Withnell v Walker - [2005] WASCA 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WITHNELL -v- WALKER [2005] WASCA 8

CORAM: MILLER J

HEARD: 20 JANUARY 2005

DELIVERED : 20 JANUARY 2005

FILE NO/S: SJA 1094 of 2004

MATTER :Justices Act 1902 (WA)

BETWEEN: SHAYNE JOHN WITHNELL
Appellant
AND
GREGORY STIRLING WALKER
Respondent

FILE NO/S :SJA 1095 of 2004

MATTER :Justices Act 1902 (WA)
BETWEEN :KEVIN CHARLES WITHNELL
Appellant
AND
GREGORY STIRLING WALKER
Respondent

ON APPEAL FROM:
For File No              :  SJA 1094 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR G CALDER SM
File No  :MI 3971 of 2004
For File No              :  SJA 1095 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR G CALDER SM
File No  :MI 3972 of 2004

Catchwords:

Justices - Offences of burglary - Startingpoint beyond jurisdictional limit - Sentences excessive - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 401(2)(a)

Criminal Code Amendment Act 2004 (No 4 of 2004) (WA)
Sentence Administration Act 2003 (WA)

Sentence Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeals allowed
Sentences varied

Category: B

Representation:

SJA 1094 of 2004

Counsel:

Appellant: Mr A J Robson
Respondent: Ms S E Wisbey

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

SJA 1095 of 2004

Counsel:

Appellant: Mr A J Robson
Respondent: Ms S E Wisbey

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

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

Herbert v The Queen (2003) 27 WAR 330

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 4 September 1989
Veen v The Queen (No 2) (1988) 164 CLR 465
Woods v Cecchele [2004] WASCA 163

MILLER J: These are appeals from decisions of Mr G Calder SM in the Court of Petty Sessions at Midland on 24 August 2004 when, after conviction of the appellants of the offence of burglary in each case, the learned Magistrate imposed upon each of the appellants the sentences of 3 years' imprisonment. The appeals are brought on the basis that the learned Magistrate erred in the sentencing process by taking a starting‑point of 5 years' imprisonment, when his jurisdictional limit was 3 years. In the alternative, it is contended that the learned Magistrate erred in imposing a sentence which was manifestly excessive.
The appellants had been charged in the Court of Petty Sessions, Midland, that, on 31 May 2004, at High Wycombe they, without consent, were in the dwelling of Helen May Davey and committed the offence of stealing in circumstances of aggravation; namely, that they were in company with each other, contrary to the provisions of s 401(2)(a) of the Criminal Code 1913 (WA).
The facts reveal that, at about 10.50 am on the morning of 31 May 2004, the two appellants went to 18 Wycombe Street, High Wycombe and gained entry to premises by smashing the lower panel of a rear window. Once inside, they collected various items of property from different rooms in the premises. One of the appellants left the house and went to a nearby school where he had parked a vehicle. He returned with the vehicle and the two appellants loaded it with property and then left the scene. They were apprehended by police a short distance away.
When it came to sentence the appellants, the learned Magistrate expressed the view that only sentences of imprisonment were appropriate for the two appellants. He took the view that neither appellant should have the sentence suspended, but that each should be eligible for parole. The commencement date for the sentence for the first appellant was fixed as 1 June 2004, but for the second appellant the date upon which sentence was imposed.
The learned Magistrate made a number of general observations about both appellants. He pointed out that neither had any remorse for what they had done, and when pleading not guilty to the offence they had given fabricated evidence with a view to achieving the conviction of one only and not the other.
The learned Magistrate pointed out that the offences were serious and the maximum penalty, if not dealt with summarily, would be 18 years' imprisonment. His Worship also pointed out that, in a court of summary jurisdiction, the maximum sentence of 3 years that could be imposed (or $12,000 fine) was the highest penalty operative within courts of summary jurisdiction.
The learned Magistrate made reference to the case of Herbert v The Queen (2003) 27 WAR 330, where both Malcolm CJ and myself (at [7] and [171] respectively) pointed out that sentences of 5 years' imprisonment for burglary of a place of habitation were well within the range of sentences that might be imposed for that offence in Western Australia and there was a need to firm up sentences for the offence of burglary committed on people's homes.
After making a reference to this case, the learned Magistrate considered that, had the case before him been in the District Court, a sentence of 5 years' imprisonment would have been appropriate.
His Worship then made reference to the antecedents of each of the appellants, pointing out that they were not young and had been through the criminal system from the time they were juveniles. Although their records were not identical, they reflected a similar attitude towards the law. The first appellant's record revealed that, prior to 1990, he had been convicted of many stealing offences, many traffic offences, unlawful use of vehicles, offences of breaking and entering, burglary and there was some six prior convictions for either burglary or breaking, entering and stealing. After 1990, the record was substantially worse and sentences of imprisonment were imposed for burglary in 1994.
The second appellant's record was described as being similar. There were convictions in the Children's Court for burglary, stealing and unlawful use of motor vehicles. From 1990 in the Court of Petty Sessions, there were convictions for stealing and three prior convictions for burglary. In addition, there was a conviction for robbery in the District Court in 1998, in relation to which a sentence of 2 years' imprisonment was imposed.
The learned Magistrate described the offences committed by the appellants as being a planned effort on the part of both of them to go out and burgle a dwelling‑house with a view to either getting money or goods which could be sold. He had no doubt that the enterprise was a joint one, which could be described as a "bold … broad daylight … successful attempt to commit a run‑of‑the‑mill burglary".
The learned Magistrate considered the starting‑point for the sentence for each of the appellants to be 5 years' imprisonment. He pointed out that this was not a sentence which he could impose, but purely a starting‑point.
In this respect, the learned Magistrate was clearly wrong. He could not take a starting‑point of 5 years' imprisonment as a starting‑point, because the maximum sentence applicable on summary conviction was 3 years' imprisonment.
The learned Magistrate took the view that there was no distinction between the two appellants for sentencing purposes and that each was equally culpable. The fact that the first appellant was on parole was considered to be an aggravating factor, but the second appellant had only shortly been out of prison.
The learned Magistrate then imposed sentence by reducing the 5‑year term by one‑third to account for the Sentence Legislation Amendment and Repeal Act 2003 (WA) and the Sentence Administration Act2003 (WA), which brought the sentence down to 40 months' imprisonment. A further 4 months was deducted for what appear to have been personal factors, leaving a sentence of 3 years in each case.
It was argued by counsel for the respondent that this was not a case in which the provisions of the Sentence Legislation Amendment and Repeal Act 2003 were applicable. The respondent submitted that cl 2(1) of Sch 1 of this Act was inapplicable. That provision provides that if a Court sentencing an offender to imprisonment proposes to impose a fixed term, it must impose a fixed term that is two‑thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing. Clause 2(5)(a) of Sch 1 sets out certain circumstances in which cl 2(1) does not apply . It provides that the clause does not apply if the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced.
In the present case, the offence of aggravated burglary, where the only circumstance of aggravation was that the offender was in company, was brought within the summary jurisdiction of Courts of Petty Sessions by s 401 of the Criminal Code as amended by the Criminal Code Amendment Act 2004 (No 4 of 2004) (WA), which commenced on 21 May 2004. The amendment to the Code brought the offence of aggravated burglary in certain circumstances within summary jurisdiction, but did not alter any penalty. There was, prior to 21 May 2004, no penalty applicable to the offence of aggravated burglary upon summary conviction. The 2004 amendment simply brought within summary jurisdiction the offence of aggravated burglary in certain circumstances and fixed a maximum sentence of 3 years' imprisonment or a fine of $12,000 as applying to the offence on such summary conviction. This, in my view, did not constitute an amendment to penalty. The amending provision simply created a penalty for summary conviction. It did not amend the penalty ordinarily applicable, which would be 20 years' imprisonment. For these reasons, I do not consider that the respondent has made good the submission that cl 2(5)(a) of Sch 1 of the Sentence Legislation Amendment and Repeal Act 2003 applies.
In my view, the appellants' grounds of appeal are made in relation to grounds 1(a) and (c), but not (b). The provisions of the new sentencing legislation were accounted for.
Having regard to the fact that the maximum sentence which could be imposed was 3 years, the learned Magistrate was entitled to take the maximum, as each of the appellants had bad records and the jurisdictional limit was within the range of sentences that could have been imposed.
However, there had to be a deduction for personal factors, which the learned Magistrate made by taking 4 months away from the sentence he would otherwise have imposed. In my view, that was correct. That would have left a sentence of 2 years 8 months which, by application of new sentencing legislation, would have been reduced to 1 year 9 months 9 days. In my view, each of the appellants should have been sentenced to that term.
I would, therefore, allow the appeals in each case, quash the sentences of 3 years' imprisonment imposed upon the appellants and substitute in lieu thereof sentences of 1 year 9 months 9 days in each case. The orders for eligibility for parole will remain.