TRIVETT & ORS -v- JEFFREY [2003] WASCA 151

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 151
Case No:	SJA:1006/2003	Heard:	15 JULY 2003
Coram:	MILLER J	Delivered:	15/07/03
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Suspended sentences of imprisonment set aside Matter remitted to Court of Petty Sessions for rehearing according to law
Category:	A
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Parties:	PETER TIM TRIVETT JAMES GERARD MADDEN STEVEN WILLIAM HAYWARD CHRISTOPHER NIGEL PAGE BRETT ALLAN JEFFREY
Catchwords:	Criminal law Sentence Offender on parole Whether suspended sentence open Error on the part of Magistrate in imposing suspended sentence
Legislation:	Sentencing Act 1995, s 39(2)(f), s 76(3)(b), s 89(6) Sentence Administration Act 1995, s 30(4), s 74(1), s 74(2)
Case References:	Nil Dinsdale v R (2000) 202 CLR 321 Everett & Anor v R (1994) 181 CLR 295 House v The King (1936) 55 CLR 499 Lowndes v R (199) 195 CLR 665

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : TRIVETT & ORS -v- JEFFREY [2003] WASCA 151 CORAM : MILLER J HEARD : 15 JULY 2003 DELIVERED : 15 JULY 2003 FILE NO/S : SJA 1006 of 2003 BETWEEN : PETER TIM TRIVETT

JAMES GERARD MADDEN

STEVEN WILLIAM HAYWARD

CHRISTOPHER NIGEL PAGE

Appellants

AND

BRETT ALLAN JEFFREY

Respondent

Catchwords:

Criminal law - Sentence - Offender on parole - Whether suspended sentence open - Error on the part of Magistrate in imposing suspended sentence

Legislation:

Sentencing Act 1995, s 39(2)(f), s 76(3)(b), s 89(6)

Sentence Administration Act 1995, s 30(4), s 74(1), s 74(2)

Result:

Appeal allowed

Suspended sentences of imprisonment set aside

(Page 2)

Matter remitted to Court of Petty Sessions for rehearing according to law

Category: A

Representation:

Counsel:

Appellants : Ms M Huntly

Respondent : Ms J T Fisher

Solicitors:

Appellants : State Director of Public Prosecutions

Respondent : Justine Fisher

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

Nil

Case(s) also cited:

Dinsdale v R (2000) 202 CLR 321
Everett & Anor v R (1994) 181 CLR 295
House v The King (1936) 55 CLR 499
Lowndes v R (199) 195 CLR 665

(Page 3)

1 MILLER J: The respondent has a substantial record of convictions for criminal offences. He faced the Court of Petty Sessions, Perth on 14 June 2002 on two counts of possession of a prohibited drug, one count of receiving and 11 counts of fraud. He was sentenced to imprisonment for 15 months, suspended for a period of 2 years, on one count of receiving and nine counts of fraud, and was otherwise placed on community-based orders and an intensive supervision order in relation to the balance of the charges he faced.

2 The respondent was back before the Court of Petty Sessions on 19 December 2002 when he was convicted after his pleas of guilty on one count of receiving, 11 counts of stealing and counts of driving without a valid motor driver's licence, wilfully misleading a police officer, possession of a prohibited drug…

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 Trivett v Jeffrey

Details

AGLC: Trivett v Jeffrey [2003] WASCA 151
Case: [2003] WASCA 151
Decision Date: 15 JULY 2003

CaseChat Overview and Summary

In the case of Trivett v Jeffrey, the matter before the court involved a dispute concerning the appropriateness of a suspended sentence imposed on the defendant, who was already on parole. The Court of Petty Sessions had issued the sentence, and the defendant appealed to the higher court, seeking a review of the decision. The defendant argued that the court below had erred in imposing a suspended sentence, which was not suitable given the defendant's prior criminal record and ongoing parole obligations.

The primary legal issue for the court was whether a suspended sentence could be imposed on an offender who was already on parole. The court needed to determine if the Magistrate had the authority to impose a suspended sentence in such circumstances and whether the court had exercised its discretion correctly. Additionally, the court had to consider the implications of any error in the Magistrate's decision and whether this warranted setting aside the sentence and remitting the matter for rehearing.

The court found that the Magistrate had indeed erred in imposing a suspended sentence on the defendant who was on parole. The court held that such a sentence was not appropriate in the given circumstances, as it did not adequately account for the defendant's parole status and ongoing obligations. The court emphasised the importance of considering the defendant's parole status when determining an appropriate sentence, and found that the Magistrate had not sufficiently addressed this aspect. Consequently, the appeal was allowed, the suspended sentences were set aside, and the matter was remitted to the Court of Petty Sessions for rehearing according to law.

Orders

Orders of the court

Appeal allowed

Suspended sentences of imprisonment set aside

Matter remitted to Court of Petty Sessions for rehearing according to law

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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