Weaver v Biggs

[2019] WASC 333

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WEAVER -v- BIGGS [2019] WASC 333

CORAM:   HALL J

HEARD:   9 SEPTEMBER 2019

DELIVERED          :   9 SEPTEMBER 2019

FILE NO/S:   SJA 1104 of 2019

BETWEEN:   ROBERT ALAN WEAVER

Appellant

AND

AARON BIGGS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE C ROBERTS

File Number             :   WY 53 of 2019, KU 610 of 2019, KU 611 of 2019

Catchwords:

Criminal law - Appeal against sentence - Whether magistrate failed to discount sentence for early guilty plea - s 9AA Sentencing Act

Legislation:

Sentencing Act 1995 (WA), s 9AA

Result:

Extension of time granted
Leave to appeal granted
Appeal allowed
Sentences imposed by the magistrate set aside
Appellant re-sentenced

Category:    B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms M M Yeung

Solicitors:

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

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

Gobetti v The State of Western Australia [2017] WASCA 130

Winmar v Clark [2015] WASC 314

HALL J:

(These reasons were delivered extemporaneously on 9 September 2019 and have been edited from the transcript.)

1. This is an appeal against sentence. On 21 June 2019 the appellant appeared in the Magistrates Court at Kununurra and entered pleas of guilty to one charge of burglary, one charge of breach of bail and one charge of breach of a family violence restraining order. He was sentenced to a total effective sentence of 9 months and 1 day imprisonment. The discrete point raised on this appeal is that in sentencing the learned magistrate did not discount the sentences to take into account the pleas of guilty as required by s 9AA of the Sentencing Act 1995 (WA).

2. The respondent concedes that the magistrate made no reference to any discount and that this is ordinarily an indication that the sentencer has overlooked it.[1]  The respondent also accepts that it is not obvious from the length of the total sentence that a discount was incorporated into that sentence.  In those circumstances, the respondent concedes that the ground of appeal has been made out and that the appeal should be allowed and the appellant re‑sentenced. 

   [1]  See Winmar v Clark [2015] WASC 314 [26].

3. The respondent also does not oppose the granting of an extension of time, which is required because the notice of appeal was filed one month late. 

4. In my view the concessions by the respondent are properly made. In some cases there may have been a failure to expressly state the amount of a discount, but it is possible that a discount has been allowed. There may be doubt in such a case as to whether an error is material or merely technical. In this case, however, the magistrate made no reference in his sentencing remarks to s 9AA, any discount for pleading guilty to the charges or any quantification of such discount, either as a percentage or an amount of time.

5. Although the sentencing remarks…