Toop v Smart - [2022] WASC 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TOOP -v- SMART [2022] WASC 237
CORAM:   CURTHOYS J
HEARD:   1 JUNE 2021
DELIVERED          :   26 JULY 2022
FILE NO/S:   SJA 1043 of 2020
BETWEEN:   CHRISTINE TOOP
Appellant
AND
ANDREW JACOB SMART
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   AR 379 of 2016, AR 380 of 2016

Catchwords:

Criminal law - Appeal against sentence - Error in backdating sentence - Whether magistrate erred in proceeding on basis of information provided by the offender - Whether backdating gave rise to miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Sentencing Act 1995 (WA), s 87(2)

Result:

Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	T B L Scutt
Respondent	:	No appearance

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Not applicable

Cases referred to in decision:

Cogan v Velkovski [2016] WASC 158
Cowie v Bacopak Pty Ltd [2022] WASC 14
Debono v The State of Western Australia [2019] WASCA 193
Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114
Nugawela v Devellerez [2022] WASC 190
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

CURTHOYS J:

Introduction

On 15 May 2020, the respondent, Mr Smart, was convicted after trial in the Magistrates Court of one charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) and one charge of dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA). The magistrate imposed a total effective sentence of 16 months' immediate imprisonment which was backdated to 14 June 2018.
The appellant appeals the sentence on two grounds. First, that the magistrate erred in fact or law, or both, by ordering that the terms of imprisonment imposed be taken to have begun on 14 June 2018, contrary to s 87(2) of the Sentencing Act 1995 (WA), given a substantial proportion of the period between 14 June 2018 and the sentencing date was already taken into account in sentencing for other offences. Second, that the backdating by the magistrate gave rise to a miscarriage of justice.
Two issues arise in this appeal. First, whether the sentence was correctly backdated to 14 June 2018 and second, if the sentence was incorrectly backdated, what is the appropriate order.
Mr Smart did not take part in the appeal. The appellant filed an affidavit of police sergeant, Sarah Louise Brookes, sworn 15 January 2021, as proof of service of the appeal documents. I am satisfied from that affidavit that Mr Smart was personally served with the appeal documents on 26 November 2020, as set out in par 1 of Ms Brookes' affidavit. Despite being served with the appeal documents Mr Smart chose not to participate in…

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 Toop v Smart

Details

AGLC: Toop v Smart [2022] WASC 237
Case: [2022] WASC 237
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Christine Toop appeals the sentence of Andrew Jacob Smart, who was convicted of one charge of assault occasioning bodily harm and one charge of dangerous driving. The appeal focuses on the sentencing magistrate's decision to backdate the sentence, which Toop argues was in error and led to a miscarriage of justice. Smart did not participate in the appeal. The key issues are whether the sentence was correctly backdated and if not, what the appropriate remedy is. The court found that the magistrate did not err in proceeding on the information provided by Smart, but the backdating was incorrect as it failed to accurately reflect the time Smart had already served. Consequently, the appeal was allowed, the sentences were set aside, and the matter was remitted to the Magistrates Court for resentencing.

Orders