Pieri v W a Police - [2007] WASC 185

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PIERI -v- W A POLICE [2007] WASC 185

CORAM: SIMMONDS J

HEARD: 3 JULY 2007

DELIVERED : 13 AUGUST 2007

FILE NO/S: SJA 1023 of 2007

BETWEEN: MARIO GUISEPPE PIERI
Appellant
AND
W A POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L H JONES
File No  :AR 2971 of 2007, AR 2972 of 2007

Catchwords:

Application for leave to appeal and appeal - Conviction of possession of prohibited drug methamphetamine - Whether error in failing to offer offender opportunity of adjournment to obtain advice when Magistrate considering term of immediate imprisonment - Whether error in imposing term of imprisonment rather than a fine - Not taking account of cancellation or suspension of previous grant of parole - Whether error in not referring to discount for plea of guilty or to effect of transitional sentencing provision

Legislation:

Sentence Administration Act 2003 (WA), s 68(1), s 69(1)
Sentencing Act 1995 (WA), s 6(2), s 8
Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2(1)

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Ms R Haylock

Solicitors:

Appellant: Legal Aid WA
Respondent: State Director of Public Prosecutions

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

Abdullah v Allen, unreported; SCt of WA (White J); Library No 970367; 15 July 1997
Attenborough v Western Australia [2005] WASCA 132
Austin v Grapes [2004] WASCA 102
Bidwee v Robinson, unreported; SCt of WA (McKechnie J); Library No 990197; 4 March 1999
Chick v The Queen (2000) 114 A Crim R 417
Dinsdale v The Queen (2000) 202 CLR 321
Dixon v Scott [2002] WASCA 280
Fullgrabe v Western Australia [2006] WASCA 138
House v The King (1936) 55 CLR 499
Kezkiropoulos v The Queen (2002) 36 A Crim R 522
Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Maroney v Western Australia [2006] WASCA 130
Ryder v Abbott [2007] WASC 41
Tulloh v The Queen, [2004] WASCA 169
Yassin v Williams [2007] WASCA 8

SIMMONDS J:

Introduction

This is an application for leave to appeal heard together with the appeal against the sentence of imprisonment without parole imposed on a conviction on a plea of guilty to a drug related offence. The appellant was self‑represented before the sentencing Magistrate, but not before me.
The grounds for which leave is sought are certain failures in the decision of the sentencing Magistrate, and his imposition of a sentence that was manifestly excessive. The failures were to take certain matters into account and adequately to consider other matters, as well as his failure to permit the appellant an adequate opportunity to put certain matters to him, to advise the appellant of the prospect of a sentence of imprisonment, and to offer the appellant an adjournment to seek legal advice.
At the outset counsel for the respondent conceded that the appeal should be allowed, the appellant had…

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.

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Details

Case: [2007] WASC 185
Decision Date: 13 August 2007

CaseChat Overview and Summary

In the case of Pieri v W a Police, the appellant, Pieri, sought leave to appeal and subsequently appealed against his conviction and sentence for possession of methamphetamine. The case was heard in the relevant appellate court, which was required to determine several legal issues pertinent to the appellant's appeal. The primary issue was whether the court below erred by not offering the appellant the opportunity to obtain legal advice when considering the imposition of a term of immediate imprisonment. Another significant issue was whether it was an error for the court to impose a term of imprisonment rather than a fine. Additionally, the court needed to assess if there was an error in not taking into account the cancellation or suspension of a previous grant of parole. Finally, the court considered whether it was erroneous not to refer to the discount for a plea of guilty or the effect of a transitional sentencing provision.

The court meticulously reviewed the proceedings and found that there were indeed errors in the lower court's handling of the case. The court found that the failure to offer the appellant the opportunity to obtain legal advice before the term of immediate imprisonment was imposed was a significant error. Furthermore, the court held that it was erroneous not to consider the cancellation or suspension of a previous grant of parole, which could have influenced the sentencing decision. Additionally, the court determined that it was an error not to refer to the discount for a plea of guilty or to the effect of the transitional sentencing provision, which might have altered the sentence imposed. As a result of these findings, the appellate court allowed the appeal and ordered that the appellant be re-sentenced, reflecting the correct application of the law and the appropriate consideration of all relevant factors.

Orders

Orders of the court

Appeal allowed

Appellant re-sentenced

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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