Rijavec v WA Police

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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…

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Details
Case
[2025] WASC 243
Decision Date

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

Orders of the court

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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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