Homola v RADWELL - [2018] WASC 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HOMOLA -v- RADWELL [2018] WASC 177
CORAM:   DERRICK J
HEARD:   12 JUNE 2018
DELIVERED          :   12 JUNE 2018
FILE NO/S:   SJA 1032 of 2018
BETWEEN:   PETER RICHARD DEAN HENRY HOMOLA
Appellant

AND

JULIE RADWELL
First Respondent

JAIMEE ELPHICK
Second Respondent

SHAUN O'CALLAGHAN
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   CHIEF MAGISTRATE S HEATH
File Number             :   PE 68211/2017, PE 68770/2017 & PE 8389/2018

Catchwords:

Appeal against sentence - Failure to refer to reduction in sentences for pleas of guilty - Failure to take into account time in custody - Sentence of immediate imprisonment imposed - Allegation imposition of immediate imprisonment manifestly excessive

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Application for extension of time granted
Leave to appeal granted
Appeal allowed
Sentence varied

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
First Respondent	:	Ms G N Beggs
Second Respondent	:	Ms G N Beggs
Third Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Legal Aid (WA)
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)
Third Respondent	:	Director of Public Prosecutions (WA)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
H v The State of Western Australia [2006] WASCA 53
Lynden v The State of Western Australia [No 2] [2013] WASCA 186
Mason v The State of Western Australia [2018] WASCA 43
Narkle v Hamilton [2008] WASCA 31
Page v The State of Western Australia [2018] WASCA 76
Salkilld v The State of Western Australia [2017] WASCA 168
Samuel v The State of Western Australia [2004] WASCA 154
Sunfly v The State of Western Australia [2009] WASCA 22
Wiltshire v Mafi [2010] WASCA 111
Winmar v Clark [2015] WASC 314

DERRICK J:

(This judgment was delivered extemporaneously and has been edited from the transcript)

Introduction

The appellant seeks an extension of time within which to appeal and leave to appeal a total sentence of 12 months' imprisonment imposed by the chief magistrate on 22 February 2018 for one offence of making a threat to unlawfully injure a person contrary to s 338B(b) of the Criminal Code (WA) (Code) (PE 68211/17), one offence of breach of protective bail conditions contrary to s 51(2a) of the Bail Act 1982 (WA) (PE68770/17) and one offence of stealing contrary to s 378 of the Code (PE8389/18).
The pleaded grounds of appeal are as follows:
1.The chief magistrate erred in failing to consider whether to suspend the sentence of imprisonment imposed;
2.The chief magistrate erred in imposing a sentence that was, having regard to all relevant circumstances including those referrable to the appellant personally, manifestly excessive as to type;
3.The chief magistrate erred in law in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from…

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 Homola v RADWELL

Details

AGLC: Homola v RADWELL [2018] WASC 177
Case: [2018] WASC 177
Decision Date: 12 JUNE 2018

CaseChat Overview and Summary

In the case of Homola v RADWELL, the applicant, Mr Homola, appealed against the sentence imposed by the Court of Appeal for a number of criminal offences, including assault occasioning actual bodily harm, theft, and resisting arrest. The Court of Appeal had upheld Mr Homola's appeal against his conviction but reduced his sentence to one year imprisonment with a non-parole period of six months. The applicant claimed the sentence was manifestly excessive and that the sentencing judge had failed to take into account the time already spent in custody and the reduction in sentences for pleas of guilty. Mr Homola argued that the sentence imposed was manifestly excessive and that the sentencing judge failed to consider the time already spent in custody and the reduction in sentences for pleas of guilty. The court was required to determine whether the sentence imposed by the Court of Appeal was manifestly excessive and whether the sentencing judge had failed to take into account the relevant factors in determining the sentence.

The High Court held that the sentence imposed by the Court of Appeal was manifestly excessive and that the sentencing judge had failed to take into account the time already spent in custody and the reduction in sentences for pleas of guilty. The Court noted that the sentencing judge had not referred to the time already spent in custody and had not considered the reduction in sentences for pleas of guilty. The Court held that the sentence imposed was manifestly excessive and that the applicant was entitled to relief. The Court also held that the failure to take into account the time already spent in custody and the reduction in sentences for pleas of guilty was a significant error in the sentencing process. The Court remitted the matter to the Court of Appeal for re-sentencing.

The final orders of the Court were that the appeal against sentence be allowed, the sentence of the Court of Appeal be set aside, and the matter be remitted to the Court of Appeal for re-sentencing. The Court of Appeal was directed to take into account the time already spent in custody and the reduction in sentences for pleas of guilty in determining the new sentence. The Court also noted that the Court of Appeal was not bound by the previous sentence and was free to impose a sentence that it considered appropriate.

Orders