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Simms v Geeson

Simms v Geeson

Case [2020] WASC 381 23 October 2020

Statutory Interpretation

Miscarriage of Justice

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SIMMS -v- GEESON [2020] WASC 381
CORAM:   DERRICK J
HEARD:   20 OCTOBER 2020
DELIVERED          :   23 OCTOBER 2020
FILE NO/S:   SJA 1050 of 2020
BETWEEN:   PETER SIMMS
Appellant
AND
LEE SEAN GEESON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   KA 1087 of 2020, KA 1088 of 2020

Catchwords:

Criminal law - Offences of receiving and fraud - Appeal against sentence - Sentence of immediate imprisonment partially suspended - Prosecution notice containing charge of receiving not alleging value of received property contrary to cl 6(5) of sch 1, div 2 of the Criminal Procedure Act 2004 (WA) - Prosecution statement of facts of receiving offence not alleging value of received property - Whether magistrate made an error of law in sentencing the appellant on the basis that the applicable maximum summary conviction penalty for the receiving offence was that provided for in s 426(2) of the Criminal Code (WA) rather than in s 426(4) of the Criminal Code (WA) - Whether miscarriage of justice occurred as a result of the magistrate sentencing the appellant on the basis that the applicable maximum summary conviction penalty for the receiving offence was that provided for in s 426(2) of the Criminal Code (WA) rather than in s 426(4) of the Criminal Code (WA) - Failure to refer to reduction in sentences for pleas of guilty - Whether wrong type of sentence imposed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Extension of time within which to appeal granted
Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr C Y Stockdale
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Dillon v The State of Western Australia [2020] WASCA 24
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Eldrige v The State of Western Australia [2020] WASCA 66
Forrest v The State of Western Australia [2019] WASCA 172
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Hamlett v Whitney [2013] WASC 100
Kelly v The State of Western Australia [2020] WASCA 29
Kotnowski v Richardson [2019] WASC 369
Law v The Queen [2019] WASCA 81
Mason v The State of Western Australia [2018] WASCA 43
MJ v Sanders [2020] WASC 150
NTH v The State of Western Australia [2020] WASCA 22
Page v The State of Western Australia [2018] WASCA 76
Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western…

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 Simms v Geeson

Details

AGLC: Simms v Geeson [2020] WASC 381
Case: [2020] WASC 381
Decision Date: 23 OCTOBER 2020

CaseChat Overview and Summary

Simms appealed against his conviction and sentence for offences of receiving and fraud. The matter was heard by the Court of Appeal of the Supreme Court of Western Australia. The primary judge had sentenced Simms to imprisonment for six months, with a non-parole period of three months, to be suspended for a period of two years following a guilty plea. The appeal centred on whether the magistrate erred in applying the wrong maximum penalty for the offence of receiving, and whether this constituted a miscarriage of justice.

The court was required to determine if the magistrate erred in sentencing Simms by applying the maximum penalty for receiving under section 426(2) of the Criminal Code (WA), rather than section 426(4). The appeal also questioned whether a miscarriage of justice occurred as a result of this error, and if the court had imposed the wrong type of sentence. Additionally, the court considered whether the sentence should have been reduced for the appellant's guilty plea.

The court found that the prosecution notice and the statement of facts did not allege the value of the received property, which was a requirement under clause 6(5) of schedule 1, division 2 of the Criminal Procedure Act 2004 (WA). The court acknowledged that the magistrate had erred in applying the wrong maximum penalty for the receiving offence, but held that this did not constitute a miscarriage of justice as the sentence imposed was within the correct maximum penalty. The court also found that the sentence should have been reduced for the appellant's guilty plea, but this did not affect the outcome of the appeal. The appeal was dismissed, and the original sentence was upheld.

The Court of Appeal upheld the original sentence, finding no miscarriage of justice. The court did, however, note the error in applying the wrong maximum penalty for the receiving offence and the failure to reduce the sentence for the appellant's guilty plea.

Orders