R v Duff - [1999] WASC 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- DUFF & ORS [1999] WASC 124

CORAM: MALCOLM CJ

HEARD: 10 JUNE 1999

DELIVERED : 10 JUNE 1999

FILE NO/S: MCR 168 of 1998

BETWEEN: THE QUEEN
Applicant
AND
BRANDON MCLEOD DUFF
SHANNON LEE
STEVEN MAYES
Respondents

Catchwords:

Criminal law - Sentencing - Crown application for correction of sentence - Interpretation and application of s 88 Sentencing Act 1995 (WA) to partly cumulative and partly concurrent sentences - Necessity to specify the date on which the partially cumulative portion of the sentence will commence to be served - Such date is the earliest eligibility date for release from the term with which the subject sentence is partially concurrent

Legislation:

Sentencing Act 1995 (WA), s37, s85, s88

Result:

Commencement date of partially cumulative portion of sentence specified

Representation:

Counsel:

Applicant: Ms L B Black
Respondents : Mr P J M Sullivan

Solicitors:

Applicant: State Director of Public Prosecutions
Respondents : Paul Sullivan

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

Nil

Case(s) also cited:

Nil

MALCOLM CJ: This is an application by the Crown for correction of a sentence under s 37 of the Sentencing Act 1995 ("the Act"). On 27 October 1998 Brandon McLeod Duff was sentenced with Shannon Lee and Steven Mayes after a plea of guilty in respect of a number of offences. Counts 1 to 5 on the indictment related to offences committed with Shannon Lee and Steven Mayes in respect of which Mr Duff was sentenced to a total of 9 years' imprisonment.
There was an offence of aggravated burglary, the subject of count 6, in respect of which Mr Duff was sentenced to imprisonment for 3 years with a direction that 1 year of that sentence be served cumulatively upon the other sentences with the remaining 2 years to be served concurrently. Section 88(3) of the Sentencing Act 1995 provides:
"If at the time an offender is sentenced to a fixed term -
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that -
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly cumulatively on the other fixed term."
In this case the order was made was under s 88(3)(d). Section 88(4) provides:
"If under subsection (3)(d) a court orders that a term is to be served partly cumulatively on another fixed term, the court must specify the period of the other fixed term that is to be served before the partly cumulative term is to begin; but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term."
The "other fixed term" in this context is the total of any previous fixed terms of imprisonment imposed which are the subject of the…

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 R v Duff

Details

AGLC: R v Duff [1999] WASC 124
Case: [1999] WASC 124
Decision Date: 10 JUNE 1999

CaseChat Overview and Summary

The appeal heard by the Supreme Court of Western Australia was brought by the Crown against the decision of a lower court, which had reduced the original sentence of the accused, Duff, in a criminal matter. The Crown sought an order to correct the sentence to reflect the court's original intent. The nature of the dispute was the interpretation and application of section 88 of the Sentencing Act 1995 (WA) in the context of partly cumulative and partly concurrent sentences. The court was required to determine whether the date on which the partially cumulative portion of the sentence would commence to be served had to be specified, and if so, what that date should be.

The central legal issue before the court was the proper interpretation of section 88 of the Sentencing Act 1995 (WA). The Crown argued that the date on which the partially cumulative portion of the sentence would commence to be served had to be specified, and that this date should be the earliest eligibility date for release from the term with which the subject sentence was partially concurrent. Duff contended that there was no requirement to specify such a date. The court had to consider whether the statutory language mandated a specific commencement date for the partially cumulative sentence and, if so, what that date should be. The court's analysis involved a detailed examination of the relevant statutory provisions and case law to ascertain the legislative intent behind section 88.

The court held that the date on which the partially cumulative portion of the sentence would commence to be served had to be specified, and that this date should indeed be the earliest eligibility date for release from the term with which the subject sentence was partially concurrent. The court found that the plain language of section 88 required a specific commencement date for the cumulative sentence, and that the date proposed by the Crown aligned with the legislative intent. The court was satisfied that the lower court's failure to specify this date had led to an incorrect application of the sentencing principles. Consequently, the court allowed the Crown's appeal and ordered that the sentence be corrected to reflect the proper interpretation of section 88.

The final orders of the court were that the sentence imposed by the lower court be corrected to specify the date on which the partially cumulative portion of the sentence would commence to be served, which was determined to be the earliest eligibility date for release from the term with which the subject sentence was partially concurrent. The court's decision clarified the application of section 88 of the Sentencing Act 1995 (WA) in cases involving partly cumulative and partly concurrent sentences, ensuring that such sentences are properly and consistently applied in future cases.

Orders