Sayed v The Queen

Case [2012] WASCA 17


SAYED -v- THE QUEEN [2012] WASCA 17



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2012] WASCA 17
THE COURT OF APPEAL (WA)
Case No:CACR:226/201021 SEPTEMBER 2011
Coram:MARTIN CJ
BUSS JA
HALL J
27/01/12
42Judgment Part:1 of 1
Result: 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
A
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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)

Case References:

Ali v The State of Western Australia [2005] WASCA 90
Anderson v Bigmore [2006] ACTSC 85; (2006) 202 FLR 468
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bick v The Queen [2006] NSWCCA 408
Brennan v The State of Western Australia [2010] WASCA 19
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176
Director of Public Prosecutions v Ka-Hung-Ip [2005] ACTA 24
El Rakhawy v The Queen [2011] WASCA 209
Gok v The Queen [2010] WASCA 185
Graziosi v Director of Public Prosecutions (Cth) [2011] VSCA 418
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Ly v The Queen [2007] NSWCCA 28
Magar v The…

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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.

Orders

Orders of the court

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

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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