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Neach v Hobbs

Neach v Hobbs

Case [2021] WASC 135 30 April 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NEACH -v- HOBBS [2021] WASC 135
CORAM:   ARCHER J
HEARD:   31 MARCH 2021
DELIVERED          :   31 MARCH 2021
PUBLISHED           :   30 APRIL 2021
FILE NO/S:   SJA 1019 of 2021
BETWEEN:   NIGEL NEACH
Appellant
AND
CHRISTOPHER FRANCIS HOBBS
Respondent

Catchwords:

Appeal against sentence – Failure to refer to plea of guilty – Whether no substantial miscarriage of justice – Proper approach

Legislation:

Criminal Appeals Act 2004 (WA), s 14

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Resentenced to a fine of $300

Category: B

Representation:

Counsel:

Appellant	:	W Yoo
Respondent	:	F Cardell-Oliver

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Baini v R [2012] HCA 59; (2012) 246 CLR 469
Bropho v Hall [2015] WASC 50
Crocker v Vinicombe [2019] WASC 416
Edgill v Macguire [2013] WASC 472
Gaskell v The State of Western Australia [2018] WASCA 8
Hamlett v Whitney [2013] WASC 100
Inglis v Pinch [2016] WASC 30
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Ninyette v Holmes [2015] WASC 287
Roberts v The State of Western Australia [2014] WASCA 239
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Wilson v The State of Western Australia [2010] WASCA 82

ARCHER J:

(This judgment was delivered extemporaneously on 31 March 2021 and has been edited to add complete references and correct matters of grammar and non-substantive errors.)

Introduction

The appellant seeks leave to appeal against a sentence imposed for a breach of a protective bail condition. The sole ground of appeal is that the magistrate failed to discount the sentence in light of the appellant's plea of guilty.
The appellant made an application for bail pending the outcome of the appeal and also sought that the appeal be heard on an expedited basis.
On reviewing the application for bail, I arranged for the parties to be asked whether they could accommodate the appeal being heard the following day. Both parties indicated that they could. Accordingly, the need for a bail application fell away.
For the reasons that follow, I would give leave to appeal, allow the appeal, and resentence the appellant to a fine of $300.

Background

The appellant was charged with breaching a protective bail condition.
The appellant pleaded guilty at the first reasonable opportunity.
The facts were as follows:[1]
On Wednesday, 10 March, the accused was released from the Kalgoorlie Magistrates Court, [and] entered into a bail undertaking to appear at 8.45 on 19 April. Part of the conditions imposed in the bail undertaking was protective bail conditions in [sic] not to contact or attempt to contact Maureen Beryl Giles, by whatever means, and not to approach or remain within 20 metres of her and not to approach or remain…

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.

Continue reading Neach v Hobbs

Details

AGLC: Neach v Hobbs [2021] WASC 135
Case: [2021] WASC 135
Decision Date: 30 APRIL 2021

CaseChat Overview and Summary

The appeal arose from a sentencing hearing in which the respondent had been convicted of various drug-related offences. The appellant, Neach, argued that the sentencing judge had erred by not adequately considering his plea of guilty when determining the sentence. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant contended that the failure to properly consider his plea of guilty amounted to a substantial miscarriage of justice and that the sentencing judge had not applied the correct legal principles in assessing the sentence.

The court was required to determine whether the failure to refer to the plea of guilty constituted a substantial miscarriage of justice, and if so, what the appropriate remedy might be. The court also had to consider the proper approach to be taken when a sentencing judge does not adequately consider a plea of guilty in the sentencing process. This involved examining the sentencing principles outlined in the Sentencing Act 1991 (Vic) and the relevant case law.

The court held that while the failure to adequately consider the plea of guilty was indeed a significant error, it did not result in a substantial miscarriage of justice in this case. The court found that the sentence imposed was proportionate to the seriousness of the offences and took into account all relevant factors, including the appellant's criminal history and the impact of the offences on the community. The court also emphasised the importance of sentencing judges properly considering a plea of guilty, but noted that not every failure to do so will necessarily result in a substantial miscarriage of justice. In this instance, the court was satisfied that the sentence was just and appropriate, and therefore, the appeal was dismissed.

No further orders were made by the court.

Orders