Main v Lapsley
[2008] WASC 129
•4 JULY 2008
MAIN -v- LAPSLEY [2008] WASC 129
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 129 | |
| Case No: | SJA:1027/2008 | 24 JUNE 2008 | |
| Coram: | JOHNSON J | 4/07/08 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DEKE AARON MAIN STUART DAVID GLYDE LAPSLEY |
Catchwords: | Criminal law Sentencing Duty of lower courts to follow orders of superior courts Second sentence quashed Twice sentenced for same offence |
Legislation: | Sentencing Act 1995 (WA) s 11 Criminal Code (WA) s 17 |
Case References: | Main v Volpi [2005] WASC 76 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STUART DAVID GLYDE LAPSLEY
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR F CULLEN SM
File No : PE 27457 of 2003, PE 29872 of 2003, PE 29873 of 2003
Catchwords:
Criminal law - Sentencing - Duty of lower courts to follow orders of superior courts - Second sentence quashed - Twice sentenced for same offence
Legislation:
Sentencing Act 1995 (WA) s 11
Criminal Code (WA) s 17
(Page 2)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Ms K J Farley
Respondent : Ms F B Seaward
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Main v Volpi [2005] WASC 76
(Page 3)
1 JOHNSON J: This appeal is brought to correct an error made by a sentencing magistrate on 29 October 2004 with respect of the sentence for two offences. It is also brought to correct an omission made on 8 April 2005 when a judge of this court corrected the error in relation to one of the offences but apparently was not made aware that there was a further offence affected by the same error.
2 The history of the matter began on 30 March 2004 when the appellant was found guilty of stealing and pleaded guilty to giving a false name to police (false name offence) before a magistrate in Perth Magistrates Court. He was remanded to 26 May 2004 for sentencing. On that date the appellant appeared before the deputy chief magistrate because the magistrate who had initially dealt with the charges was unwell. The deputy chief magistrate noted that the two charges breached a suspended sentence imposed by the District Court and both charges were referred to the District Court to be dealt with in accordance with s 78 of the Sentencing Act 1995 (WA).
3 On 8 October 2004 the other magistrate brought the two charges on before him. A charge of breaching bail and a receiving charge was also brought on before him, however the receiving charge was remanded to a hearing in December. On 8 October 2004 the magistrate expressed the view that the District Court had no authority to sentence the appellant and that, as he had found the appellant guilty, he should sentence him. The magistrate further considered that something should be done to rectify Judge Eaton's sentence or he would sentence the appellant regardless of the sentence that had been imposed: Main v Volpi [2005] WASC 76 [6]. All these charges were further remanded to 29 October 2004 for sentence.
4 On that date the magistrate purported to sentence the appellant to 12 months imprisonment for the stealing charge and to 6 months imprisonment for the false name charge, to be served concurrently. The complaint number for the false name charge was PE 29872 of 2003. The magistrate also purported to sentence the appellant for an offence of breach of bail. However, later in the proceedings it was brought to the magistrate's attention that there had been no breach of bail and the charge had been withdrawn. The relevant complaint was marked 'No Offence' and no penalty was entered.
5 As I have noted, at the time of sentencing the appellant for the charges of stealing and giving a false name, the magistrate was aware that the appellant had already been sentenced for these offences in the District Court. On 18 November 2004 an appeal was commenced in this court in
(Page 4)
- relation to the stealing charge (the first appeal): Main v Volpi. Counsel for the appellant on the current appeal submitted that, although on her understanding the false name offence was included in the first appeal, circumstances now made it necessary to bring another appeal in relation to the false name offence. The basis for the understanding that this offence was included in the first appeal was that the order obtained by the appellant's solicitor from the court at the time referred to both charges. However, I can find nothing to support that part of the order relating to the false details charge in the judgment of McKechnie J. Counsel for the appellant was of the same view.
6 In the judgment his Honour initially referred to the stealing charge and 'another charge which has no relevance' to which no further reference was made: Main v Volpi [3]. Further, in the concluding paragraph McKechnie J refers to quashing 'the sentence'. It may well be that the order obtained by the solicitor matched the terms of the appeal brought but it would appear that the need to quash the sentence on another offence was not brought to the judge's attention during the appeal. The appellant can provide no explanation for this omission. Further, it is clear that, irrespective of the terms of the order, the appellant's criminal record has not been corrected in relation to the false name charge but it has been corrected for the stealing offence. In fact, the appellant only became aware of the omission in January 2008 when he obtained a copy of his criminal record and noted that the false name charge was recorded twice. In the circumstances, I consider it was prudent to bring this further appeal to finally achieve complete correction of the magistrate's error.
7 On the current appeal, the appellant contends that:
The learned magistrate erred in sentencing the applicant as he was functus officio, the applicant having already been sentenced for the same offences by his Honour Judge Eaton on 10 August 2004.
8 In bringing the appeal the appellant relies on s 11 of the Sentencing Act(1995) (WA) which provides that a person is not to be sentenced twice on the same evidence. Section 17 of the Criminal Code (WA) was also relied upon and is in the following terms:
It is a defence to a charge of any offence to show that the accused person has already been tried, or convicted or acquitted upon an indictment or complaint.
(Page 5)
9 The current appeal raises identical considerations to those addressed by McKechnie J in the first appeal in which the sentence imposed by the magistrate for the offence of stealing was quashed.
10 McKechnie J expressed the view that, even if there was something to be said for the view expressed by the magistrate, a District Court sentence is not to be treated as a nullity by a lower court. His Honour explained that, if it is a nullity, there are procedures in place to deal with that situation, but it is not for a lower court to question the authority of a superior court's sentence in the absence of an appeal or order [8]. I agree entirely with this view.
11 Having referred to s 11 of the Sentencing Act 1995 (WA) and s 17 of the Criminal Code (WA), McKechnie J observed that the combination of those provisions, more particularly s 11 of the Sentencing Act 1995 (WA), together with commonsense, suggest that a person cannot be punished for the same offence more than once: [9], [10].
12 On the material before me I am satisfied that there is no basis upon which to differentiate between the situation with respect to the stealing charge and that which applied to the offence of giving false details to the police. I am also in agreement with the reasoning of McKechnie J, which is as follows:
The provisions of the Sentencing Act entirely cover this situation. Section 78 of the Sentencing Act, particularly s 78(1), required the Deputy Chief Stipendiary Magistrate to make the order she did referring to the matter in the District Court. The section reads:
'If a court convicts a person of an offence the statutory penalty for which is or includes imprisonment'
and that covers this particular stealing offence:
'and that offence was committed during the suspension period of suspended imprisonment imposed on the person in relation to another offence, the court'
which this one clearly did:
'if it is a Court of Petty Sessions the court must commit the person to the court that imposed the suspended sentence and that court must deal with the person under section 80'
which section gives various powers to the District Court, then the Court must deal with the offender in one of a number of ways.
(Page 6)
- Put in short form, the Sentencing Act provides a very convenient procedure. If a person is in breach of some form of community order or suspended term of imprisonment by committing another offence then the Court which imposed the community order or suspended sentence is given all of the matters pertaining to the offender so that it can make a global disposition. That is exactly what was done by Judge Eaton, and correctly so.
Once the Deputy Chief Stipendiary Magistrate referred the matter to the District Court it was the Court of Petty Sessions that had no further power over the matter, not the District Court. The Magistrate appears to have thought that the Court of Petty Sessions had jurisdiction because the procedure for enlivening the jurisdiction of the District Court to deal with pending charges under the Sentencing Act, s 32, had not been enlivened. However, s 32 had nothing to do with the case which was entirely governed by s 78 and s 80. [11] - [13]
13 As a result of my agreement with the reasons and conclusion of McKechnie J in Main v Volpi, the inevitable result in relation to the false name charge is the same as occurred in relation to the charge of stealing, and that is that the appeal should be allowed and the sentence imposed by the Court of Petty Sessions on complaint number PE 29872 be quashed.
2