JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SMART -v- WA POLICE [2011] WASC 99
CORAM: HALL J
HEARD: 1 APRIL 2011
DELIVERED : 15 APRIL 2011
FILE NO/S: SJA 1114 of 2010
BETWEEN: ANDREW JACOB SMART
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE D R V TEMBY
File No :KT 728 of 2009
Catchwords:
Criminal law - Appeal against conviction - Whether appellant fit to represent himself before magistrate - Whether ostensible bias - Whether appellant had fair opportunity to present his defence
Criminal law - Appeal against sentence - Whether account taken of time spent in custody - Whether proper consideration given to eligibility for parole - Whether total effective sentence disproportionate to conduct
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 318, s 338B
Sentencing Act 1995 (WA), s 80, s 87, s 89
Result:
Appeal against conviction:
Leave to appeal refused
Appeal dismissed
Appeal against sentence:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms E L O'Donnell
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dragon v The State of Western Australia [2008] WASCA 252
Isenhood v Green [2011] WASC 70
Johnson v The State of Western Australia [2009] WASCA 160
Narkle v Hamilton [2008] WASCA 31
Otway v The State of Western Australia [2008] WASCA 165
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Roffey v The State of Western Australia [2007] WASCA 246
Scolaro v Shephard [No 2] [2010] WASC 271
Smart v Albuquerque [2010] WASC 323
HALL J:
Background
On 19 October 2010 following a trial in the Albany Magistrates Court, the appellant, Andrew Jacob Smart, was convicted of making a threat to unlawfully damage or endanger property contrary to s 338B(b) of the Criminal Code (WA). That conviction caused a breach of a suspended sentence of 12 months' imprisonment imposed in the Rockingham Magistrates Court on 15 July 2009 for an offence of assaulting a public officer contrary to s 318(1)(d) of the Code.
On 16 December 2010 Mr Smart was sentenced to 8 months' imprisonment on the threat to damage charge. In consequence of the breach of the suspended sentence order of 15 July 2009 the magistrate ordered that the suspended sentence be served. He also ordered that the sentences be served cumulatively, making a total of 20 months' imprisonment. His Honour declined to make any order that the appellant be eligible for parole.
Grounds of appeal
Mr Smart has appealed against both his conviction on the threat to damage charge and the sentences imposed upon him in consequence of that conviction. Mr Smart represented himself on this appeal. His appeal notice only nominated…
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- AGLC
- Smart v WA Police [2011] WASC 99
- Case
- [2011] WASC 99
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the magistrate erred in finding Smart fit to represent himself, whether there was ostensible bias, whether Smart had a fair opportunity to present his defence, and whether the sentence was disproportionate. The court also considered whether the time spent in custody and eligibility for parole were properly taken into account.
The court found that the magistrate had not erred in finding Smart fit to represent himself, and there was no ostensible bias. The court held that Smart had a fair opportunity to present his defence and that the sentence was not disproportionate. The court concluded that the trial judge had adequately considered the time spent in custody and eligibility for parole.
The appeal against conviction and sentence was dismissed. The court made no order as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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