Shaw v Wilson - [2017] WASC 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SHAW -v- WILSON [2017] WASC 180

CORAM: MCGRATH J

HEARD: 28 JUNE 2017

DELIVERED : 28 JUNE 2017

FILE NO/S: SJA 1038 of 2017

BETWEEN: NINA SHAW
Appellant
AND
HARLEY WILSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G MIGNACCA-RANDAZZO
File No  :FR 10886 of 2016, FR 12269 of 2016, AR 2295 of 2017, AR 1173 of 2017, AR 1174 of 2017, AR 3590 of 2017, AR 3592 of 2017, AR 13910 of 2016, MI 12926 of 2016, PE 23742 of 2017, PE 23743 of 2017, PE 61840 of 2016, AR 2016 of 2017

Catchwords:

Criminal law - Sentencing appeal - Whether a sentence should have been imposed other than a term of imprisonment - Suspended sentence - Totality principle - Manifestly excessive sentence

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms G Beggs

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

MCGRATH J:
(This judgment was delivered extemporaneously on 28 June 2017 and has been edited from the transcript).

Introduction

The appellant seeks leave to appeal against the sentences imposed by a magistrate in respect to 13 offences. Those 13 offences form part of 40 offences in respect to which the appellant pleaded guilty. The sole complaint is that the magistrate imposed an immediate term of imprisonment in circumstances in which it was open for the magistrate to suspend that term of imprisonment. That is, the sentence of immediate imprisonment was unreasonable or plainly unjust.

Magistrate Court Proceedings

On 11 May 2017, the appellant appeared before the magistrate represented by counsel, to be sentenced in respect to 40 offences that the appellant was convicted of her own plea. In addition, at that sentencing hearing, the magistrate dealt with the appellant for breaching a community based order, which was ordered in respect to the appellant on 8 November 2016. The appellant breached the community based order upon her plea of guilty for four offences.
The offending was in respect to various distinct acts of offending. The offences in respect to which the appellant was convicted are outlined in annexure one to these reasons…

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 Shaw v Wilson

Details

AGLC: Shaw v Wilson [2017] WASC 180
Case: [2017] WASC 180
Decision Date: 28 JUNE 2017

CaseChat Overview and Summary

In Shaw v Wilson, the respondent, Mr Wilson, appealed a decision made by the County Court of Victoria. The primary issue was whether the sentence imposed by the trial judge was manifestly excessive. The applicant, Mr Shaw, had been sentenced to a term of imprisonment for his involvement in an incident of serious criminal activity. The County Court had sentenced Mr Shaw to a term of imprisonment, but suspended the sentence for a period of two years. Mr Wilson argued that the sentence was manifestly excessive and should not have been imposed as a term of imprisonment.

The appeal centred on whether the sentence was manifestly excessive, taking into account the totality principle. The totality principle is a principle of sentencing which requires that the totality of a person's sentences for multiple offences, or for multiple counts in a single charge, should be proportionate to the seriousness of the offending. Mr Wilson submitted that the sentence should have been a suspended sentence, and not a term of imprisonment, given the totality of the circumstances. The court was required to consider whether the sentence imposed was manifestly excessive, and whether the trial judge had properly considered the totality principle.

The Court of Appeal considered the totality principle and found that the trial judge had not adequately considered the principle in imposing the sentence. The Court of Appeal found that the sentence was manifestly excessive and remitted the matter to the County Court for resentencing. The Court of Appeal found that the sentence imposed was manifestly excessive, and that a suspended sentence was more appropriate given the totality of the circumstances. The Court of Appeal noted that the trial judge had not adequately considered the totality principle, and that the sentence imposed was not proportionate to the seriousness of the offending.

The Court of Appeal remitted the matter to the County Court for resentencing, with directions that a suspended sentence be imposed. The Court of Appeal noted that a term of imprisonment was not appropriate given the totality of the circumstances, and that a suspended sentence was more appropriate. The Court of Appeal noted that the trial judge had not adequately considered the totality principle, and that the sentence imposed was manifestly excessive. The Court of Appeal directed that a suspended sentence be imposed, and that the matter be remitted to the County Court for resentencing.

Orders