Tomasovich v Stjepic
[2005] WASCA 7
•20 JANUARY 2005
TOMASOVICH -v- STJEPIC & ORS [2005] WASCA 7
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 7 | |
| Case No: | SJA:1093/2004 | 20 JANUARY 2005 | |
| Coram: | MILLER J | 20/01/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of 2½ years substituted for sentence of 3½ years | ||
| B | |||
| PDF Version |
| Parties: | KAMM LUKE LEVI TOMASOVICH DOUGLAS STJEPIC CRAIG KINGSLEY WHITE CRAIG ALEXANDER STEPHEN |
Catchwords: | Justices Offences of burglary Startingpoint beyond jurisdictional limit Sentences excessive Turns on own facts |
Legislation: | Criminal Code 1913 (WA), s 401 Sentence Administration Act 2003 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Herbert v The Queen (2003) 27 WAR 330 Chan v The Queen (1989) 38 A Crim R 337 Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 4 September 1989 Veen v The Queen (No 2) (1988) 164 CLR 465 Woods v Cecchele [2004] WASCA 163 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DOUGLAS STJEPIC
CRAIG KINGSLEY WHITE
CRAIG ALEXANDER STEPHEN
Respondents
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR G CALDER SM
File No : MI 1543 of 2004, MI 1544 of 2004, MI 267 of 2004, MI 5884 of 2004
Catchwords:
Justices - Offences of burglary - Startingpoint beyond jurisdictional limit - Sentences excessive - Turns on own facts
(Page 2)
Legislation:
Criminal Code 1913 (WA), s 401
Sentence Administration Act 2003 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal allowed
Sentence of 2½ years substituted for sentence of 3½ years
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondents : Ms S E Wisbey
Solicitors:
Appellant : Legal Aid of Western Australia
Respondents : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Herbert v The Queen (2003) 27 WAR 330
Case(s) also cited:
Chan v The Queen (1989) 38 A Crim R 337
Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 4 September 1989
Veen v The Queen (No 2) (1988) 164 CLR 465
Woods v Cecchele [2004] WASCA 163
(Page 3)
1 MILLER J: This is an appeal from a decision of Mr G Calder SM in the Court of Petty Sessions at Midland on 24 August 2004 when the learned Magistrate sentenced the appellant to an effective term of imprisonment of 3½ years in respect of four complaints, three of which constituted offences of burglary and one the offence of escaping legal custody. No issue was taken with the sentence which was imposed for escaping legal custody.
2 The appellant was charged on complaint 1544/04 that on 11 April 2003 at Ballajura he was, without consent, in the dwelling of Colin Mathie with intent to commit an offence therein, contrary to the provisions of s 401(1)(b) of the Criminal Code 1913 (WA). He pleaded guilty and was liable to be punished for a maximum of 3 years' imprisonment.
3 The appellant was also charged on complaint 267/04 that between 25 March 2003 and 26 March 2003 at Stratton he, without consent, was in the place of Terrance John Wood and Jane Alison Simpson and committed the offence of stealing contrary to s 401(2)(c) of the Criminal Code. He pleaded guilty and was liable to a maximum sentence of 2 years' imprisonment.
4 The appellant was charged on complaint 5884/04 that between 16 February and 17 February 2004 at Herne Hill he was, without consent, in the place of The Coffee Hut trading as The Coffee Hut and committed the offence of stealing contrary to s 401(2)(c) of the Criminal Code. He pleaded guilty and the maximum penalty for this offence was imprisonment for 2 years.
5 On complaint 1544/04, the facts reveal that the appellant had gone to a house in Ballajura, attempted to gain entry by forcing three windows and removing the flyscreens, and then used a blunt object to crack the window in the games room. He placed his hand inside, attempted to open the window, but was unable to do so.
6 On complaint 267/04, the facts reveal that between 25 and 26 March 2003, the appellant went to premises known as Strawberry's Deli, smashed a front glass window and bent security bars to gain entry. Once inside, he stole 155 packets of cigarettes and then left.
7 The facts in relation to complaint 5884/04 were that between 16 and 17 February 2004, the appellant went to premises known as The Coffee Hut, smashed a glass panel on a side door, then kicked in the panel and
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- climbed into the shop. He removed approximately $550 worth of property.
8 When the learned Magistrate came to impose sentence, he first noted that the appellant had been in custody in relation to the subject matter of the offences since 16 March 2004. Any sentences were to be backdated to that date.
9 The learned Magistrate then referred to the appellant's record of convictions which revealed a long history of convictions as a juvenile and a number of offences as an adult. These included convictions for burglary, stealing, stealing motor vehicles and various traffic offences. There appear to have been five prior convictions for burglary, with a sentence of 9 months' imprisonment for the sentence of burglary in the Midland Court of Petty Sessions on 26 February 2002.
10 The learned Magistrate considered the offences before him to be serious and made reference to Herbert v The Queen (2003) 27 WAR 330 where Malcolm CJ and I (at [5] and [171] respectively) expressed the view that sentences of 5 years' imprisonment for the offence of burglary of a place of habitation were well within the range of sentences applicable for the offence. Both Malcolm CJ and I indicated a need for the firming-up of sentences in relation to the offence of burglary. These observations were made against a background of the maximum applicable penalty being one of 18 years' imprisonment.
11 The learned Magistrate applied the decision in Herbert v The Queen in saying that he thought sentences of 5 years' imprisonment for run-of-the-mill burglary offences were now applicable.
12 The learned Magistrate took the view that the offences committed by the appellant were aggravated in the sense that they were committed whilst he was on parole and also whilst on bail for similar offences and, although the value of the property taken was not excessive, the offences were considered serious. The learned Magistrate could see nothing in mitigation of penalty beyond the fact that the circumstances of the appellant caused him to commit the offences. He did, however, make reference to the plea of guilty, although allowed only a small discount for the plea of guilty which appears to have been about 4 months. This was well under the normal discount for pleas of guilty.
13 The learned Magistrate took as a starting-point for the sentence on complaint 1544/04 a period of 4 years. That was above the statutory maximum which was 3 years. The learned Magistrate then took account
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- of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and the Sentence Administration Act2003 (WA) and reduced the sentence of 4 years by one-third. He also took into account a small discount for the plea of guilty and, thus, arrived at an end result of 2½ years.
14 In relation to complaints 267/04 and 5884/04, the learned Magistrate took as a starting-point 3 years in each case. Again, he was in error because the maximum penalty applicable for the offence on summary conviction was 2 years' imprisonment.
15 The learned Magistrate took into account the provisions of the Sentence Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act2003 and purported to take into account the plea of guilty in each case, arriving at an end result of 2 years on each complaint. However, it is hard to see how this could have been done, because if the starting-point was 3 years and one-third was deducted to take account of the legislation, that left 2 years. There was, therefore, no room for a further deduction for the plea of guilty.
16 The learned Magistrate then made the sentences on complaints 267/04 and 5884/04 concurrent with each other, but cumulative on the sentence on complaint 1544/04, but only as to 12 months in each case. How the learned Magistrate did this is unclear, and the matter was brought back before him on 10 November 2004 when the sentence was corrected. On this occasion, the sentences in relation to complaints 267/04 and 5884/04 were reduced to 12 months' imprisonment in each case, to be served concurrently with each other, but cumulatively on the sentence on complaint 1544/04. This led to the same effective sentence; namely, 3½ years' imprisonment. Eligibility for parole was ordered.
17 It is apparent from what I have said that the learned Magistrate erred in taking as starting-points for the sentences in relation to the complaints in question sentences that were beyond his jurisdictional limit. The result is that the end sentence of 3½ years' imprisonment imposed upon the appellant was erroneous in law and manifestly excessive in any event.
18 In my view, the learned Magistrate was entitled to take the view that, having regard to the appellant's record, the maximum penalty applicable under summary jurisdiction was appropriate, but that meant that the maximum penalty on complaint 1544/04 was only 3 years and on the other two complaints was 2 years. It was then necessary to take account of the pleas of guilty in each case. I can see no good reason why a deduction of 25 per cent should not be made for those pleas. The result
(Page 6)
- would be a sentence of 27 months on complaint 1544/04. A deduction of one-third would then be required to comply with the new sentencing legislation, leading to an ultimate sentence of 18 months.
19 On the other two complaints, assuming again maximum sentences were applicable, an allowance of 25 per cent for the pleas of guilty would lead to a sentence of 18 months and application of the new sentencing legislation an ultimate sentence of 12 months. As it happened, that was the sentence imposed upon correction of the sentences and so it is unnecessary to vary the ultimate sentences imposed. The learned Magistrate did not apply this reasoning, but, had he done so, the end result of 12 months would have been appropriate.
20 If the sentences on complaints 267/04 and 5884/04 are ordered to be served concurrently (which they were), but cumulatively on complaint 1544/04, the result is an effective sentence of 2½ years' imprisonment. That, in my view, is the sentence that should have been imposed upon the appellant.
21 It follows that, in my view, the appeal should be allowed and the sentence on complaint 1544/04 quashed. In lieu thereof a sentence of 18 months' imprisonment should be imposed. The sentences on complaints 267/04 and 5884/04 will remain at 12 months in each case, to be served concurrently, but cumulatively upon the sentence imposed on complaint 1544/04. The end result is a sentence of 2½ years' imprisonment. The appellant remains eligible for parole. The sentences date from 16 March 2004.
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