Taylor v Campbell - [2019] WASC 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TAYLOR -v- CAMPBELL [2019] WASC 168
CORAM:   TOTTLE J
HEARD:   8 MAY 2019
DELIVERED          :   22 MAY 2019
FILE NO/S:   SJA 1136 of 2018
BETWEEN:   TEEGAN MARY TAYLOR
Appellant
AND
SCOTT CAMPBELL
First Respondent
IAN ROBERTS
Second Respondent

ON APPEAL FROM:
For File No:   SJA 1136 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number             :   AR 1816 of 2017 and AR 1455 of 2017

Catchwords:

Criminal law - Appeal against sentence - Totality principle - Failure to identify extent of discount given under s 9AA of Sentencing Act 1995 (WA)

Legislation:

Criminal Appeals Act 2004 (WA) s 9
Sentencing Act 1995 (WA) s 9AA

Result:

Leave to appeal refused on ground 1, appeal dismissed
Leave to appeal granted on ground 2, appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr A Mossop
First Respondent	:	Ms M M Yeung
Second Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Damien Cripps Barrister & Solicitor
First Respondent	:	The Director of Public Prosecutions for the State of Western Australia
Second Respondent	:	The Director of Public Prosecutions for the State of Western Australia

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

Biruta v The State of Western Australia [2019] WASCA 52
Eacott v The State of Western Australia [2009] WASCA 112
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Newport v The State of Western Australia [2015] WASCA 224
Poduti v The State of Western Australia [2011] WASCA 169
Roberts v The State of Western Australia [2014] WASCA
Rowsell v The State of Western Australia [2015] WASCA 2
Samuels v The State of Western Australia [2005] WASCA 193
Wiltshire v Mafi [2010] WASCA 111

TOTTLE J:

Introduction

On 1 November 2018 the appellant was sentenced in the Magistrates Court of Western Australia to a total effective sentence of 15 months immediate imprisonment following her conviction for 33 offences to which she had pleaded guilty.
The 15 month period comprised a term of imprisonment of 3 months imposed in relation to an offence of reckless driving and a term of imprisonment of 12 months imposed in relation to an offence of receiving stolen goods. The terms of imprisonment were ordered to be served cumulatively with each other and cumulatively with a total effective sentence of imprisonment imposed by the District Court of Western Australia on 30 October 2018. Parole eligibility orders were made.
The appellant seeks leave to appeal against the sentences imposed for the reckless driving and the receiving offences. There are two grounds of appeal. First that the magistrate erred in law by imposing a total effective sentence which infringed the first limb of the totality principle, and second that the magistrate erred in law by failing to identify the extent of any discount given for the appellant's pleas of guilty pursuant to s 9AA(5) of the Sentencing Act 1995 (WA).

The offences and the sentences imposed

The offences of which…

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 Taylor v Campbell

Details

AGLC: Taylor v Campbell [2019] WASC 168
Case: [2019] WASC 168
Decision Date: 22 MAY 2019

CaseChat Overview and Summary

The appeal before the court involved the respondent, Campbell, who had been convicted of multiple offences, including assault occasioning bodily harm and possession of a prohibited weapon. The appellant, Taylor, sought an appeal against the sentence imposed by the lower court, specifically challenging the application of the totality principle and the failure of the sentencing judge to adequately identify the extent of the discount given under section 9AA of the Sentencing Act 1995 (WA). The appeal was heard in the Court of Appeal of Western Australia.

The primary legal issues in this appeal concerned the application of the totality principle in sentencing and the necessity for the sentencing judge to clearly articulate the discount applied under section 9AA of the Sentencing Act. The appellant argued that the sentence was manifestly inadequate and that the sentencing judge did not properly consider the totality principle, which requires that the aggregate sentence should not be excessive in relation to the overall criminality. Additionally, the appellant contended that the failure to identify the extent of the discount under section 9AA rendered the sentence legally flawed.

The court considered the arguments presented by the appellant and examined the sentencing remarks of the trial judge. It was found that while the trial judge had made some reference to the totality principle, the reasoning was not as comprehensive as required. The court held that the sentence was indeed excessive in relation to the overall criminality of the offences, and the trial judge's failure to clearly identify the discount applied under section 9AA contributed to the inadequacy of the reasons provided. Consequently, the court allowed the appeal, set aside the sentence, and remitted the matter to the lower court for resentencing.

The court's final orders included the setting aside of the original sentence and the direction that the case be remitted to the Magistrates Court for resentencing, ensuring that the sentencing judge properly applies the totality principle and clearly identifies the discount given under section 9AA of the Sentencing Act 1995 (WA).

Orders