Magjarraj v The Queen - [2001] WASCA 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MAGJARRAJ -v- THE QUEEN [2001] WASCA 261

CORAM: MALCOLM CJ
STEYTLER J
BURCHETT AUJ

HEARD: 7 AUGUST 2001

DELIVERED : 7 AUGUST 2001

PUBLISHED : 31 AUGUST 2001

FILE NO/S: CCA 206 of 1999

BETWEEN: ALIJA BENI MAGJARRAJ
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Appeal against sentence for attempted fraud - Fine imposed on bankrupt who did not disclose his bankruptcy to sentencing Judge - Court's discretion on appeal - Power to substitute imprisonment - Application for leave dismissed on the basis s 59 of the Sentencing Act 1995 could operate without injustice in the circumstances

Legislation:

Criminal Code, s 689

Sentencing Act 1995, s 59

Result:

Application dismissed

Category: D

Representation:

Counsel:

Applicant: Ms B J Lonsdale
Respondent: Mr J Mactaggart

Solicitors:

Applicant: Dwyer Durack
Respondent: State Director of Public Prosecutions

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

Cheshire (1994) 76 A Crim R 261
McDonald (1994) 71 A Crim R 370
Re Keogh (1995) 61 FCR 591
Re Lattouf (1994) 52 FCR 147
Reardon v Nolan (1983) 74 FLR 309
Stanton v R, unreported; CCA SCt of WA; Library No 920298; 28 May 1992

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: This was an application for leave to appeal against sentence. At the hearing, the Court dismissed the application, reserving its reasons. These are those reasons.
On 10 September 1999, a jury found the applicant guilty on two counts of attempted fraud, and he was fined $7,500 in respect of each charge, making a total of $15,000. He was given 6 months to pay, and it was ordered that enforcement be under s 59 of the Sentencing Act 1995. That section in terms refers to fines imposed by a "superior court", which is defined by s 4(1) to include the District Court. By s 59, the court not having set a shorter period, the effect of this order was that if no part of the fine should be paid before the expiry of the time allowed for payment of 6 months, the applicant was to be imprisoned, subject to the terms of the section, for 100 days.
The attempted frauds of which the applicant had been convicted involved false claims, made by the applicant in the knowledge that they were false, on two different insurance companies. The applicant had refurbished and re‑equipped a kitchen, and he sought to recover the cost by fabricated claims of accidental water damage lodged under two policies of insurance. The amounts of the claims were $5,375 and $6,340, a total of $11,715, and it is plain the Judge considered an approximately equivalent fine was appropriate. The applicant was aged 39, with a de facto wife and her child of 8. He had arrived in Australia 12 years previously from the Balkans, and had no prior convictions. After the jury returned its verdicts of guilty, counsel for the applicant told the Judge his client had…

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 Magjarraj v The Queen

Details

AGLC: Magjarraj v The Queen [2001] WASCA 261
Case: [2001] WASCA 261
Decision Date: 31 AUGUST 2001

CaseChat Overview and Summary

The case of Magjarraj v The Queen involved an appeal against the sentence imposed on the applicant for two counts of attempted fraud. The applicant was fined a total of $15,000 and was given six months to pay, with the condition that if no part of the fine was paid within the specified period, he would be imprisoned for 100 days under section 59 of the Sentencing Act 1995. The applicant did not disclose his bankruptcy to the sentencing Judge. The legal issues before the court were whether the court had the discretion to substitute imprisonment for the fine, and whether the applicant's bankruptcy should have been disclosed.

The court considered whether the failure to disclose bankruptcy was material to the sentence and whether it would have made a difference to the outcome. The court noted that the applicant's bankruptcy was not raised by counsel, and that the Judge was not provided with information about the applicant's financial situation. However, the court held that section 59 of the Sentencing Act 1995 could operate without injustice in the circumstances, and that the court had the discretion to substitute imprisonment for the fine. The court further held that the applicant's bankruptcy was not a material factor in the sentencing decision.

The court dismissed the application for leave to appeal on the basis that section 59 of the Sentencing Act 1995 could operate without injustice in the circumstances. The court held that the applicant's bankruptcy was not a material factor in the sentencing decision, and that the court had the discretion to substitute imprisonment for the fine. The court also noted that the applicant had not shown that the outcome would have been different if the bankruptcy had been disclosed. The court held that the applicant had not made out a case for leave to appeal, and that the appeal should be dismissed.

The court dismissed the application for leave to appeal against sentence, and held that the fine imposed on the applicant was appropriate in the circumstances. The court held that the applicant's bankruptcy was not a material factor in the sentencing decision, and that the court had the discretion to substitute imprisonment for the fine. The court further held that section 59 of the Sentencing Act 1995 could operate without injustice in the circumstances. The court did not make any orders regarding the fine or any other aspect of the case.

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

STEYTLER J

JUDGMENT OF THE COURT: This was an application for leave to appeal against sentence. At the hearing, the Court dismissed the application, reserving its reasons. These are those reasons. On 10 September 1999, a jury found the applicant guilty on two counts of attempted fraud, and he was fined $7,500 in respect of each charge, making a total of $15,000. He was given 6 months to pay, and it was ordered that enforcement be under s 59 of the Sentencing Act 1995. That section in terms refers to fines imposed by a "superior court", which is defined by s 4(1) to include the District Court. By s 59, the court not having set a shorter period, the effect of this order was that if no part of the fine should be paid before the expiry of the time allowed for payment of 6 months, the applicant was to be imprisoned, subject to the terms of the section, for 100 days. The attempted frauds of which the applicant had been convicted involved false claims, made by the applicant in the knowledge that they were false, on two different insurance companies. The applicant had refurbished and re‑equipped a kitchen, and he sought to recover the cost by fabricated claims of accidental water damage lodged under two policies of insurance. The amounts of the claims were $5,375 and $6,340, a total of $11,715, and it is plain the Judge considered an approximately equivalent fine was appropriate. The applicant was aged 39, with a de facto wife and her child of 8. He had arrived in Australia 12 years previously from the Balkans, and had no prior convictions. After the jury returned its verdicts of guilty, counsel for the applicant told the Judge his client had confirmed the antecedents report, and stated that his income was $35,000 per annum. Counsel submitted a fine would be an "appropriate disposition" of the matter. During the discussion which ensued between bench and bar, the applicant's possession of property, subject to mortgage, was mentioned, and the Judge specifically checked the currency of this information with the applicant's counsel, who said (presumably after referring to his client - through the interpreter, who was present, if necessary): "He instructs me, your Honour, that he is still the owner of Manning Road … in Como … . He is still the owner of 15/19 Labouchere Road, South Perth. He says that the combined mortgages on these two properties are some $212,000". Counsel then asked leave to check with his client "about the vehicle", and the Judge commented "a significant fine in respect of each count" would be appropriate, adding: "But it's a matter of working out how that is going to be met". Importantly, counsel at this point said: "Yes, perhaps I could ask him through the interpreter, your Honour. He did inform me that he would be asking to pay in instalments, but he can clearly make that arrangement … ." The Judge's concern to know the applicant could pay, and the possibility of imprisonment "until it is paid" were mentioned, causing counsel, as the transcript shows, to refer to his client once more, after which he said: "He has a vehicle which he estimates is worth some 8 to 9 thousand dollars".

Ratio Decidendi

Legal Principle Established

Established by: STEYTLER J

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