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Sikora v Gibson

Sikora v Gibson

Case [2018] WASC 271 31 August 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SIKORA -v- GIBSON [2018] WASC 271
CORAM:   CORBOY J
HEARD:   22 AUGUST 2018
DELIVERED          :   31 AUGUST 2018
FILE NO/S:   SJA 1087 of 2018
BETWEEN:   PAUL CAESAR SIKORA
Appellant
AND
GEORGIA GIBSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S R MALLEY
File Number             :   FR 2955/2018
FR 2956/2018
FR 3410/2018

Catchwords:

Criminal law - Trespass - Appeal against sentence - Failure to apply s 9AA of the Sentencing Act 1995 (WA) - Whether sentencing options other than imprisonment available

Legislation:

Criminal Code (WA), s 10A
Sentencing Act 1995 (WA), s 9AA, s 69, pt 10, pt 11

Result:

Time to extend time within which to appeal
Leave to appeal
Appeal allowed
Sentence set aside and appellant to be re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms E O'Keeffe & Ms B Loftus

Solicitors:

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

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

Bennier v Millar [2016] WASC 393
Casotti v Pickering [2013] WASC 174
Closter v Humphries [2012] WASC 145
Gok v The Queen [2010] WASCA 185
Horner v Hunt [2013] WASC 241
Knox‑Cumming v MacDonald [2018] WASC 164
Lance v Weston [2014] WASCA 62
Moir v The State of Western Australia [2014] WASCA 25
Smith v Richardson [2013] WASC 114
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Smith [2016] WASCA 153
Vickery v McAlinden [2017] WASC 224
Weston v Cartmell [2015] WASC 87
Wilson v The State of Western Australia [2010] WASCA 82

CORBOY J:

The appeal and the result

The appellant was convicted on his plea of three offences - two offences of trespass and one offence of stealing. He was fined $500 for the stealing offence (MCFRE 18/2956) and a further fine of $500 for one of the trespass offences (MCFRE 18/3410). A term of imprisonment of 7 months was imposed for the second trespass offence (MCFRE 18/2955). The term of imprisonment was suspended for 12 months commencing on 17 April 2018.
The appellant appeals from the suspended imprisonment order made by the learned magistrate in respect of charge MCFRE 18/2955. Two grounds of appeal are alleged:
(1)The magistrate erred in law by failing to take into account a relevant mitigating factor, namely the appellant's mental impairment.
(2)The magistrate erred in sentencing the appellant to imprisonment, when in all of the circumstances a sentence of last resort was not open.
The appellant did not press the first ground at the hearing of the appeal. It was accepted that there was no evidence connecting his mental impairment to his offending: see Gok v The Queen [2010] WASCA 185 (where it is contended an offender's moral culpability is lessened by a psychiatric or psychological condition, the offender must demonstrate a causal connection between the condition and the commission of the offence).
There was a difficulty in considering the second ground. The magistrate did…

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 Sikora v Gibson

Details

AGLC: Sikora v Gibson [2018] WASC 271
Case: [2018] WASC 271
Decision Date: 31 AUGUST 2018

CaseChat Overview and Summary

The case of Sikora v Gibson involved an appeal against a sentence imposed by the Magistrates Court of Western Australia for an offence of trespass. Sikora, the appellant, had been found guilty of trespass and was sentenced to imprisonment. Sikora appealed on the grounds that the sentencing court failed to consider alternative sentencing options under section 9AA of the Sentencing Act 1995 (WA). The central issue before the court was whether the Magistrates Court erred in not exploring non-custodial sentencing options before imposing a custodial sentence.

The court examined the principles guiding the imposition of sentences under section 9AA of the Act, which requires the court to consider all available options that are just and appropriate in the circumstances. The court assessed whether the Magistrates Court had failed to consider alternatives to imprisonment and if such a failure constituted a material error. The court also considered the nature of the offence, Sikora's criminal history, and the sentencing objectives of deterrence, rehabilitation, and denunciation.

In its judgment, the court found that the Magistrates Court had indeed failed to adequately explore non-custodial sentencing options as required by section 9AA of the Act. The court held that the Magistrates Court's oversight in this regard was a material error that undermined the overall fairness of the sentencing process. Consequently, the court allowed the appeal, quashed the original sentence, and remitted the matter back to the Magistrates Court for resentencing with proper consideration of all available sentencing options.

The final orders of the court included a quashing of the original sentence and a direction for the Magistrates Court to re-sentence Sikora, ensuring full compliance with section 9AA of the Sentencing Act 1995 (WA). The court emphasised the importance of adhering to statutory requirements when determining the appropriate sentence, particularly in cases where non-custodial options may be suitable.

Orders