Hall v. The State Of Western Australia - (21 Aug 2018)

Where an Appellate Court concludes that, sentencing judge's discretion miscarried in respect of one component of a sentence, whole of sentence imposed by sentencing judge may be set aside

Criminal

Present is an appeal against sentence. The Appellant alleged that a miscarriage of justice had occurred because at the sentencing hearing the prosecutor had read out incorrect facts in relation to two of the counts in the nine-count indictment. He also alleged that, the sentence on one of those counts was inconsistent with the sentence imposed on a co-offender and infringed the parity principle. On 13th November 2017, the Appellant pleaded guilty to nine counts on an indictment and judgments of conviction were entered. The charges related to a number of transactions involving the sale of methylamphetamine and, in one case, cannabis. These transactions occurred over an approximately three and a half month period in late 2015.

Where an accused has entered pleas of guilty, the prosecutor must state aloud to the Court the material facts of the offence before the court imposes sentence as per Section 129(3) of the Criminal Procedure Act, 2004 (WA). This is an essential feature of sentencing proceedings following a plea of guilty. A plea of guilty only involves an acceptance of the essential elements of the offence. Other facts may be disputed. The stating aloud of the facts provides the offender with an opportunity to raise any dispute. If the facts are admitted (or determined on a trial of issues), they provide the basis upon which the offender is to be sentenced. It is essential for the circumstances of the commission of an offence to be established in the course of a sentencing hearing in order to ensure that any sentence imposed is commensurate with the seriousness of the offence.

In the present case, the State concedes that, the oral statement of material facts was confusing and contained a number of material inaccuracies. It is apparent that, the sentencing of the Appellant was so seriously flawed as to necessitate fresh sentencing proceedings. Where an appellate Court concludes that the sentencing judge's discretion miscarried in respect of one component of a sentence, the whole of the sentence imposed by the sentencing judge may be set aside.

Present is a case in which it is appropriate to send the charges back to the Court that imposed the sentence to be dealt with further as there were no proper sentencing proceedings in the District Court. The facts were not accurately stated in the District Court, the State has now prepared a new and different statement of material facts, and the Appellant should have an opportunity to consider those facts and whether he wishes to dispute them. Leave to appeal is granted. The appeal is allowed. The Appellant is to be re-sentenced by a different judge of the District Court of Western Australia in respect of the counts in indictment.

Tags : CHARGES SENTENCE ACCURACY