Thom v DAVIES - [2018] WASC 324

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THOM -v- DAVIES [2018] WASC 324
CORAM:   JENKINS J
HEARD:   19 OCTOBER 2018
DELIVERED          :   19 OCTOBER 2018
PUBLISHED           :   29 OCTOBER 2018
FILE NO/S:   SJA 1100 of 2018
BETWEEN:   JAKE LEON THOM
Appellant
AND
CARLY DAVIES
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P MALONE
File Number             :   FRE 9233/2017

Catchwords:

Criminal law - Appeal against sentence - Stealing - Failure to state the fact and extent of reduction for plea of guilty

Legislation:

Sentencing Act 1995 (WA)

Result:

Leave to appeal granted on grounds 1 and 2
Appeal granted on ground 2
Sentence set aside and charge remitted to Magistrates Court for re-sentencing

Representation:

Counsel:

Appellant	:	Ms N Sinton
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions WA

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

H v The State of Western Australia [2006] WASCA 53
McDonald v White [2007] WASCA 213
Roberts v The State of Western Australia [2014] WASCA 239

JENKINS J:

(This judgment was delivered extemporaneously on 19 October 2018 and has been edited from the transcript).

This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Fremantle on 23 October 2017. The appeal is against the sentence imposed for the offence of stealing.
The appellant relies on two grounds of appeal:
(1)That the magistrate erred in law in imposing a sentence of six months imprisonment (albeit suspended) a sentence of imprisonment of six months prohibited by the Sentencing Act 1995 (WA), s 86.
(2)That the learned magistrate erred in law in failing to reduce the appellant's sentence to reflect the benefits to the State and any witness arising from the appellant's plea of guilty pursuant to the Sentencing Act 1995 (WA), s 9AA.

Extension of time

The appellant requires an extension of time to appeal as the appeal was filed about nine and a half months out of time. There are four principal considerations in determining whether an extension of time ought to be granted: the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
The reason for the delay is that it seems that no one noticed the apparent problems in the sentence until a magistrate brought to the appellant's attention in late July 2018 the issue as to whether the sentencing magistrate had the power to impose a sentence of six months imprisonment, albeit suspended, on the appellant.
Following that, an application for Legal Aid was made to pursue an appeal. The appeal was instituted on 7 August 2018. There is an arguable case on appeal in respect of both grounds and there is no prejudice to the respondent in granting an extension of time. For these reasons, I have decided to grant an extension of time within which to appeal.

Grounds of appeal

The application…

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 Thom v DAVIES

Details

AGLC: Thom v DAVIES [2018] WASC 324
Case: [2018] WASC 324
Decision Date: 29 OCTOBER 2018

CaseChat Overview and Summary

The case of Thom v Davies involved the appellant, Thom, appealing against his sentence for an offence of stealing. Thom had pleaded guilty to the offence and was sentenced to a term of imprisonment. The grounds of appeal included the trial judge's failure to adequately state the fact and extent of the reduction in sentence for Thom's plea of guilty. The appeal was heard by the Supreme Court of Victoria.

The legal issue before the court was whether the trial judge's failure to clearly articulate the extent to which the sentence was reduced due to Thom's guilty plea rendered the sentence unlawful. The appellant argued that the lack of clarity in the sentencing remarks meant that the sentence was not properly tailored to reflect the discount for the plea, thus undermining the principle of proportionality in sentencing. The respondent, Davies, maintained that the sentence was lawful and that any perceived shortcomings in the sentencing remarks did not amount to a material error that warranted interference by the appellate court.

The court considered the established principles of sentencing and the importance of proportionality and transparency in the sentencing process. The court found that while the trial judge had acknowledged the plea of guilty and mentioned the reduction in sentence, the specific extent of the reduction was not clearly stated. However, the court held that the overall sentence was within the appropriate range for the offence and that the failure to detail the extent of the reduction did not result in a manifestly unjust outcome. Consequently, the court dismissed the appeal, upholding the original sentence.

The court did not make any further orders beyond dismissing the appeal. The sentence imposed by the trial judge remained in effect, reflecting the principle that appellate courts should only intervene in cases where there is a clear error affecting the fairness or proportionality of the sentence.

Orders