B -v- MURPHY [2016] WASC 78

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 78
Case No:	SJA:1089/2015	Heard:	16 FEBRUARY 2016
Coram:	BEECH J	Delivered:	11/03/16
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal upheld Spent conviction order made
Category:	D
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Parties:	B RYAN ERNEST MURPHY
Catchwords:	Criminal law and sentencing Application for spent conviction order Possession of article with the intention of using it to cause fear that someone will be injured by its use Whether magistrate erred in refusing to make spent conviction order Whether spent conviction order should be made Turns on own facts
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189 Frewen v Dalgreen [2014] WASC 407 M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : B -v- MURPHY [2016] WASC 78 CORAM : BEECH J HEARD : 16 FEBRUARY 2016 DELIVERED : 11 MARCH 2016 FILE NO/S : SJA 1089 of 2015 BETWEEN : B

Appellant

AND

RYAN ERNEST MURPHY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L J ATKINS

File No : MH 4669 of 2015, MH 4670 of 2015

Catchwords:

Criminal law and sentencing - Application for spent conviction order - Possession of article with the intention of using it to cause fear that someone will be injured by its use - Whether magistrate erred in refusing to make spent conviction order - Whether spent conviction order should be made - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Appeal upheld

Spent conviction order made

Category: D

Representation:

Counsel:

Appellant : Ms B J Lonsdale

Respondent : Mr T E Pontre

Solicitors:

Appellant : Mark Andrews Legal Pty Ltd

Respondent : State Solicitor's Office

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

Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189
Frewen v Dalgreen [2014] WASC 407
M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

BEECH J

Introduction

1 The appellant appeals against the magistrate's refusal to make a spent conviction order in respect of his convictions for two charges of possessing an article with the intention of using it to cause fear that someone will be injured or disabled by its use, contrary to s 8(1)(b) of the Weapons Act 1999 (WA).

2 For the reasons that follow, I would uphold the appeal.

The facts

3 The facts were not in dispute before the magistrate and were as follows. On 9 September 2015, the appellant was driving a car and was stopped by police. Police found a sheath containing a hunting knife in the driver's door pocket and a loaded Colt 6 mm cap gun…

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 B v Murphy

Details

AGLC: B v Murphy [2016] WASC 78
Case: [2016] WASC 78
Decision Date: 11 MARCH 2016

CaseChat Overview and Summary

In this case, the appellant, B, sought a spent conviction order for a conviction of possession of an article with the intention of using it to cause fear that someone would be injured by its use. The matter was heard in the County Court of Victoria, which was reviewing the decision of a magistrate who had declined to make a spent conviction order. The appellant argued that the magistrate erred in not making such an order, and the Court of Appeal was required to determine whether the magistrate's decision was correct and whether a spent conviction order should be made in this instance.

The primary issue for the Court of Appeal was whether the magistrate erred in refusing to make a spent conviction order. The appellant argued that the offence was not serious enough to warrant a refusal of a spent conviction order. The court considered the nature of the offence, the appellant's criminal history, and the appellant's rehabilitation efforts. The court also noted the importance of proportionality and the principle of rehabilitation in sentencing and spent conviction orders.

The Court of Appeal found that the magistrate had erred in not making a spent conviction order. The court concluded that the offence was not of such a serious nature as to preclude a spent conviction order. The appellant had a relatively clean criminal history and had made significant efforts to rehabilitate. The court found that these factors outweighed any potential risk to public safety. As a result, the Court of Appeal upheld the appeal and made a spent conviction order in favour of the appellant.

Orders

Orders of the court

Appeal upheld

Spent conviction order made

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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