KERR -v- COWIE [2006] WASC 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 193 | |
| Case No: | SJA:1033/2006 | 8 AUGUST 2006 | |
| Coram: | MARTIN CJ | 8/08/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence imposed in relation to aggravated burglary quashed and substituted with a sentence of 9 months' imprisonment Sentence imposed in relation to driving under disqualification quashed and substituted with a sentence of 6 months' imprisonment to be served cumulatively with the other sentence The substituted cumulative sentences to take effect as if imposed by the Magistrate with eligibility for parole Continuation of disqualification for holding a motor vehicle licence | ||
| B | |||
| PDF Version |
| Parties: | JUSTIN ROBERT JOHN KERR RUSSELL MARK COWIE |
Catchwords: | Appeal Appeal against sentence of 14 months' imprisonment for aggravated burglary Appeal against sentence of 7 months' imprisonment for driving without a motor vehicle licence and whilst the licence was under suspension Cumulative sentences Whether the Magistrate took the plea of guilty into account as a mitigating factor Requirement to recognise the mitigatory effect of a plea of guilty Whether the principle of parity should apply where appellant's cooffender was successful in her appeal against sentence |
Legislation: | Sentencing Act 1995 (WA), s 8 |
Case References: | Anderson v Heath and Anor [2005] WASC 253 Mason v Morrison [2004] WASCA 181 Cameron v The Queen (2002) 209 CLR 339 Cardile v The Queen [2003] WASCA 72 Dickman v Turton & Anor [2000] WASCA 1 "H" v The State of Western Australia [2006] WASCA 53 Hamon v Iriks (1991) 13 MVR 388 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 Radebe v The Queen [2001] WASCA 254 Williams v Franzinelli [2001] WASCA 241 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
RUSSELL MARK COWIE
Respondent
ON APPEAL FROM:
For File No : SJA 1033 of 2006
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR K FISHER SM
File No : BU 2135 of 2004
Catchwords:
Appeal - Appeal against sentence of 14 months' imprisonment for aggravated burglary - Appeal against sentence of 7 months' imprisonment for driving without a motor vehicle licence and whilst the licence was under suspension - Cumulative sentences - Whether the Magistrate took the plea of guilty into account as a mitigating factor - Requirement to recognise the mitigatory effect
(Page 2)
of a plea of guilty - Whether the principle of parity should apply where appellant's cooffender was successful in her appeal against sentence
Legislation:
Sentencing Act 1995 (WA), s 8
Result:
Appeal allowed
Sentence imposed in relation to aggravated burglary quashed and substituted with a sentence of 9 months' imprisonment
Sentence imposed in relation to driving under disqualification quashed…
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- Kerr v Cowie [2006] WASC 193
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- [2006] WASC 193
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CaseChat Overview and Summary
Martin CJ observed that the Magistrate failed to credit the appellant's plea of guilty as a mitigating factor, contrary to s 8 of the Sentencing Act 1995 (WA). This failure to recognise the mitigatory effect of the plea of guilty was an error that vitiated the sentencing process. The court determined that the sentences imposed by the Magistrate were therefore inappropriate and required re-sentencing. The court further noted that while the appellant's co-offender's circumstances influenced her sentence, these were not applicable to Kerr's case due to his extensive criminal history. As such, the court found it appropriate to impose a sentence of 9 months' imprisonment for the aggravated burglary, reduced from the original 14 months due to the mitigating effect of the plea of guilty. For the driving offence, the court imposed a sentence of 6 months' imprisonment, to be served cumulatively with the sentence for aggravated burglary. Both sentences were to take effect as if imposed by the Magistrate, with eligibility for parole.
In conclusion, the court allowed the appeal, quashed the original sentences, and imposed new sentences for the offences in question, ensuring they reflected the mitigating effect of the plea of guilty and aligned with the sentencing principles under the Act.
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