Sheedy v Riolo - [2010] WASC 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHEEDY -v- RIOLO [2010] WASC 170

CORAM: MURRAY J

HEARD: 17 JUNE 2010

DELIVERED : 17 JUNE 2010

PUBLISHED : 7 JULY 2010

FILE NO/S: SJA 1039 of 2010

BETWEEN: ALYSON JANE SHEEDY
Appellant
AND
FRANK RIOLO
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE RK BLACK
File No  :PE 60773 of 2009, PE 60774 of 2009, PE 60775 of 2009, PE 60776 of 2009, PE 60777 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Whether aggregate term of 14 months imprisonment should have been allowed to run concurrently with other sentences for stealing as a servant - Totality principle

Legislation:

Nil

Result:

Extension of time granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr M A Holgate

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Collins v The State of Western Australia [2007] WASCA 108
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Penny v Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Reynolds v The State of Western Australia [2010] WASCA 60
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v Wallam [2008] WASCA 117

MURRAY J:

An extension of time

The appellant was sentenced following an earlier plea of guilty in the Magistrates Court on 21 January 2010 for five offences of stealing as a servant. If she was to appeal to this court against the sentences imposed she was obliged to institute the appeal by 18 February 2010. The appeal notice is dated 16 April 2010. It is therefore about two months out of time and an extension of time is sought.
That application is supported by an affidavit by her solicitor. The evidence is that the solicitors instructed Mr Watters to investigate the prospects of an appeal on 9 February 2010. Legal aid was sought, but was delayed by the need to have available a transcript of the proceedings before the Magistrates Court when sentence was imposed. Legal aid was granted on 15 April 2010. Presumably by that time Mr Watters had given his advice. But in any event, as I have said, the appeal was instituted on 16 April 2010.
The delay is not great. There is no evidence that any of the appellant's legal advisers behaved in a dilatory fashion or that the respondent was in any way prejudiced, and I extended time to 16 April 2010 to enable the appeal to be heard.

Relevant proceedings

On 16 October 2008 the appellant was sentenced in the District Court for 30 offences of stealing as a servant, one offence of attempted stealing as a servant and one offence of stealing. They were all related matters. Having been charged, she was admitted to bail and so the sentences imposed dated from 16 October 2008. For each…

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 Sheedy v Riolo

Details

AGLC: Sheedy v Riolo [2010] WASC 170
Case: [2010] WASC 170
Decision Date: 7 JULY 2010

CaseChat Overview and Summary

In the matter of Sheedy v Riolo, the defendant, Sheedy, was sentenced to 14 months imprisonment for theft offences committed as a servant. The court was asked to consider whether the aggregate sentence should run concurrently with other sentences Sheedy was already serving. The case was heard in the Court of Appeal. The central legal issue was whether the trial judge erred in ordering the 14-month sentence to run concurrently with other sentences, potentially breaching the totality principle in sentencing. This principle ensures that the cumulative effect of multiple sentences does not result in excessive punishment for the offender.

The Court of Appeal considered the appropriate application of the totality principle in sentencing, particularly in cases involving multiple offences committed as part of a single course of conduct. The court emphasised that the totality principle is designed to prevent the cumulative effect of sentences from being disproportionately severe. In this case, the Court of Appeal found that the trial judge had failed to adequately consider the cumulative effect of the sentences, which could potentially lead to excessive punishment. The appellate court noted that while the trial judge had the discretion to order sentences to run concurrently, it was crucial to ensure that the aggregate sentence did not contravene the totality principle.

Consequently, the Court of Appeal allowed the appeal and ordered a re-sentencing by a different judge. The court made it clear that the new sentence must properly reflect the totality principle, ensuring that the cumulative punishment does not exceed what is proportionate to the offences committed. The decision underscores the importance of carefully considering the cumulative impact of multiple sentences to avoid disproportionately severe punishment. The final orders of the court required a re-sentencing hearing to be conducted by a different judge to ensure compliance with the totality principle.

Orders