MILLS -v- THE POLICE [2006] WASC 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 115 | |
| Case No: | SJA:1030/2006 | 26 MAY 2006 | |
| Coram: | MCKECHNIE J | 21/06/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| 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
- 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:
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- 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…
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- Case
- [2006] WASC 115
- Decision Date
CaseChat Overview and Summary
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.
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