CACR 226 of 2010 Leave to appeal granted on grounds 1 and 2 Appeal dismissed CACR 227 of 2010 Leave to appeal refused on ground 2 Leave to appeal granted on ground 4 Appeal allowed solely on ground 4 Appellant resentenced
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Parties:
ANWAR SHAH WAFIQ SAYED THE QUEEN THE STATE OF WESTERN AUSTRALIA
Catchwords:
Criminal law Appeal against conviction One count of fraud and one count of dishonestly obtaining a financial advantage by deception Whether the trial judge erred by failing to leave to the jury the defence of mistake under s 24 of the Criminal Code (WA) Whether the trial judge erred by failing to leave to the jury the defence of mistake under s 9.1 of the Criminal Code (Cth) Whether the trial judge misdirected the jury in relation to the process by which the jury may infer the accused's intention to defraud Criminal law Appeal against sentence Total effective head sentence of 3 years 6 months' imprisonment with a total effective pre-release or non-parole period of 2 years 9 months Whether the individual head sentence of 3 years' imprisonment for dishonestly obtaining a financial advantage by deception was manifestly excessive Whether the trial judge erred by failing to apply the one-transaction principle Whether the trial judge erred by infringing the totality principle Whether the trial judge erred by imposing sentences the combined effect of which was to create a total effective pre-release or non-parole period that was manifestly excessive or disproportionate to the total effective head sentence
Legislation:
Crimes Act 1914 (Cth), s 16, s 16E, s 19, s 19AB, s 19AC Criminal Code (Cth), s 9.1, s 134.2(1) Criminal Code (WA), s 24, s 409(1)(c) Sentencing Act 1995 (WA), s 89, s 93(1)
[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.
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AGLC
Sayed v The Queen [2012] WASCA 17
Case
[2012] WASCA 17
Decision Date
CaseChat Overview and Summary
The appellant, Sayed, appealed against both his conviction and the sentence imposed by the Supreme Court of Western Australia. Sayed was found guilty of one count of fraud and one count of dishonestly obtaining a financial advantage by deception. The appeal to the Court of Appeal of the Supreme Court of Western Australia raised several issues concerning both the conviction and the sentence. In relation to the conviction, the appellant argued that the trial judge failed to leave the defence of mistake to the jury under both s 24 of the Criminal Code (WA) and s 9.1 of the Criminal Code (Cth). Additionally, Sayed contended that the trial judge misdirected the jury regarding the process by which they could infer his intention to defraud. The appeal also challenged the sentence, arguing that the individual sentence of 3 years' imprisonment for the offence of obtaining a financial advantage by deception was manifestly excessive. The appellant further submitted that the trial judge erred by not applying the one-transaction principle and by infringing the totality principle. Finally, it was argued that the combined effect of the sentences imposed resulted in a total effective pre-release or non-parole period that was manifestly excessive or disproportionate to the total effective head sentence.
The Court of Appeal found that the trial judge did not err in failing to leave the defence of mistake to the jury, as there was no reasonable possibility that the appellant honestly believed he had the right to obtain the funds. The court held that the jury's verdict was supported by the evidence and that no misdirection occurred regarding the inference of the appellant's intention to defraud. In relation to the sentence, the court held that the individual sentence was not manifestly excessive. However, the court found that the trial judge erred by not applying the one-transaction principle and by infringing the totality principle, leading to a manifestly excessive total effective pre-release or non-parole period. As a result, the appeal against the sentence was allowed on the ground that the total effective pre-release or non-parole period was manifestly excessive or disproportionate to the total effective head sentence. The appellant was resentenced by the Court of Appeal.