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Wells v Hounslow

Wells v Hounslow

Case [2021] WASC 99 9 April 2021

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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

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

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 Wells v Hounslow

Details

AGLC: Wells v Hounslow [2021] WASC 99
Case: [2021] WASC 99
Decision Date

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.

Orders