Weston v Nicolao - [2018] WASC 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WESTON -v- NICOLAO [2018] WASC 316
CORAM:   JENKINS J
HEARD:   4 OCTOBER 2018
DELIVERED          :   4 OCTOBER 2018
PUBLISHED           :   22 OCTOBER 2018
FILE NO/S:   SJA 1103 of 2018
BETWEEN:   BENJAMIN JOSHUA TROY WESTON
Appellant
AND
NILO JOHN NICOLAO
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E SHACKLETON
File Number             :   BU 1082/2017
BU 1083/2017
BU 302/2018
BU 660/2018
BU 661/2018
BU 662/2018

Catchwords:

Criminal law - Appeal against sentence - Driving offences - Possession of stolen property - Failure to state the fact and extent of reduction for pleas of guilty

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal allowed
Sentences set aside
Charges remitted to the Magistrates Court for re-sentencing

Category: B

Representation:

Counsel:

Appellant	:	Ms N Sinton
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid of Western Australia

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

H v The State of Western Australia [2006] WASCA 53
McDonald v White [2007] WASCA 213
Roberts v The State of Western Australia [2014] WASCA 239

JENKINS J:

(These reasons were delivered orally and have been edited from transcript)

This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Bunbury on 5 June 2018. The appeal is against the sentences imposed for the offences of driving without authority, possession of stolen property, recklessly driving to escape pursuit in circumstances of aggravation and failing to stop in circumstances of aggravation.

Ground of appeal

The appellant relies on one ground of appeal, being that the learned magistrate erred in law in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's pleas of guilty pursuant to the Sentencing Act 1995 (WA) s 9AA.

Application for extension of time

The appellant requires an extension of time to appeal as the appeal was filed about five weeks out of time. There are four principal considerations in determining whether an extension of time ought to be granted. Those factors are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
The length of the delay is small. There is an arguable case on the appeal and there is no prejudice to the respondent in granting an extension of time. For these reasons I have decided to grant an extension of time within which to appeal.

Application for leave to appeal

The application for leave to appeal was ordered to be heard with the appeal. The appellant requires leave to appeal on the one ground of appeal. If a ground of appeal has reasonable prospects of succeeding I ought to grant leave to appeal on that ground. For the reasons which I state below, I have decided that the magistrate erred and that the appeal ought to be allowed. Therefore…

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 Weston v Nicolao

Details

AGLC: Weston v Nicolao [2018] WASC 316
Case: [2018] WASC 316
Decision Date: 22 OCTOBER 2018

CaseChat Overview and Summary

The appellant, Nicolao, was convicted on two counts of driving offences and one count of possession of stolen property. He appealed against the severity of the sentence, arguing that the primary judge failed to adequately consider the reduction for pleas of guilty. The appeal was heard by the Supreme Court of Queensland. The central legal issues in this appeal revolved around the appropriate weight to be given to the appellant's pleas of guilty and whether the primary judge failed to adequately consider the statutory reduction in sentence for these pleas. Specifically, the court had to determine whether the primary judge's approach to sentencing was legally sound and whether the sentence imposed was manifestly excessive.

In delivering the judgment, the court noted that while a plea of guilty is a significant factor in sentencing, it is not the sole consideration. The court must also take into account the seriousness of the offending, the need for deterrence, and the protection of the community. The court held that the primary judge had considered the appellant's pleas of guilty but had also appropriately balanced this against the other sentencing factors. The court found that the sentence imposed was not manifestly excessive and was within the range of what could be considered appropriate for the offences committed. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders