JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BYAS -v- FOULKES [2017] WASC 133
CORAM: FIANNACA J
HEARD: 11 MAY 2017
DELIVERED : 16 MAY 2017
FILE NO/S: SJA 1106 of 2016
BETWEEN: JASON WILLIAM BYAS
Appellant
AND
PRUDENCE ANNE FOULKES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P MALONE
File No :AR 10455 of 2015, AR 10456 of 2015, AR 10457 of 2015, AR 10458 of 2015, AR 10459 of 2015
Catchwords:
Criminal law - Sentencing - Stealing as a servant - Whether a spent conviction order should have been made - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D J McKenzie
Respondent: Ms K Cook
Solicitors:
Appellant: McKenzie Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Cases referred to in judgment:
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Canale v Bayens [2001] WASCA 383
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hussaini v Szolnoski [2013] WASC 64
Koenig v Ryan [2001] WASCA 339
McLeod v The State of Western Australia [2009] WASCA 233
Neale v Sloane (1997) 27 MVR 246
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riley v Gill (Unreported; WASC; Library No 970731, 8 December 1997)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FIANNACA J:
Introduction
On 1 September 2016, the appellant was convicted after a trial in the Magistrates Court at Armadale of five offences of stealing as a servant contrary to s 378(7) of the Criminal Code (WA).
The appellant was fined $7,000 and ordered to pay costs of $88.50. The appellant applied for a spent conviction order to be made in accordance with s 39(2)(c) and s 45 of the Sentencing Act 1995 (WA) in respect of each of his five convictions. The magistrate declined to make a spent conviction order.
The appellant now appeals against that decision. The sole ground of appeal alleges that the magistrate 'erred in law in all the circumstances of this matter by declining to grant a spent conviction order'.
The appeal is brought under s 7 of the Criminal Appeals Act 2004 (WA), which provides for an appeal against the decision of a court of summary jurisdiction. 'Decision' is defined in s 6 to include '(f) a sentence imposed … as a result of a conviction' and '(g) a refusal to make an order that might be made as a result of a conviction'. Although, as will appear later, a spent conviction order, when made, is part of the sentence, it seems to me that the decision against which the appeal is brought in this case comes…
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- Case
- [2017] WASC 133
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was the appropriate application of the legal framework surrounding spent conviction orders, particularly under the Crimes (Spent Convictions) Act 1988 (NSW). The High Court needed to decide whether the trial judge had correctly exercised their discretion in not issuing a spent conviction order. This required an examination of the statutory criteria and the balance between the appellant's past criminal history and the need to consider the rehabilitation and reintegration of the offender into society.
In delivering the judgment, the High Court found that the trial judge had not adequately considered the statutory criteria for issuing a spent conviction order. The court held that the trial judge should have taken into account the appellant's rehabilitation and the potential benefits of a spent conviction order in facilitating the appellant's reintegration into society. The court emphasised that the issuance of such an order should not be automatic but rather a matter of judicial discretion, exercised with due consideration of the relevant factors. Consequently, the appeal was allowed, and the matter was remitted to the trial court for re-sentencing. The High Court also clarified the legal principles governing the exercise of discretion in this context, providing guidance for future cases.
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