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Smart v WA Police

Smart v WA Police

Case [2011] WASC 99 15 April 2011

Appeal

Jurisdiction

Unconscionable Conduct

Sentencing

Criminal Law

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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
Smart v Scott [2007] WASC 295
Smart v The State of Western Australia [2010] WASCA 218
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

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…

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 Smart v WA Police

Details

AGLC: Smart v WA Police [2011] WASC 99
Case: [2011] WASC 99
Decision Date: 15 APRIL 2011

CaseChat Overview and Summary

The appellant, Smart, appealed against both his conviction and sentence, arguing that he was not fit to represent himself before the magistrate, and that there was ostensible bias. The case was heard in the Supreme Court of Western Australia. Smart contended that the magistrate did not adequately consider his fitness to represent himself and that there was a perception of bias. He also argued that he did not have a fair opportunity to present his defence, and that the sentence was disproportionate to his conduct.

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