Smith v Carmody
[2014] WASC 412
•27 OCTOBER 2014
SMITH -v- CARMODY [2014] WASC 412
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 412 | |
| Case No: | SJA:1064/2014 | 27 OCTOBER 2014 | |
| Coram: | ALLANSON J | 27/10/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal and the appeal allowed Conviction and sentence of imprisonment set aside Conviction of attempt and fine imposed | ||
| B | |||
| PDF Version |
| Parties: | KEITH JAMES SMITH HANNAH RUTH CARMODY |
Catchwords: | Criminal law Appeal against conviction after plea of guilty Miscarriage of justice Substitute conviction for attempt |
Legislation: | Criminal Appeals Act 2004 (WA), s 8(2), s 14(1)(d), s 14(1)(i) Criminal Code (WA), s 10D, s 409(1)(c) Sentencing Act 1995 (WA), s 46, s 59 |
Case References: | Anderson v Pankhurst [No 2] [2012] WASC 326 Borsa v The Queen [2003] WASCA 254 Fazio v Zanetti [2012] WASC 426 Hogue v The State of Western Australia [2005] WASCA 102 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
HANNAH RUTH CARMODY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE C D ROBERTS
File No : PE 67336 of 2014
Catchwords:
Criminal law - Appeal against conviction after plea of guilty - Miscarriage of justice - Substitute conviction for attempt
Legislation:
Criminal Appeals Act 2004 (WA), s 8(2), s 14(1)(d), s 14(1)(i)
Criminal Code (WA), s 10D, s 409(1)(c)
Sentencing Act 1995 (WA), s 46, s 59
Result:
Extension of time granted
Leave to appeal and the appeal allowed
Conviction and sentence of imprisonment set aside
Conviction of attempt and fine imposed
Category: B
Representation:
Counsel:
Appellant : Ms S J Nims
Respondent : Ms T J Mcarthur
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v Pankhurst [No 2] [2012] WASC 326
Borsa v The Queen [2003] WASCA 254
Fazio v Zanetti [2012] WASC 426
Hogue v The State of Western Australia [2005] WASCA 102
- ALLANSON J:
(This judgment was delivered extemporaneously on 27 October 2014 and has been edited from the transcript)
1 On 1 May 2014 the appellant, Keith James Smith, pleaded guilty in the Perth Magistrates Court to five separate charges including one charge of gaining a benefit by fraudulent means, namely using a stolen credit card to the value of $173, contrary to s 409(1)(c) of the Criminal Code (WA).
2 The material facts that were read to the court on his plea were that on 23 October 2013 Mr Smith entered a liquor store. He was in possession of a credit card stolen the day before. He handed the credit card to the shop attendant in payment for two bottles of alcohol. The shop attendant asked Mr Smith to sign the transaction receipt and, after checking the signature against the credit card, questioned Mr Smith as to why the signatures did not match. Mr Smith then left the store without the alcohol.
3 Mr Smith applies for leave to appeal on the single ground that there was a miscarriage of justice as on the face of the facts alleged he did not gain any benefit, and the relevant elements of the offence were not made out. The application for leave to appeal and the appeal have been ordered to be heard at the same time.
4 There is also an application for an extension of time, the appeal being lodged about three months out of time. Neither the application for leave to appeal nor the extension of time are opposed, and the respondent has conceded that there was a miscarriage of justice.
5 Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction on the ground that there has been a miscarriage of justice. That ground of appeal permits an appeal even when there has been a plea of guilty: see Hogue v The State of Western Australia [2005] WASCA 102. The circumstances in which a conviction based on a guilty verdict will be set aside include where, upon the admitted facts, the appellant could not in law have been guilty of the offence: see Borsa v The Queen [2003] WASCA 254 (Steytler J).
6 And that is the situation here. The material facts which were read out to the court and admitted by Mr Smith do not identify any benefit that he obtained, or that any other person obtained. The respondent properly concedes that that is so, and that there has been a miscarriage of justice. I will extend time, grant leave to appeal and allow the appeal. The question, then, is what order should be made?
7 Under s 14(1)(i) of the Criminal Appeals Act the court may make any order it thinks fit. This includes the power to substitute a decision that should have been made by the Magistrates Court: Criminal Appeals Act s 14(1)(d). This has been held to permit a court exercising appeal jurisdiction to impose a conviction for a different offence but only where there is a provision to do so under the legislation creating the original substantive offence: Fazio v Zanetti [2012] WASC 426, considering Anderson v Pankhurst [No 2] [2012] WASC 326.
8 Under s 10D of the Criminal Code a person charged with committing an offence may, instead of being convicted as charged, be convicted of attempting to commit the offence. The facts admitted by Mr Smith establish an attempt to commit the offence under Criminal Code s 409(1)(c). The respondent submits that the appropriate order on allowing the appeal is to substitute a conviction for attempting to gain a benefit by fraud, and for this court to re-sentence. In the circumstances I am satisfied that that is the appropriate course for this court to take. That requires me to consider the sentences that were originally imposed.
9 On the five charges to which Mr Smith pleaded guilty, the magistrate sentenced him to a total effective sentence of 28 months' immediate imprisonment with no order for parole eligibility. The magistrate also imposed fines of $500 on each of two charges. The sentence imposed on the conviction for fraud was 3 months' imprisonment, which was ordered to be served concurrently having regard to the totality principle.
10 Counsel for Mr Smith submitted that the court should release Mr Smith without sentence under s 46 of the Sentencing Act 1995 (WA). But I am not satisfied that this case can be brought within the first limb of s 46, as an attempted fraudulent use of a stolen credit card is neither trivial nor technical. The two limbs of s 46 must both be satisfied.
11 This is not, however, an offence which requires a sentence of imprisonment. Despite Mr Smith having received other sentences of imprisonment on the same occasion, a fine is the appropriate penalty for an offence of this nature. I set aside the sentence of imprisonment and impose a fine of $500. The fine is to be paid by 7 November 2014 and I set that date under s 59 of the Sentencing Act. In default there will be imprisonment for 2 days.
12 I order that that 2 days' imprisonment be served concurrently. The orders that I will make are that:
(1) there be an extension of time;
(2) the appellant have leave to appeal against the conviction;
(3) the appeal be allowed;
(4) the conviction on the charge of gaining a benefit by fraud be set aside, and the sentence of imprisonment for 3 months be set aside;
(5) the appellant be convicted of attempting to obtain a benefit by fraud, and for that offence I impose a fine of $500 to be paid by 7 November 2014; and
(6) in default of payment I sentence Mr Smith to imprisonment for 2 days, and that 2 days is to be served concurrently with his existing sentence.
13 There will be no order as to costs.
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