WOODS -v- CECCHELE [2004] WASCA 163

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 163
Case No:	SJA:1016/2004	Heard:	24 MAY 2004
Coram:	LE MIERE J	Delivered:	5/08/04
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed, Appellant's sentence reduced to term of 18 months' imprisonment
Category:	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

CITATION : WOODS -v- CECCHELE [2004] WASCA 163 CORAM : LE MIERE J HEARD : 24 MAY 2004 DELIVERED : 5 AUGUST 2004 FILE NO/S : SJA 1016 of 2004 BETWEEN : LESLIE PHILLIP WOODS

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…

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 Woods v Cecchele

Details

AGLC: Woods v Cecchele [2004] WASCA 163
Case: [2004] WASCA 163
Decision Date: 5 AUGUST 2004

CaseChat Overview and Summary

The appeal heard by the court was brought by the appellant, Woods, against the sentence imposed by the respondent, Cecchele, a magistrate. The appellant was convicted of burglary and was sentenced to 24 months' imprisonment. Woods contested the severity of the sentence, arguing it was excessive given the circumstances of the case. The appeal was heard on the basis that the magistrate had erred in applying the jurisdictional limits of the sentencing legislation.

The primary issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the magistrate had misapplied the jurisdictional limit under the Sentencing Legislation and Repeal Act 2003, which provided that the maximum penalty for the offence of burglary was 24 months' imprisonment. The court had to determine if the magistrate erred in sentencing, and if so, whether the sentence could be reduced on appeal. The appellant contended that the magistrate had incorrectly considered the jurisdictional limit, and that the sentence was disproportionate to the nature of the offence.

The court found that the magistrate had indeed erred in the application of the jurisdictional limit, which should not have included the additional penalty for the appellant's previous convictions. This misapplication resulted in a sentence that was deemed manifestly excessive. The court exercised its power under the Act to resentence the appellant, reducing the term of imprisonment to 18 months. The court found that this new sentence was appropriate given the circumstances and did not exceed the correct jurisdictional limit.

The court allowed the appeal and reduced the appellant's sentence to 18 months' imprisonment. The court emphasised the importance of correctly applying jurisdictional limits in sentencing, and noted that the error in this case had led to a manifestly excessive sentence. The resentenced term of 18 months was deemed appropriate and aligned with the statutory provisions.

Orders

Orders of the court

Appeal allowed, Appellant's sentence reduced to term of 18 months' imprisonment

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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