code amendments. The appeal was dismissed, and the original sentence was upheld.
The court did not make any further orders beyond dismissing the appeal and affirming the original sentence. The decision underscores the importance of considering legislative policy and the cumulative seriousness of offences when sentencing repeat offenders, particularly in light of legislative changes that increase maximum penalties.