Legal Research
Cases
Azy v McIntosh

Azy v McIntosh

Case [2021] WASC 34 16 February 2021

Appeal

Miscarriage of Justice

Spent Conviction Order

Jurisdiction

Admissibility of Evidence

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   AZY -v- McINTOSH [2021] WASC 34
CORAM:   TOTTLE J
HEARD:   28 JANUARY 2021
DELIVERED          :   16 FEBRUARY 2021
FILE NO/S:   SJA 1084 of 2020
BETWEEN:   AZY
Appellant
AND
BLAIR GEORGE McINTOSH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE N LEMMON
File Number            :   JO 8097 of 2019

Catchwords:

Criminal law - Appeal against sentence - Extension of time required - Exceptional circumstances - Miscarriage of justice if leave to appeal not granted - Extension of time granted

Spent conviction order - Whether failure to make spent conviction order a miscarriage of justice - Criteria for grant of spent conviction order satisfied - Discretion exercised in favour of granting spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 9, s 10, s 14, s 39, s 40
Family Court Act 1997 (WA), s 202H
Restraining Orders Act 1977 (WA), s 61
Sentencing Act 1995 (WA), s 45
Spent Convictions Act 1988 (WA), s 14, s 25, s 26, s 27

Result:

Application for extension of time granted
Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters & Mr C Woodhouse
Respondent	:	Mr C Payne

Solicitors:

Appellant	:	Robertson Hayles Lawyers
Respondent	:	State Solicitor for Western Australia

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Caseley v Zampogna [2006] WASC 259
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Frewen v Dalgreen [2014] WASC 407
HJT v Reichelt [2017] WASC 301
M v O’Neill [2013] WASC 187
M v Seidner [2013] WASC 395
Mieli v Beros [2006] WASC 294
Mohamed v Wellinger [2012] WASC 470
Papas v Godwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Redding v Robinson [2009] WASC 403
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scanlon v Bove [2008] WASC 213
Sharpe v Vinning [2020] WASCA 79
Wheeler v The Queen [No 2] [2010] WASCA 105
Wimbridge v The State of Western Australia [2009] WASCA 196
Wood v Marsh [2003] WASCA 95
Wright v McMurchy [2012] WASCA 257

TOTTLE J:

Introduction

On 26 July 2019 the appellant was convicted on his plea of a charge of breaching an interim family violence restraining order (the FVRO). The appellant was fined $150 and ordered to pay costs of $118.50. The appellant seeks leave to appeal against his sentence on the ground that the magistrate should have made a spent conviction order. The appellant's counsel did not apply for such an order at the sentencing hearing.

The facts and the sentencing hearing

The complainant (the person protected by the FVRO) was the appellant's former wife. They have since divorced. The breach of the FVRO was that the appellant sent an email attaching some court documents relating to a family court dispute to the complainant.…

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 Azy v McIntosh

Details

AGLC: Azy v McIntosh [2021] WASC 34
Case: [2021] WASC 34
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Azy, the appellant, sought leave to appeal against the sentence imposed by the Magistrates Court for breaching a family violence restraining order (FVRO). The primary contention was that the magistrate should have made a spent conviction order, which the appellant's counsel did not request at the sentencing hearing. The court assessed whether an extension of time for the appeal was warranted and if the criteria for a spent conviction order were met. Justice Tottle concluded that exceptional circumstances justified the extension of time due to the appellant's repeated misadvice from various legal professionals. Furthermore, the court found that a miscarriage of justice would occur if leave to appeal was not granted, as the appellant's good character, the triviality of the offence, and the circumstances surrounding the breach all pointed towards a reasonable prospect of a spent conviction order being granted. The appeal was allowed, and a spent conviction order was made under the Sentencing Act 1995 (WA).

Orders