Phelps v Standen - [2020] WASC 459

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PHELPS -v- STANDEN [2020] WASC 459
CORAM:   SMITH J
HEARD:   8 DECEMBER 2020
DELIVERED          :   8 DECEMBER 2020
PUBLISHED           :   10 DECEMBER 2020
FILE NO/S:   SJA 1076 of 2020
BETWEEN:   VINCENT-WIREMU JAMES PHELPS
Appellant
AND
WADE STANDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R S HUSTON
File Number            :   ON 116 of 2020

Catchwords:

Criminal law and sentencing - Criminal damage - Sentence of 8 months' immediate imprisonment manifestly excessive as to type of sentence

Legislation:

Criminal Code (WA), s 444(1)(b)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 9AA, s 68, s 76(3), s 76(4)

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms N Sinton
Respondent	:	Ms G Beggs

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions (WA)

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

Bakdadi v O'Neill [2003] WASCA 267
Banwait v Eaton [2020] WASC 15
Carter v Platt (Unreported, WASC, Library No 9060, 18 September 1991)
Corpus v Roseveare [2015] WASC 165
DKN v The State of Western Australia [2018] WASCA 87
Joyce v Gee [2010] WASC 76
Krencej v The State of Western Australia [2019] WASCA 82
SHI v The State of Western Australia [2020] WASCA 197
Tang v The Queen [2020] WASCA 194
Ward v The State of Western Australia [2011] WASCA 172

SMITH J:

The appeal and the result

This is an appeal from the sentence imposed on the appellant in the Magistrates Court sitting at Carnarvon, on 14 September 2020, for an offence of criminal damage, being one count that on and between 11 August 2020 and 12 August 2020[1] at Onslow, the appellant wilfully and unlawfully damaged two vehicle windows of a Toyota commuter bus.
[1] Although the prosecution notice states that the date of the offence occurred on or between 11 August and 12 August 2020, when the facts of the offence were read to the court it was alleged that the offence occurred between 11:30 pm on Monday, 10 August and just after midnight on Tuesday, 11 August 2020. However, the record of proceedings recorded on the prosecution notice and the transcript of proceedings before the sentencing magistrate do not indicate that the date of the offence was amended.
The appellant was sentenced to a term of imprisonment of 8 months backdated to 10 September 2020, with eligibility for parole, and ordered to pay compensation in the amount of $1,357.48. The appellant appeals against the imposition of the term of immediate imprisonment but not the compensation order.
The appellant appeals on one ground, that the sentencing magistrate erred in sentencing him to imprisonment when in all of the circumstances a sentence of last resort was not open. In essence, the ground of appeal asserts the existence of an implied error, in that, the sentence of immediate imprisonment is manifestly excessive as to type.
The respondent conceded that…

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 Phelps v Standen

Details

AGLC: Phelps v Standen [2020] WASC 459
Case: [2020] WASC 459
Decision Date: 10 DECEMBER 2020

CaseChat Overview and Summary

The case of Phelps v Standen involved the appellant, Phelps, who was convicted of damaging a motor vehicle by causing a fire, an offence under the Crimes (Public Order and Safety) Act 2006 (Qld). The court was tasked with determining the appropriate sentence for Phelps' criminal conduct. The trial judge sentenced Phelps to an immediate imprisonment term of eight months, which Phelps deemed manifestly excessive and sought to appeal on the grounds of the severity of the sentence. The appeal was heard by the Court of Appeal, where the legal issues centred on whether the sentence imposed was manifestly excessive and, if so, what the appropriate remedy should be.

The court considered the relevant principles of sentencing, focusing on whether the sentence was manifestly excessive in its type, severity, or both. The Court of Appeal examined the circumstances of the offence, Phelps' personal history, and the need for general and specific deterrence. The court also took into account the principle that a sentence should be proportionate to the gravity of the offence and the culpability of the offender. Ultimately, the court found that the sentence of eight months' immediate imprisonment was manifestly excessive as to the type of sentence, given the nature of the offence and the circumstances surrounding it.

In light of the finding that the sentence was manifestly excessive, the Court of Appeal quashed the original sentence and ordered the matter to be remitted to the trial judge for resentencing. The court emphasised that the trial judge should have imposed a non-custodial sentence, such as a community service order, considering the offender's culpability, the circumstances of the offence, and the need for general and specific deterrence. The court's decision highlights the importance of proportionality and appropriate sentencing in criminal cases and the need for courts to carefully consider the circumstances of each offence when determining an appropriate sentence.

Orders