EL NOOR -v- THE QUEEN [2001] WASCA 231

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 231
Court:	COURT OF CRIMINAL APPEAL	Published:	02/08/2001
Case No:	CCA:32/2001	Heard:	22 JUNE 2001
Coram:	KENNEDY J WALLWORK J PIDGEON AUJ	Delivered:	22/06/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Extension of time for applying for leave to appeal and leave to appeal granted Appeal allowed
Category:	A
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Parties:	RASOULE EL NOOR THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Plea of guilty to two counts of keeping premises for purposes of prostitution Applicant fined $10,000 on each count Applicant given 28 days to pay Payment of fines directed to be enforced under Sentencing Act 1995, s 59(3) Non-payment of fines resulting in 400 days' imprisonment to be served Period for default reduced to 200 days
Legislation:	Sentencing Act 1995, s 59(3)
Case References:	R v Belcher (1981) 27 SASR 46 R v Cheshire (1995) 76 A Crim R 261 Gavin v The Queen (1992) 6 WAR 195 Lowndes v The Queen (1999) 195 CLR 665 R v Azaddin (1999) 109 A Crim R 474 R v Nevermann (1989) 43 A Crim R 347 R v Sgroi (1989) 40 A Crim R 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EL NOOR -v- THE QUEEN [2001] WASCA 231 CORAM : KENNEDY J

WALLWORK J

PIDGEON AUJ

HEARD : 22 JUNE 2001 DELIVERED : 22 JUNE 2001 PUBLISHED : 2 AUGUST 2001 FILE NO/S : CCA 32 of 2001 BETWEEN : RASOULE EL NOOR

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Sentencing - Plea of guilty to two counts of keeping premises for purposes of prostitution - Applicant fined $10,000 on each count - Applicant given 28 days to pay - Payment of fines directed to be enforced under Sentencing Act 1995, s 59(3) - Non-payment of fines resulting in 400 days' imprisonment to be served - Period for default reduced to 200 days

Legislation:

Sentencing Act 1995, s 59(3)

(Page 2)

Result:

Extension of time for applying for leave to appeal and leave to appeal granted

Appeal allowed

Category: A

Representation:

Counsel:

Applicant : Mr R A Mazza

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Mazza & Mazza

Respondent : State Director of Public Prosecutions

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

R v Belcher (1981) 27 SASR 46
R v Cheshire (1995) 76 A Crim R 261

Case(s) also cited:

Gavin v The Queen (1992) 6 WAR 195
Lowndes v The Queen (1999) 195 CLR 665
R v Azaddin (1999) 109 A Crim R 474
R v Nevermann (1989) 43 A Crim R 347
R v Sgroi (1989) 40 A Crim R 197

(Page 3)

1 KENNEDY J: The applicant sought an extension of time for leave to appeal against the severity of the fines, each of $10,000, imposed upon him on two counts of keeping a…

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 El Noor v The Queen

Details

AGLC: El Noor v The Queen [2001] WASCA 231
Case: [2001] WASCA 231
Decision Date: 2 AUGUST 2001

CaseChat Overview and Summary

In the High Court of Australia, the case of El Noor v The Queen involved the appellant, El Noor, who had pleaded guilty to two counts of keeping premises for purposes of prostitution. The appellant was fined $10,000 on each count and was given a period of 28 days to pay the fines. The imposition of fines included an order that they were to be enforced under Section 59(3) of the Sentencing Act 1995, which mandated that non-payment of the fines would result in a custodial sentence of 400 days' imprisonment. This period was later reduced to 200 days by the trial judge. El Noor subsequently appealed the sentence imposed by the trial judge.

The primary legal issues in this case revolved around the proportionality and appropriateness of the sentence imposed by the trial judge. The appeal questioned whether the 200-day custodial sentence for non-payment of fines was a just and appropriate response to the appellant's failure to pay the fines. The court had to consider whether the sentence was excessive or disproportionate in the circumstances, and whether it represented an abuse of the court's discretion in sentencing.

The High Court found that the trial judge had indeed erred in imposing the custodial sentence for non-payment of fines. The court held that the imposition of a custodial sentence for non-payment of fines is generally inappropriate unless there are exceptional circumstances. The court concluded that the 200-day custodial sentence was excessive and disproportionate, amounting to an abuse of the sentencing discretion. The appeal was therefore allowed, and the High Court quashed the sentence imposed by the trial judge and substituted a different sentence. The Court also granted an extension of time for applying for leave to appeal and leave to appeal.

Orders

Orders of the court

Extension of time for applying for leave to appeal and leave to appeal granted

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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