Main v Volpi

[2005] WASC 76

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   MAIN -v- VOLPI [2005] WASC 76

CORAM:   MCKECHNIE J

HEARD:   8 APRIL 2005

DELIVERED          :   8 APRIL 2005

FILE NO/S:   SJA 1117 of 2004

MATTER                :Justices Act 1902

BETWEEN:   DEKE AARON MAIN

Appellant

AND

FRED VOLPI
Respondent

ON APPEAL FROM:

Jurisdiction              :  COURT OF PETTY SESSIONS

Coram  :F CULLEN SM

Citation  :THE POLICE v DEKE AARON MAIN

File No  :PE 27457 of 2003

Catchwords:

Criminal law - Sentencing - Power of District Court to sentence matters referred from a Magistrate - Courts and Judges - Duty of lower court to follow orders of superior court

Legislation:

Sentencing Act 1995 (WA), s 78, s 80

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Appellant:     Mr D P A Moen

Respondent:     Mr M A Perrella

Solicitors:

Appellant:     David Manera

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

1. MCKECHNIE J:  When counsel for both parties agree on the legal principles that govern a matter it would be wise for a judicial officer to consider carefully whether their own strongly held views may nevertheless be wrong.  In the present case unnecessary costs and inconvenience would have been averted because the Magistrate was clearly wrong.

2. On 30 March 2004 the applicant was convicted in the Court of Petty Sessions after a hearing before the Magistrate in respect of one count of stealing.  The charge was contained on complaint number PE 03/27457.  Particular items that were said to have been stolen from a hotel in Perth included a projector and computer to the value of some $11,000.

3. After conviction the appellant was remanded in custody for sentencing later.  However, the conviction triggered (amongst other triggering events) a breach of a suspended sentence which had been previously imposed in the District Court.  On 26 May 2004 the Deputy Chief Stipendiary Magistrate referred the stealing charge to the District Court for sentencing together with another charge which has no relevance.

4. On 10 August 2004 the appellant appeared in the District Court before Judge Eaton where he pleaded guilty to breaching an intensive supervision order and a sentence of suspended imprisonment; the sentence of suspended imprisonment having been imposed in respect of aggravated burglary.  The appellant, as I say, admitted the breaches and was sentenced.

5. In relation to the aggravated burglary, the suspension was revoked so that service of the actual sentence was imposed.  The appellant was sentenced to a total of 22 months' imprisonment and as part of this sentence he was sentenced to 3 months' imprisonment for the stealing charge under appeal.  The stealing charge breached both the ISO and the sentence of suspension.

6. On 8 October 2004 the appellant appeared again before the Magistrate who expressed the view that the District Court had no authority to sentence the appellant and that as he had found him guilty he should now sentence, and 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.

7. The matter was adjourned and the parties appeared again before the Magistrate on 29 October 2004.  I think it fair to say that both counsel for the prosecution and counsel for the defence took the view that the District Court sentence was lawful and proper and what followed was the Magistrate's own view of the law.  His view, in summary, was that there was no authority in the District Court in respect of the stealing charge.  He therefore proceeded to sentence the appellant to a sentence of 12 months' imprisonment.

8. 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.  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.

9. It is necessary to refer, I think, to two provisions which cover the situation.  The first is the Sentencing Act 1995 (WA), s 11, which provides specifically that a person is not to be sentenced twice on the same evidence, and the Criminal Code, s 17, which provides that:

   "It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or complaint."

10. The combination of those, more particularly the Sentencing Act s 11, and commonsense, let alone the application of principles, suggest that a person cannot be punished for the same offence more than once.

11. 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 the matter to 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.

12. 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.

13. 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.

14. That being so, the inevitable result, and one which both counsel before me agree, is that the appeal should be allowed and the sentence imposed by the Court of Petty Sessions on the complaint be quashed.