Hopes v The State of Western Australia
[2015] WASCA 172
•2 SEPTEMBER 2015
HOPES -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 172
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 172 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:91/2015 | 7 AUGUST 2015 | |
| Coram: | McLURE P MAZZA JA | 2/09/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WADE ROBERT HOPES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against sentence Conspiracy to defeat the course of justice Manifest excess Turns on own facts |
Legislation: | Criminal Code (WA) |
Case References: | Murphy v The State of Western Australia [2013] WASCA 178 Tasovac v The State of Western Australia [2015] WASCA 24 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOPES -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 172 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEWART DCJ
File No : IND 1123 of 2014
Catchwords:
Criminal law - Leave to appeal against sentence - Conspiracy to defeat the course of justice - Manifest excess - Turns on own facts
Legislation:
Criminal Code (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Naumovski Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Murphy v The State of Western Australia [2013] WASCA 178
Tasovac v The State of Western Australia [2015] WASCA 24
1 McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted after trial of conspiring with Benjamin Geldart to defeat the course of justice upon the prosecution of Jan Solciansky on a charge of wilful and unlawful damage, contrary to s 135 of the Criminal Code (WA).
2 On 7 May 2015 Stewart DCJ sentenced the appellant to a term of imprisonment of 21 months for the offence. The appellant claims the sentence is manifestly excessive.
3 The sentencing judge found the facts of the offence to be as follows. Between 21 October and 5 November 2013 an agreement was reached between the appellant and Mr Geldart that Mr Geldart would falsely take the blame for Mr Solciansky in relation to a charge of criminal damage. Mr Solciansky had allegedly poured paint over a motor vehicle belonging to another.
4 When the appellant found out that Mr Solciansky had been charged with criminal damage, he became concerned that his friend, Mr Lloyd, who had signed a surety undertaking in the sum of $50,000 for Mr Solciansky, would lose his money. The appellant telephoned Mr Solciansky on 21 October 2013 and said he was going to drag Mr Geldart down to the cop shop to take the blame for Mr Solciansky.
5 Thereafter the appellant met with Mr Geldart and Mr Solciansky at which meeting the appellant and Mr Geldart agreed that Mr Geldart would take the blame for the criminal damage for which Mr Solciansky had been charged.
6 Pursuant to that agreement, Mr Geldart met with his lawyer on 24 October 2013. On Mr Geldart's instructions, the lawyer drafted a witness statement and letter to the effect that Mr Geldart was the person who poured paint over the motor vehicle belonging to the complainant (Mr Hadden).
7 On 26 November 2013 police located the draft witness statement at Mr Geldart's house. He was interviewed by police on 26 November 2013.
8 The appellant, Mr Geldart and Mr Solciansky were charged in the same indictment and tried together. Mr Solciansky was convicted of criminal damage and the appellant and Mr Geldart convicted of conspiring to defeat the course of justice. Mr Geldart was prepared to plead guilty to the criminal damage charge right up to trial.
9 As to the appellant's personal circumstances, he was aged 27 at the time of sentencing. He completed high school at year 10, commenced a four-year engineering apprenticeship and opened an engineering business with his father, to which he would return upon his release from custody.
10 The appellant was not of prior good character. He had convictions for possession of a prohibited weapon (2), possession of a prohibited drug (2), and failure to ensure the safe keeping of a firearm or ammunition (2). At the time of sentencing the appellant was a member of the Comancheros Motor Cycle Gang, which the author of the pre-sentence report identified as a factor in the risk of him reoffending.
11 The sentencing judge also found that the appellant originated and formulated the plan and recruited Mr Geldart to implement it and that the appellant had influence over both Mr Geldart and Mr Solciansky.
12 This court can only intervene if a sentencing judge has made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
13 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.
14 The maximum penalty for the offence of conspiring with another to defeat the course of justice is 7 years imprisonment.
15 The appellant suggests that the level of his criminality is informed by the level of seriousness of what is described as the 'index offence', being the criminal damage charge (ts 2). That submission misunderstands the source of the seriousness of the offence committed by the appellant. That offence is serious because it strikes at the heart of the due and proper administration of the criminal justice system.
16 Having regard to all sentencing considerations, including the absence of any significant mitigation, the appellant's sentence is broadly consistent with sentences customarily imposed for offences of the type committed by the appellant (Tasovac v The State of Western Australia [2015] WASCA 24 [135]; Murphy v The State of Western Australia [2013] WASCA 178 [28] - [29]) and is well within the range of a sound exercise of the sentencing discretion.
17 The ground of appeal has no reasonable prospect of succeeding. Accordingly, leave must be refused and the appeal is taken to be dismissed.
18 MAZZA JA: I agree with McLure P.
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