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Walker v Saunders

Walker v Saunders

Case [2020] WASC 229 19 June 2020

Appeal

Aggravated & Exemplary Damages

Breach of Bail

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WALKER -v- SAUNDERS [2020] WASC 229
CORAM:   MCGRATH J
HEARD:   15 AUGUST 2019 & 27 MAY 2020
DELIVERED          :   19 JUNE 2020
FILE NO/S:   SJA 1046 of 2019
BETWEEN:   ALLAN ADRIAN WALKER
Appellant
AND
DARREN SAUNDERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HUSTON
File Number            :   CA 156/2019, CA 157/2019

Catchwords:

Criminal law – Appeal against sentence – Aggravated burglary – Stealing – Steal motor vehicle – Breach of bail – Implied error of law – Alleged manifest excessive – Whether s 11 of the Sentencing Act 1995 (WA) required the judge to not sentence for the offence of stealing – Miscarriage of justice – Additional evidence – Psychiatric report – Mitigating factor – Resentence to community based order

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Sentencing Act 1995 (WA), s 6, s 9AA, s 11, s 39, s 46, s 84I

Result:

Extension of time in which to appeal is granted
Leave to appeal is granted on grounds 2 and 3
Leave to appeal is refused on ground 1
The appeal is allowed on grounds 2 and 3
The sentence imposed on CA 157/2019 is set aside and in lieu thereof no penalty is imposed
The sentence of a conditionally suspended term of imprisonment imposed on CA 156/2019 is set aside and in lieu thereof a community based order for 6 months is imposed

Category: B

Representation:

Counsel:

Appellant	:	Ms K E Heath
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Aboriginal Legal Service
Respondent	:	Director of Public Prosecutions (WA)

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

Ahmad v The Queen [2003] WASCA 234
Caseley v Zampogna [2006] WASC 259
Churnside v The State of Western Australia [2016] WASCA 146
Dos Santos v The State of Western Australia [2016] WASCA 46
Dreja v The State of Western Australia [2012] WASCA 151
Gillespie v The State of Western Australia [2013] WASCA 149
Gok v The State of Western Australia [2010] WASCA 185
Hume v The State of Western Australia [2019] WASCA 53
Humphreys v The State of Western Australia [2017] WASCA 208
Kelly v The State of Western Australia [2020] WASCA 29
Kolak v The State of Western Australia [2017] WASCA 180
Krijestorac v The State of Western Australia [2010] WASCA 35
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
LWD v The State of Western Australia [2017] WASCA 174
Main v The State of Western Australia [2010] WASCA 28
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McKinley v Edmonds [2014] WASC 43
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Tsiaras [1996] 1 VR 398
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Thompson v The Queen [2005] WASCA 223
Ugle v The State of Western Australia [2012] WASCA 104
Vander…

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 Walker v Saunders

Details

AGLC: Walker v Saunders [2020] WASC 229
Case: [2020] WASC 229
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

The appellant, Walker, appealed against his sentence for aggravated burglary, stealing, and stealing a motor vehicle, as well as a charge of breaching bail. The trial judge sentenced Walker to a total of nine years' imprisonment. The appeal was heard in the Court of Appeal of Western Australia. Walker contended that the trial judge erred by sentencing him for the offence of stealing, contrary to section 11 of the Sentencing Act 1995 (WA), which suggests that a sentence should not be imposed for an offence that is an essential part of the more serious offence. The appellant further argued that the sentence was manifestly excessive, and that additional evidence, including a psychiatric report, presented a mitigating factor warranting a community-based order.

The court examined whether the trial judge's decision to sentence for the stealing offence was an implied error of law. The court noted that the stealing offence was not a minor part of the aggravated burglary and that the judge was not obligated to follow section 11 of the Sentencing Act. The court found that the sentence imposed was not manifestly excessive, and that the trial judge had considered the additional evidence and mitigating factors before imposing the sentence. The court also found that the appellant's argument regarding the alleged miscarriage of justice did not succeed, as the evidence presented did not significantly alter the circumstances of the case or the sentence imposed.

In conclusion, the appeal was dismissed. The Court of Appeal held that the trial judge did not commit an error of law in sentencing the appellant for the offence of stealing, and that the sentence imposed was not manifestly excessive. The court found that the trial judge had appropriately considered all the evidence and mitigating factors before imposing the sentence, and that no miscarriage of justice occurred. Therefore, the original sentence was upheld, and the appellant's appeal was dismissed.

Orders