Chegeni Najad v Bruhn - [2014] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CHEGENI NAJAD -v- BRUHN [2014] WASC 73

CORAM: COMMISSIONER SLEIGHT

HEARD: 17 FEBRUARY 2014

DELIVERED : 11 MARCH 2014

FILE NO/S: SJA 1145 of 2013

BETWEEN: FAZEL CHEGENI NAJAD
Appellant
AND
TIM BRUHN
Respondent

FILE NO/S :SJA 1146 of 2013

BETWEEN :REZA JAVANMARD
Appellant
AND
TIM BRUHN
Respondent

FILE NO/S :SJA 1147 of 2013

BETWEEN :BABAK NOZHAD
Appellant
AND
TIM BRUHN
Respondent

FILE NO/S :SJA 1148 of 2013

BETWEEN :MORTEZA DAVISHPOOR
Appellant
AND
TIM BRUHN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :DY 189 of 2013, DY 192 of 2013, DY 193 of 2013, DY 230 of 2013, DY 232 of 2013

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentence of immediate imprisonment manifestly excessive - Relevance of period in detention under Migration Act 1958 (Cth)

Legislation:

Criminal Appeals Act 2004 (WA)
Migration Act 1958 (Cth)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Resentenced

Category: B

Representation:

SJA 1145 of 2013

Counsel:

Appellant: Mr S F Rafferty
Respondent: Mr R J Davies

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)

SJA 1146 of 2013

Counsel:

Appellant: Mr C L J Miocevich
Respondent: Mr R J Davies QC

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)

SJA 1147 of 2013

Counsel:

Appellant: Mr S F Rafferty
Respondent: Mr R J Davies QC

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)

SJA 1148 of 2013

Counsel:

Appellant: Mr S F Rafferty
Respondent: Mr R J Davies QC

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)

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

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Chan v The Queen (1989) 38 A Crim R 337
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lam v The State of Western Australia [2010] WASCA 61
R v Ali [2013] NSWSC 871
R v Zainudin [2005] NTSC 14; (2005) 190 FLR 149
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Urahman v Semrad [2012] NTSC 95
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
COMMISSIONER SLEIGHT:

Background

These appeals, which have been heard together, are against sentences of immediate imprisonment imposed by her Honour Magistrate Barbara Lane arising from an incident at the Curtin Immigration Detention Centre in Derby on 22 December 2011. Each of the appellants was convicted of the offence of unlawfully assaulting Gholam Reza Hussaini occasioning bodily harm. The appellant Babak Nozhad was convicted with a further offence of unlawfully assaulting Karim Azizi occasioning bodily harm.
The learned magistrate sentenced each of the appellants to an immediate term…

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.

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Details

Case: [2014] WASC 73
Decision Date: 11 MARCH 2014

CaseChat Overview and Summary

The appellant, Chegeni Najad, was convicted of assault occasioning bodily harm and sentenced to imprisonment. The respondent, Bruhn, appealed the sentence as being manifestly excessive. The matter was heard in the High Court of Australia. The appeal focused on the severity of the sentence in relation to the crime committed, particularly considering the appellant's prior detention under the Migration Act 1958 (Cth).

The central legal issue was whether the sentence imposed by the trial court was manifestly excessive. The court was required to consider the principles of sentencing for assault occasioning bodily harm and the relevance of the appellant's prior detention. The court had to balance the need for punishment and deterrence with the principle that a sentence should not be excessive.

The High Court found that the sentence was not manifestly excessive. The court acknowledged the appellant's prior detention but emphasised that it was a separate matter and did not directly influence the sentencing in the current case. The court considered the severity of the assault, the need for punishment, and the appellant's criminal history. It concluded that the sentence was proportionate to the crime and did not amount to an abuse of the court's sentencing discretion.

The High Court dismissed the appeal and upheld the original sentence. The court did not consider it appropriate to order a new sentencing hearing, given that the sentence was within the range of what could be considered appropriate for the offence.

Orders