Spina v The Queen

[2003] WASCA 219 (S)

SPINA -v- THE QUEEN [2003] WASCA 219 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 219 (S)
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:211/2002	Heard:	18 AUGUST 2003
Coram:	MALCOLM CJ STEYTLER J MCKECHNIE J	Delivered:	19/09/03
Supplementary Delivered:	19/09/03
No of pages:	3	Judgment Part:	1 of 1
Result:	Total sentence reduced to 4 years and 8 months
Category:	B
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Parties:	GRANT SPINA THE QUEEN
Catchwords:	Supplementary decision Impact of Sentencing Legislation and Repeal Act 2003 (WA) applied to the resentencing of an offender by the Court of Criminal Appeal following a successful appeal to that Court against a sentence imposed under the former legislation
Legislation:	Sentencing Legislation and Repeal Act 2003 (WA), cl 2.1 Sch 1
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SPINA -v- THE QUEEN [2003] WASCA 219 (S) CORAM : MALCOLM CJ

STEYTLER J
MCKECHNIE J

HEARD : 18 AUGUST 2003 DELIVERED : 19 SEPTEMBER 2003 SUPPLEMENTARY
DECISION : 19 SEPTEMBER 2003 FILE NO/S : CCA 211 of 2002 BETWEEN : GRANT SPINA

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Supplementary decision - Impact of Sentencing Legislation and Repeal Act 2003 (WA) applied to the resentencing of an offender by the Court of Criminal Appeal following a successful appeal to that Court against a sentence imposed under the former legislation

(Page 2)

Legislation:

Sentencing Legislation and Repeal Act 2003 (WA), cl 2.1 Sch 1

Result:

Total sentence reduced to 4 years and 8 months

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr R E Cock QC & Mr S F Rafferty

Solicitors:

Appellant : In person
Respondent : State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 JUDGMENT OF THE COURT: Following the publication of the reasons for judgment granting the appellant leave to appeal against sentence, the Court concluded that subject to the operation of the amendments to the relevant legislation by the Sentencing Legislation and Repeal Act 2003 (WA), the sentences of 3 years and 6 months imposed upon the appellant for each of two armed robberies would be reduced to 2 years and 4 months to be served cumulatively. Those sentences were to commence on 20 September 2002 when the applicant was first taken into custody.

2 In the meantime, the Sentencing Legislation and Repeal Act 2003 (WA) was proclaimed in the Government Gazette dated 29 August 2003, p 3833. It was proclaimed that relevant provisions of the Act came into operation from 31 August 2003. Clause 2.1 of Sch 1 provides that:

"If a Court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order) it must impose a fixed term that is, two-thirds of the fixed term that it would have imposed had the old provision been in operation at the time of sentencing."

3 Following the delivery of the reasons for judgment on 19 September 2003, the Court heard submissions on the question whether cl 2 of Sch 1 applied to the re-sentencing of an offender by the Court of Criminal Appeal following a successful appeal to that Court against a sentence imposed under the former legislation. It was submitted by counsel that the relevant reference in cl 2.1 to "a court sentencing an offender to imprisonment" included the re-sentencing of an offender following a successful appeal to the Court of Criminal Appeal. In our opinion, this is clearly correct. Consequently, as foreshadowed in the reasons for judgment, the sentences of 3 years and 6 months which the Court would otherwise have imposed were each reduced by one-third, namely, 1 year and 2 months resulting in an adjusted sentence of 2 years and 4 months for each of the two offences making a total of 4 years and 8 months.