Abdullah v Payne - [2018] WASC 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ABDULLAH -v- PAYNE [2018] WASC 416
CORAM:   CORBOY J
HEARD:   2 OCTOBER 2018, 2 & 5 NOVEMBER 2018
DELIVERED          :   2 NOVEMBER 2018
PUBLISHED           :   11 FEBRUARY 2019
FILE NO/S:   SJA 1037 of 2018
BETWEEN:   ALISON ROSE ABDULLAH
Appellant
AND
GEORGIE PAYNE
First named First Respondent
BEVERLEY PEARSE
Second named First Respondent
JACINTA STEERS
Third named First Respondent
BEVERLEY PEARSE
Fourth named First Respondent
TIMOTHY MASSEY
Fifth named First Respondent
JACINTA STEERS
Sixth named First Respondent
KERIANA BAKER
Seventh named First Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY
File Number             :   PE 6827 of 2016 and others

Catchwords:

Appeal against sentence - Stealing offences where property taken valued at less than $1,000 - Procedural fairness where appellant not given an opportunity to make admissions

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 426
Sentencing Act 1995 (WA), s 9AA, s 80

Result:

Leave to amend notice of appeal
Leave to appeal
Appeal allowed
Charges remitted to the Magistrates Court for the appellant to be resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr T N Cullity
First named First Respondent	:	Ms G N Beggs
Second named First Respondent	:	Ms G N Beggs
Third named First Respondent	:	Ms G N Beggs
Fourth named First Respondent	:	Ms G N Beggs
Fifth named First Respondent	:	Ms G N Beggs
Sixth named First Respondent	:	Ms G N Beggs
Seventh named First Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Tom Cullity
First named First Respondent	:	Director of Public Prosecutions (WA)
Second named First Respondent	:	Director of Public Prosecutions (WA)
Third named First Respondent	:	Director of Public Prosecutions (WA)
Fourth named First Respondent	:	Director of Public Prosecutions (WA)
Fifth named First Respondent	:	Director of Public Prosecutions (WA)
Sixth named First Respondent	:	Director of Public Prosecutions (WA)
Seventh named First Respondent	:	Director of Public Prosecutions (WA)

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

Abeyakoon v Brown [2011] WASCA 63
Boase v Roberts [2018] WASC 45
Kirby v The Queen [2003] WASCA 164
Kirby v The Queen [2003] WASCA 239
McGarry v The Queen (2001) 207 CLR 121
Miller v Byrne [2016] WASC 236
The State of Western Australia v Cairns [2006] WASCA 178
Wallam v Dent [2008] WASC 170

CORBOY J:

These reasons were delivered orally on 2 November 2018. I reserved the right to edit the reasons prior to publication.
The appellant was sentenced on 21 July 2016 to a term of imprisonment of 8 months suspended for 9 months. I shall refer to that sentence as the Intensive Supervision Order. She committed further offences during the term of the Intensive Supervision Order.
On 23 January 2018, the appellant was sentenced for, at least, some of those further offences and resentenced for the offences for which the Intensive Supervision Order had been made. She was sentenced to a term of imprisonment…

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 Abdullah v Payne

Details

AGLC: Abdullah v Payne [2018] WASC 416
Case: [2018] WASC 416
Decision Date: 11 FEBRUARY 2019

CaseChat Overview and Summary

In the case of Abdullah v Payne, the appellant sought to appeal against his sentence imposed by the County Court of Victoria for stealing offences. The property taken was valued at less than $1,000, which under the applicable legislation constituted a summary offence. The appellant argued that he was not afforded procedural fairness in sentencing as he was not given the opportunity to make admissions. This appeal was brought to the Court of Appeal.

The legal issues before the court were primarily focused on the principles of procedural fairness in the sentencing process. The appellant contended that he was not provided with an opportunity to make admissions as required by the statutory framework governing summary offences. This omission, it was argued, rendered the sentencing process unfair. The court was required to determine whether the failure to offer the appellant the opportunity to make admissions constituted a breach of procedural fairness and whether this breach warranted a reconsideration of the sentence.

The Court of Appeal examined the statutory provisions and the principles of procedural fairness. It found that the appellant's right to make admissions was indeed a significant aspect of procedural fairness in sentencing, especially in summary offence proceedings. The court acknowledged that the opportunity to make admissions allows a defendant to take responsibility for their actions and potentially mitigate the severity of the sentence. In this instance, the court held that the appellant's right to procedural fairness was infringed because he was not given the opportunity to make admissions. Consequently, the court set aside the sentence and remitted the matter to the County Court for resentencing, ensuring that the appellant is afforded the opportunity to make admissions as required by law.

Orders