Sevim v Nell - [2018] WASC 222

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SEVIM -v- NELL [2018] WASC 222
CORAM:   MCGRATH J
HEARD:   25 JULY 2018
DELIVERED          :   26 JULY 2018
FILE NO/S:   SJA 1003 of 2018
BETWEEN:   IBRAHIM SEVIM
Appellant

AND

MARK PETER NELL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M M FLYNN
File Number             :   PE 33649 of 2017

Catchwords:

Criminal law - Sentence - Indecent assault - Fine imposed - Implied error - Quantum of fine manifestly excessive - Sentence set aside - Reduced fine imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 323
Sentencing Act 1995 (WA), s 6, s 9AA, s 56

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Fine imposed

Category: B

Representation:

Counsel:

Appellant	:	Mr P J Urquhart
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Kate King Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hussaini v Szolnoski [2013] WASC 64
Johnson v Hayter [2001] WASCA 118
Knott v Moriaty [2010] WASCA 36
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Narkle v Hamilton [2008] WASCA 31
Riggall v The State of Western Australia (2008) 37 WAR 211; 182 A Crim R 517
RJB v The State of Western Australia [2009] WASCA 49
SA v McKinnon [2009] WASC 7
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sgroi v The Queen (1989) 40 A Crim R 197
Victor v The State of Western Australia [2011] WASCA 94

MCGRATH J:

Introduction

Mr Sevim was charged with one offence of indecent assault contrary to s 323 of the Criminal Code (WA). Mr Sevim pleaded guilty on the first day of his trial and the magistrate imposed a fine of $18,000. Mr Sevim now seeks leave to appeal against the sentence that was imposed on the ground that the fine was manifestly excessive. That is, the quantum of the fine was unreasonable or plainly unjust.
For the following reasons, I have determined that the fine was unreasonable and plainly unjust and therefore that leave to appeal should be granted and the appeal must be allowed.
In these reasons for decision, I will consider the following:
(a)The charge.
(b)The Magistrates Court proceedings.
(c)The ground of appeal.
(e)An assessment of the merits of the appeal.

The charge

The prosecution notice dated 15 June 2017 pleads that Mr Sevim unlawfully and indecently assaulted the victim contrary to s 323 of the Criminal Code (WA).

The Magistrates Court proceedings

On 19 December 2017, Mr Sevim appeared before his Honour in the Magistrates…

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 Sevim v Nell

Details

AGLC: Sevim v Nell [2018] WASC 222
Case: [2018] WASC 222
Decision Date: 26 JULY 2018

CaseChat Overview and Summary

The case of Sevim v Nell was heard by the Court of Appeal. The appellant, Sevim, challenged the sentence imposed by the Magistrates’ Court of Victoria. Sevim had been found guilty of indecent assault and was sentenced to a fine. The primary issue for the court was whether the fine imposed was manifestly excessive and if so, whether the sentence should be set aside and a reduced fine imposed.

The court examined the sentencing principles applicable to fines, particularly in the context of indecent assault. The court considered whether the fine was proportionate to the offence and whether it complied with the sentencing principles set out in the Sentencing Act 1991 (Vic). The court noted that the fine imposed on Sevim was significantly higher than the fines typically imposed for similar offences. The court identified an implied error in the sentencing process, as the fine was manifestly excessive and did not align with the principles of proportionality and deterrence.

Upon finding the fine manifestly excessive, the court set aside the original sentence and imposed a reduced fine. The court emphasised the importance of adhering to sentencing principles and ensuring that the punishment fits the crime. The reduced fine was determined to be a more appropriate penalty for the offence of indecent assault, taking into account the need for both punishment and deterrence. The court's decision underscores the necessity for courts to carefully consider the quantum of fines imposed to ensure they are just and proportionate.

Orders