JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HUSSAINI -v- SZOLNOSKI [2013] WASC 64
CORAM: HALL J
HEARD: 14 FEBRUARY 2013
DELIVERED : 5 MARCH 2013
FILE NO/S: SJA 1133 of 2012
BETWEEN: ALI REZA HUSSAINI
Appellant
AND
GARY SZOLNOSKI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
File No :PE 54203 of 2011
Catchwords:
Criminal law - Sentence appeal - Indecent assault - Whether fine manifestly excessive - Whether means of appellant taken into account in determining amount of fine - Whether refusal of spent conviction an error
Legislation:
Sentencing Act 1995 (WA), s 53
Result:
Leave to appeal granted on grounds 1 and 2
Leave to appeal otherwise refused
Appeal allowed in part
Fine of $5,000 set aside and fine of $2,000 substituted
Category: B
Representation:
Counsel:
Appellant: Mr A I W Watson
Respondent: Ms S Duce
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fitzsimons v GD [2008] WASC 172
Knott v Moriarty [2010] WASC 36
Koenig v Ryan [2001] WASCA 339
MacDougall v The State of Western Australia [2009] WASCA 232
Narkle v Hamilton [2008] WASCA 31
R v Tognini [2000] WASCA 31
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
RJB v The State of Western Australia [2009] WASCA 49
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Wiltshire v Mafi [2010] WASCA 111
HALL J:
Introduction
On 7 September 2012 the appellant was convicted after a trial in the Magistrates Court of indecent assault contrary to s 323 of the Criminal Code (WA). He was fined $5,000. He now seeks leave to appeal against that sentence.
The notice of appeal was filed on 8 November 2012. An extension of time is therefore required. An affidavit of Ms Natalie Sinton, a lawyer from Legal Aid, has been filed explaining the reasons for the delay. Those reasons are that an appeal notice was lodged within time but rejected because it was on the wrong form. There was then delays in obtaining instructions because the appellant was at a detention centre in Northam. The delay is not lengthy and has been satisfactorily explained. An extension will be granted.
In essence, the appellant's grounds of appeal are that the fine was excessive having regard to the circumstances of the offence and the appellant's means and that the failure to make a spent conviction order resulted in a miscarriage of justice. An application for a spent conviction order was made to the magistrate but was refused.
Factual background
The circumstances of the offence do…
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- Hussaini v Szolnoski [2013] WASC 64
- Case
- [2013] WASC 64
- Decision Date
CaseChat Overview and Summary
The court found that the appellant's lack of means and limited future earning capacity were significant factors that should have been considered by the magistrate when determining the amount of the fine. While the magistrate was aware of the appellant's financial situation, it was not clear to what extent, if at all, she took this into account. The court held that the fine of $5,000 was manifestly excessive given the appellant's circumstances, and that the magistrate had not properly considered the appellant's means and the burden the fine would impose on him, as required by section 53 of the Sentencing Act. The court also found that the magistrate's refusal to record a spent conviction was not an error.
As a result of the appeal, the court allowed the appeal, quashed the conviction and sentence, and ordered that the appellant be discharged without conviction.
Orders
Orders of the court
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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
Section 53 of the Sentencing Act provides as follows:Considerations when imposing a fine(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -(a)the means of the offender; and(b)the extent to which payment of the fine will burden the offender.(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1).(3)A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time. The reference to div 1 of pt 2 of the Sentencing Act is to the general sentencing principles. These include that a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1). This means that whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open. However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court. In the present case the appellant had no immediate means by which to pay a fine of any size. However, there was some prospect that if permitted to remain in Australia he may be able to pay a fine in the future. This of course would be dependent on him having a source of income. The indications were that if he was able to obtain employment it was likely to be in an unskilled job with relatively low pay. The appellant also faced the obvious difficulties of a migrant who could not speak English. In these circumstances, it can be reasonably inferred that a fine of $5,000 was beyond the appellant's capacity to pay either at the time of sentencing or within any reasonable time thereafter. Whilst the magistrate was informed of the appellant's lack of means and limited prospects it is not apparent to what extent, if at all, she took this into account in determining the size of the fine. The failure to specifically refer to a relevant consideration does not necessarily mean that it has not been taken into account. However, the outcome here is not consistent with any proper regard being had to the means of the appellant or the extent of any burden which the fine would have upon him.