Wells v Hounslow

Case [2021] WASC 99


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WELLS -v- HOUNSLOW [2021] WASC 99

CORAM:   SMITH J

HEARD:   30 MARCH 2021 & BY WRITTEN SUBMISSIONS FILED 1 APRIL 2021

DELIVERED          :   9 APRIL 2021

FILE NO/S:   SJA 1013 of 2021

BETWEEN:   KASZEL LOIS WELLS

Appellant

AND

TOBY HOUNSLOW

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE E O'DONNELL

File Number            :   KA 3817 of 2020, KA 3818 of 2020, KA 3819 of 2020, KA 3820 of 2020, KA 3821 of 2020, KA 3822 of 2020, KA 3823 of 2020, KA 3824 of 2020, KA 3825 of 2020, KA 3826 of 2020


Catchwords:

Criminal law - Appeal against sentence - PayWave fraud - Whether sentence of 9 months' immediate imprisonment manifestly excessive as to type - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 41(2)(b)
Criminal Code (WA), s 409(1)(c)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 76(2)

Result:

Leave to appeal out of time refused
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant : Mr W C Yoo
Respondent : Mr T B L Scutt

Solicitors:

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

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

Bogers v The State of Western Australia [2020] WASCA 174

Brown v The State of Western Australia [2010] WASCA 228

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

DKN v The State of Western Australia [2018] WASCA 87

Kotnowski v Richardson [2019] WASC 369

Krencej v The State of Western Australia [2019] WASCA 82

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Schulz v Coyne [2019] WASC 329

Shi v The State of Western Australia [2020] WASCA 197

Simms v Geeson [2020] WASC 381

Spirovski v The State of Western Australia [2017] WASCA 230

Stanley v The State of Western Australia [2018] WASCA 229

Tang v The Queen [2020] WASCA 194

The State of Western Australia v Zhuang [2021] WASCA 56

SMITH J:

1.0 The appeal, the grounds of appeal and the result

  1. The appellant seeks leave to appeal, out of time, the sentence imposed on 11 January 2021 by Magistrate O'Donnell sitting in the Magistrates Court at Kalgoorlie for 10 counts of gaining a benefit by fraud, with intent to defraud by fraudulent means, contrary to s 409(1)(c) of the Criminal Code (WA).

  2. Each of the offences occurred on 21 November 2020, and involved the use of a stolen credit card, given to the appellant by another person, to purchase goods at 10 shops utilizing payWave, to the total value of $1,376.01.

  3. On 11 January 2021, the appellant entered pleas of guilty to each of the offences, and was sentenced to a total effective sentence of 9 months' immediate imprisonment with eligibility for parole (having applied a discount of 25% for the early pleas).

  4. The details of the offences and the terms of imprisonment imposed for these offences are as…

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Wells v Hounslow [2021] WASC 99
Case
[2021] WASC 99
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CaseChat Overview and Summary

Kaszel Lois Wells appeals against the sentence imposed on her by Magistrate O'Donnell in the Magistrates Court of Western Australia for 10 counts of fraud, with intent to defraud by fraudulent means, contrary to s 409(1)(c) of the Criminal Code (WA). Each offence occurred on 21 November 2020, and involved the use of a stolen credit card, given to the appellant by another person, to purchase goods at 10 shops utilizing payWave, to the total value of $1,376.01. The appellant entered pleas of guilty to each of the offences, and was sentenced to a total effective sentence of 9 months' immediate imprisonment with eligibility for parole (having applied a discount of 25% for the early pleas). The appellant appeals on grounds that the total sentence of 9 months was in error, as each individual sentence was manifestly excessive as to type. In particular, that each type of sentence was unreasonable or plainly unjust, having regard to the statutory maximum penalty for the offences, the standards of sentencing customarily imposed for these offences, the circumstances and objective seriousness of the offences committed by the appellant, and the appellant's personal circumstances. The appellant also contends that the sentencing magistrate failed to consider whether to impose a sentence of suspended imprisonment. Smith J held that the appellant's course of conduct constituting the fraud offences, the persistent and extensive nature of the circumstances of the offending over the four hour period, and all other relevant factors, including factors mitigating and personal to the appellant, it cannot be found that the sentence of 9 months' imprisonment was unreasonable or plainly unjust. The question that then arises is whether consideration was given by the sentencing magistrate as to whether the term should have been suspended or conditionally suspended. Having carefully reviewed her Honour's sentencing remarks, the court held that it is evident that her Honour, after determining that imprisonment was the appropriate disposition for the offences, then took into account all relevant sentencing considerations before implicitly rejecting the option of a suspended imprisonment order. Having found that even if error was established there was no substantial miscarriage of justice, it is not necessary to consider whether the sentence of 3 months' immediate imprisonment imposed on 14 February 2021, concurrent on the total effective term of imprisonment imposed on 11 January 2021, should be varied pursuant to s 41(2) of the Criminal Appeals Act. Leave to appeal out of time was refused and the appeal dismissed.

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