Hunter v The State of Western Australia
[2005] WASCA 110
•15 JUNE 2005
HUNTER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 110
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 110 | |
| THE COURT OF APPEAL (WA) | 15/06/2005 | ||
| Case No: | CCA:190/2004 | 20 MAY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA PULLIN JA | 20/05/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentence granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | TERRENCE GEOFFREY HUNTER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Nil Mill v The Queen (1988) 166 CLR 59 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUNTER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 110 CORAM : WHEELER JA
- ROBERTS-SMITH JA
PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CRISFORD DCJ
File No : IND 23 of 2003
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application for leave to appeal against sentence granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L P Rayney & Mr B M Hollingsworth
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Mill v The Queen (1988) 166 CLR 59
(Page 3)
1 WHEELER JA: This was an application for leave to appeal against sentence. The appellant represented himself, and purported to bring the appeal pursuant to the Justices Act 1902 (WA), rather than under the relevant provisions of the Criminal Code (WA). However, the respondent took no issue with that defect, and it is therefore appropriate simply to deal with the merits of the application. On 13 October 2004, the appellant pleaded guilty to 10 counts of fraud, which pleas were accepted by the State in full satisfaction of an indictment charging him with 13 counts of fraud. The total amount the subject of the 10 counts for which the appellant was convicted was approximately $169,000.
2 To summarise broadly the nature of the frauds, the appellant posed as a person by the name of Cook. He pretended to be trading as a company called A P Medical Supplies of Fremantle. This name he obtained from the White Pages, there apparently being an A P Medical Supplies of Fremantle. He had stationery printed in the name of A P Medical Supplies. He leased premises in South Perth for July of 1997. He and his accomplice, one Dermish, created a number of false items of identification, including birth certificates, Medicare records, Medicare cards and drivers' licences, and with this material Dermish was able to go to banks and credit unions and open accounts in false names. Once an account had been opened, Dermish made an application for a loan to purchase consumer items such as cars or boats. When applying for these loans, Dermish claimed to be employed by A P Medical Supplies and, of course, was able to provide material from the appellant confirming that he was employed by that company. The appellant opened accounts in the name of Cook at BankWest and Challenge Bank and the proceeds of the loans obtained by Dermish were placed into the account in the name of Cook. The appellant then took the money out of the account in cash. The majority of offences were committed over a relatively short period, in July 1997, although some continued until October 1997.
3 During the period June to October 1997, the appellant and Dermish also travelled to South Australia and committed similar offences in that State, between September and October 1997.
4 Dermish was sentenced for the South Australian offences in South Australia and received a term of 4 years' imprisonment, serving 16 months in custody and 2 months on home detention. In May of 2000, having been extradited to Western Australia, Dermish pleaded guilty to 12 counts of fraud and one of attempted fraud in the District Court in this State. He was initially sentenced to 2 years, 11 months' imprisonment, but on appeal that sentence was reduced to 1 year and 11 months, having regard to
(Page 4)
- totality principles, because of the South Australian sentence. When these offences occurred, Dermish was 26 years of age and was effectively a first offender.
5 The appellant came to be sentenced much later. In February of 2001, he was sentenced in South Australia to 4 years' imprisonment, backdated to 23 November 2000, presumably because of time in custody in South Australia. His earliest eligible date for release in South Australia was 16 April 2002, but he remained in custody in South Australia until 16 May 2002, awaiting extradition to Western Australia. He was not in the end extradited. Rather, he travelled to New South Wales and remained there some time while negotiations with the Director of Public Prosecutions for Western Australia took place. He had therefore spent some 18 months in custody in South Australia and there had apparently been approximately a further 2 months on remand in South Australia before being released to bail, in relation to the South Australian offences.
6 The learned sentencing Judge imposed a sentence of 14 months' immediate imprisonment on each charge, to be served concurrently, with an order for eligibility for parole. Because those sentences were imposed after the transitional provisions, they equated therefore to a term of 21 months under the prior provisions, effectively 2 months less than the 23 months imposed in respect of Dermish.
7 There were nine grounds of appeal, [material suppressed]. However, they fell effectively into two categories, being parity of sentence with the co-offender, Dermish, and matters relating to the parole term which the appellant has to serve.
8 It is not necessary now to consider the grounds as they were formulated by the appellant. That is because, during the course of his submissions, he advised us of a fact which had not been apparent from any of the materials in the appeal book. That was that the difference in the date of sentencing of the appellant in Western Australia, as compared to the date of Dermish's sentencing, meant that in the appellant's case the South Australian and Western Australian sentences were served separately and consecutively, with a gap in between them, during which, as I have noted, he was in New South Wales, while in Dermish's case there was effective concurrency of the South Australian and Western Australian sentences, insofar as the parole period of those sentences was concerned. While we had no reason to disbelieve the appellant, there was nothing on the materials before us, or by way of affidavit, which indicated the way in which Dermish had served the South Australian parole period.
(Page 5)
- However, during the luncheon adjournment Mr Rayney and Mr Hollingsworth, representing the DPP, caused urgent inquiries to be made of relevant officers in South Australia. The Court is grateful to them for those efforts, which revealed that the South Australian Correctional Service's record indicates that Dermish's parole order ended in November 2001, by which time his Western Australian sentence had wholly expired.
9 Counsel for the DPP quite properly accepted that, in considering questions of parity, it was appropriate to have regard to the fact that in Dermish's case there had been partial concurrency of sentence, whereas in the appellant's case there had not. So far as we could ascertain, the effect in Dermish's case was that his South Australian and Western Australian sentences had run concurrently for a period of approximately 8 months. The effective 2-month reduction in the appellant's sentence made by the learned sentencing Judge in this State, as compared to Dermish's sentence, plainly did not account adequately for that significant difference. Her Honour appears to have been unaware, as we were until argument in this matter commenced, that there was any issue of concurrency in Dermish's case to be considered.
10 If it had been the case that the concurrency of sentences in Dermish's case had occurred because of his willingness to be extradited and to facilitate the course of justice, while the appellant had evaded or failed to co-operate with Western Australian authorities, it might well be inappropriate to attempt to place him, so far as possible, in the same position as Dermish. However, the appellant advised us from the bar table, without objection, that during his period in New South Wales he was negotiating with the Western Australian authorities in relation to the charges which he would face if he returned to Western Australia. He advised us that it was as a result of those negotiations that the DPP ultimately accepted a plea of guilty to 10 counts, rather than the 13 which Dermish had faced.
11 By the time at which he appeared before us, the appellant had only just been released from the custodial portion of his sentence of imprisonment, and had a little under 7 months to serve whilst on parole.
12 Having regard to parity considerations, and to the term already served by the appellant, it seemed to us that the most appropriate course therefore was to quash the sentence of imprisonment imposed by the
(Page 6)
- learned sentencing Judge, and to substitute in lieu thereof a term of 7 months' imprisonment, which term the appellant had, of course, already served. We therefore ordered that the appellant have leave to appeal against his sentence, that the appeal be allowed, and that there be substituted for the sentence imposed by the learned sentencing Judge one of 7 months' imprisonment.
13 ROBERTS-SMITH JA: I have read the reasons to be published by Wheeler JA. I agree with those reasons and have nothing to add.
14 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
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