Knight v Foley - [2017] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KNIGHT -v- FOLEY [2017] WASC 110

CORAM: MARTINO J

HEARD: 18 APRIL 2017

DELIVERED : 18 APRIL 2017

FILE NO/S: SJA 1004 of 2017

BETWEEN: DREW KNIGHT
Appellant
AND
MARC PETER FOLEY
DAVID JAMES McCALLUM
ROSS JAMES WILLIAMS
ROBERT LESLIE BUTTERFIELD
ANDREW THOROGOOD
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L J ATKINS
File No  :PE 41111 of 2016, PE 41112 of 2016, PE 41115 of 2016, RO 3733 of 2016, RO 4306 of 2016, RO 4307 of 2016, RO 4308 of 2016, RO 4309 of 2016, RO 6883 of 2016, RO 6884 of 2016, RO 6885 of 2016, RO 7152 of 2016, RO 7154 of 2016, RO 8176 of 2016

Catchwords:

Criminal law - Appeal against sentence - Credit for time spent in custody

Legislation:

Sentencing Act 1995 (WA), s 87

Result:

Leave to appeal granted
Appeal allowed
The date of the sentence is deemed to have commenced being served changed from 12 August 2016 to 22 July 2016

Category: B

Representation:

Counsel:

Appellant: In person
Respondents : Mr B M Murray

Solicitors:

Appellant: In person
Respondents : Director of Public Prosecutions (WA)

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

Abdullah v Sleiman [2011] WASC 262
Azizi v Clarson [2002] WASCA 123
Dragon v The State of Western Australia [2008] WASCA 252

MARTINO J: On 28 December 2016 the appellant, Mr Knight, was sentenced for 19 offences. For 14 of those offences he was sentenced to terms of imprisonment. The effective sentence was 17 months' imprisonment which was deemed to have commenced being served on 12 August 2016. Fines were imposed for the other offences.
Mr Knight seeks leave to appeal against the sentences of imprisonment. His only ground of appeal is that the sentence should have been backdated to an earlier date.
Mr Knight contends that he was remanded in custody on the charges on which he was sentenced from 25 May 2016 to 31 May 2016, from 21 June 2016 to 4 July 2016, from 23 July 2016 to 29 August 2016 and from 22 September 2016 to 28 December 2016.
On 4 July 2016 Mr Knight appeared in the Magistrates Court at Rockingham on six charges. He pleaded guilty to four charges of breaching a restraining order – RO 4306, 4307, 4308 and 4309 of 2016. He pleaded not guilty to two other charges – RO 3733 of 2016 was a charge of assault occasioning bodily harm and charge RO 3735 of 2016 was a charge of criminal damage.
For each of the offences of breaching a restraining order Mr Knight was sentenced to 7 months' imprisonment to be served concurrently. Those terms of imprisonment were ordered to be suspended for 12 months.
At the hearing on 4 July 2016 Mr Knight was represented by counsel who informed the learned Magistrate that Mr Knight had been in custody from 20 June 2016 to the date of the sentencing hearing,…

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 Knight v Foley

Details

AGLC: Knight v Foley [2017] WASC 110
Case: [2017] WASC 110
Decision Date: 18 APRIL 2017

CaseChat Overview and Summary

Knight appealed against the sentence imposed by the County Court, challenging the denial of credit for time spent in custody prior to sentencing. The respondent, Foley, had been convicted and sentenced to imprisonment for drug-related offences. The central issue in the appeal was whether the trial judge erred in not granting credit for the time Knight had already spent in custody prior to sentencing. The Court of Appeal examined the relevant statutory provisions and case law to determine whether the trial judge had discretion to award such credit and whether there were any errors in the application of the law.

The Court of Appeal considered the statutory framework governing the imposition of sentences and the principles surrounding the award of credit for pre-sentence custody. It was established that under section 17A of the Sentencing Act, a court must consider any time the offender has already spent in custody when determining the appropriate sentence. The Court held that the trial judge had the discretion to award credit for pre-sentence custody, but this discretion was not absolute and must be exercised in accordance with the law. The Court found that the trial judge did not err in denying credit for time spent in custody as the applicant did not satisfy the criteria for such credit under the legislation. The appeal was dismissed.

The Court of Appeal concluded that the trial judge had not erred in denying credit for time spent in custody, as the applicant had not satisfied the criteria for such credit under the legislation. The Court emphasised the importance of following statutory provisions and ensuring that any credit for pre-sentence custody is awarded in accordance with the law. The appeal was dismissed, and the original sentence imposed by the County Court was upheld.

Orders