Schulz v Coyne

[2019] WASC 329

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SCHULZ -v- COYNE [2019] WASC 329

CORAM:   HILL J

HEARD:   25 JUNE 2019

DELIVERED          :   6 SEPTEMBER 2019

FILE NO/S:   SJA 1039 of 2019

BETWEEN:   AMBER ROSE SCHULZ

Appellant

AND

MATT COYNE

First Respondent

NATHANAEL MATTHEWS

Second Respondent

RAYMOND BALLERINI

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   CHIEF MAGISTRATE S HEATH

File Number             :   PE20382 of 2018; PE20383 of 2018; PE20384 of 2018; PE20385 of 2018; PE57008 of 2018; PE8291 of 2019; PE9151 of 2019

Catchwords:

Criminal law - Appeal against sentence - Failure to take into account plea of guilty - Appeal allowed and appellant resentenced - Appropriate sentence

Legislation:

Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Intensive supervision order imposed

Category:    B

Representation:

Counsel:

Appellant	:	Ms N Sinton
First Respondent	:	Mr T Scutt
Second Respondent	:	Mr T Scutt
Third Respondent	:	Mt T Scutt

Solicitors:

Appellant	:	Legal Aid - Perth
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)
Third Respondent	:	Director of Public Prosecutions (WA)

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

Burrows v The State of Western Australia [2014] WASCA 147

Churnside v The State of Western Australia [2016] WASCA 146

Noble v The Queen [2018] NSWCCA 253

Roberts v The State of Western Australia [2014] WASCA 239

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Winmar v Clark [2015] WASC 314

HILL J:

1. On 5 March 2019, the appellant was sentenced to a term of immediate imprisonment of eight months for two counts of trespass, four counts of fraud and one count of breach of bail in relation to incidents that occurred between 4 March 2018 and 29 January 2019.  The appellant was also fined for offences of stealing and breaches of her community based order.  These fines are not the subject of this appeal.

2. The appellant seeks leave to appeal against the sentence of imprisonment imposed by the learned magistrate.

Notice of Appeal and Leave to Appeal

1. On 11 March 2019, the appellant filed her notice of appeal which was within time.[1]

   [1] Criminal Appeals Act 2004 (WA), s 10(3).

2. The notice of appeal set out three grounds of appeal, namely that:

   1.The learned magistrate erred in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA);

   2.There was a failure to consider suspension of the sentence of imprisonment imposed; and

   3.It was an error to impose a sentence of imprisonment when, in all of the circumstances, neither the seriousness of the offences nor the protection of the community required it.

3. The appellant requires leave to appeal.[2]  The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of…