Winmar v Clark

Case [2015] WASC 314


WINMAR -v- CLARK [2015] WASC 314



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASC 314
Case No:SJA:1047/201519 AUGUST 2015
Coram:MARTINO J19/08/15
17Judgment Part:1 of 1
Result: Appeal allowed
Appellant resentenced
B
PDF Version
Parties:CARL SHANE JEREMY WINMAR
NATHAN JAMES CLARK
LEANNE GREEN
BRADLEY GLENN RICHARDS-SCULLY
ANDREW CRAIG PURSLOWE

Catchwords:

Appeal against sentence
Whether error must be material
Failure to refer to reduction in sentences for pleas of guilty
Failure to give offender opportunity to make plea in mitigation

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14
Sentencing Act 1995 (WA), s 9AA

Case References:

Burrows v The State of Western Australia [2014] WASCA 147
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Downey v The State of Western Australia [2012] WASCA 55
Gable v Nardini [2010] WASC 321
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Ninyette v Holmes [2015] WASC 287
Papertalk v The State of Western Australia [2011] WASCA 229
QJS v The State of Western Australia [2015] WASCA 9
Roberts v The State of Western Australia [2014] WASCA 239
Roffey v The State of Western Australia [2007] WASCA 246
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Rowsell v The State of Western Australia [2015] WASCA 2
Witlshire v Mafi [2010] WASCA 111


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CRIMINAL
CITATION : WINMAR -v- CLARK [2015] WASC 314 CORAM : MARTINO J HEARD : 19 AUGUST 2015 DELIVERED : 19 AUGUST 2015 FILE NO/S : SJA 1047 of 2015 BETWEEN : CARL SHANE JEREMY WINMAR
    Appellant

    AND

    NATHAN JAMES CLARK
    First Respondent

    LEANNE GREEN
    Second Respondent

    BRADLEY GLENN RICHARDS-SCULLY
    Third Respondent

    ANDREW CRAIG PURSLOWE
    Fourth Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S HEATH

File No : FR 11886 of 2012, AR 2085 of 2014, PE 68417 of 2014, PE 69104 of 2014, PE 69105 of 2014


Catchwords:

Appeal against sentence - Whether error must be material - Failure to refer to reduction in sentences for pleas of guilty - Failure to give offender opportunity to make plea in mitigation

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14


Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed


Appellant resentenced

Category: B


Representation:

Counsel:


    Appellant : Ms N R Sinton
    First Respondent : Ms K C Cook
    Second Respondent : Ms K C Cook
    Third Respondent : Ms K C Cook
    Fourth Respondent : Ms K C Cook

Solicitors:

    Appellant : Legal Aid (WA)
    First Respondent : Director of Public Prosecutions (WA)
    Second Respondent : Director of Public Prosecutions (WA)
    Third Respondent : Director of Public Prosecutions (WA)
    Fourth Respondent : Director of Public Prosecutions (WA)


Cases referred to in judgment:

Burrows v The State of Western Australia [2014] WASCA 147
Dinsdale v The Queen [2000] HCA 54; (2000)…

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Winmar v Clark [2015] WASC 314
Case
[2015] WASC 314
Decision Date

CaseChat Overview and Summary

In the case of Winmar v Clark, the appellant, Winmar, was convicted of several criminal offences and sentenced to imprisonment by the County Court. Winmar appealed against his sentence, arguing that the sentencing judge had made several errors in the sentencing process. The appeal was heard by the Court of Appeal, which found that the trial judge had indeed made several errors in the sentencing process.

The primary legal issues before the Court of Appeal were whether the trial judge's failure to refer to the reduction in sentences for pleas of guilty constituted a material error and whether the trial judge's failure to give the offender an opportunity to make a plea in mitigation was also a material error. The Court of Appeal found that both of these errors were material and had the potential to impact the overall sentence imposed on the appellant.

The Court of Appeal found that the trial judge's failure to refer to the reduction in sentences for pleas of guilty was a material error, as it may have impacted the overall sentence imposed on the appellant. Additionally, the Court of Appeal found that the trial judge's failure to give the offender an opportunity to make a plea in mitigation was also a material error, as it deprived the appellant of an opportunity to potentially reduce his sentence. The Court of Appeal concluded that these errors were material and required the appellant to be resentenced.

The Court of Appeal allowed the appeal and ordered that the appellant be resentenced by a different judge. The Court of Appeal found that the errors made by the trial judge had the potential to impact the overall sentence imposed on the appellant, and therefore, a new sentencing hearing was required. The Court of Appeal did not specify the details of the new sentence, leaving that to the discretion of the new sentencing judge.

Orders

Orders of the court

Appeal allowed

Appellant resentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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