Woods v Kingsbury - [2019] WASC 336

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
CITATION	:	WOODS -v- KINGSBURY [2019] WASC 336

CORAM

: FIANNACA J

HEARD

: 3 APRIL 2019

DELIVERED

: 3 APRIL 2019

PUBLISHED

: 12 SEPTEMBER 2019

FILE NO/S

:	SJA 1027 of 2019

BETWEEN

: JEANETTE WOODS

Appellant
AND
RACHEL KINGSBURY
First Respondent
SCOTT DODSON
Second Respondent
PAUL DAVEY
Third Respondent
ANTHONY CASH
Fourth Respondent
ADAM ROLFE
Fifth Respondent

[2019] WASC 336

FILE NO/S

SJA 1041 of 2019

BETWEEN

: JEANETTE WOODS

Appellant
AND
ADAM ROLFE
Respondent

ON APPEAL FROM:

For File No	:	SJA 1027 of 2019
Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram

: MAGISTRATE MALLEY

File Number

:	AM 1722 of 2015

For File No

:	SJA 1041 of 2019

Jurisdiction

:	MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram

: MAGISTRATE CAMPIONE

File Number

:	AM 1722 of 2015

Catchwords:

Appeal against sentence - Error of law - Imposition of suspended imprisonment order - Breach of impermissibly imposed suspended imprisonment order - SIO set aside ab initio

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA), s 77, s 78, s 80

[2019] WASC 336

Result:

Applications for extension of time allowed
Applications for leave to appeal allowed

Appeal(s) allowed

Category: B

Representation:

SJA 1027 of 2019

Counsel:

Appellant

Ms N Sinton

First Respondent : Ms M Yeung Second Respondent : Ms M Yeung Third Respondent : Ms M Yeung

Fourth Respondent	: Ms M Yeung
Fifth Respondent	: Ms M Yeung

Solicitors:

Appellant

Legal Aid - Perth

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)
Fifth Respondent	: Director of Public Prosecutions (WA)

SJA 1041 of 2019

Counsel:

Appellant : Ms N Stinton Respondent : Ms M Yeung

Solicitors:

Appellant

Legal Aid - Perth

Respondent : Director of Public Prosecutions (WA)

[2019] WASC 336

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

Nil

[2019] WASC 336

FIANNACA J

FIANNACA J:

Summary of the appeals

On 3 April 2019 I heard two related appeals, SJA 1041 of 2019 and SJA 1027 of 2019. The outcome in SJA 1041 of 2019 affected the conduct and outcome of SJA 1027 of 2019. It was in the interests of justice that the matters be heard together,[1] and I made an order accordingly.
[1] Criminal Appeals Act 2004 (WA) s 38.
Both appeals were commenced after the limitation period of 28 days within which such appeals must be commenced.[2] As will become apparent, it was also in the interests of justice that the appellant have an extension of time in which to appeal in respect of both appeals, and I made an order accordingly.
[2] Criminal Appeals Act 2004 s 10(3).
The foundation for both appeals was an undisputed error of law in the imposition of a suspended imprisonment order (SIO). In essence, the appellant was sentenced on 4 May 2018 to suspended terms 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 Kingsbury

Details

AGLC: Woods v Kingsbury [2019] WASC 336
Case: [2019] WASC 336
Decision Date: 3 APRIL 2019

CaseChat Overview and Summary

In Woods v Kingsbury, the appellant, Woods, appealed against the sentence imposed on him by the trial court, which included a suspended imprisonment order. The trial court had found Woods guilty of an offence and imposed a sentence that included a suspended imprisonment order. Woods argued that the imposition of the suspended imprisonment order was an error of law, and that the order should be set aside ab initio. The respondent, Kingsbury, argued that the appeal should be dismissed and that the sentence was properly imposed.

The legal issues before the court were whether the imposition of the suspended imprisonment order was an error of law, and if so, whether the order should be set aside ab initio. The court considered the relevant statutory provisions and case law in determining these issues. The court noted that the imposition of a suspended imprisonment order is a form of imprisonment, and that such orders can only be imposed where the statutory criteria for imprisonment are met. The court found that the trial court had erred in law in imposing the suspended imprisonment order, as the statutory criteria for imprisonment had not been met. As a result, the court set the suspended imprisonment order aside ab initio.

The court's decision in Woods v Kingsbury highlights the importance of ensuring that sentences are imposed in accordance with the relevant statutory provisions. The court's finding that the imposition of the suspended imprisonment order was an error of law, and that the order should be set aside ab initio, is likely to have significant implications for the imposition of suspended imprisonment orders in similar cases in the future. The court's decision also serves as a reminder to trial courts to carefully consider the statutory criteria for imprisonment before imposing a suspended imprisonment order.

Orders