Moody v French

Case [2008] WASCA 67

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MOODY -v- FRENCH [2008] WASCA 67

CORAM:   STEYTLER P

WHEELER JA
McLURE JA
BUSS JA
MILLER JA

HEARD:   18 FEBRUARY 2008

DELIVERED          :   20 MARCH 2008

FILE NO/S:   CACR 102 of 2007

BETWEEN:   HAZEL AILEEN MOODY

Appellant

AND

LANCE MICHAEL FRENCH
First Respondent

GERALD JOHN PILKINGTON
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JOHNSON J

Citation  :MOODY -v- FRENCH [2007] WASC 190

File No  :SJA 1030 of 2007

Catchwords:

Criminal law - Sentencing - Effect of transitional provisions

Criminal law - Sentencing - Mitigating factors - Plea of guilty - Whether reduction in sentence must result - Willingness to facilitate the course of justice

Criminal law - Sentencing - Parole eligibility - Whether bias in favour of parole - Application of s 89 Sentencing Act

Criminal law - Sentencing - Totality principle

Legislation:

Criminal Code (WA), s 171
Interpretation Act 1984 (WA), s 19
Road Traffic Act 1974 (WA), s 49, s 63(1), s 63(2)(c)
Sentencing Act 1995 (WA), s 6, s 7(2)(a), s 8, s 89
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 2(1)

Result:

Appeal allowed
Sentence of 21 months' total imprisonment without eligibility for parole set side
In lieu, impose sentence of 12 months' total imprisonment, commencing 1 July 2006, with eligibility for parole

Category:    A

Representation:

Counsel:

Appellant:     Mr C L J Miocevich

First Respondent           :     Ms J C Pritchard

Second Respondent      :     Ms J C Pritchard

Solicitors:

Appellant:     Aboriginal Legal Service (WA)

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

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

Abdullah v The Queen [2002] WASCA 5

Anderson v Heath [2005] WASC 253

Anderson v Stilwell [2006] WASC 257

Austin v Grapes [2004] WASCA 102

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Channel Seven Perth Pty Ltd v 'S' [2007] WASCA 122; (2007) 34 WAR 325

Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997)

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106

Findlay v The State of Western Australia [2007] WASC 61

Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Hapke v The State of Western Australia [2006] WASCA 188

House v The King (1936) 55 CLR 499

Kearney v Rinaudo [2007] WASC 104

Kearney v The State of Western Australia [2006] WASCA 251

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Messiha v Royce [2004] WASCA 290

Messiha v Royce [2004] WASCA 87

Moody v French [2007] WASC 190

Piccolo v The State of Western Australia [2007] WASCA 149; (2007) 173 A Crim R 248

Pickett…

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AGLC
Moody v French [2008] WASCA 67
Case
[2008] WASCA 67
Decision Date

CaseChat Overview and Summary

In the case of Moody v French, the parties involved were Moody, the appellant, and French, the respondent. The dispute centred on the sentencing of Moody, with a particular focus on the application of transitional provisions, mitigating factors, and parole eligibility under the Sentencing Act. The court was tasked with determining whether the reduction in Moody's sentence must result from his willingness to facilitate the course of justice and whether there was a bias in favour of parole eligibility when applying section 89 of the Sentencing Act.

The court had to decide on several legal issues, including whether the reduction in sentence must result from the appellant's willingness to facilitate the course of justice. Additionally, the court needed to consider whether there was a bias in favour of parole eligibility when applying the provisions of section 89 of the Sentencing Act. The court also needed to examine the totality principle in the context of sentencing.

The court's reasoning focused on the interpretation of section 89 of the Sentencing Act and its interaction with other relevant provisions. The court held that the discretion accorded by section 89(1) is qualified by section 89(4), which requires consideration of specific factors when determining parole eligibility. The court emphasised that the presence of two or more of the factors identified in section 89(4) triggers a discretion to decline to make a parole eligibility order, but this does not imply that the exercise of such discretion is inherently less assailable. The court clarified that an error in exercising the discretion must be demonstrated, such as acting upon a wrong principle or failing to consider material considerations. The court found that the primary judge's decision was unreasonable or plainly unjust, leading to a review of the discretion exercised.

The court set aside the sentence of 21 months' total imprisonment without eligibility for parole and imposed a sentence of 12 months' total imprisonment, commencing on 1 July 2006, with eligibility for parole. The appeal was allowed on this basis.

Orders

Orders of the court

Appeal allowed

Sentence of 21 months' total imprisonment without eligibility for parole set side

In lieu, impose sentence of 12 months' total imprisonment, commencing 1 July

2006, with eligibility for parole

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In our respectful opinion, this is the preferable construction of s 89. It gives effect to what seems to us to be the unambiguous meaning of the words used in s 89(1) and s 89(4). We are, with respect, unable to see how, otherwise, those two subsections are able to stand together. If the discretion accorded by s 89(1) was not intended to be qualified by s 89(4), it is difficult to see what purpose the latter provision has, more particularly given the use of the words 'because of at least two of the following four factors' (our italics). It is important to bear in mind that s 19 of the Interpretation Act 1984 (WA) (and its equivalent provisions) does not permit recourse to a second reading speech for the purpose of departing from the ordinary meaning of the words used unless the meaning is ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable: Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416, 420; Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 [19] ‑ [20] (Gleeson CJ). It consequently seems to us that the only 'bias' in favour of eligibility for parole is that which arises because of the requirement to make a parole eligibility order unless the discretion to decline to do so is triggered by the presence of two or more of the factors identified in s 89(4). Once the discretion is triggered, the court is required (without any predisposition or bias) to take all of the relevant considerations into account, including those identified by s 89(4), in the course of deciding whether or not to make a parole eligibility order. One of the more important considerations will be the offender's prospects of rehabilitation and the question whether or not that sentencing objective will be assisted by making a parole eligibility order: Piccolo [66] (Miller JA); Ugle [55], [58] (Owen JA, Wheeler JA concurring). It has been said, in some of the cases, that, when a judge exercises a discretion to decline to make a parole eligibility order in circumstances in which the discretion to do so is triggered by factors within s 89(4), 'it will be difficult to show a mis‑exercise of the discretion': Pickett [7] (McKechnie J); Findlay [30] (Martin CJ); Messiha v Royce [2004] WASCA 290 [15] ‑ [16] (McKechnie J, Templeman & Miller JJ concurring); Ugle [52] (Owen JA). That proposition seems to us to require some elaboration. It should not be taken to mean that, merely because two or more of the factors identified by s 89(4) are present, the exercise of the discretion is somehow less assailable. What was said in the cases to which we have referred cannot properly mean anything more than that, if factors enabling an adverse exercise of discretion are present and those factors, together with all other relevant factors, are taken into account by the sentencing judge, it will be difficult to show that any error has been made in the exercise of the discretion. That, of course, is because the court cannot intervene merely because it would have exercised its discretion in a manner different from the sentencing judge: Lowndes [15]. There must be an error of the kind identified in House v The King (1936) 55 CLR 499, 505 as follows:It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.