The State of Western Australia v Gavranich
[2013] WASC 203
•16 MAY 2013
THE STATE OF WESTERN AUSTRALIA -v- GAVRANICH [2013] WASC 203
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 203 | |
| Case No: | INS:114/2012 | 16 MAY 2013 | |
| Coram: | SIMMONDS J | 16/05/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Correction of sentence made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JAY GAVRANICH |
Catchwords: | Criminal law and procedure Correction of sentence Taking account of minimum period before release from imprisonment |
Legislation: | Sentencing Act 1995 (WA) s 34, s 37, s 93, s 94 |
Case References: | The State of Western Australia v Goodchild [2012] WASC 318 The State of Western Australia v Van Der Leer [2010] WASC 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- INS 46 of 2013
- Prosecution
AND
JAY GAVRANICH
Defence
Catchwords:
Criminal law and procedure - Correction of sentence - Taking account of minimum period before release from imprisonment
Legislation:
Sentencing Act 1995 (WA) s 34, s 37, s 93, s 94
Result:
Correction of sentence made
(Page 2)
Category: B
Representation:
Counsel:
Prosecution : Mr M J Walton
Defence : Ms M A Loveday
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Marilyn Loveday
Case(s) referred to in judgment(s):
The State of Western Australia v Goodchild [2012] WASC 318
The State of Western Australia v Van Der Leer [2010] WASC 303
(Page 3)
1 SIMMONDS J: This is a hearing for correction of sentence. I called this hearing of my own motion.
2 On 26 April 2013 I sentenced the offender to a total effective term of immediate imprisonment for a number of offences with eligibility for parole. The sentencing remarks I made have not yet been published.
3 In my sentencing remarks in purported compliance with Sentencing Act 1995 (WA) s 34 I stated my understanding of the minimum period resulting from the sentences I imposed and the operation of the Sentencing Act that the offender would have to serve in custody before he might first be released on parole.
4 I was in error in arriving at the minimum period that I did. The error arose in this way.
5 I imposed the following sentences of immediate imprisonment for offences committed in February 2012:
• for a stealing, 12 months;
• for an armed robbery, 4 years 4 months; and
• for a further armed robbery, 4 years 8 months.
• for an aggravated armed robbery, 3 years and 11 months; and
• for a steal motor vehicle, 2 months.
• I made the sentence for the aggravated armed robbery in December 2012 the head sentence;
• I had the first 1 year and 1 month of the head sentence served first, before the commencement of the sentences of imprisonment for the remaining offences; and
• I had the remainder of the head sentence served concurrently with all of the sentences of imprisonment for the remaining offences, which were to be served concurrently with one another.
(Page 4)
8 This made for a total effective sentence of 5 years and 9 months of imprisonment to be immediately served. This was made up of 1 year and 1 month plus the term of the longest of the remaining sentences of imprisonment, that of 4 years and 8 months for the second of the armed robbery offences of February 2012.
9 Towards the end of my sentencing remarks on 26 April 2013 I indicated to the offender 'my understanding under the sentencing legislation of the state of the minimum period that as a result of the sentences I have imposed and the operation of that legislation you will serve in custody'.
10 To this point, I consider there was no error in my sentencing remarks.
11 However, I went on to indicate, as my 'best estimate' of that 'minimum period', the period of 3 years and 5 months, 'made up of the 1 year and 1 month plus one-half of the 4 years and 8 months'.
12 In fact, the correct 'minimum period' was 3 years and 9 months, the result of the following provisions in the Sentencing Act:
• by s 94(4)(a), add 1 year 1 month to the minimum period for the sentence of 4 years 8 months; and
• by s 93(1)(b), that minimum period is 2 years 8 months, that is, 4 years 8 months less 2 years.
14 For the reasons I gave in Van Der Leer I have a general discretion as to how to impose a sentence that is 'in accordance with this Act'.
15 In my view, that discretion is best exercised as follows:
• have the first 9 months, rather than the first 1 year 1 months, of the head sentence served first; and
- • otherwise make no other change to the sentencing dispositions.
17 I have anxiously reflected, in view of the submissions of counsel for the state, on whether, in making these changes, the total effective sentence is one that I might conclude is no longer a proper reflection of the total criminality here.
18 It is as well to remind myself of the two considerations to which counsel for the state drew my attention in that respect.
19 The first of those is the way in which the offender's offending is distributed in time terms, as between the set of offences in February 2012 and the set of offences in December 2012. That is a significant time interval between the two.
20 However, there is a further consideration relevant to criminality, of the sort captured by the first limb of the totality principle. It is that the offences in December 2012 were committed by the offender while on bail for the offences committed in February 2012.
21 It is not enough, I must acknowledge, simply to capture those matters in a case such as this in the individual sentence lengths. That cannot be enough in view of the totality principle itself.
22 However, in my view, as Sentencing Act s 34 makes plain, totality is to be arrived at not simply by having regard to total effective sentence length, but also to a minimum period in custody. It is difficult for me to see why s 34 is in the form that it is, were that not to be the case.
23 I note that the learned editor of Brown on Criminal Law, in his commentary on Sentencing Act s 34, makes what seems to me to be a similar point: see [SA s 34.15] 16 May 2013.
24 In view of that it seems to me that, considering the reflection of the totality of the criminality, taking account of the two points upon which the state quite properly laid emphasis, as the state did at the original sentencing hearing on 26 April 2013 in its submissions that preceded my sentencing determination, submissions upon which that determination, in part, rested, the answer to my question is no.
(Page 6)
25 To express the point in a rather more intelligible form, the reflection of the totality of the criminality in this case, in accordance with the sentencing legislation, is better achieved as I have described it than it is by leaving the combination of the sentences I imposed as they were. That combination would have the result that the minimum period the offender would spend before release would be 3 years 9 months, not 3 years 5 months.
26 The 'minimum period' that as a result of the sentences I imposed and the operation of the Sentencing Act the offender would serve in custody would be the 3 years 5 months that on 26 April 2013 I indicated.
27 Accordingly, I would change my sentencing by way of correction of sentence, but only in the respects indicated. Those respects are to change that part of the head sentence to be served before the other sentences are served concurrently with the remainder of it, and thus to change the total effective sentence.
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