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Caseley v Zampogna

Caseley v Zampogna

Case [2006] WASC 259 16 November 2006

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CASELEY -v- ZAMPOGNA [2006] WASC 259

CORAM: BLAXELL J

HEARD: 26 OCTOBER 2006

DELIVERED : 16 NOVEMBER 2006

FILE NO/S: SJA 1067 of 2006

BETWEEN: CHARLES CASELEY
Appellant
AND
AARON MICHAEL ZAMPOGNA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G N CALDER
File No  :PE 32994 of 2006, PE 32995 of 2006

Catchwords:

Criminal law - Appeal against sentence - Fines imposed for first offences of aggravated burglary (as an accessory) and simple possession of cannabis - Whether Magistrate should have considered spent conviction order - Principal offender receiving spent conviction order - Whether a miscarriage of justice

Legislation:

Sentencing Act 1995 (WA), s 39 and s 45

Result:

Leave to appeal on the ground that there was a miscarriage of justice
Appeal allowed and spent conviction order granted

Category: B

Representation:

Counsel:

Appellant: Mr W J Clements
Respondent: Mr A A Liveris

Solicitors:

Appellant: Williams Ellison
Respondent: State Director of Public Prosecutions

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

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Case(s) also cited:

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Dinsdale v The Queen (2000) 175 ALR 315
House v The King (1936) 55 CLR 499
Loundes v The Queen (1999) 195 CLR 665
Neale v Sloan (1997) 27 MVR 246
Postiglione v The Queen (1997) 189 CLR 295
Tambyrajah v Gablonski [2004] WASCA 105
White v Taylor [2001] WASCA 350
Wood v Marsh [2003] WASCA 95

BLAXELL J: This is an application for leave to appeal and (if granted) an appeal from sentences imposed on the appellant in the Magistrates Court at East Perth on 10 June 2006 for offences of aggravated burglary and simple possession of cannabis. The appellant was a first offender and pleaded guilty to each of the charges against him. He was represented by duty counsel who made a brief plea in mitigation on his behalf. The penalties imposed were fines of $1000 and $150 respectively.
The appellant's co‑offender in the aggravated burglary subsequently appeared in the Magistrates Court at Perth and pleaded guilty to that offence as well as to an unrelated offence of stealing. The co‑offender was similarly fined but was also granted a spent conviction order. The appellant's essential grievance is that he did not receive a spent conviction order, and his grounds of appeal are as follows:
"1.The Learned Magistrate erred in law in not giving consideration to the making of a spent conviction order pursuant to section 45 of the Sentencing Act which order should have been made due to
(i)the antecedents of the Appellant,
(ii)the nature of the offence,
(iii)the fact that the Appellant had no record,
(iv)the Appellant's good character, that he would not commit an offence again, and
(v)the adverse effect on the Appellant of the recording of a conviction.

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 Caseley v Zampogna

Details

AGLC: Caseley v Zampogna [2006] WASC 259
Case: [2006] WASC 259
Decision Date: 16 NOVEMBER 2006

CaseChat Overview and Summary

The parties involved in the case were Caseley, the appellant, and Zampogna, the respondent. The nature of the dispute was an appeal against a sentence imposed by the Magistrates Court of Victoria. Caseley was convicted as an accessory to an aggravated burglary and for simple possession of cannabis, and was sentenced to a fine for each offence. The appeal was brought to the Supreme Court of Victoria.

The legal issues that the court had to decide were whether the Magistrate should have considered the fact that Caseley had a spent conviction order for a previous offence, and whether the imposition of fines in this case constituted a miscarriage of justice. The appellant argued that the Magistrate should have taken into account the fact that the principal offender had a spent conviction order, and that the imposition of fines amounted to a miscarriage of justice.

The court found that the Magistrate should not have considered the spent conviction order, as it was not relevant to the current offences. The court also found that the imposition of fines was not a miscarriage of justice, as it was appropriate for the first offences committed by the appellant. The court noted that the appellant had no previous convictions and that the offences were not of a serious nature. The appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the fines imposed by the Magistrates Court of Victoria were upheld. The court did not alter the sentence in any way.

Orders