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[2020] WASC 381
General information, not legal advice.
Supreme Court of WA
2020-10-23
Derrick J
Original judgment source is linked above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[4] The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
[6] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[19] An appeal may be made on a ground alleging an error of law pursuant to s 8(1)(a)(i) of the CAA.
[25] Wolfenden v Brigden [2013] WASC 461.
[26] Williams v Pennuto [2016] WASC 325.
[27] CPA, s 178(2); Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [28]; Wolfenden v Brigden [18]. In par 13 of the appellant's Outline of Submissions dated 9 October 2020 it is stated that '[a]lthough the appropriate course was clearly to require the prosecution to specify a value by amending the prosecution notice, it appears that prosecution notices for such matters rarely contain a value and are routinely dealt with summarily on the basis that they have a value not exceeding $1,000'. I take the reference to 'such matters' to be a reference to stealing and receiving offences involving credit cards and perhaps also other items of property apparently valued at less than $1,000. In any event, if prosecution notices are routinely dealt with under s 426(4) (and for that matter, s 426(2) also) notwithstanding that the charge does not allege the value of the property, this is a practice that should cease. Prosecution notices should be prepared in accordance with the requirements of the CPA.
[29] Wolfenden v Brigden [25] ‑ [26].
[30] Wolfenden v Brigden [19] ‑ [20].
[31] Williams v Pennuto [30] ‑ [31].
[32] CAA, s 8(1)(b). During the hearing of the appeal neither party sought to actively press the contention that the magistrate had, in the circumstances specified in par 41 above, made an error of law. Further, both parties accepted that it was open to me to find that the magistrate's imposition of a sentence that exceeded the maximum summary conviction penalty provided for in s 426(4) had resulted in a miscarriage of justice.
[33] The respondent, as part of his submissions made in relation to this ground of appeal, contends that if error is established by the appellant and the court considers that the prosecution notice should be amended to expressly reflect the applicability of s 426(4), the court has the power to make such an amendment. In support of this contention the respondent points to cases in which appellate courts have amended charges which have been held on appeal to be duplicitous so as to remove the duplicity in circumstances where the amendment did not prejudice the appellant (City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 [48] ‑ [53]; MJ v Sanders [2020] WASC 150 [70] ‑ [73]), as well as s 132 and s 178(3) of the CPA, and s 14(1)(c), s 14(1)(d) and s 14(4) of the CAA. As is apparent from my above expressed reasoning and conclusion, I do not consider that it is necessary to make any amendment to the prosecution notice in order to enable me to deal with the ground of appeal. I therefore refrain from expressing any view as to whether I have the power to amend the prosecution notice so as to incorporate references to s 426(4) and the value of the credit card.
[34] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10]; Winmar v Clark [2015] WASC 314 [26].
[36] Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154 [47].
[37] An appeal may be made on the ground that a sentence imposed was manifestly excessive pursuant to s 8(1)(a)(iii) of the CAA.
[38] Appellant's Outline of Submissions dated 25 September 2020 [23].
[39] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].
[40] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; Dillon v The State of Western Australia [2020] WASCA 24 [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Sentencing Act, s 39(3).
[41] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] ‑ [70]; Page v The State of Western Australia [36].
[42] Eldrige v The State of Western Australia [2020] WASCA 66 [22(3)] ‑ [22(4)]; WRT v The State of Western Australia [2020] WASCA 68 [40].
[45] See for example, Schulz v Coyne [2019] WASC 329 [40]; Kotnowski v Richardson [2019] WASC 369.
[48] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].
[49] Hamlett v Whitney [2013] WASC 100 [27].
[52] NTH v The State of Western Australia [2020] WASCA 22 [163] ‑ [164]; The State of Western Australia v Jacoby [2020] WASCA 150 [65].
The value of the car keys received by the [offender] was not addressed in the original prosecution notice, nor during the hearing before the magistrate. The value is relevant to the sentencing options available to the court. In its submissions, the respondent noted that the value of the keys was less than $1,000, and so the applicable maximum summary conviction for the offence was a fine of $6,000 under s 426(4) of the Criminal Code (WA). The parties submitted before me that there was a defect in the prosecution notice rather than any real error on the part of the magistrate. The [offender] submits there has therefore been a miscarriage of justice. In any event, although the value of the goods received was not brought to the magistrate's attention, in my view there was an error of law in that a sentence was imposed which was not open on the facts. In this case, the error is clearly material, in that a sentence was imposed which the magistrate was not entitled to impose under the legislation. The nature of the error is distinguishable from those cases where the error is to misstate a maximum penalty but in any event impose a sentence which is less than that penalty. In such cases, there may or may not be material error: see Harding v The State of Western Australia [[2015] WASCA 27 [41] - [45]].
I would therefore grant leave to appeal and allow the appeal insofar as the sentence of 3 months' imprisonment was imposed for the offence of receiving.
(2005) 30 WAR 473