Kuhnert v Fyneman

Case [2015] WASC 257


KUHNERT -v- FYNEMAN [2015] WASC 257



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASC 257
16/07/2015
Case No:SJA:1037/20153 JUNE 2015
Coram:KENNETH MARTIN J3/06/15
24Judgment Part:1 of 1
Result: Leave to appeal granted on ground 1
Appeal allowed on ground 1
Sentence set aside and appellant resentenced
B
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Parties:MICHAEL RUDOLPH KUHNERT
RONALD HENRY FYNEMAN

Catchwords:

Criminal law
Appeal against sentence
Criminal Code Act Compilation Act 1913 (WA), s 378
Stealing as a servant
Appellant sentenced to 18 months' immediate imprisonment
Sentencing Act 1995 (WA), s 9AA(5)
Failure to state extent of reduction for plea of guilty in open court
Whether sentence infringed first limb of totality principle
Whether sentence of suspended imprisonment was appropriate
Resentenced to identical sentence in substance but not form
Turns on own facts
Summary conviction penalties
Criminal Code Act Compilation Act 1913 (WA), s 5 and s 426
Sentences of imprisonment imposed for certain offences above jurisdictional limit

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 5, s 378, s 426
Sentencing Act 1995 (WA), s 9AA

Case References:

Dimanopoulos v The State of Western Australia [2011] WASCA 62
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Forkin v The State of Western Australia [2013] WASCA 51
Heaney v The State of Western Australia [No 2] [2013] WASCA 238
Johnson v Hayter [2001] WASCA 118
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Neumann v The State of Western Australia [2013] WASCA 70
Poletti v Adams [2005] WASC 66
Powell v The State of Western Australia [2010] WASC 54
Roberts v The State of Western Australia [2014] WASCA 239
Roffey v Western Australia [2007] WASCA 246
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Rowsell v The State of Western Australia [2015] WASCA 2
Samuel v The State of Western Australia [2004] WASCA 154
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Seeto v The State of Western Australia [2014] WASCA 221
Wallam v Grosveld [2015] WASC 145
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826
Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CRIMINAL
CITATION : KUHNERT -v- FYNEMAN [2015] WASC 257 CORAM : KENNETH MARTIN J HEARD : 3 JUNE 2015 DELIVERED : 3 JUNE 2015 PUBLISHED : 16 JULY 2015 FILE NO/S : SJA 1037 of 2015 BETWEEN : MICHAEL RUDOLPH KUHNERT
    Appellant

    AND

    RONALD HENRY FYNEMAN
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : CHIEF MAGISTRATE S A HEATH

File No : PE 82775-82876 of 2014


Catchwords:

Criminal law…

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AGLC
Kuhnert v Fyneman [2015] WASC 257
Case
[2015] WASC 257
Decision Date

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Kuhnert, against his conviction and sentence imposed by a magistrate. Kuhnert was found guilty of stealing as a servant under section 378 of the Criminal Code Act Compilation Act 1913 (WA). The appellant was sentenced to 18 months’ immediate imprisonment, which was later found to be above the jurisdictional limit for a summary conviction. The appellant argued that the sentence was inappropriate due to the failure of the sentencing officer to state the extent of the reduction for his plea of guilty in open court. The appellant claimed that this failure infringed the first limb of the totality principle. The appellant also argued that a sentence of suspended imprisonment would have been more appropriate in his circumstances.
The court examined the sentencing officer’s failure to state the extent of the reduction for Kuhnert’s plea of guilty in open court. The court found that the failure to do so infringed the first limb of the totality principle, which requires the court to ensure that the sentence reflects the totality of the offender’s culpability. The court found that the sentence was therefore inappropriate. The court also considered whether a sentence of suspended imprisonment would have been more appropriate in Kuhnert’s circumstances. The court found that this was a matter that turned on Kuhnert’s own facts, and therefore the decision to impose a sentence of imprisonment rather than a sentence of suspended imprisonment was a matter for the sentencing officer. The court found that the sentence of 18 months’ imprisonment was above the jurisdictional limit for a summary conviction under sections 5 and 426 of the Criminal Code Act Compilation Act 1913 (WA). The court set aside the sentence and resentenced Kuhnert to an identical sentence in substance but not form. The court allowed the appeal on the ground that the sentence was above the jurisdictional limit for a summary conviction. Leave to appeal was granted on the same ground.

Orders

Orders of the court

Leave to appeal granted on ground 1

Appeal allowed on ground 1

Sentence set aside and appellant resentenced

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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