Byas v Foulkes - [2017] WASC 133

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
Vagh v The State of Western Australia [2007] WASCA 17

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…

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.

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Details

Case: [2017] WASC 133
Decision Date: 16 MAY 2017

CaseChat Overview and Summary

The case of Byas v Foulkes involved the appellant, Byas, who was convicted for stealing property while acting as a servant. The appeal centred on the sentencing decision made by the trial judge, specifically whether a spent conviction order should have been issued in light of the appellant's prior criminal record. The matter was heard by the High Court of Australia, which was required to determine the appropriate legal principles governing the issuance of such orders in the context of sentencing for criminal offences.

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.

Orders