KERR -v- COWIE [2006] WASC 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 193
Case No:	SJA:1033/2006	Heard:	8 AUGUST 2006
Coram:	MARTIN CJ	Delivered:	8/08/06
No of pages:	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
Category:	B
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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

CITATION : KERR -v- COWIE [2006] WASC 193 CORAM : MARTIN CJ HEARD : 8 AUGUST 2006 DELIVERED : 8 AUGUST 2006 FILE NO/S : SJA 1033 of 2006 BETWEEN : JUSTIN ROBERT JOHN KERR

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…

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 Kerr v Cowie

Details

AGLC: Kerr v Cowie [2006] WASC 193
Case: [2006] WASC 193
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Justin Robert John Kerr, the appellant, brought an appeal against sentences imposed by the Magistrate in Bunbury. Kerr appealed the sentences for aggravated burglary and for driving without a motor vehicle licence while the licence was under suspension. The Court heard the appeal on 8 August 2006, and Martin CJ delivered the judgment on the same day. The central legal issues were whether the Magistrate took the plea of guilty into account as a mitigating factor and whether the principle of parity should apply given that the appellant's co-offender successfully appealed against her sentence.

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.

Orders