ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 30691 of 2008, PE 30692 of 2008, PE 30693 of 2008, PE 30694 of 2008, PE 30695 of 2008, PE 30696 of 2008, PE 31792 of 2008, PE 31796 of 2008, PE 18224 of 2009

Catchwords:

Criminal law and procedure - Appeal from sentence of a magistrate - Whether aggregate sentence bore proper relationship to overall criminality viewing offences in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender

Criminal law and procedure - Appeal from sentence of a magistrate - Effect to be given to fresh evidence relevant to sentencing - Relationship between Criminal Appeals Act s 39(1) and (3), s 14(5) and s 40(1)(e) - Proper approach to reception and use of fresh and new evidence

Criminal law and procedure - Appeal from sentence of magistrate - Weight to be given to time spent in custody outside Sentencing Act s 87 and to time on conditional bail

Criminal law and procedure - Appeal from sentence of magistrate - Discounts for pleas of guilty made or indications ones would be made which were made or given at different times

Criminal law and procedure - Appeal from sentence of magistrate - Effect to be given to delay in completion of prosecution disclosure - Effect to be given to appellant's rehabilitative progress and prospects - Effect to be given to health conditions of appellant - Weight to be given to five year old psychological report referred to in presentence report and to that psychological report

Criminal law and procedure - Appeal from sentence of magistrate - Whether failure to consider or to consider properly option of suspended sentence in case of drug trafficking

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 3A
Criminal Appeals Act 2004 (WA), s 14, s 31, s 36, s 39, s 40
Criminal Code (WA), s 428 s 697
Criminal Law and Evidence Amendment Act 2008 (WA), s 35
Criminal Property Confiscation Act 2000 (WA), s 8
Firearms Act 1973 (WA), s 8, s 19
Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 8, s 87, s 93
Weapons Act 1999 (WA), s 7, s 8, s 10

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr P S Ash
Respondents : Ms G Colborne

Solicitors:

Appellant: Peter Ash & Associates
Respondents : Director of Public Prosecutions (WA)

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

Anderson v The Queen (1996) 18 WAR 244; (1997) 92 A Crim R 348
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Chivers 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.

Continue reading Riley v Smirk

Details

AGLC: Riley v Smirk [2011] WASC 21
Case: [2011] WASC 21
Decision Date: 28 JANUARY 2011

CaseChat Overview and Summary

In Riley v Smirk, the appellant appealed against the severity of a sentence imposed by a magistrate for drug trafficking offences. The primary concern was whether the aggregate sentence was proportionate to the overall criminality of the offences, taking into account all the circumstances of the case, including personal factors related to the offender. The court also considered the impact of fresh evidence introduced during the appeal, and the interplay between various sections of the Criminal Appeals Act. This included the relationship between sections 39(1) and (3), 14(5), and 40(1)(e) of the Act, which pertain to the reception and use of new evidence.

The legal issues before the court encompassed several critical aspects of sentencing. The court needed to determine the appropriate weight to be given to time spent in custody outside the parameters of the Sentencing Act, as well as time on conditional bail. Additionally, the court had to consider the significance of discounts for pleas of guilty made at different times, the effect of delays in the prosecution's disclosure of evidence, and the appellant's progress in rehabilitation and health conditions. The court also needed to evaluate the relevance and weight of a five-year-old psychological report, and whether the magistrate had properly considered the option of a suspended sentence in the context of drug trafficking.

The court's reasoning involved a detailed analysis of the proportionality of the sentence in relation to the overall criminality of the offences. It examined the fresh evidence introduced during the appeal and its relevance to sentencing. The court also considered the implications of the appellant's rehabilitative progress, health conditions, and the delay in prosecution disclosure. Furthermore, the court addressed the magistrate's failure to consider the option of a suspended sentence, which is a critical factor in drug trafficking cases. After weighing these factors, the court concluded that the aggregate sentence did not appropriately reflect the overall criminality of the offences and ordered a review and potential modification of the sentence.

Orders