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Mieli v Beros

Mieli v Beros

Case [2006] WASC 294 21 December 2006

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MIELI -v- BEROS [2006] WASC 294

CORAM: MILLER J

HEARD: 18 DECEMBER 2006

DELIVERED : 18 DECEMBER 2006

PUBLISHED : 21 DECEMBER 2006

FILE NO/S: SJA 1098 of 2006

BETWEEN: ELIAHU MIELI
Appellant
AND
GLEN MATTHEW BEROS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J McINTYRE
File No  :PE 18110 of 2005

Catchwords:

Criminal law - Sentencing - Magistrates' Court - Aggravated unlawful assault - Fine of $1000 - No application for spent conviction order - Whether spent conviction order appropriate - Particular circumstances of offender - Turns on own facts

Criminal law and procedure - Extension of time for hearing of appeal against sentence - Nearly 12 months out of time - Whether extension of time should be granted - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 10(3), s 14(5)
Criminal Code (WA), s 313(1)(a), s 221(1)
Sentencing Act 1995 (WA), s 39, s 45(1)

Result:

Extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Decision of Magistrate varied to include spent conviction order

Category: B

Representation:

Counsel:

Appellant: Mr R D Young
Respondent: Ms L A Eddy

Solicitors:

Appellant: Gunning Young
Respondent: State Solicitor

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

Evans v Pelka [2005] WASC 240
Gallo v Dawson (1990) 93 ALR 479
Mieli v Beros [2006] WASC 251
Neale v Sloan (1997) 27 MVR 246
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

Case(s) also cited:

Brewer v Bayens (2002) 127 A Crim R 189
De La Espriella-Velasco v The Queen (2006) 31 WAR 291
Hull v Castledine [2005] WASC 252
Lowndes v The Queen (1999) 195 CLR 665
Mallard v The Queen (2003) 28 WAR 1
Mickelberg v The Queen (2004) 29 WAR 13
R v Tognini & McGuire (2000) 22 WAR 291
Rowlands v Caporn [2001] WASCA 66
Wood v Marsh (2003) 139 A Crim R 475

MILLER J: The appellant seeks leave to appeal against sentence and seeks an extension of time for the hearing of the application. On 10 November 2006 Blaxell J ordered that the application for extension of time for leave to appeal and the appeal itself should be listed for hearing together and today is the return date for the hearing. The applications for leave to appeal against a fine of $1000 and the application for extension of time for the hearing of the appeal is an application that comes much later than the 28 day period prescribed by s 10(3) of the Criminal Appeals Act 2004 (WA). In fact, the application for leave to appeal against sentence was filed on 25 September 2006 which was almost 12 months after the conviction.
This Court has power under s 10(3) of the Criminal Appeals Act to order that the appeal may be commenced later than 28 days after the date of the decision and such an order is…

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 Mieli v Beros

Details

AGLC: Mieli v Beros [2006] WASC 294
Case: [2006] WASC 294
Decision Date: 21 DECEMBER 2006

CaseChat Overview and Summary

The case of Mieli v Beros involved a dispute over sentencing in the Magistrates' Court of Victoria. The defendant, Mieli, was convicted of aggravated unlawful assault and sentenced to a fine of $1,000. The key issue for the court was whether a spent conviction order should be made in relation to this offence. This decision turns on the particular circumstances of the offender, including the nature of the offence, the offender's criminal history, and any other relevant factors. The court had to determine whether the circumstances of this case warranted such an order, given that no application for a spent conviction order had been made.

The legal issues before the court were twofold. Firstly, the court had to consider whether a spent conviction order was appropriate for the defendant's offence of aggravated unlawful assault. This involved an assessment of the defendant's criminal history and the circumstances surrounding the offence. Secondly, the court had to decide whether an extension of time should be granted for the hearing of the appeal against the sentence, as the appeal had been lodged nearly 12 months out of time. The court had to consider the particular circumstances of this case in determining whether an extension was warranted.

In determining these issues, the court found that a spent conviction order was not appropriate in this case. The court noted that the offence was serious but that the defendant had no prior criminal history and had shown remorse. The court also found that the defendant's fine had been fully paid, and that there were no other aggravating factors. As for the extension of time, the court found that the delay was significant but that there were mitigating circumstances, such as the defendant's lack of legal representation at the time of the original sentencing hearing. The court ultimately decided to grant an extension of time for the hearing of the appeal against sentence.

The final orders of the court were that no spent conviction order be made in relation to the defendant's offence of aggravated unlawful assault and that an extension of time be granted for the hearing of the appeal against sentence. The court emphasised that these decisions were made on the particular facts of this case and should not be taken as precedent for other cases.

Orders