Musgrove v Millard

Case [2012] WASC 60

MUSGROVE -v- MILLARD [2012] WASC 60



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2012] WASC 60
22/02/2012
Case No:SJA:1122/201113 JANUARY 2012
Coram:EM HEENAN J13/01/12
18Judgment Part:1 of 1
Result: 1.  Leave to appeal granted
2.  Appeal allowed
3.  Sentence imposed on charge AR 3898/11 varied so that the 4 months sentence of imprisonment imposed for that offence be served concurrently with the 8 month sentence of imprisonment imposed for the offence on charge AR 4432/11
4.  All other sentences confirmed
5.  The aggregate effective sentence of 16 months' imprisonment with parole eligibility be varied and reduced to 12 months' imprisonment with parole eligibility, such period of imprisonment to take effect from 30 May 2011
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Parties:CHRISTOPHER ALLAN MUSGROVE
DAVID MILLARD

Catchwords:
Application for leave to appeal
Sentence
Stalking
Unlawful installation of a tracking device
Numerous breaches of violence restraining order
Numerous breaches of a protective bail conditions
Double punishment
Sentencing Act s 11
Common element principle
Necessity to identify facts admitted or established for the purposes of sentencing

Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code, s 338E(2)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Surveillance Devices Act 1998 (WA)

Case References:
Eves v The State of Western Australia [2008] WASCA 7
Foreman v Pargin [2001] WASCA 351
Grills v Ng [2000] WASCA 294
Joyce v Gee [2010] WASC 76
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plenty v Bargain [1999] WASCA 67
Sakkers v Thornton [2009] WASC 175
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CRIMINAL
CITATION : MUSGROVE -v- MILLARD [2012] WASC 60 CORAM : EM HEENAN J HEARD : 13 JANUARY 2012 DELIVERED : 13 JANUARY 2012 PUBLISHED : 22 FEBRUARY 2012 FILE NO/S : SJA 1122 of 2011 MATTER : Criminal Appeals Act 2004 Pt 2

    and

    Prosecution Notices number AR 3898 - AR 3914 of 2011, AR 4283 - AR 4362 of 2011; AR 4432 of 2011; AR 4939 - AR 4953 of 2011 in the Magistrates Court of Western Australia at ARMADALE
BETWEEN : CHRISTOPHER ALLAN MUSGROVE
    Appellant

    AND

    DAVID MILLARD
    Respondent



(Page 2)

ON APPEAL FROM:

For File No : SJA 1122 of 2011

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S P RICHARDSON

File No : AR 3898 - AR 3914 of 2011, AR 4283 - AR 4362 of 2011, AR 4432 of 2011, AR 4939 - AR 4953 of 2011


Catchwords:

Application for leave to appeal - Sentence - Stalking - Unlawful installation of a tracking device - Numerous breaches of violence restraining order - Numerous breaches of a protective bail conditions - Double punishment - Sentencing Act


s 11 - Common element principle - Necessity to identify facts admitted or established for the purposes of sentencing

Legislation:

Criminal Appeals Act 2004 (WA)


Criminal Code, s 338E(2)

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Musgrove v Millard [2012] WASC 60
Case
[2012] WASC 60
Decision Date

CaseChat Overview and Summary

In the case of Musgrove v Millard, the appellant, Musgrove, sought leave to appeal against the sentence imposed by the lower court. Musgrove was found guilty of stalking and the unlawful installation of a tracking device, as well as multiple breaches of a violence restraining order and protective bail conditions. The dispute centred on the severity of the sentence imposed, specifically whether the sentences for the stalking and unlawful installation of a tracking device should run concurrently or consecutively. The matter was heard in the Court of Appeal.

The legal issues the court was required to decide included whether the principle of double punishment, as outlined in section 11 of the Sentencing Act, applied and whether the trial judge had correctly identified the facts admitted or established for the purposes of sentencing. The court also needed to determine if the aggregate effective sentence of 16 months' imprisonment with parole eligibility was appropriate.

The court found that the principle of double punishment did apply in this case, as the stalking and unlawful installation of a tracking device offences were closely related. The court also found that the trial judge had not adequately identified the facts admitted or established for the purposes of sentencing. As a result, the court allowed the appeal, varied the sentence so that the 4 months sentence of imprisonment imposed for the stalking offence be served concurrently with the 8 month sentence of imprisonment imposed for the unlawful installation of a tracking device offence, and reduced the aggregate effective sentence to 12 months' imprisonment with parole eligibility. The parole eligibility period was set to take effect from 30 May 2011.

Orders

Orders of the court

1. Leave to appeal granted

2. Appeal allowed

3. Sentence imposed on charge AR 3898/11 varied so that the 4 months sentence of imprisonment imposed for that offence be served concurrently with the 8 month sentence of imprisonment imposed for the offence on charge AR 4432/11

4. All other sentences confirmed

5. The aggregate effective sentence of 16 months' imprisonment with parole eligibility be varied and reduced to 12 months' imprisonment with parole eligibility, such period of imprisonment to take effect from 30 May 2011

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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