Marich v WA Police - [2024] WASC 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MARICH -v- WA POLICE [2024] WASC 173
CORAM:   FORRESTER J
HEARD:   7 MAY 2024
DELIVERED          :   7 MAY 2024
FILE NO/S:   SJA 1021 of 2024
BETWEEN:   LEE MARICH
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1021 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   BU 437 of 2024 & BU 450 of 2024

Catchwords:

Criminal law - Single judge appeal - Appeal against sentence - Whether failure to take into account early plea of guilty - No substantial miscarriage of justice - Whether magistrate erred in imposing sentences of imprisonment - Whether manifestly excessive - Sentence imposed found to be not unreasonable or plainly unjust

Legislation:

Sentencing Act 1995 (WA)
Criminal Appeals Act 2004 (WA)
Bail Act 1982 (WA)
Restraining Orders Act 1997 (WA)

Result:

Extension of time granted
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr D S Hunter
Respondent	:	Ms J J E Perera

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	State Solicitor for Western Australia

Cases referred to in decision:

Briggs v Houlihan [2018] WASC 301
Cluett v The Queen [2019] WASCA 111
Crocker v Vinicombe [2019] WASC 416
Dennis v Lanternier [No 2] [2017] WASC 5
Edgill v Maguire [2013] WASC 472
Eldridge v The State of Western Australia [2020] WASCA 66
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Hamlett v Whitney [2013] WASC 100
Harper v Page [2004] WASCA 267
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; (2010) 272 ALR 465; (2010) 85 ALJR 195; (2010) 204 A Crim R 434; (2010) 78 ATR 11
Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502
Kabambi v The State of Western Australia [2019] WASCA 44
Moody v French [2008] WASCA 67; (2008) 36 WAR 393; (2008) 50 MVR 322
Neach v Hobbs [2021] WASC 135
Pillage v Coyne [2000] WASCA 135
Rogers v Hitchcock [2015] WASC 120
Sabau v The State of Western Australia [2010] WASCA 3
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schulz v Coyne [2019] WASC 329
Stockley v Bailey [2020] WASC 193
Wallam v Grosveld [2015] WASC 145; (2015) A Crim R 317
Willenberg v Downey [2015] WASC 282

FORRESTER J:

(This judgment was delivered extemporaneously on 7 May 2024 and has been edited from the transcript.)

Introduction

On 22 January 2024 in the Magistrates Court at Bunbury, the appellant was convicted on his own pleas of guilty of offences of:
(1)breach of a protective bail condition, contrary to s 51(2a) of the Bail Act 1982 (WA) (BU 437 of 2024); and
(2)breach of a family violence restraining order, contrary to s 61(1) of the Restraining Orders…

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

Case: [2024] WASC 173
Decision Date: 7 MAY 2024

CaseChat Overview and Summary

In the matter of Marich v WA Police, the appellant challenged the sentence imposed on him by a magistrate. The appellant was convicted of various criminal offences, and his appeal was focused on the sentence, specifically the imposition of imprisonment. He contended that the magistrate failed to take into account his early plea of guilty, resulting in a manifestly excessive sentence. The appeal was heard by a single judge in the Court of Appeal of the Supreme Court of Western Australia.

The court was required to determine whether the magistrate's failure to consider the appellant's early guilty plea constituted an error, and whether the sentence imposed was manifestly excessive. Additionally, the court needed to decide if the sentence resulted in a substantial miscarriage of justice. The central issue was whether the sentence imposed was unreasonable or plainly unjust, considering all relevant factors.

The court found that while the magistrate did not explicitly refer to the appellant's early guilty plea, it was not necessary for the sentence to be unreasonable or plainly unjust for the appeal to succeed. The court acknowledged that the sentence was on the higher end of the scale, but held that it was not manifestly excessive. The court also found that the magistrate's consideration of the aggravating factors, such as the appellant's criminal history and the seriousness of the offences, justified the sentence imposed. Consequently, the court dismissed the appeal, holding that no substantial miscarriage of justice had occurred.

The court did not make any orders for the appellant's appeal to be dismissed. Instead, it upheld the original sentence imposed by the magistrate. The court's decision emphasised the importance of considering all relevant factors in sentencing, while also acknowledging the need to balance the seriousness of the offence and the offender's criminal history.

Orders