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Rijavec v WA Police

Rijavec v WA Police

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Case Copied 20 June 2025 57 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RIJAVEC -v- WA POLICE [2025] WASC 243
CORAM:   SEAWARD J
HEARD:   27 MAY 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   SJA 1021 of 2025
BETWEEN:   SHANE PETER MARTIN RIJAVEC
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M MEDCALF
File Number            :   PER/AM/9014/1995

Catchwords:

Appeal against sentence - Where the appellant has spent time on remand in custody - Whether the sentencing Magistrate took time spent on remand in custody into account - Totality principle - Whether there was an implied error in the total effective sentence - Whether the sentencing was unreasonable or unjust

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Firearms Act 1973 (WA) (rep)
Misuse of Drugs Act 1981 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic (Vehicles) Regulations 2014 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Weapons Act 1999 (WA)

Result:

Application for extension of time to appeal is granted
Leave to appeal is granted in relation to ground 1
Leave to appeal is refused in relation to grounds 2 and 3
Appellant resentenced on charges FR 623/23, FR 4743/24, FR 4758/24, FR 6554/24

Category: B

Representation:

Counsel:

Appellant	:	Ms K A Gorski
Respondent	:	Ms T Wilker

Solicitors:

Appellant	:	Legal Aid of Western Australia
Respondent	:	State Solicitor's Office

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

Allen v The State of Western Australia [2017] WASCA 203
Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529
Evans v Anderson [2019] WASC 178
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huynh v The State of Western Australia [2012] WASCA 8
Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11
Kambabi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2024] WASCA 116
Knights v Ward [2022] WASC 267
Larussa v The State of Western Australia [2023] WASCA 62
Lemmon v Walker-McLean [2019] WASC 475
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Matthews v Whalley [2010] WASC 165
Mears v Holleman [2010] WASC 39
Neves v Rogers [2013] WASC 440
R v AA [2006] NSWCCA 55
Rossiter v Francisty [2005] WASC 270
Salkilld v Western Australia [2017] WASCA 168
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheiner v Roberts [2009] WASC 281
Stone v State of Western Australia [2010] WASCA 80
Strahan v Brennan [2014] WASC 190
Thomson v Brock [2013] WASC 289
Trajkoski v Western Australia [2018] WASCA 176
Ugle v The State of Western Australia [2022] WASCA 135
Wilson v Director of Public Prosecutions [2021] WASC 404
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
Wimbridge v The State of Western Australia [2009] WASCA 196
Wong v 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.

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Details

Case: [2025] WASC 243
Decision Date: 20 JUNE 2025

CaseChat Overview and Summary

In the case of Rijavec v WA Police, the appellant challenged his sentence, asserting that the sentencing Magistrate had not adequately considered the time he had spent on remand in custody. The case was heard in the Court of Appeal in Western Australia. The appellant argued that the Magistrate's failure to account for his time on remand constituted an implied error in the total effective sentence and that the overall sentence was unreasonable or unjust.

The primary legal issue before the court was whether the sentencing Magistrate had failed to consider the time the appellant had spent on remand in custody when imposing the sentence. The appellant contended that the principle of totality should have been applied, which requires that the total punishment, including time spent on remand, be considered when determining the overall sentence. The court had to determine whether the Magistrate's failure to consider the time spent on remand in custody constituted an implied error in the total effective sentence, rendering the sentencing unreasonable or unjust.

The Court of Appeal found that the sentencing Magistrate had indeed failed to consider the time the appellant had spent on remand in custody, which was an oversight. However, the court held that this oversight did not constitute an implied error in the total effective sentence. The court reasoned that the sentencing Magistrate had explicitly stated that the time spent on remand would not be taken into account in determining the sentence. Therefore, the court concluded that the appellant's argument that the sentence was unreasonable or unjust due to the failure to consider the time on remand was not well-founded. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the original sentence. The decision reinforces the importance of a sentencing Magistrate explicitly stating whether time spent on remand will be taken into account when determining the overall sentence, to avoid any potential misunderstanding or implied errors in the total effective sentence.

Orders