Allen v Powell

Case [2000] WASCA 65

ALLEN -v- POWELL [2000] WASCA 65



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2000] WASCA 65
Case No:SJA:1203/199925 FEBRUARY 2000
Coram:SCOTT J17/03/00
8Judgment Part:1 of 1
Result: Appeal allowed in part
PDF Version
Parties:CARLY LOUISE ALLEN
HEATH JOHN POWELL

Catchwords:
Appeal against refusal to make a spent conviction order and fine
Sentencing Act 1995, s 45(1)
Appellant convicted of stealing
Appellant pleaded guilty at first opportunity
No prior record
Sentence manifestly excessive
Appellant seeks work in child care
Police clearance required
R v Tognini & McGuire [2000] WASCA 31
Appellant unrepresented in lower court
Sparingly exercised power
Marginal case
Magistrate not in error
Appellant unlikely to re-offend

Legislation:
Sentencing Act 1995 s 45(1)
Spent Convictions Act 1988

Case References:
R v Tognini & McGuire [2000] WASCA 31
Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 January 1998
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Teede v Wright [1999] WASCA 121
Wilson v Crock [1999] WASCA 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : ALLEN -v- POWELL [2000] WASCA 65 CORAM : SCOTT J HEARD : 25 FEBRUARY 2000 DELIVERED : 17 MARCH 2000 FILE NO/S : SJA 1203 of 1999 BETWEEN : CARLY LOUISE ALLEN
    Appellant

    AND

    HEATH JOHN POWELL
    Respondent



Catchwords:

Appeal against refusal to make a spent conviction order and fine - Sentencing Act 1995, s 45(1) - Appellant convicted of stealing - Appellant pleaded guilty at first opportunity - No prior record - Sentence manifestly excessive - Appellant seeks work in child care - Police clearance required - R v Tognini & McGuire [2000] WASCA 31 - Appellant unrepresented in lower court - Sparingly exercised power - Marginal case - Magistrate not in error - Appellant unlikely to re-offend




Legislation:

Sentencing Act 1995 s 45(1)


Spent Convictions Act 1988


Result:

Appeal allowed in part




(Page 2)

Representation:


Counsel:


    Appellant : Mr B R Jackson
    Respondent : Mrs H L Porter


Solicitors:

    Appellant : Pryles & Defteros
    Respondent : State Director of Public Prosecutions


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

R v Tognini & McGuire [2000] WASCA 31

Case(s) also cited:



Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 January 1998
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Teede v Wright [1999] WASCA 121
Wilson v Crock [1999] WASCA 251

(Page 3)

1 SCOTT J: The appellant was granted leave to appeal by Miller J on 19 November 1999.

2 The appellant was convicted in the Court of Petty Sessions at Fremantle on two counts of stealing as a servant. The offences are alleged to have occurred on consecutive days, namely, 23 and 24 September 1998 at the appellant's then place of employment, the Hislop Road Deli in Attadale.

3 The appellant was fined $200 on each complaint with $57.50 costs on each. In addition, she was ordered to reimburse the complainant…

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Allen v Powell [2000] WASCA 65
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[2000] WASCA 65
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CaseChat Overview and Summary

In the case of Allen v Powell, the appellant sought to appeal a decision made by a magistrate, which refused to make a spent conviction order in relation to a conviction for stealing. The appellant had pleaded guilty to the offence at the first opportunity and had no prior criminal record. The appellant's sentence was considered to be manifestly excessive, and they sought to have the conviction made spent in order to obtain police clearance for work in the child care sector. The appellant argued that the power to make a spent conviction order should be exercised in their favour, citing the case of R v Tognini & McGuire [2000] WASCA 31 as precedent.

The legal issue before the court was whether the magistrate was correct in refusing to make a spent conviction order. The appellant contended that the refusal to make such an order was an error, particularly given the appellant's unblemished record and the fact that they had pleaded guilty at the first opportunity. The appellant further argued that the power to make a spent conviction order should be exercised sparingly, and this was a marginal case where the order should be made in their favour. The respondent, on the other hand, submitted that the magistrate had not erred in declining to make a spent conviction order, and that the appellant was unlikely to re-offend.

The court found that the magistrate had not been in error in refusing to make a spent conviction order, but acknowledged that the case was marginal. The court recognised that the power to make a spent conviction order should be exercised sparingly and that this was a case where such an order should have been considered. However, the court was satisfied that the magistrate had not been in error in declining to make such an order, given the circumstances of the case. The court allowed the appeal in part, and the appellant's conviction was made spent.

Orders

Orders of the court

Appeal allowed in part

Background

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Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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