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Bell v. Carrier - (30 May 2018)

Fact that, an error has been made in sentencing does not automatically mean that sentencing discretion should be exercised afresh


The Appellant appealed from the sentences imposed for the burglary, trespass and breach of bail offences. Sole ground of appeal was that, the learned sentencing magistrate erred in law by failing to consider whether the sentences of imprisonment imposed ought to have been reduced under Section 9AA of the Sentencing Act, 1995 (WA) on account of the Appellant's pleas of guilty. Issue involved in present case is whether sentencing magistrate failed to take into account pleas of guilty and that whether there was a substantial miscarriage of justice.

The magistrate did not identify the maximum penalty for the burglary offence. However, it is apparent that, his Honour sentenced the Appellant on the basis that, the offence was committed in a place that was not ordinarily used for human habitation (and that circumstance of aggravation was not alleged in the prosecution notice). Accordingly, the maximum penalty for the offence on summary conviction is 2 years' imprisonment and a fine of $24,000. The primary sentencing considerations for the offence of burglary are personal and general deterrence. Further the circumstances in which the offence can be committed vary greatly and it can be difficult to find comparable cases. Accordingly, there is no tariff for the offence of burglary. However, a term of imprisonment to be served immediately is commonly imposed. Further, sentences for burglary have 'firmed up' in recent years to reflect the prevalence of the offence and considerations of general deterrence. The fact that an error has been made in sentencing does not automatically mean that the sentencing discretion should be exercised afresh.

It was not open to the magistrate to impose a sentence of 12 months' imprisonment to be served cumulatively on the term of imprisonment imposed for the offence of stealing (that is the offence for which a suspended imprisonment order had been previously made. The magistrate backdated all of the terms of imprisonment that were imposed to the date on which the Appellant had been detained in custody on remand. However, the sentence imposed for the stealing offence could not be backdated. A sentence imposed following breach of a suspended imprisonment order must commence on the date of sentencing - in this case, on 11 December 2017. The time that the Appellant spent in custody on remand could only be taken into account in determining the terms of imprisonment to be imposed on the burglary, trespass and breach of bail offences.

It is not clear whether the magistrate reminded himself that the maximum penalty for the burglary offence for which the Appellant was convicted was 2 years' imprisonment and a fine of $24,000. The offence committed by the Appellant, fell within the least serious category for this type of offence but the Appellant received a sentence that was one half of the maximum penalty. The magistrate either proceeded under an erroneous assumption as to the maximum penalty for the offence committed by the Appellant or the sentence imposed was manifestly excessive. Appellant was sentenced for 13 offences by the magistrate. However, there was no reference to the second limb of the totality principle in the sentencing remarks. His Honour was required to consider whether the total penalties imposed - including the fines - reflected the total criminality involved in the Appellant's offending. The magistrate did not make an order under Section 58 of the Sentencing Act but the Appellant remained liable to the enforcement provisions of the Fines Penalties and Infringement Notices Enforcement Act, 1994 (WA). In the circumstances, a substantial miscarriage of justice had occurred in the sentencing of the Appellant. Accordingly, the appeal was allowed and the Appellant is resentenced.


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