Legal Research
Cases
Sallie v Cursiter

Sallie v Cursiter

Case [2018] WASC 318 19 October 2018

Type to search within this case.

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…

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 Sallie v Cursiter

Details

AGLC: Sallie v Cursiter [2018] WASC 318
Case: [2018] WASC 318
Decision Date: 19 OCTOBER 2018

CaseChat Overview and Summary

The case of Sallie v Cursiter involved the appellant, Sallie, who was originally subject to a community-based order. Sallie breached this order by reoffending, resulting in a new sentencing hearing. At this hearing, the magistrate re-sentenced Sallie to a term of immediate imprisonment. Sallie appealed this sentence, arguing that it was a manifest excess and breached the totality principle. The appeal was based on the contention that the magistrate had failed to adequately consider the time Sallie had already spent in custody.

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