MILLS -v- THE POLICE [2006] WASC 115

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 115
Case No:	SJA:1030/2006	Heard:	26 MAY 2006
Coram:	MCKECHNIE J	Delivered:	21/06/06
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
PDF Version

Parties:	DENNIS JOHN MILLS THE POLICE
Catchwords:	Criminal law and procedure Leave to appeal Reasonable prospects of success Discretion to refuse parole Whether requirement to advise counsel
Legislation:	Sentencing Act 1995 (WA), s 89
Case References:	Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997 Austin v Grapes & Anor [2004] WASCA 102 Samuels v Western Australia (2005) 30 WAR 473 Sheppard v Blakey [2001] WASCA 309 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MILLS -v- THE POLICE [2006] WASC 115 CORAM : MCKECHNIE J HEARD : 26 MAY 2006 DELIVERED : 21 JUNE 2006 FILE NO/S : SJA 1030 of 2006 BETWEEN : DENNIS JOHN MILLS

Applicant

AND

THE POLICE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE W G TARR

File No : MI 2580 of 2005, MI 4999 of 2005, MI 5000 of 2005, MI 5002 of 2005, AR 6610 of 2005, PE 8316 of 2006, PE 8318 of 2006

Catchwords:

Criminal law and procedure - Leave to appeal - Reasonable prospects of success - Discretion to refuse parole - Whether requirement to advise counsel

(Page 2)

Legislation:

Sentencing Act 1995 (WA), s 89

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant : Mr J R Tydde

Respondent : No appearance

Solicitors:

Applicant : Tydde & Co

Respondent : No appearance

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

Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997
Austin v Grapes & Anor [2004] WASCA 102
Samuels v Western Australia (2005) 30 WAR 473
Sheppard v Blakey [2001] WASCA 309

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: On 21 March 2006 various suspended sentences were called in and the applicant was sentenced to a total of 17 months' imprisonment with no eligibility for parole for a series of offences as follows:

Complaint No	Description of Offence
MI 2580/05	Damage
MI 4999/05	Aggravated assault
MI 5000/05	Damage property
MI 5002/05	Damage property
AR 6610/05	Common assault
PE 8316/06	Driving under the influence of alcohol
PE 8318/06	No motor driver's licence (suspended)

and breach of a community based order.

2 Although the grounds of appeal challenge the length of the sentence, the real complaint, as developed by counsel in written and oral submissions, is ground 2 that the learned Magistrate erred in law in failing to order eligibility for parole. A particular of that is ground 3 in that the Magistrate erred in law in not first warning counsel that he was not minded to order eligibility for parole and in not inviting submissions on the issue.

3 The total sentence is well within the range of discretion.

4 The…

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: [2006] WASC 115
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Dennis John Mills appealed against the decision of the Magistrates Court to impose a custodial sentence of 17 months with no eligibility for parole, following a breach of a community-based order and various other offences. The appeal centred on the Magistrate's failure to invite submissions on the issue of parole eligibility, as well as the decision to refuse parole itself. The court needed to determine whether the Magistrate erred in law by not inviting submissions from counsel regarding parole and whether there was a reasonable prospect of the appeal succeeding.

The court examined the circumstances of the case, noting that the applicant's duty counsel had not anticipated parole eligibility to be a live issue and therefore did not make specific submissions on it. The court found that there was no obligation on the Magistrate to invite submissions on every possible sentencing disposition, as it was for counsel to make appropriate submissions. Additionally, the court considered the factors enumerated by the Magistrate as reasons for exercising discretion not to order parole, as set out in section 89(4) of the Sentencing Act. The court concluded that the Magistrate's decision to decline parole eligibility was within the scope of his discretion and there was no reasonable prospect of the appeal succeeding.

Accordingly, the Supreme Court refused the application for leave to appeal. The decision underscored that the Magistrate was not in error for not inviting submissions on parole, and the applicant's failure to receive natural justice did not present a reasonably arguable ground for appeal.

Orders