Hodder v Te Nahu - [2023] WASCA 20

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HODDER -v- TE NAHU [2023] WASCA 20
CORAM:   MAZZA JA
VAUGHAN JA
HALL JA

HEARD:   21 OCTOBER 2022
DELIVERED          :   3 FEBRUARY 2023
FILE NO/S:   CACR 127 of 2021
BETWEEN:   JAMES LESLIE HODDER
Appellant
AND
PETER TE NAHU
First Respondent
CLINTON MOORE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
File Number            :   SJA 1099 of 2020

Catchwords:

Criminal law - Appeal against order in single judge appeal - Where single judge allowed appellant's appeal against sentence - Whether single judge erred in remitting resentencing to trial magistrate

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 16(2)
Sentencing Act 1995 (WA), s 53(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	Ms K C Cook
Second Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	In person
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)

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

Hodder v Police Department of Western Australia [2011] WASC 142
House v The King [1936] HCA 40; (1936) 55 CLR 499
Sgroi v The Queen (1989) 40 A Crim R 197

JUDGMENT OF THE COURT:

This is an appeal under s 16(2) of the Criminal Appeals Act 2004 (WA) against an order made on 20 July 2021 by Curthoys J. On that day, his Honour heard and determined the appellant's appeal against conviction and sentence from decisions made by Magistrate Campione.[1]
[1] His Honour's reasons for decision were not published, but were transcribed.
On 30 November 2020, Magistrate Campione convicted the appellant after trial of:
(a)three counts of failing to comply with his reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (the Act) (charges PE60874 of 2018, PE8199 of 2019 and PE14422 of 2019);
(b)one count of failing to appear in the Perth Magistrates Court being a requirement of a bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA) (charge PE6133 of 2019); and
(c)one count of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code (WA) (charge PE14423 of 2019).
Magistrate Campione imposed a global fine of $3,000 for the offences contrary to s 63(1) of the Act, $800 for the offence contrary to s 51(1) of the Bail Act and $1,000 for the offence contrary to s 172(2) of the Criminal Code. Thus, the total fine imposed upon the appellant was $4,800.
Curthoys J dismissed the appellant's appeal against conviction, but, based on a concession made by the respondent that the learned magistrate had fined the appellant without complying with s 53(1) of the Sentencing Act 1995 (WA),[2] allowed the appeal against sentence. Relevantly to the proceedings before this court, his Honour chose not to resentence the appellant. Instead, he remitted the resentencing…

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 Hodder v Te Nahu

Details

AGLC: Hodder v Te Nahu [2023] WASCA 20
Case: [2023] WASCA 20
Decision Date

CaseChat Overview and Summary

James Leslie Hodder appeals against a decision of Curthoys J in the Supreme Court of Western Australia, wherein Curthoys J dismissed Hodder's appeal against his conviction but allowed his appeal against the sentence imposed by Magistrate Campione. Curthoys J remitted the resentencing of Hodder to the Perth Magistrates Court. The issues before the Court of Appeal were whether Curthoys J erred in making the remittal order and whether he should have resentenced Hodder instead. The Court of Appeal found that Curthoys J did not err in remitting the resentencing of Hodder to the Perth Magistrates Court, as there was no information available to Curthoys J to determine Hodder's means and the extent to which payment of a fine would burden him. The Court also found that there was no basis for an apprehension of bias on the part of Magistrate Campione, who would be familiar with the facts of the offending and would resentence Hodder impartially. The appeal was dismissed, and an extension of time to appeal was granted.

The Court of Appeal found that Curthoys J did not err in making the remittal order and remitting the resentencing of Hodder to the Perth Magistrates Court. The Court found that it was open to Curthoys J to remit the resentencing to the Perth Magistrates Court to allow proper enquiry to be made pursuant to s 53(1) of the Sentencing Act. The Court also found that there was no basis for an apprehension of bias on the part of Magistrate Campione, who would be familiar with the facts of the offending and would resentence Hodder impartially. The appeal was dismissed, and an extension of time to appeal was granted.

Orders