INDICH -v- BRACKNELL [2005] WASC 225

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 225
Case No:	SJA:1088/2005	Heard:	10 OCTOBER 2005
Coram:	MCKECHNIE J	Delivered:	10/10/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	D
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Parties:	CANDICE MAREE INDICH MICHELLE LOUISE BRACKNELL
Catchwords:	Criminal law Sentencing Sentence of 6 months and 1 day Not to be used to frustrate will of Parliament Breach of bail When error of principle to imprison
Legislation:	Sentencing Act 1995 (WA), s 86, Sch 1 Transitional provisions 2.(1)
Case References:	Dinsdale v The Queen (2000) 2002 CLR 321 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : INDICH -v- BRACKNELL [2005] WASC 225 CORAM : MCKECHNIE J HEARD : 10 OCTOBER 2005 DELIVERED : 10 OCTOBER 2005 FILE NO/S : SJA 1088 of 2005 BETWEEN : CANDICE MAREE INDICH

Appellant

AND

MICHELLE LOUISE BRACKNELL

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MR T J MCINTYRE SM

File No : PE 38985 of 2005

Catchwords:

Criminal law - Sentencing - Sentence of 6 months and 1 day - Not to be used to frustrate will of Parliament - Breach of bail - When error of principle to imprison

Legislation:

Sentencing Act 1995 (WA), s 86, Sch 1 Transitional provisions 2.(1)

(Page 2)

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant : Mr C J L Miocevich

Respondent : Ms K E Sheppard

Solicitors:

Appellant : Aboriginal Legal Service

Respondent : State Solicitor's Office

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

Dinsdale v The Queen (2000) 2002 CLR 321

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: This is an application for leave to appeal. I am grateful to the State which has responded to this application for leave to appeal. I propose to treat the application for leave to appeal and the hearing of the appeal as one.

2 On 26 July 2005 the appellant pleaded guilty and received a series of sentences. The offence the subject of the appeal is PE 05 38985 that on 30 June 2005 at Perth, without reasonable cause, she failed to appear in Perth Magistrates Court, such appearance being a requirement of a bail undertaking entered into by her on the 25 June 2005.

3 She was fined for disorderly conduct. For the offence of breach of bail she received a sentence of 6 months and 1 day of imprisonment, suspended for 12 months. This appeal is in respect of the suspended sentence of imprisonment.

4 The Magistrate's reasons for imposing a sentence of imprisonment were expressed succinctly. He was aware that the appellant had failed to comply with the bail order and that she had given, what I regard as a very inadequate excuse for not complying. He said:

"You're in a situation where you're developing a history of just blatantly ignoring your obligation. So I'm going to show you in no uncertain terms that you cannot do that. You…

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 Indich v Bracknell

Details

AGLC: Indich v Bracknell [2005] WASC 225
Case: [2005] WASC 225
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an appeal brought by Candice Maree Indich against Michelle Louise Bracknell. Indich had pleaded guilty to a charge of failing to appear in court as required by a bail undertaking and was sentenced to six months and one day imprisonment, suspended for 12 months. Indich appealed the sentence, arguing that it was manifestly excessive given her plea of guilty, her personal circumstances, her age, and the nature of the offence. The court was required to determine whether the sentence imposed by the Magistrate was appropriate and whether it complied with the Sentencing Act 1995 (WA). The court held that the Magistrate had erred in imposing a sentence of imprisonment, particularly given that the offence did not merit such a severe penalty. The court also found that the Magistrate had incorrectly imposed a sentence of six months and one day, which was the minimum sentence allowable under the amended Sentencing Act. The court held that this was an error of principle and that the sentence should be set aside. Instead, the court imposed a fine of $400.

Orders