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Vickery v McAlinden

Vickery v McAlinden

Case [2017] WASC 224 9 August 2017

Appeal

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: VICKERY -v- McALINDEN [2017] WASC 224

CORAM: CHANEY J

HEARD: 2 AUGUST 2017

DELIVERED : 9 AUGUST 2017

FILE NO/S: SJA 1022 of 2017

BETWEEN: TIMOTHY DONALD GEORGE VICKERY
Appellant
AND
TIFFANY McALINDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R HUSTON
File No  :PE 5177 of 2017

Catchwords:

Appeal - Criminal law - Sentencing - Suspended term of imprisonment - Factual error in sentencing

Sentencing - Whether prohibition on sentence of imprisonment less than six months applies to term of sentence that is to be suspended - Two step process in imposing suspended sentence

Legislation:

Criminal Code (WA), s 74A(2)(a), s 172
Sentencing Act 1995 (WA), s 76, s 77(6), s 82(6), s 86

Result:

Appeal allowed
Applicant resentenced

Category: A

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Ms G N Beggs

Solicitors:

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

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

Almonte v Beswick [2013] WASC 207
Casotti v Pickering [2013] WASC 174
Dinsdale v R (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
Lang v The State of Western Australia [2011] WASCA 153
Pallister v The State of Western Australia [No 2] [2015] WASCA 221

CHANEY J: On 20 February 2017, the appellant appeared in the Perth Magistrates Court before his Honour Magistrate Huston and pleaded guilty to one count of disorderly behaviour in public contrary to s 74A(2)(a) of the Criminal Code (WA) and one count of obstructing a public officer contrary to s 172(2) of the Criminal Code. He was represented by a duty counsel (who was not counsel on this appeal).
The appellant was sentenced to a term of imprisonment for 6 months and one day suspended for 12 months for the charge of obstructing a public officer and to a $750 fine for the charge of disorderly behaviour in public. He now appeals against the sentence imposed upon him for the charge of obstructing a police officer.

Extension of time

This appeal is brought under div 2 of the Criminal Appeals Act 2004 (WA). The appeal is required to be commenced within 28 days after the date of the decision unless the Supreme Court orders otherwise.[1] The appeal notice was filed by the appellant on 21 March 2017, or 29 days after the magistrate's decision.
[1] Criminal Appeals Act 2004 s 10(3).
The appeal was thus filed one day after the 28 day appeal period had passed. An affidavit of the appellant's solicitor explained that she only obtained the transcript of the hearing before the magistrate on 20 March 2017. She discussed the transcript and a possible appeal with the appellant and received instructions to commence the appeal that day. It was not possible to lodge the documents that day because the solicitor did not return to her office after taking instructions until after 4.00 pm. The appeal notice was…

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 Vickery v McAlinden

Details

AGLC: Vickery v McAlinden [2017] WASC 224
Case: [2017] WASC 224
Decision Date: 9 AUGUST 2017

CaseChat Overview and Summary

The case before the court involved an appeal against a sentencing decision made by a lower court. The appellant, Vickery, was appealing the decision of the District Court of Western Australia to impose a suspended sentence. The respondent, McAlinden, was the prosecutor in the case. The dispute centred on the legality of the sentencing process and whether the court had correctly applied the law in imposing the suspended sentence. The appeal was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether a prohibition on sentencing to a term of imprisonment of less than six months applies to a term of sentence that is to be suspended. This issue arose from the court's consideration of section 13(3) of the Sentencing Act 1995 (WA), which provides that a term of imprisonment of less than six months cannot be imposed unless the court considers it appropriate to do so. The court was required to determine whether this provision applied to a suspended sentence and, if so, how it should be applied in this case. The court also considered whether a two-step process was required in imposing a suspended sentence.

The court found that the prohibition on sentencing to a term of imprisonment of less than six months does apply to a term of sentence that is to be suspended. The court held that the two-step process required by section 13(3) of the Sentencing Act 1995 (WA) applies to the imposition of a suspended sentence, and that the court must first consider whether a term of imprisonment of less than six months is appropriate before determining whether to suspend the sentence. The court found that the lower court had not correctly applied this two-step process, and that the sentence imposed was therefore unlawful. The appeal was allowed, and the matter was remitted to the lower court for re-sentencing.

The final orders of the court were that the appeal be allowed, the sentence imposed by the lower court be quashed, and the matter be remitted to the lower court for re-sentencing in accordance with the correct legal principles. The court did not make any orders as to costs.

Orders