JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SALLIE -v- CURSITER [2018] WASC 318
CORAM: MCGRATH J
HEARD: 8 OCTOBER 2018
DELIVERED : 19 OCTOBER 2018
FILE NO/S: SJA 1083 of 2018
BETWEEN: TAAHIR SALLIE
Appellant
AND
MICHAEL CURSITER
First Respondent
ANNE MARIE LOE
Second Respondent
ON APPEAL FROM:
For File No: SJA 1083 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R S HUSTON
File Number : PE 72513 of 2016, PE 11076 of 2017, PE 11077 of 2017
Catchwords:
Criminal law - Appeal against sentence - Offender subject to community based order - Breach community based order by reoffending - Re-sentenced by magistrate to a term of immediate imprisonment - Manifest excess - Breach of totality principle - Express errors of law - Magistrate failed to give credit for time spent in custody
Legislation:
Bail Act 1982 (WA), s 51(2a)
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 313, s 317
Misuse of Drugs Act 1981 (WA), s 6(2)R, s 7B(6)
Sentencing Act 1995 (WA), s 6, s 39, s 87, s 130, s 135
Result:
Leave to appeal is granted in respect of grounds one, three and four
The appeal is allowed
The sentence of a fine of $100 is set aside
The term of imprisonment of 12 months imposed by the magistrate is set aside and in lieu thereof a term of imprisonment of 7 months is imposed
The appellant is eligible for parole
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| First Respondent | : | Ms M M Yeung |
| Second Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Legal Aid |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AMH v The State of Western Australia [2016] WASCA 180
Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duncan v The State of Western Australia [2018] WASCA 154
Gillespie v The State of Western Australia [2016] WASCA 216
Kjellgren v Cameron [2012] WASC 80
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McComish v Harman [2016] WASC 324
McCoombe v The State of Western Australia [2016] WASCA 227
MJS v The State of Western Australia [2011] WASCA 112
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Narkle v Hamilton [2008] WASCA 31
Roffey v The State of Western Australia [2000] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sathitpittayayudth v The State of Western Australia [2015] WASCA
MCGRATH J:
Mr Sallie was convicted, on his own plea, of three offences, being one offence of aggravated assault occasioning bodily harm contrary to s 317…
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- Sallie v Cursiter [2018] WASC 318
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- [2018] WASC 318
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CaseChat Overview and Summary
The primary legal issue in this case was whether the sentence imposed by the magistrate was a manifest excess, thereby breaching the principle of totality. This principle requires that the cumulative effect of all sentences imposed on an offender be proportionate to the gravity of the offences committed. The secondary issue was whether the magistrate had erred in failing to give sufficient credit for the time Sallie had already spent in custody. These issues were crucial in determining the validity of the sentence and the need for any corrective action.
The court found that the sentence imposed by the magistrate was indeed a manifest excess, as it did not appropriately account for the time Sallie had already spent in custody. The court further held that the magistrate had committed an error of law by not giving adequate credit for this pre-existing custodial time. Consequently, the court concluded that the sentence breached the principle of totality. As a result, the sentence was quashed, and the matter was remitted to the magistrate for re-sentencing, with explicit instructions to give proper credit for the time already served.
The final orders of the court were that the sentence imposed by the magistrate was quashed and the matter was remitted to the magistrate for re-sentencing, ensuring that proper credit was given for the time Sallie had already spent in custody. The court's decision underscored the importance of adhering to the principle of totality and correctly considering time already served in any re-sentencing proceedings.
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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