ELMI -v- ROZARIO [2013] WASC 38

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 38
Case No:	SJA:1088/2012	Heard:	5 FEBRUARY 2013
Coram:	HALL J	Delivered:	5/02/13
No of pages:	9	Judgment Part:	1 of 1
Result:	Extension of time refused Appeal dismissed
Category:	B
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Parties:	MOHAMUD OMAR ELMI VANESSA RACHEL ROZARIO
Catchwords:	Criminal law Appeal against sentence Weapons Act 1999 (WA) offence Failure to record spent conviction No application made at time Appeal commenced 2 years 6 months out of time Whether delay explained Whether grounds have merit Whether miscarriage of justice
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Brewer v Bnyens [2002] WASCA 271; (2002) 26 WAR 510 Dinsdale v The Queen (2000) 202 CLR 321 R v Lancaster (1989) WAR 83 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Redding v Robinson [2009] WASC 403 Vagh v The State of Western Australia [2007] WASCA 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : ELMI -v- ROZARIO [2013] WASC 38 CORAM : HALL J HEARD : 5 FEBRUARY 2013 DELIVERED : 5 FEBRUARY 2013 FILE NO/S : SJA 1088 of 2012 BETWEEN : MOHAMUD OMAR ELMI

Appellant

AND

VANESSA RACHEL ROZARIO

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : DEPUTY CHIEF MAGISTRATE E A WOODS

File No : PE 68673 of 2009

Catchwords:

Criminal law - Appeal against sentence - Weapons Act 1999 (WA) offence - Failure to record spent conviction - No application made at time - Appeal commenced 2 years 6 months out of time - Whether delay explained - Whether grounds have merit - Whether miscarriage of justice

(Page 2)

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Extension of time refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr B S Hanbury

Respondent : Mr P D Lochore

Solicitors:

Appellant : Evangel Legal Services

Respondent : State Solicitor for Western Australia

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Lancaster v The Queen [1989] WAR 83
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Redding v Robinson [2009] WASC 403
Vagh v The State of Western Australia [2007] WASCA 17

(Page 3)

HALL J

(This judgment was delivered orally and has been edited from the transcript)

Introduction

1 On 15 February 2010 Mohamud Elmi was convicted in the Magistrates Court of an offence under the Weapons Act 1999 (WA). He was fined $500 and ordered to pay costs. Two and a half years later he filed an appeal against the sentence imposed on him. The grounds assert that the magistrate erred by failing to consider whether a conviction should be recorded. In essence, the appellant now seeks a spent conviction order under s 45 of the Sentencing Act 1995 (WA).

2 An appeal cannot be commenced more than 28 days after…

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 Elmi v Rozario

Details

AGLC: Elmi v Rozario [2013] WASC 38
Case: [2013] WASC 38
Decision Date

CaseChat Overview and Summary

In Elmi v Rozario, the appellant, Mohamud Omar Elmi, appealed against a sentence imposed by the Magistrates Court for an offence under the Weapons Act 1999 (WA). The primary issue was whether the magistrate erred in failing to consider whether a conviction should be recorded, specifically whether a spent conviction order should be made under s 45 of the Sentencing Act 1995 (WA). The appeal was filed 2 years and 6 months after the conviction, well beyond the 28-day limit for commencing an appeal. The court considered whether the delay was adequately explained and whether the grounds of appeal had merit. The court found that the appellant's lengthy delay in pursuing the appeal was not satisfactorily explained and that the grounds of appeal were without merit. The court concluded that no miscarriage of justice had occurred, and therefore, the application for an extension of time was refused and the appeal was dismissed.

Orders