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):
Gallo v Dawson (1990) 93 ALR 479
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…
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- AGLC
- Mieli v Beros [2006] WASC 294
- Case
- [2006] WASC 294
- Decision Date
CaseChat Overview and Summary
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
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
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