Woods v Cecchele
[2004] WASCA 163
•5 AUGUST 2004
WOODS -v- CECCHELE [2004] WASCA 163
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 163 | |
| Case No: | SJA:1016/2004 | 24 MAY 2004 | |
| Coram: | LE MIERE J | 5/08/04 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Appellant's sentence reduced to term of 18 months' imprisonment | ||
| A | |||
| PDF Version |
| Parties: | LESLIE PHILLIP WOODS CARLO DINO CECCHELE |
Catchwords: | Criminal law Burglary Appeal against sentence Sentence manifestly excessive in the circumstances Sentencing Legislation and Repeal Act 2003, Sch 1, cl 2 Statutory interpretation Magistrate erred by sentencing on the basis of incorrect jurisdictional limit Powers of court on the hearing of an appeal Appellant resentenced |
Legislation: | Criminal Code, s 401 Justices Act 1902 (WA), s 199 Sentence Administration Act 1995 (WA) Sentence Administration Act 2003 (WA) Sentencing Act 1995 (WA), s 89 Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, s 29, Sch 1 cl 2 |
Case References: | Nil Cheshire v R, unreported; CCA SCt of WA; Library No 7924; 4 September 1989 Fisher v The Queen [1999] WASCA 122 Herbert v The Queen (2003) 27 WAR 330 Michael v The Queen [2004] WASCA 4 R v Heferen (1999) 106 A Crim R 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CARLO DINO CECCHELE
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : TARR SM
File Number : PE 7550-51 of 2004
Catchwords:
Criminal law - Burglary - Appeal against sentence - Sentence manifestly excessive in the circumstances - Sentencing Legislation and Repeal Act 2003, Sch 1, cl 2 - Statutory interpretation - Magistrate erred by sentencing on the basis of incorrect jurisdictional limit - Powers of court on the hearing of an appeal - Appellant resentenced
(Page 2)
Legislation:
Criminal Code, s 401
Justices Act 1902 (WA), s 199
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA), s 89
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, s 29, Sch 1 cl 2
Result:
Appeal allowed
Appellant's sentence reduced to term of 18 months' imprisonment
Category: A
Representation:
Counsel:
Appellant : Mr C J L Miocevich
Respondent : Mr R K Malhotra
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Cheshire v R, unreported; CCA SCt of WA; Library No 7924; 4 September 1989
Fisher v The Queen [1999] WASCA 122
Herbert v The Queen (2003) 27 WAR 330
Michael v The Queen [2004] WASCA 4
R v Heferen (1999) 106 A Crim R 89
(Page 3)
1 LE MIERE J: This is an appeal from the decision of the Magistrate to sentence the appellant to a term of 3 years imprisonment for the offence of burglary.
Offences Committed by Appellant
2 The appellant was convicted by the Court of Petty Sessions on his plea of guilty to two counts of burglary and of two offences under the Misuse of Drugs Act. The offences under the Misuse of Drugs Act were one count of possession of a prohibited drug, namely cannabis, and one count of possession of a smoking implement. The appellant was fined $150 on each of the offences under the Misuse of Drugs Act. He has not appealed against those sentences.
3 The appellant was sentenced for a burglary he committed between 10.30 pm on 30 March and 3 pm on 31 March 2003. The appellant committed the offence of stealing at a house in Morley. He smashed a window to gain entry into the house. Once inside, the appellant searched through the house and stole property which included a videotape and underwear to the value of $100. The appellant was sentenced to 12 months imprisonment for that offence. The Magistrate did not make a parole eligibility order in respect of that term of imprisonment. The appellant has not appealed against that sentence or against the Magistrate refusing to make a parole eligibility order.
4 The offence which gives rise to this appeal was committed by the appellant on 10 December 2003. The appellant committed the offence of stealing at a house in Midland. The appellant smashed a glass window to gain entry into the house. Once inside, he searched through the house and stole gold jewellery to the value of $3472. None of the stolen property has been recovered.
The Magistrate's Sentence
5 The appellant appeared before the Magistrate in the Perth Court of Petty Sessions on 16 February 2004. He was represented by counsel. The submissions made by his counsel included the following:
"With respect to […] this would place him as a third striker. Now, the other matters from his record are aggravated; these are straight burglaries and he accepts that there is no alternative, essentially, other than an immediate term of imprisonment.
However, due to Mr Woods's age, he is 25, … his third child is almost due. He has a 5-year-old, a 1-year-old … instructs that
(Page 4)
- his offending behaviour is attributed to some pressure from his young partner to provide for the family but without any real skills … and he readily admits that he doesn't have a great intellect and he … there's not a lot of options out there for him, other than what's provided through counselling.
He was on parole at the time of the December offence. Otherwise, he has a letter from the Parole Board dated 29 January that stated that his performance otherwise was reasonable and he had been underdoing anger management counselling which had been positive and it was until he was able to complete the anger management counselling that he would move on to a sort of drug or substance abuse counselling which may also assist him, if those skills could be provided or some counselling provided to him while he was serving a term of imprisonment.
So … and the March offence is an old offence, he has already been sentenced in the District Court by that time with respect to an aggravated burglary so in the circumstances, sir, I'd ask that you'd consider a concurrent term for those two offences and make him eligible for parole to provide some options for him."
6 The Magistrate noted that a burglary is a serious offence, the value of the property stolen and that none of it had been recovered. His Worship observed that there is a concern in the community about the number of burglaries that happen and noted the effect upon the occupants of the houses burgled. The Magistrate then referred to the appellant's record stating that the appellant had been committing burglaries on a regular basis for the last 10 years, having started as a juvenile in August 1994. His Worship then decided not to make a parole eligibility order, stating his reasons to be as follows:
"Now, in relation to parole, with the amendments to the Sentencing Act, the toughening up, as I read in the paper on the weekend by the Government in relation to these matters and the expectation the Government has on the Courts in relation to parole, the fact that this matter was committed while he was on parole, s 89(4) says that the Court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the Court considers that the offender should not be eligible for parole because of at least two of the following factors: if the offence is serious; well, there is no doubt in this
(Page 5)
- case that the offence is serious, the offender has a significant criminal record, the offender, when released from custody under the release order, did not comply with his order, he committed a further offence. So he falls within three of the four factors."
7 The Magistrate then imposed sentence in these terms:
"Mr Woods, as you just heard me say, burglary is a serious offence. When you break into someone's house and steal property like you did on this occasion - $3000-odd worth of jewellery – it might mean nothing to you, but for the people that own the property it has quite an impact on them.
And as I said, there is a concern in the community that burglary is such a prevalent offence nowadays, certainty I've no alternative but to impose a term of imprisonment.
You have a lengthy record. You have been sentenced to terms of imprisonment before. It's too late, thinking about your family when you're at the gate of the prison. What you've got to do is when you're released, then start thinking of them, when you've paid your debt to society.
In relation to the March burglary, you will be sentenced to 12 months imprisonment.
… In relation to the December one, you will be sentenced to 3 years imprisonment. That can be concurrent with the March offence.
And also for the reasons I've said, you've had a chance at parole and you've committed the same sort of offence while on parole, so I'm going to make an order that you not be eligible for parole.
…
Now, I haven't articulated the third off. I gave what - - as much as I could, and I indicated that it was my view that this sort of offence was worth - - worth more than - - it was fairly serious.
I mentioned that the maximum penalty was 14 years. I would have thought with your record, that a term of 4 ½ years imprisonment would not be inappropriate and I reduce that to - -
(Page 6)
- what I did was reduce that to get to the - - the 3 years which - - which you were given."
This Appeal
8 The appellant appeals, by leave of a Judge of this Court, against the sentence of 3 years imprisonment imposed for the December burglary offence. There are two grounds of appeal:
(a) The learned Magistrate erred in that the sentence was manifestly excessive in all the circumstances particularly having regard to:
(i) the standards of sentencing customarily observed for offences of this nature;
(ii) the place in which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature;
(iii) the circumstances in which the offence was committed; and
(iv) the [appellant's] personal circumstances and antecedents.
(b) The learned Magistrate erred by sentencing on the basis of a starting point of 4 ½ years when his jurisdictional limit was 3 years.
The Jurisdiction Issue
9 I will consider ground (b) first. I was informed by counsel for the appellant that this ground raises an important issue that has not previously been considered by this Court.
10 The appellant was convicted of the offence of burglary contrary to s 401(2) of the Criminal Code. That subsection relevantly provides:
"A person who commits an offence in the place of another person, when in that place without that other person's consent, is guilty of a crime and is liable –
(a) …
(Page 7)
- (b) if the place is ordinarily used for human habitation but the offence is not committed in circumstances of aggravation, to imprisonment for 18 years; or
(c) …
Summary conviction penalty for an offence to which par (b) or (c) applies (subject to subsection (3)):
(a) in a case to which paragraph (b) applies: imprisonment for 3 years or a fine of $12 000; or
(b) …"
11 The Sentencing Act was amended by the Sentencing Legislation Amendment and Repeal Act 2003 (the "amending Act"). Division 4 of the amending Act was entitled "Amendments about imprisonment". It amended provisions of the Sentencing Act concerned with parole. Section 22 of the amending Act provided that Sch 1 has effect in relation to the amendments effected by Div 4. Subsection 29(1) of the amending Act repealed the Sentence Administration Act 1995. Subsection 29(2) provided that Sch 1 has effect in relation to the repeal effected by subs 29(1). The Sentence Administration Act 1995 was largely concerned with parole. Schedule 1 to the amending Act is entitled "Transitional Provisions". Clause 2 is entitled "Sentencing Courts to take into account the effect of the sentencing amendments". Subclause 2(1) provides:
"If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), 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."
"New provisions" is defined in subclause 1(1) to mean –
(a) of the Sentencing Act 1995 as amended by the sentencing amendments; and
(b) the Sentence Administration Act 2003;
"Old provisions" is defined to mean the Sentencing Act 1995, and the repealed Act, as they would have applied had the sentencing amendments not come into operation.
(Page 8)
- "Sentencing amendments" is, in turn, defined to mean the amendments to the Sentencing Act1995 effected by Part 2 Div 4 and the repeal of the Sentence Administration Act 1995 effected by s 29(1). The "repealed Act" is defined to the mean the Sentence Administration Act 1995."
12 Subclause 2(5) of the First Schedule provides that Cl 2 does not apply if certain circumstances exist. None of those circumstances apply in this case.
13 The appellant's submissions on this ground of appeal are as follows. Under the old provisions, the maximum sentence that could be imposed summarily was 3 years. In sentencing, the Magistrate started at 4 ½ years and then reduced it by one-third as required by the transitional provisions. As the sentencing Magistrate could not impose 4 ½ years under the old system, he fell into error and acted in excess of his jurisdiction. If the Magistrate believed that the offence was so serious as to warrant 4 ½ years gaol under the old system, then his Worship should have declined to deal with the matter summarily pursuant to s 5 of the Criminal Code.
14 The State agrees that the learned Magistrate was beyond jurisdiction in sentencing the appellant to 3 years, having used a starting point of 4 ½ years immediate imprisonment. The State submits that the effect of the transitional provisions is that the maximum term that an offender may become liable for under a summary conviction penalty sentencing exercise is 2 years. This would come about by a Magistrate imposing a sentence of the maximum 3 year term and then by application of the transitional provisions reducing the same to 2 years.
15 In my view, this ground of the appeal is made out. The effect of subclause 2(1) of the Schedule is that the sentencing Court must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provision been in operation at the time of sentencing. If the old provision had been in operation at the time of sentencing, then the maximum term of imprisonment that the Magistrate could have imposed would have been a term of 3 years. Subclause 2(1) requires that the Magistrate must impose a term that is two-thirds of that term, that is 2 years. The Magistrate was not empowered, before the amending Act, to impose a term of imprisonment of 4 ½ years. The Magistrate was required to impose a term of imprisonment up to 3 years. If the Magistrate considered that the charge could not be dealt with summarily, then the Magistrate was required to remit the matter to the District Court.
(Page 9)
- At no time could or would the Magistrate have imposed a sentence in excess of 3 years.
16 In my view, the key words in subclause 2(1) of the Schedule are "the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing". Had the old provisions been in operation at the time of sentencing, the Magistrate could not and would not have imposed a term of imprisonment of 4 ½ years or any term in excess of 3 years.
17 The practical effect of subclause 2(1) of the Schedule is that unless and until one of the circumstances specified in subclause 2(5) exists, a sentencing Magistrate cannot impose a summary conviction penalty of more than 2 years for an offence of burglary under subs 401(2) of the Code. If the Magistrate considers that a sentence of 3 years imprisonment would not have been adequate had the old provisions been in operation at the time of sentencing, then the Magistrate may commit the defendant to the District Court for sentence. If that happened, the District Court Judge may determine that the sentence the Court would have imposed had the old provisions been in operation at the time of sentencing, would have been more than 3 years, but that the appropriate sentence, having regard to the provisions of cl 2(1) of the Schedule, is less than 3 years. In that event, the District Court Judge would impose a sentence less than the maximum summary conviction penalty specified by s 401(2) of the Code. That is a surprising outcome, but in my view it is required by the provisions of subclause 2(1) of the Schedule unless and until one of the circumstances specified in subclause 2(5) of the Schedule exists.
Sentence Manifestly Excessive
18 In any event, the State further concedes ground (a) of the grounds of appeal, and I find that a term of 4 ½ years immediate imprisonment was manifestly excessive in the circumstances, before having regard to the provisions of subclause 2(1) of the Schedule.
Powers of the Court
19 Section 199(1) of the Justices Act provides that upon the hearing of an appeal, the Court may do one or more of a number of things, including the following:
"(c) Substitute a decision that ought to have been made by the Justices;
(Page 10)
- (d) Remit the case for rehearing by … a Magistrate or a specified Magistrate, with or without any direction to him … .
(g) Make such other order as it thinks fit, including an order as to costs."
20 The State submits that the learned Magistrate having correctly considered and determined the issue of parole eligibility with respect to the sentencing of the appellant, it is appropriate that this Court now re-sentence the offender in relation to the term of the sentence. Counsel for the appellant agreed that the Magistrate had made no error in declining to make an eligibility for parole order and that this Court should re-sentence the appellant in relation to the term of the sentence. Both counsel submitted that the Magistrate made no error in determining that the term of imprisonment to be imposed should be served concurrently with the term imposed for the March burglary.
21 Counsel for the State submitted, and counsel for the appellant agreed, that an appropriate range of sentences for the current offence, in all of the circumstances personal to the appellant weighed against all of the aggravating features of the offending, is a term of imprisonment between 18 and 36 months, before having regard to the transitional provisions of the Schedule.
22 In my view, having regard to the seriousness of the offence and the antecedents of the appellant and taking into account the appellant's early plea of guilty, the appropriate sentence is a term of imprisonment of 18 months, after having regard to the transitional provisions of the Schedule.
Conclusion
23 For the reasons stated, the appeal will be allowed, and the appellant will be sentenced to a term of imprisonment of 18 months, to be served concurrently with the sentence imposed for the offence the subject of charge PE0407550 in the Perth Court of Petty Sessions, in substitution for the term of imprisonment imposed by the Magistrate. For the reasons given by the Magistrate, there will be no parole eligibility order.
3
5
6