Spina v The Queen - [2003] WASCA 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SPINA -v- THE QUEEN [2003] WASCA 219

CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J

HEARD: 18 AUGUST 2003

DELIVERED : 19 SEPTEMBER 2003

FILE NO/S: CCA 211 of 2002

BETWEEN: GRANT SPINA
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Disparity between two co-offenders - Offenders carrying out two armed robberies at the same service station - Both offenders addicted to heroin - Previous history of commission of offences to get money to buy drugs - Pleas of guilty - Adequacy of discount - Parity of sentencing - Female cooffender sentenced to 2 years and 6 months for first offence and 2 years for the second offence - Appellant sentenced to 4 years for each offence - Disparity not justified - Appellant left with justifiable sense of grievance - Appellant's sentences reduced to 2 years and 4 months for each offence

Legislation:

Criminal Code, ss 392, 392(c)

Sentencing Legislation Amendment and Repeal Act 2003, s 29, Sch 1

Result:

Leave to appeal granted
Appeal allowed and total sentence reduced from 8 years to 7 years

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):

Cabassi v The Queen [2002] WASCA 305
Goddard v The Queen (1999) 21 WAR 541
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
R v Capper (1993) 69 A Crim R 64 at 74
R v Ma (2001) 125 A Crim R 349
R v Reardon (1996) 89 A Crim R 180
R v Tiddy [1969] SASR 575
R v Wilson (2000) 116 A Crim R 90
Thorne v The Queen, unreported; CCA FCt of WA; Library No 990154; 29 March 1999

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 1 November 2002, the appellant and a co‑offender, Ms Turner, pleaded guilty in the Supreme Court to two counts of aggravated armed robbery contrary to s 392 of the Criminal Code.
Count (1) was that on 4 September 2002 at Leederville, the appellant and one Narelle Cherie Turner stole from a Mr Toombs, with threats of violence, money, the property of Clifton Nominees Pty Ltd trading as Caltex Service Station Leederville. The indictment alleged that the appellant and Ms Turner were armed with offensive weapons, namely, a knife and a syringe, and also that they were in company with each other.
Count (2) was that on 19 September 2002, they stole from one Chin Sing Lam, with threats of violence, money the property of Clifton Nominees Pty Ltd trading as Caltex Service Station Leederville. On this occasion it was alleged that the appellant and Ms Turner were armed with an offensive weapon, namely, a knife and that they were in company with…

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 Spina v The Queen

Details

AGLC: Spina v The Queen [2003] WASCA 219
Case: [2003] WASCA 219
Decision Date: 19 SEPTEMBER 2003

CaseChat Overview and Summary

Spina v The Queen was a case before the Court that involved the appellant, Spina, appealing against his sentences for two counts of armed robbery. Spina and a female co-offender, both heavily addicted to heroin, committed two armed robberies at the same service station. Both pleaded guilty, and the female co-offender was sentenced to 2 years and 6 months for the first offence and 2 years for the second offence. Spina was sentenced to 4 years for each offence, leading to the appeal on the grounds of sentencing disparity.

The legal issues the Court had to decide included whether the disparity between the sentences of Spina and his co-offender was justified, and whether the Court should apply the amendments to the relevant legislation when re-sentencing an offender following a successful appeal. The Court had to consider the principles of parity of sentencing and whether the appellant's sense of grievance was justifiable.

In its judgment, the Court found that the disparity between the sentences was not justified, and that Spina's sentences should be reduced to achieve parity with his co-offender's sentences. The Court also concluded that the amendments to the relevant legislation should apply to the re-sentencing of an offender by the Court of Criminal Appeal following a successful appeal. Therefore, the sentences of 3 years and 6 months were reduced by one-third, 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. This outcome was intended to ensure that Spina's sentences were fair and just, and to address his justifiable sense of grievance.

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

STEYTLER J

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. 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." 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.

Ratio Decidendi

Legal Principle Established

Established by: STEYTLER J

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