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Waters v Wigger

Waters v Wigger

Case [2017] WASCA 46 13 March 2017

Criminal Liability

Sentencing

Miscarriage of Justice

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WATERS -v- WIGGER [2017] WASCA 46

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 19 JANUARY 2017

DELIVERED : 13 MARCH 2017

FILE NO/S: CACR 194 of 2016

BETWEEN: CRAIG ANTHONY WATERS
Appellant
AND
FRANCIS WIGGER
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :WATERS -v- WIGGER [2016] WASC 377
File No  :SJA 1058 of 2016

Catchwords:

Drug court - Indicated sentence - Principles of sentencing - Miscarriage of justice

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 4(1), s 9AA, s 15, s 33B, s 33C, s 33D(c), s 33G(2), s 33G(6), s 33H(2)(b), s 33K, s 81(1), s 83(1), s 84A(2), s 84A(6), s 84C(2)(b), s 84N s 84R
Sentencing Regulations 1996 (WA), reg 4A

Result:

Appeal allowed; matter remitted to Magistrates Court for resentence

Category: A

Representation:

Counsel:

Appellant: In person
Respondent: Mr L M Fox

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Fenton v The State of Western Australia [2015] WASCA 255
Law v The State of Western Australia [2009] WASCA 193
MOD v The State of Western Australia [2011] WASCA 23
Pepper v The State of Western Australia [2005] WASCA 177
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Thompson [2014] WASCA 108
Waters v Wigger [2016] WASC 377
Wright v McMurchy [2012] WASCA 257

BUSS P & MAZZA JA: On 6 July 2015, the appellant was charged with one offence in a prosecution notice.
The charge alleged that on 27 June 2015, at Murdoch, the appellant had in his possession a prohibited drug, namely amphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The total quantity of the drug was approximately 3.99 g.
On 27 October 2015, the appellant indicated in the Magistrates Court that he would plead guilty to the offence. He was remanded to the Drug Court for assessment and subsequently was accepted into the Drug Court programme.
On 9 November 2015, the appellant was convicted, on his plea of guilty in the Magistrates Court, of the offence.
On 18 March 2016, Magistrate Campione made a pre‑sentence order in respect of the appellant, with a duration of 12 months and supervision and programme requirements, pursuant to pt 3A of the Sentencing Act 1995 (WA).
On 6 May 2016, Magistrate Campione suspended the appellant's participation in the Drug Court.
On 20 May 2016, Magistrate Campione terminated the appellant's participation in the Drug Court and remanded him for sentencing.
On 20…

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 Waters v Wigger

Details

AGLC: Waters v Wigger [2017] WASCA 46
Case: [2017] WASCA 46
Decision Date: 13 MARCH 2017

CaseChat Overview and Summary

The Court of Appeal heard an appeal from Waters against a sentence imposed by the drug court, which had followed the defendant's guilty plea to drug-related charges. The primary issue was whether the drug court had properly exercised its discretion in sentencing the defendant, particularly in light of the principles governing sentencing in such cases and the possibility of a miscarriage of justice. The appeal hinged on the contention that the sentence was excessively severe and failed to consider the mitigating factors that should have warranted a more lenient outcome.

The legal issues before the court included whether the drug court had correctly applied the principles of sentencing relevant to drug-related offences and whether there had been a miscarriage of justice due to the severity of the sentence imposed. The court had to examine whether the sentence was proportionate to the offence, whether the drug court had adequately considered the defendant's personal circumstances, and if the sentence was an appropriate response under the relevant sentencing laws. Additionally, the court needed to determine whether the sentence was so disproportionate as to constitute a miscarriage of justice.

In delivering the judgment, the court found that the drug court had indeed erred in its sentencing process. The court held that the sentence imposed was excessively severe and did not appropriately reflect the principles of sentencing for drug-related offences. It was determined that the drug court had not sufficiently considered the mitigating factors, including the defendant's background and the potential for rehabilitation. Consequently, the court concluded that a miscarriage of justice had occurred due to the disproportionate nature of the sentence. The appeal was allowed, and the case was remitted to the drug court for resentencing.

The final orders of the court included the quashing of the original sentence and the direction that the defendant be re-sentenced by the drug court, taking into account the principles of sentencing and the mitigating factors that were inadequately considered in the initial sentencing process. The court emphasized that the resentencing must reflect a balanced and fair approach, ensuring that the sentence is proportionate to the offence and aligned with the legal principles governing drug-related sentencing.

Orders