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KIROS-GIDEY v Purcell

KIROS-GIDEY v Purcell

Case [2023] WASC 237 23 June 2023

Natural Justice & Procedural Fairness

Appeal

Limitation Periods

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KIROS-GIDEY -v- PURCELL [2023] WASC 237
CORAM:   ARCHER J
HEARD:   23 JUNE 2023
DELIVERED          :   23 JUNE 2023
FILE NO/S:   SJA 1023 of 2023
BETWEEN:   FEKADU WELDEMICHAEL KIROS-GIDEY
Appellant
AND
KEELAN PURCELL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   CHIEF MAGISTRATE S HEATH
File Number            :   PE 58230/2022

Catchwords:

Criminal law - Appeal against sentence - Failure to take into account plea of guilty - Failure to take into account mitigation - Manifestly excessive

Legislation:

Nil

Result:

Extension of time and leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S H King
Respondent	:	L Italiano

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office

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

AAN v Butterfield [2021] WASC 228
BGR v The State of Western Australia [2014] WASCA 82
Cooling v Steel (1971) 2 SASR 249
Gaskell v The State of Western Australia [2018] WASCA 8
Goodchild v The Department of Public Prosecutions [2023] WASC 60
Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Inglis v Pinch [2016] WASC 30
Neach v Hobbs [2021] WASC 135
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139
Warren v Van Den Berg [2004] WASCA 32
Wilson v The State of Western Australia [2010] WASCA 82
Wood v Marsh [2003] WASCA 95

ARCHER J:

(This judgment was delivered extemporaneously on 23 June 2023 and has been edited to correct matters of grammar, add headings, and include complete references.)

Introduction

On 30 January 2023, Mr Kiros‑Gidey appeared unrepresented before his Honour Chief Magistrate Heath. After pleading guilty, he was sentenced for trespass and stealing. For the trespass offence, he was sentenced to 7 months imprisonment suspended for nine months. For the stealing offence, he was fined $500. Mr Kiros‑Gidey seeks leave to appeal against his trespass sentence.
Mr Kiros‑Gidey was 20 years old at the time of sentence. He has a relatively minor record. He had never been sentenced to a term of imprisonment (suspended or immediate) prior to this sentence.
The plea of guilty was entered at the earliest reasonable opportunity.
Mr Kiros‑Gidey raises five grounds of appeal. Four assert that the learned Chief Magistrate made an express error of law. These grounds assert that his Honour failed to take into account the plea of guilty or any other matters of mitigation, failed to give Mr Kiros‑Gidey the opportunity to be heard in relation to mitigation, and erred in imposing a suspended term of imprisonment without being satisfied that it was not appropriate to impose a lesser penalty. The fifth ground of appeal asserts that the sentence was manifestly excessive.
Mr Kiros‑Gidey also seeks an order that the time in which to commence his appeal be extended. The application for extension of…

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 KIROS-GIDEY v Purcell

Details

AGLC: KIROS-GIDEY v Purcell [2023] WASC 237
Case: [2023] WASC 237
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appellant, Fekadu Weldemichael Kiros-Gidey, appealed against his sentence for trespass and stealing, which he had pleaded guilty to. The sentence imposed by Chief Magistrate Heath was a suspended term of imprisonment of seven months for the trespass offence and a $500 fine for the stealing offence. Kiros-Gidey contended that the Chief Magistrate failed to consider his plea of guilty, any matters of mitigation, and did not provide him with the opportunity to present any mitigating factors. Additionally, he argued that the sentence was manifestly excessive. The respondent conceded that the Chief Magistrate had erred in not taking into account the plea of guilty or any mitigating factors.

The court found that the Chief Magistrate's failure to consider the plea of guilty and any mitigating factors, as well as not providing Kiros-Gidey with the opportunity to present any mitigating factors, constituted errors of law. The court was satisfied that these errors had affected the sentence and that the sentence imposed by the Chief Magistrate was manifestly excessive. As a result, the appeal was allowed, the sentence was set aside, and the case was remitted to the Magistrates Court for re-sentencing. The court also granted leave to appeal in relation to the remaining grounds and extended the time for appealing.

Orders