Brady v Carter
[2013] WASC 140
•8 APRIL 2013
BRADY -v- CARTER [2013] WASC 140
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 140 | |
| Case No: | SJA:1010/2013 | 8 APRIL 2013 | |
| Coram: | McKECHNIE J | 8/04/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed to the extent that a spent conviction order is made | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN MICHAEL BRADY JASON BRENDAN CARTER |
Catchwords: | Criminal law Sentencing Unlawful damage Spent conviction order No new principles |
Legislation: | Sentencing Act 1995 (WA), s 45 |
Case References: | Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 Tognini v McGuire [2000] WASCA 31; (2000) 22 WAR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JASON BRENDAN CARTER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G W BAYLY
File No : PE 53937 of 2012
Catchwords:
Criminal law - Sentencing - Unlawful damage - Spent conviction order - No new principles
Legislation:
Sentencing Act 1995 (WA), s 45
(Page 2)
Result:
Appeal allowed to the extent that a spent conviction order is made
Category: B
Representation:
Counsel:
Appellant : Mr A Martin
Respondent : Ms G M Cleary
Solicitors:
Appellant : Lumlan & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Tognini v McGuire [2000] WASCA 31; (2000) 22 WAR 291
(Page 3)
- McKECHNIE J:
Why this matter comes to court
1 Shortly after 4.00 am on 10 November 2012 Mr Brady got angry because the Elephant and Wheelbarrow Tavern on Lake Street was closing, so he kicked the door. The damage does not seem to be great: a wooden slat became dislodged. He was subsequently charged with and pleaded guilty to unlawful damage.
2 In answer to the magistrate's question as to why he was upset he said, 'I would just like to apologise to the court and to the police for wasting time'. He was fined $400 and ordered to pay costs. He did not then ask for a spent conviction order but now seeks one.
The basis of the appeal
3 The grounds of appeal, as amended, do not point to error by the magistrate but a miscarriage of justice in the failure to grant a spent conviction order. This is the correct formulation of the ground. The magistrate made no error. He was never asked to exercise his discretion, but an appeal may succeed if there has been a miscarriage of justice in circumstances where a spent conviction should have been granted.
4 The statutory framework for a spent conviction is set out in the Sentencing Act 1995 (WA) s 45. This section has been visited by the Court of Appeal and the Supreme Court generally on many, many occasions. Tognini v McGuire [2000] WASCA 31; (2000) 22 WAR 291; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 are the leading authorities that set the principles. Spent conviction appeals are a regular staple of the General Division. Many seem to involve drunken young men in Northbridge.
The factual circumstances
5 The appellant was aged 23 at the time of the offence and now. He filed an affidavit in support of the application for leave to appeal and for an extension of time within which to appeal. It says he had an unblemished record prior to the date of the offence, and was a person of otherwise good character. There is no contrary evidence. The respondent does not dispute it. I accept his statement.
(Page 4)
6 At my invitation, because the material was quite scarce, counsel called the appellant to give evidence during which he again indicated his remorse by way of an apology.
7 The appellant has been an aircraft mechanic for five years and has been in Australia since July last year on a 417 Visa. He is accompanied by his longstanding partner of five years. He has been on a working visa for one year but is trying to get sponsorship. He has worked as an aircraft mechanic and more latterly as a diesel mechanic. As part of his work as an aircraft mechanic he needs what is described as an ASIC pass, allowing access to the tarmac area. That will need to be renewed in due course and he will need to pass an Australian Government security check.
8 He gave evidence, I think quite honestly, that he could not say that his conviction would be a bar to employment but would be taken into account in whether he gets a future job. He wants to remain in Australia if he can satisfy the right criteria.
9 He says, and I accept, that the offence was totally out of character; that he had a lot of alcohol that night, which was obvious. He noted that the barman would have been scared.
Application of the principles
10 As to s 45(1)(b) I do not regard the offence as trivial. Although the damage may have been small, the context was an angry young man kicking against a door which had been shut by the manager after the premises were closed. That said, although not trivial, the offence was minor.
11 The fact is that young people sometimes do stupid things. Most learn from their mistakes. As far as one can be, I am reasonably sure that the appellant, who otherwise appears a hard-working young man in a stable relationship, has learnt from this mistake.
12 I am satisfied that the discretion in the Sentencing Act s 45 is enlivened and that it is appropriate that the appellant be relieved of the adverse effects of the conviction. The offence was minor and the appellant is otherwise of good character and unlikely to commit an offence again. The orders I therefore make are: extension of time and leave to appeal are granted; appeal allowed to the extent that a spent conviction order is made.
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