Wegner v The Queen - [1999] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: WEGNER -v- R [1999] WASCA 26

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 20 APRIL 1999

DELIVERED : 24 MAY 1999

FILE NO/S: CCA 199 of 1997

BETWEEN: GUY WILLIAM WEGNER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal - Sentence - Applicant charged with robbery in company in circumstances of aggravation sentenced to 8 years' imprisonment with eligibility for parole - Initial plea of not guilty later changed to guilty - At time of sentencing applicant was serving term of six years for earlier series of burglaries - Starting point of 8 years' imprisonment not reduced for earlier sentence of 6 years' imprisonment - Whether sufficient regard was had to change in plea and whether this resulted in benefit to the administration of justice - Whether sentence was excessive - Application of totality principle - Sentence imposed for new offences should not amount to a re-sentencing of the offender for prior offences

Held - Sentence reduced to 6 years' imprisonment

Legislation:

Nil

Result:

Appeal upheld

Representation:

Counsel:

Applicant: Ms A Mikkelsen
Respondent: Mr R E Cock QC & Ms A L Forrester

Solicitors:

Applicant: Ann Mikkelsen
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen, unreported; FCt SCt of WA; Library No 930341; 14 June 1993
Miles v The Queen (1997) 17 WAR 518
Postiglione v The Queen (1997) 189 CLR 295
R v Gordon (1984) 71 A Crim R 459
R v Harrison (1990) 48 A Crim R 197
R v Holder [1983] 3 NSWLR 245
Robinson v The Queen unreported; FCt SCt of WA; Library No 980587; 9 October 1998

Case(s) also cited:

Australian Coal v Commonwealth (1953) 94 CLR 621
House v R (1936) 55 CLR 499
Miles v The Queen, unreported; CCA SCt of WA; Library no 970258; 7 May 1997
R v Peterson [1984] WAR 329
Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Urquhart v R, unreported; CCA SCt of WA; Library No 950484; 13 September 1995
Weng Keong Chan (1989) 38 A Crim R 337
Yanko v R, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

JUDGMENT OF THE COURT: This is an application for leave to appeal and an appeal against sentence. The applicant was charged with armed robbery with circumstances of aggravation in that he was in company, armed with a knife and used personal violence. He was convicted on his own plea of guilty and sentenced to a term of imprisonment of 8 years.
Counsel for the applicant submitted, on two grounds, that the sentence was excessive. Firstly, it was said that the learned sentencing judge failed to give the applicant due credit for pleading guilty, albeit that the plea was relatively late. Secondly, it was said that his Honour failed properly to apply the totality principle. The latter issue arose because at the…

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 Wegner v The Queen

Details

AGLC: Wegner v The Queen [1999] WASCA 26
Case: [1999] WASCA 26
Decision Date: 24 MAY 1999

CaseChat Overview and Summary

The matter of Wegner v The Queen involved an appeal against the sentence of the applicant, who was convicted of armed robbery in company with circumstances of aggravation, including the use of a knife and personal violence. The applicant was initially sentenced to 8 years' imprisonment, with eligibility for parole, after he changed his plea from not guilty to guilty. At the time of sentencing, the applicant was already serving a 6-year sentence for a series of burglary offences. The primary issue before the court was whether the sentence was excessive due to the failure to adequately consider the applicant's late guilty plea and the proper application of the totality principle. The applicant argued that the change in plea resulted in a benefit to the administration of justice, which should have been recognised in the sentencing. Furthermore, the applicant contended that the totality principle was not properly applied as the starting point of the 8-year sentence was not reduced for the earlier 6-year sentence for the burglary offences.

The court considered the arguments presented and found that the change in the applicant's plea did indeed have some benefit to the administration of justice. This was because the change in plea avoided the need for a scheduled directions hearing, reduced the prosecution's preparation for the trial, and ultimately prevented the trial from taking place. Although the savings were not as significant as if the applicant had pleaded guilty at the status hearing, the court found that the change in plea did result in some benefit to the administration of justice. The court also found that the sentencing judge did not sufficiently consider the totality principle in the context of the applicant's earlier 6-year sentence for the burglary offences. The starting point of the 8-year sentence for the armed robbery offence should have been reduced to account for the earlier sentence, as the sentence imposed for the new offences should not amount to a re-sentencing of the offender for prior offences.

As a result of the court's findings, the sentence of 8 years' imprisonment was deemed excessive and was reduced to 6 years' imprisonment, with eligibility for parole. This decision highlights the importance of properly considering the totality principle and any benefits to the administration of justice when sentencing an offender who has previously been sentenced for other offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

IPP J

JUDGMENT OF THE COURT: This is an application for leave to appeal and an appeal against sentence. The applicant was charged with armed robbery with circumstances of aggravation in that he was in company, armed with a knife and used personal violence. He was convicted on his own plea of guilty and sentenced to a term of imprisonment of 8 years. Counsel for the applicant submitted, on two grounds, that the sentence was excessive. Firstly, it was said that the learned sentencing judge failed to give the applicant due credit for pleading guilty, albeit that the plea was relatively late. Secondly, it was said that his Honour failed properly to apply the totality principle. The latter issue arose because at the time the applicant was sentenced, he was serving an aggregate term of 6 years' imprisonment imposed by the learned District Court Judge for a series of burglary offences (involving mainly house breaking) which occurred between 30 September 1995 and April 1996. He was sentenced for these offences on 20 June 1997. The armed robbery for which the applicant received 8 years' imprisonment was committed on 19 June 1996. He was sentenced for this offence on 20 October 1997. The facts relating to the armed robbery are not of any complexity. The applicant and a co‑offender entered the premises of a pharmacy at about 7.00 pm. Each was armed with a long knife. The applicant was wearing a motorcycle helmet and a balaclava. He ordered the pharmacist to open the safe in the back of the shop. When the safe was opened, the applicant removed a money bag containing $4203. During the course of the robbery, a customer in the shop was knocked over, and suffered shock, bruising to the right shoulder and to the left wrist. According to the learned sentencing Judge the applicant "indicated a firm plea of not guilty at the status hearing". Later, about a month prior to the trial, the applicant informed the prosecution that he would alter his plea to guilty. This change was not brought about by remorse, but by a realisation that a video recorded confession he had made to the police was likely to be admitted into evidence and he would have no defence to the charge brought against him. Although the alteration in the plea occurred some four weeks prior to the scheduled trial date, the available dates for the trial could not be filled with another case. In the course of his sentencing remarks, the learned sentencing Judge said that, in consequence of the change in plea, "there was no saving to the administration of justice so no mitigation or credit can be given, or very little credit can be given by reason of the fact that you have pleaded guilty." Counsel for the applicant submitted that the learned sentencing Judge erred in finding that, by the plea of not guilty, "there was no saving to the administration of justice". In my view that submission has to be accepted. As a result of the change in the plea, the need for a scheduled directions hearing listed on 2 October 1997 (which would have required the applicant to have been brought up from Albany regional gaol) was avoided, no jury was sworn in, the prosecution's preparation for the trial was substantially reduced and no trial took place. While the savings were not as significant as would have been the case had the applicant pleaded guilty at the status hearing, nevertheless, I think that the change in plea did have some benefit to the administration of justice and this should have been taken into account. Whether his Honour did so is not entirely clear; the remark that "no mitigation or credit can be given, or very little credit" for the plea of guilty, suggests that if any credit was given, it was insignificant.

Ratio Decidendi

Legal Principle Established

Established by: IPP J

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