Abdullah v Sleiman
[2011] WASC 262
•23 SEPTEMBER 2011
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 RespondentBRETT PAUL SEDDON
Second RespondentJOHN MICHAEL LENNON
Third RespondentCHRISTOPHER 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 |
| 6 | Aggravated burglary and commit offence in dwelling (FR 15838/09) | 2 Dec 2009 | 12 months' imprisonment | Concurrent |
| 7 | Reckless driving (Dangerous to Public or any Person) (FR 15847/09) | 3 Dec 2009 | 6 months' imprisonment | Concurrent |
| 8 | No authority to drive – suspended (other than Fines Suspension) (FR 15845/09) | 3 Dec 2009 | 6 months' imprisonment | Concurrent |
| Total Effective Sentence | 2 years' imprisonment |
The appellant seeks leave to appeal against the sentence of imprisonment. No challenge is made to the type or length of the sentences of imprisonment or to their total effect. The only issue is that the appellant was not given credit for time that he had spent in custody in respect of the charges prior to being sentenced.
The appeal notice was filed on 8 September 2011; accordingly, it is some 18 months out of time. The appellant therefore seeks an extension of time. The appellant has filed an affidavit seeking to explain the delay. In essence, he refers to numerous efforts to obtain legal advice.
Whether or not the delay is adequately explained, an extension may also be granted where the appellant would otherwise suffer a miscarriage of justice. That requires consideration of the merits of the appeal.
The uncontested position is that the appellant was remanded in custody in respect of the charges for which he was sentenced from 4 December 2009 to 8 February 2010. As such, it was open to the sentencing court to backdate the sentence of imprisonment to commence on 4 December 2009: s 87 of the Sentencing Act 1995 (WA). A court has a discretion in that regard but ordinarily sentences should be backdated unless there is some good reason not to do so. If there is such a reason, it should be stated; Azizi v Clarson [2002] WASCA 123 [15]. In the present case the sentence was not backdated.
The transcript of the proceedings indicates that nothing was said about time in custody to the magistrate. Accordingly, this appears to be a case where the possibility of backdating was simply not considered, rather than that the magistrate decided it was not appropriate to backdate. The matter is of some importance to the appellant because if his sentence is backdated by three months, he will have served that sentence by early December of this year rather than February next year.
The respondent has conceded that there does not appear to be any reason why time in custody should not have been taken into account and the sentence backdated. It would appear from the transcript of the proceedings that this issue was simply overlooked. In those circumstances there has been an implied error on the part of the magistrate or, alternatively, a miscarriage of justice in this respect.
I am satisfied that the concession made by the respondent has been properly made and that the appeal has merit. Accordingly, the extension of time will be granted, leave to appeal will be granted, the appeal allowed and the sentence of imprisonment will be backdated to commence on 4 December 2009. The sentences imposed will otherwise remain the same.