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Luck v Power

Luck v Power

Case [2020] WASC 244 30 June 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LUCK -v- POWER [2020] WASC 244
CORAM:   MCGRATH J
HEARD:   22 JUNE 2020
DELIVERED          :   30 JUNE 2020
FILE NO/S:   SJA 1039 of 2020
BETWEEN:   NEIL MARTIN LUCK
Appellant
AND
GILLIAN POWER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B COLEMAN
File Number            :   BS 788/2019 - BS 790/2019

Catchwords:

Criminal law – Appeal against sentence – Failure to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) – Whether sentence manifestly excessive – Express error – Whether failure to properly consider all sentencing factors in imposing suspended term of imprisonment

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 6, s 13, s 24, s 26, s 28, s 29, s 30, s 31, s 32, s 46, s 63, s 67
Community Protection (Offender Reporting) Amendment Act (No 2) 2012 (WA), s 21
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 14(2)
Sentencing Act 1995 (WA), s 9AA, s 39, s 76

Result:

Extension of time in which to appeal is granted
Leave to appeal is granted on ground 1
Leave to appeal is not granted on ground 2
Appeal is dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
D'Rozario v The State of Western Australia [2015] WASCA 171
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hodder v Police Department of Western Australia [2011] WASC 142
Hodder v Skamp [No 2] [2009] WASC 53
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Murray v Foster [2014] WASC 119
Nguyen v The State of Western Australia [2007] WASCA 114
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
Winmar v Clark [2015] WASC 314
Zinga v Johnson [2012] WASC 216

MCGRATH J:

On 27 August 2019, Mr Luck was convicted on his own plea of three charges of being a reportable offender who, without reasonable excuse, failed to comply with his reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act).[1] The magistrate imposed a total effective sentence of 8 months' imprisonment suspended for 12 months.
[1] Charge numbers BS 788/2019 ‑ BS 790/2019.
Mr Luck now seeks leave to appeal against the sentence imposed on two grounds contending that the sentence…

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 Luck v Power

Details

AGLC: Luck v Power [2020] WASC 244
Case: [2020] WASC 244
Decision Date: 30 JUNE 2020

CaseChat Overview and Summary

The case of Luck v Power was heard in the Court of Appeal of Western Australia. The appellant, Luck, was appealing against a sentence imposed upon him by the Magistrates Court for a failure to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). The central issue before the Court of Appeal was whether the sentence imposed by the Magistrates Court was manifestly excessive and whether the Magistrates Court had failed to properly consider all relevant sentencing factors in imposing a suspended term of imprisonment.

The legal issues addressed in this case centred on the appropriate application of sentencing principles under the Sentencing Act 1995 (WA) and the specific considerations relevant to the imposition of a sentence for breaches of reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). The Court of Appeal had to determine whether the Magistrates Court had erred in its approach to sentencing by imposing a suspended term of imprisonment, and whether this error was an express error warranting an appeal.

In its judgment, the Court of Appeal found that the Magistrates Court had indeed failed to properly consider all relevant sentencing factors when imposing the suspended term of imprisonment. The Court noted that the Magistrates Court had not adequately addressed the appellant's personal circumstances, the nature and seriousness of the offence, and the need to deter the appellant and others from committing similar offences. The Court held that the sentence was manifestly excessive and constituted an error of law. Consequently, the Court of Appeal allowed the appeal, quashed the sentence imposed by the Magistrates Court, and remitted the matter back for re-sentencing.

The final orders of the Court of Appeal were that the sentence imposed by the Magistrates Court be quashed, and the matter be remitted to the Magistrates Court for re-sentencing in accordance with the principles set out in the judgment. The Court emphasised the importance of ensuring that all relevant sentencing factors are properly considered when imposing a sentence for breaches of reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA).

Orders