Leave to appeal granted on ground 1 Appeal allowed on ground 1 Sentence set aside and appellant resentenced
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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
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…
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.
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Details
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.