Abdullah v Sleiman Summary

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

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.

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.

Abdullah v Sleiman

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Background to the litigation

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Legal Principle Established