Smart v The Director of Public Prosecutions for Western Australia [No 2]

In the case of Smart v The Director of Public Prosecutions for Western Australia [No 2], the appellant, Smart, appealed against his sentence imposed by Magistrate O'Donnell. Magistrate O'Donnell had been required to resentence Smart after the original sentencing was quashed and the matter was remitted to her by Curthoys J. Smart's resentencing was 'early‑listed' with no notice to the parties, and Smart was unprepared to deal with the resentencing on 5 January 2023. He did not have an opportunity to make submissions as to the type of sentence or parole eligibility. The central legal issues in the appeal were whether Magistrate O'Donnell erred in law by reimposing the exact same sentences, and whether the resentencing was procedurally unfair due to being brought forward in time by one month.

The court found that the power to early‑list sentencing proceedings must be exercised judicially and must afford the parties procedural fairness. The court noted that procedural fairness required that where the court early‑lists a matter on its own motion, the parties are to be given adequate notice of the time and date on which it is proposed to deal with the matter, and the subject matter to be dealt with at the hearing. The parties are also to be given the opportunity to properly prepare for the hearing. The court concluded that the proceedings on 5 January 2023 were procedurally unfair due to the appellant being unprepared, not having notice of the early‑listing, and not consenting to the early‑listing. The court found that the magistrate's approach on 5 January 2023 prevented the appellant from bringing any potential matters of mitigation to her attention. Therefore, it was not fair for her to proceed to resentence the appellant on that day.

The court quashed the sentences imposed by Magistrate O'Donnell on 5 January 2023 and remitted the matter to her for resentencing on a date to be fixed by the court. The court ordered that the parties be given adequate notice of the time and date on which it is proposed to deal with the matter, and the subject matter to be dealt with at the hearing. The parties are also to be given the opportunity to properly prepare for the hearing.