MAFI -v- WILSHIRE [2009] WASC 375

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 375
Case No:	SJA:1119/2009	Heard:	26 NOVEMBER 2009
Coram:	McKECHNIE J	Delivered:	11/12/09
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence set aside and sentence of 12 months' imprisonment suspended for 9 months substituted
Category:	B
PDF Version

Parties:	DAVID FOLAU TA'OFI MAFI TRISTAN JOHN WILSHIRE
Catchwords:	Criminal law Sentence Assault occasioning bodily harm Failure to take into account mitigatory factors and plea of guilty
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MAFI -v- WILSHIRE [2009] WASC 375 CORAM : McKECHNIE J HEARD : 26 NOVEMBER 2009 DELIVERED : 11 DECEMBER 2009 FILE NO/S : SJA 1119 of 2009 BETWEEN : DAVID FOLAU TA'OFI MAFI

Appellant

AND

TRISTAN JOHN WILSHIRE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE W G TARR

Citation : PE 37684 of 2009

Catchwords:

Criminal law - Sentence - Assault occasioning bodily harm - Failure to take into account mitigatory factors and plea of guilty

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Sentence set aside and sentence of 12 months' imprisonment suspended for 9 months substituted

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters & Mr D K Walls

Respondent : Mr S E Stocks

Solicitors:

Appellant : David Walls & Co

Respondent : Director of Public Prosecutions (WA)

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

Nil

(Page 3)

McKECHNIE J

What led to this appeal

A cowardly attack

1 On 4 January 2009 a very drunk Mr Mafi was outside the Liquid Night Club in Rockingham. He had had a bad night, finding out his partner of two years had been cheating on him. When he went outside to seek counsel from his friends, they started joking and throwing his wallet around until it went missing. A 19-year-old man, soon to be the victim, was outside the night club minding his own business. Mr Mafi went up to him, slapped him hard to the left side of his face and followed through with a punch to the right side of his face causing the victim to fall down. Mr Mafi then kicked him hard in the stomach. Mr Mafi asked the victim if he had any money and, in fear of his safety and trying to distract Mr Mafi, the victim said 'Alright'. The victim got to his feet, then ran across the road in an attempt to seek help from bouncers at the night club. They were no use. Mr Mafi chased and caught the victim, and struck him with an open hand again causing him to fall to the ground. He gave the victim more kicks to the stomach before walking away.

2 The victim was helped up and taken to hospital where he spent three days. He suffered a lacerated spleen and kidney. In an impact statement read to the magistrate, the victim…

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 Mafi v Wilshire

Details

AGLC: Mafi v Wilshire [2009] WASC 375
Case: [2009] WASC 375
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

The appellant, Mafi, was convicted of assault occasioning bodily harm. The sentence imposed by the lower court was a term of imprisonment of 12 months. Mafi appealed on the grounds that the sentencing judge had failed to take into account certain mitigating factors and his early guilty plea. The appeal was heard by the NSW Court of Criminal Appeal.

The appeal hinged on two central issues. The first was whether the trial judge had erred by failing to properly consider mitigating factors in sentencing. The second issue was whether the trial judge had sufficiently accounted for the appellant's early guilty plea when imposing sentence. The Court of Criminal Appeal considered these issues in the context of the overall sentence imposed, weighing the gravity of the offence against the mitigating factors presented.

In determining the appeal, the Court of Criminal Appeal found that the trial judge had indeed failed to adequately consider the mitigating factors and the appellant's early guilty plea. The Court held that these omissions constituted a significant error in the sentencing process, leading to a sentence that was excessively harsh. The Court substituted a sentence of 12 months' imprisonment, suspended for 9 months, recognising the appellant's guilty plea and the mitigating factors. The Court held that this new sentence was more proportionate to the offence and the circumstances.

The appeal was allowed, the original sentence set aside, and a new sentence substituted as outlined above.

Orders

Orders of the court

Appeal allowed

Sentence set aside and sentence of 12 months' imprisonment suspended for 9 months substituted

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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