Moran v. Baker

Australia

14.06.2019

Criminal

An appellate court will not set aside a conviction based on a plea of guilty unless Appellant satisfies the Court that a miscarriage of justice has occurred

The Appellant appeared in the Magistrates Court in relation to various charges including one charge of assaulting a public officer. He entered pleas of guilty to the charges and was sentenced to a total effective sentence of 2 years and 1 month imprisonment. The sentence on the charge of assaulting a public officer was 11 months' imprisonment. The Appellant sought leave to appeal against his conviction on the charge of assaulting a public officer on the basis that, he alleged his plea of guilty to that charge was not properly entered. He also sought leave to appeal against the sentence of 11 months' imprisonment on that charge on the basis that, it was alleged to be manifestly excessive, that the magistrate erred by not ordering a pre-sentence report and that the magistrate was biased.

An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. The first ground is that the sentence was too long. The principles applicable to the determination of a claim that a sentence is manifestly excessive are well settled. In determining whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender. The maximum sentence for assaulting a public officer where there are no circumstances of aggravation is 7 years' imprisonment. As to the standards of sentencing customarily applied to offences of this type, there is no established range of sentences and this reflects the fact that, the individual circumstances of offences can vary widely.

The Appellant had a history of violent offending, including a prior conviction for assaulting a public officer. There was also an established link between the Appellant's substance use and violence, and he had continued to use alcohol and drugs despite being aware of this causal link. This meant that personal deterrence was an important consideration.

The sentence of 11 months was a severe one, but such a sentence was not without justification when all of the relevant circumstances are taken into account. Sentence was not unreasonable or unjust such as to establish implied error.

It is not in itself an error for a magistrate not to order a pre-sentence report and there is nothing to indicate that there is any information which would have made a difference to the sentence imposed. There is no basis for arguing that a miscarriage of justice occurred due to the failure to order a pre-sentence report. Ground 2 had no reasonable prospects of succeeding. As to the third ground, that is, that the magistrate was biased against the Appellant, there is no merit in this ground. The appellant may sincerely believe that the magistrate did not deal with him fairly but, having read the transcript of the proceedings, belief is not well-founded.

The magistrate dealt with the Appellant reasonably and fairly and he and his lawyer were given every opportunity to address the issues and to make submissions in regards to the sentence to be imposed. The magistrate was careful to ensure that, the Appellant was in a fit state to proceed and obtained a report for that purpose. There is no evidence that the magistrate was biased or, indeed, that there was any appearance of bias. The appeals against conviction and sentence are dismissed.

Tags : Conviction Sentence Legality

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