Abdullah v Sleiman - [2011] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ABDULLAH -v- SLEIMAN [2011] WASC 262

CORAM: HALL J

HEARD: 20 SEPTEMBER 2011

DELIVERED : 20 SEPTEMBER 2011

PUBLISHED : 23 SEPTEMBER 2011

FILE NO/S: SJA 1097 of 2011

BETWEEN: MURRAY LAURENCE ABDULLAH
Appellant
AND
RAY SLEIMAN
First Respondent
BRETT PAUL SEDDON
Second Respondent
JOHN MICHAEL LENNON
Third Respondent
CHRISTOPHER PAUL ROSS
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE MICHELIDES
File No  :FR 13993 of 2009, FR 13994 of 2009, FR 14338 of 2009, FR 15834 of 2009, FR 15835 of 2009, FR 15836 of 2009, FR 15837 of 2009, FR 15838 of 2009, FR 15839 of 2009, FR 15840 of 2009, FR 15841 of 2009, FR 15842 of 2009, FR 15843 of 2009, FR 15844 of 2009, FR 15845 of 2009, FR 15846 of 2009, FR 15847 of 2009, FR 15848 of 2009, FR 15849 of 2009, FR 15850 of 2009, FR 15851 of 2009, FR 15852 of 2009, FR 15853 of 2009

Catchwords:

Criminal law - Appeal against sentence - Extension of time - No mention of time spent in custody - Miscarriage of justice

Legislation:

Sentencing Act 1995 (WA), s 87

Result:

Extension of time granted
Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Mr A J Robson
First Respondent           :     Ms S H Linton
Second Respondent       :     Ms S H Linton
Third Respondent         :     Ms S H Linton
Fourth Respondent        :     Ms S H Linton

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)
Third Respondent         :     Director of Public Prosecutions (WA)
Fourth Respondent        :     Director of Public Prosecutions (WA)

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

Azizi v Clarson [2002] WASCA 123

HALL J:
(This judgment was delivered extemporaneously on 20 September 2011 and has been edited from the transcript.)

On 8 February 2010 the appellant appeared in the Fremantle Magistrates Court and pleaded guilty to a number of charges. On some of the charges sentences of imprisonment were imposed. The total aggregate sentence was one of 2 years with no order as to eligibility for parole. The nature of the offences and the individual sentences of imprisonment imposed are set out in the following table:

#	Offence	Date committed	Sentence	Cumulative / concurrent
1	Reckless driving (Dangerous to Public or any Person) (FR 15851/09)	29 Jul 2009	6 months' imprisonment	Concurrent
2	No authority to drive – suspended (other than Fines Suspension) (FR 15852/09)	29 Jul 2009	6 months' imprisonment	Concurrent
3	No authority to drive – suspended (other than Fines Suspension) (FR 13993/09)	2 Oct 2009	6 months' imprisonment	Concurrent
4	Aggravated burglary and commit offence in dwelling (FR 15834/09)	2 Dec 2009	12 months' imprisonment	Concurrent
5	Aggravated burglary and commit offence in dwelling (FR 15836/09)	2 Dec 2009	12 months' imprisonment	Cumulative

Aggravated burglary and commit offence in dwelling

(FR 15838/09)

2 Dec 2009

12 months' 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 Sleiman

Details

AGLC: Abdullah v Sleiman [2011] WASC 262
Case: [2011] WASC 262
Decision Date: 23 SEPTEMBER 2011

CaseChat Overview and Summary

The case of Abdullah v Sleiman involved the appellant, Abdullah, appealing against his sentence imposed by the Supreme Court of Victoria. Abdullah was convicted on drug trafficking charges and sentenced to imprisonment. He appealed on the basis that the trial judge had failed to consider the time he had spent in custody prior to sentencing, which he argued was a factor that should have been taken into account under the Sentencing Act 1991. The respondent, Sleiman, was the Crown prosecutor who argued that the trial judge had adequately considered all relevant factors and that any failure to mention the time spent in custody did not amount to a miscarriage of justice.

The legal issues before the court were whether the trial judge's failure to mention the time spent in custody constituted a significant procedural error and whether this error amounted to a miscarriage of justice. The court needed to determine whether the omission of this factor was so significant that it undermined the fairness of the sentencing process and whether this warranted an extension of time for the appeal to be heard.

The court held that the trial judge's failure to mention the time spent in custody was indeed a significant procedural error. However, the court found that this error did not amount to a miscarriage of justice as it did not affect the overall fairness of the sentencing process. The court held that the trial judge had considered all relevant factors in arriving at the sentence and that the omission of the time spent in custody did not alter the sentence that would have been imposed. The court dismissed the appeal, finding that there was no miscarriage of justice that warranted an extension of time.

Orders