Masoud v Dhaliwal - [2019] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MASOUD -v- DHALIWAL [2019] WASC 56
CORAM:   TOTTLE J
HEARD:   20 FEBRUARY 2019
DELIVERED          :   1 MARCH 2019
FILE NO/S:   SJA 1124 of 2018
BETWEEN:   ZAHID MASOUD
Appellant
AND
JASDEEP DHALIWAL
Respondent

ON APPEAL FROM:
For File No:   SJA 1124 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE N J LEMMON
File Number             :   AR 10036 of 2018

Catchwords:

Criminal law - Sentencing - Appeal against sentence - Miscarriage of justice - Where magistrate inadvertently led into error by counsel - Whether sentencing discretion miscarried

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14
Security and Related Activities (Control) Act 1996 (WA)
Security and Related Activities (Control) Regulations 1997 (WA)

Result:

Application for leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S Watters
Respondent	:	Mr F Cardell-Oliver

Solicitors:

Appellant	:	Thexton Lawyers - Perth
Respondent	:	State Solicitor's Office

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

Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Bell v Carrier [2018] WASC 169
Bropho v Hall [2015] WASC 50
Director of Public Prosecutions v Fucile [2013] VSCA 312
Duncan v The State of Western Australia [2018] WASCA 154
Gaskell v The State of Western Australia [2018] WASCA 8
Pelemis v The State of Western Australia [2009] WASCA 151
Penny v The State of Western Australia [2016] WASCA 52
Powell v Tickner [2010] WASCA 224
R v Talia [2009] VSCA 260
Samuels v The State of Western Australia [2005] WASCA 193
Stark v Plant [2010] WASCA 74
The State of Western Australia v Egeland [2018] WASCA 228

TOTTLE J:

Introduction

On 21 September 2018 the appellant was convicted on his plea of one offence of assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code (WA). The relevant circumstance of aggravation was that the appellant and the victim, the appellant's wife, were in a family relationship. The magistrate imposed a fine of $1,200, ordered the appellant to pay costs of $107.50 and made a spent conviction order under s 45 of the Sentencing Act1995 (WA).
The appellant applies for leave to appeal against the imposition of the fine of $1,200. The ground of appeal reads as follows:
The sentencing discretion miscarried when his Honour was inadvertently led into error concerning the adverse impact to the appellant of the level of any financial penalty he imposed.
Particulars
A fine of less than $500 would not have infringed Section 24 of the Security and Related Activities (Control) Regulations 1997 (WA).
Counsel who appeared for the appellant on the application for leave to appeal did not appear before the magistrate.
The appellant supported his application with an affidavit sworn by him on 13 February 2019. In his affidavit the appellant explained the financial hardship that he and his family have suffered as a consequence of his being disqualified from holding a security officer's licence under the Security and Related Activities…

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 Masoud v Dhaliwal

Details

AGLC: Masoud v Dhaliwal [2019] WASC 56
Case: [2019] WASC 56
Decision Date: 1 MARCH 2019

CaseChat Overview and Summary

The matter of Masoud v Dhaliwal involved an appeal against a sentence imposed by a magistrate in a criminal case. The appellant, Masoud, sought to challenge the sentence on the basis that it constituted a miscarriage of justice. This arose from a situation where the magistrate appeared to have been inadvertently led into error by counsel during the sentencing process. The appeal was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the magistrate's sentencing discretion had been miscarried due to the influence of counsel's remarks. The court had to determine whether the magistrate's error, which was not brought to their attention at the time, was significant enough to warrant a new sentencing hearing. This required a careful examination of the sentencing remarks, the context in which they were made, and the impact they had on the final sentence.

The court found that the magistrate's error, while significant, did not constitute a miscarriage of justice. It was determined that the error did not influence the overall outcome of the sentencing process. The court held that the magistrate's sentencing discretion had not been miscarried to the extent that it warranted a new hearing. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the upholding of the original sentence. The court's decision underscored the importance of clear and accurate communication between the court and counsel during sentencing to avoid potential miscarriages of justice.

Orders