Pelemis v The State of Western Australia

The case of Pelemis v The State of Western Australia involved an appeal against a sentence imposed by the District Court of Western Australia. The appellant, Pelemis, contested aspects of a pre-sentence report used by the sentencing judge. The central issue was whether the court could re-sentence the appellant without the author of the report being called to give evidence, and if the appeal could proceed under section 31 of the Criminal Appeals Act.

The court found that the sentencing judge made an express error by relying on the contested pre-sentence report without resolving the conflict between it and the appellant’s evidence. The conflicting information, if resolved in favour of the appellant, would have resulted in a lesser sentence. However, the court lacked the necessary materials to determine an appropriate sentence. The court considered whether it could allow the appeal under section 31(4)(a) of the Criminal Appeals Act, which permits an appeal if a different sentence should have been imposed.

Given the inability to re-sentence without the missing evidence, the court concluded that the most appropriate remedy was to set aside the sentence and remit the matter to the District Court for re-sentencing. This decision was consistent with previous interpretations of section 31(4)(a) which allows an appeal if, on the most favourable facts for the appellant, a different sentence should have been imposed. The judges unanimously agreed with the decision to extend the time for appeal, grant leave to appeal on the amended ground, allow the appeal, set aside the sentence, and remit the matter for re-sentencing.