Riley v The WA Police - [2023] WASC 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RILEY -v- THE WA POLICE [2023] WASC 335
CORAM:   FORRESTER J
HEARD:   22 & 30 AUGUST 2023
DELIVERED          :   30 AUGUST 2023
FILE NO/S:   SJA 1055 of 2023
BETWEEN:   LESLIE ROBERT RILEY
Appellant
AND
THE WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1055 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   AR 11488 - 11491 OF 2022

Catchwords:

Criminal law - Single judge appeal - Appeal against sentence - Whether sentence imposed manifestly excessive - Whether miscarriage of justice due to material before magistrate not complete

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Code 1913 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted on ground 2
Appeal allowed in relation to ground 2
Sentence imposed by learned magistrate on 11 May 2023 set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	N R Sinton
Respondent	:	M I Olds

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

Cases referred to in decision:

Abduramanoski v The State of Western Australia [2019] WASCA 216
Bennier v Millar [2016] WASC 393
Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420
Corpus v Roseveare [2015] WASC 165
Fordham v The Queen (1997) 98 A Crim R 359
Horner v Hunt [2013] WASC 241
House v R [1936] HCA 40; (1936) 55 CLR 499
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
Johnson v Vander Sanden [2021] WASCA 27
Kabambi v The State of Western Australia [2019] WASCA 44
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [2004] WASCA 236
Moir v The State of Western Australia [2014] WASCA 25
O'Brien v Narang [2018] WASC 376
Pearman v The State of Western Australia [2021] WASCA 106
Phelps v Standen [2020] WASC 459
R v Araya (1992) 63 A Crim R 123
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SBJ v The State of Western Australia [2019] WASCA 32
Sikora v Gibson [2018] WASC 271
Wellstead v The State of Western Australia [2019] WASCA 130
Weston v Cartmell [2015] WASC 87
Wheeler v The Queen [No 2] [2010] WASCA 105

FORRESTER J:

Introduction

On 4 January 2023, the appellant was sentenced to a 6 month intensive supervision order (ISO) in respect of two offences of damage, one offence of trespass and one offence of possession of methylamphetamine.
On 9 February 2023, the appellant was charged with four charges that on 4 February 2023, he breached a requirement of the ISO by testing positive to an illicit substance. The appellant pleaded guilty to these charges.
On 11 May 2023, pursuant to s 133 of the Sentencing Act 1995 (WA), the learned…

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: [2023] WASC 335
Decision Date

CaseChat Overview and Summary

Leslie Robert Riley appeals against a sentence imposed by the Magistrates Court of Western Australia on 11 May 2023. The appellant had previously been sentenced to a 6 month intensive supervision order (ISO) for four offences. The appellant pleaded guilty to four charges of breaching a requirement of the ISO. The learned magistrate cancelled the ISO and resentenced the appellant to a total effective sentence of 8 months' imprisonment. The appellant contends that the sentence was manifestly excessive and that a miscarriage of justice occurred because the information before the sentencing magistrate was incomplete. The respondent conceded that the second ground of appeal had been made out. The appellant had been precluded from engaging in a meaningful manner with the ISO, largely because of a lack of local resources. Despite this, he made attempts of his own accord to engage with services and programs. However, the appellant was prevented from placing the substance of the new evidence before the court. In those circumstances, and having found that a different sentence should have been imposed had the learned magistrate been informed of the additional evidence, it is the court's view that a miscarriage of justice has occurred in this case. Accordingly, the sentence imposed by the learned magistrate on 11 May 2023 is set aside. The appellant is resentenced to a fine in the sum of $1,000, suspended for 6 months.

Orders