Hooker v The Police
[2006] WASC 188
•29 AUGUST 2006
HOOKER -v- THE POLICE [2006] WASC 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 188 | |
| 29/08/2006 | |||
| Case No: | SJA:1045/2005 | 11 AUGUST 2006 | |
| Coram: | McKECHNIE J | 11/08/06 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence made concurrent | ||
| D | |||
| PDF Version |
| Parties: | LAURANCE ANTHONY HOOKER THE POLICE |
Catchwords: | Criminal law Sentence Escaping legal custody General principle sentence should be cumulative Exceptional circumstances |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
THE POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P M HOGAN
File No : PE 28684 of 2004
Catchwords:
Criminal law - Sentence - Escaping legal custody - General principle sentence should be cumulative - Exceptional circumstances
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Sentence made concurrent
Category: D
Representation:
Counsel:
Appellant : In person
Respondent : Mr S M Stocks
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J: This matter has a considerable history. On 10 May 1988 in the Perth District Court, the applicant was sentenced to a total of 2 years and 11 months' imprisonment with a minimum of 17 months for 4 counts of burglary. A subsequent appeal, which was lodged by him, was abandoned. On 29 September 1988 he walked out of the Karnet Prison Farm. On 3 October 1988 a warrant was issued for his arrest. The applicant, however, had fled the State. The warrant was executed in New South Wales and the applicant was kept in custody for a considerable time until the warrant was discharged in the District Court of New South Wales apparently because the West Australian authorities did not then seek extradition.
2 On 9 May 2004 the applicant was arrested in Queensland and extradited to Western Australia on 20 June 2004 with subsequent court appearances until the matter was dealt with by a Magistrate on 20 January 2005. The Magistrate overruled the applicant's submissions that the warrant was defective and an abuse of process. The applicant was convicted as indeed he then had to be in light of his admissions. The Magistrate sentenced the applicant "taking into account the need to set a sentence that will deter walkouts from minimum security prisons" to a term of 3 months' imprisonment cumulative on the existing sentence.
3 On 3 April 2005 the applicant sought an extension of time within which to appeal and leave to appeal on three grounds. Two grounds related to the issue of the defective warrant and the Magistrate's view that she did not have the authority to decide the matter. On 25 May 2005 I refused leave to appeal on those two grounds. I allowed an extension of time and granted leave to appeal on a ground:
"3) That the sentence was manifestly excessive in comparison to all the others returned to Western Australia in 'Operation Slade'. Of 25 escapees returned the appellant was the only one to receive a cumulative sentence after so long."
4 I directed that the applicant serve the documentation on the DPP and apply to the Court for an appeal listing date.
5 Something or more accurately nothing then happened. The applicant asserts that he did file the papers with the DPP. Mr Stocks, who appeared for the DPP, said that they had no record of receiving any papers. At all events, I had the matter called on before me on 18 July 2006 and arranged for the DPP to receive all the papers.
(Page 4)
6 On 8 August 2006 Mr Stocks wrote to my Associate indicating that the State would concede the appeal.
7 On 11 August 2006, after a short hearing, I allowed the appeal, set aside so much of the order that imposed a cumulative sentence of 3 months' imprisonment and ordered instead that the sentence of 3 months' imprisonment be served concurrently with all other sentences.
8 The Magistrate correctly stated the principle that generally sentences for escaping legal custody should be cumulative on existing sentences. Moreover, she was correct to note an element of general deterrence necessary to prevent walkouts from minimum security prisons.
9 In the context of the argument on abuse of process the Magistrate was advised by the applicant that he had been on remand in New South Wales, in part in relation to extradition, for a period of 12 months and 8 days.
10 In determining whether the term should be cumulative, the Magistrate erred in failing to refer to this lengthy period of incarceration in New South Wales, a term which was effectively cumulative on the existing sentences of burglary because it was never taken into account anywhere. For this reason, in the unusual circumstances of this case, there has been a miscarriage of justice. The respondent's concession was rightly made. This is why I allowed the appeal and ordered that the sentence be served concurrently. I said I would publish my reasons and these are they.
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