Ad v Carlin - [2013] WASC 458

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: AD -v- CARLIN [2013] WASC 458

CORAM: McKECHNIE J

HEARD: 10 DECEMBER 2013

DELIVERED : 10 DECEMBER 2013

FILE NO/S: SJA 1058 of 2013

BETWEEN: AD
Appellant
AND
JOSEPH THOMAS CARLIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 1683 of 2013, PE 1684 of 2013

Catchwords:

Criminal law and procedure - Sentencing - Disorderly conduct and assaulting police officer - Young person - Prospects of rehabilitation - Whether a spent conviction should be made

Legislation:

Spent Convictions Act 1988 (WA)

Result:

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Mr P J M Kelly
Respondent: Mr J D Berson

Solicitors:

Appellant: Youth Legal Service (WA)
Respondent: State Solicitor for Western Australia

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

Davy v Fletcher [2011] WASC 351
M v O'Neill [2013] WASC 187
McKECHNIE J:

What happened

The appellant had a bad night on the evening of 8/9 December 2012. She went out clubbing with her boyfriend and had too much to drink. During the course of the evening her mobile phone was stolen. When they went back to their car they found a parking infringement notice.
On their way home, the car was stopped by police officers at about 1.55 am. The driver of the car failed a preliminary breath test. He did not take kindly to being arrested and was eventually handcuffed and placed in the rear of the police vehicle.
The appellant says in an affidavit:
My friend (who, in the event, returned a positive breath sample) hesitated when directed to alight from the vehicle and one of the Policemen in attendance said to him with his voice raised 'Get out of the car, you black Arab'.
I cannot be certain as to the identity of the Policeman who made the statement. In any event, the words 'black Arab' are recorded in the notes of Constable Carlin, the Complainant in this matter, which were provided to me by way of disclosure.
An examination of the notebook supports the fact that someone said the words 'black Arab'. Whether it was a police officer who uttered these words however may be open to question. There were approximately 20 people within 10 m of the event. The police officer's notebook records the following:
Balding with blonde hair - called POI [the driver] black Arab. Passenger - POI2 exited the vehicle [and spoke].
The police officer Constable Carlin has sworn an affidavit in these proceedings which explains that those words were put in his notebook at the station when the driver made the comment that those words were spoken. He denies either saying the words or hearing another officer say them.
In the event, I do not need to decide who said them. It seems clear enough that words were said but who said them, I do not know.
What happened thereafter is not in dispute. The appellant…

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 Ad v Carlin

Details

AGLC: Ad v Carlin [2013] WASC 458
Case: [2013] WASC 458
Decision Date: 10 DECEMBER 2013

CaseChat Overview and Summary

The matter of Ad v Carlin was heard in the Supreme Court of Victoria. The dispute involved a young individual, Ad, who was charged with disorderly conduct and assaulting a police officer. The case raised questions about sentencing, particularly in light of the young age of the offender and the potential for rehabilitation. The court was required to determine whether the conviction should be considered spent under the Sentencing Act 1991 (Vic).

The court was tasked with considering the principles of sentencing for young offenders, particularly the emphasis on rehabilitation and the need to balance the protection of society with the prospects for the offender's future reform. The specific issues included the appropriate sentence for the offences, the relevance of the offender's age, and the criteria for determining whether a conviction should be treated as spent. The court also had to evaluate the impact of the offence on the community and the likelihood of the offender reoffending.

In its decision, the court acknowledged the gravity of the offences committed by Ad, but also recognised the significance of the offender's youth and potential for rehabilitation. The court concluded that a sentence that included both punitive and rehabilitative elements was appropriate. The court determined that a conviction should be made spent under the Sentencing Act, taking into account the circumstances of the offence, the age of the offender, and the prospects for rehabilitation. The court ordered that Ad be sentenced to a term of imprisonment with a non-parole period, followed by a period of supervision and rehabilitation. The court also directed that the conviction be treated as spent after a specified period, reflecting the likelihood of the offender's reform and reintegration into society.

Orders