Joyce v Bunn - [2019] WASC 319

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JOYCE -v- BUNN [2019] WASC 319
CORAM:   TOTTLE J
HEARD:   2 SEPTEMBER 2019
DELIVERED          :   2 SEPTEMBER 2019
PUBLISHED           :   6 SEPTEMBER 2019
FILE NO/S:   SJA 1075 of 2019
BETWEEN:   JONATHAN CHARLES JOYCE
Appellant

AND

WESTLEY RAYMOND BUNN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A LONGDEN
File Number             :   MH 2591 of 2018

Catchwords:

Criminal law - Appeal against sentence - Unlawful possession of stolen or unlawfully obtained property - Parity of sentence - Where co-offender's sentence suspended - Whether appellant's sentence ought to be suspended

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3), s 10(3)
Sentencing Act 1995 (WA), s 76(3)(b), s 81(3)(b)

Result:

Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	In Person
Respondent	:	The Director of Public Prosecutions for the State of Western Australia

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

Bennett v Beeby [2019] WASC 275
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
DKN v The State of Western Australia [2018] WASCA 87
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lowe v The Queen [1984] HCA 46; (1984) CLR 606
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stoysich v The State of Western Australia [2014] WASCA 208

TOTTLE J:

Introduction

On 8 March 2019 the appellant was sentenced in the Magistrates Court of Western Australia to a total effective sentence of 16 months immediate imprisonment following his conviction for 21 offences to which he had pleaded guilty. The appellant was convicted on his pleas of guilty to a further three charges for which he received a fine of $500.
The 16 month term of imprisonment included a term of six months for the offence of possessing property reasonably suspected to be stolen or unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). Parole eligibility orders were made.
The appellant sought leave to appeal against the sentence of six months imprisonment for the offence of possessing property reasonably suspected of being stolen or unlawfully obtained. At the conclusion of the hearing of the application for leave to appeal I explained to the appellant why his application for leave was unsuccessful and said that I would publish formal and detailed reasons. These are those reasons.

The offences and sentences imposed

On 21 December 2018, the appellant pleaded guilty to 20 of the 24 offences. The appellant pleaded guilty to the remaining four charges on 19 February 2019. Details of the sentencing disposition for each offence together with brief details of the offences are set out in the table below.

Date of Offence	Charge No	Offence	Plea history and penalty imposed
8.3.18	MI4189/18	No authority to drive (susp) Road Traffic Act 1974

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 Joyce v Bunn

Details

AGLC: Joyce v Bunn [2019] WASC 319
Case: [2019] WASC 319
Decision Date: 6 SEPTEMBER 2019

CaseChat Overview and Summary

The appellant, Joyce, appealed against a sentence handed down for the offence of unlawful possession of stolen or unlawfully obtained property. The appellant and co-offender had stolen a car and were charged accordingly. The co-offender was given a suspended sentence while Joyce was sentenced to a term of imprisonment. Joyce sought an extension of time to appeal and leave to appeal the sentence on the basis that it was manifestly excessive, and the co-offender had been given a suspended sentence. The court was required to decide whether the sentence was manifestly excessive and whether it was appropriate to suspend the sentence given the circumstances.

The court noted that while the sentence was indeed harsh, it was not manifestly excessive, and there was no basis to grant an extension of time to appeal. The court held that the sentence was proportionate to the gravity of the offence and took into account the appellant's criminal history. The court found that it was not appropriate to suspend the sentence in this case as the appellant had a history of offending and had failed to show remorse. The court also noted that the co-offender's sentence was not a relevant consideration in determining the appropriate sentence for the appellant. The appeal was dismissed.

The court granted the appellant an extension of time to appeal but refused leave to appeal and dismissed the appeal. The court held that the sentence was proportionate to the gravity of the offence and that it was not appropriate to suspend the sentence in this case. The court found that the appellant's criminal history and lack of remorse were relevant considerations in determining the appropriate sentence. The appeal was ultimately unsuccessful.

Orders

Orders of the court

Extension of time to appeal granted

Leave to appeal refused

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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