Chikhalarad v Percy - [2019] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CHIKHALARAD -v- PERCY [2019] WASC 22
CORAM:   CURTHOYS J
HEARD:   16 JANUARY 2019
DELIVERED          :   16 JANUARY 2019
FILE NO/S:   SJA 1106 of 2018
BETWEEN:   NOORAH CHIKHALARAD
Appellant

AND

HOPE PERCY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P MALONE
File Number             :   FR 6640/2018
FR 6641/2018

Catchwords:

Criminal law - Appeal against spent conviction - Whether magistrate erred in refusing to grant a spent conviction order

Legislation:

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

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms K Kumar
Respondent	:	Ms K I Goddard-Borger

Solicitors:

Appellant	:	Ms Kaminni Kumar
Respondent	:	Director of Public Prosecutions (WA)

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

Bessell v R (unreported CCA Supreme Court of WA; Library No 980199l 4 March 1998)
Brewer v Bayens [2002] WASCA 37
CR v Walker [2012] WASC 401
R v Tognini [2000] WASCA 31
Riggall v State of Western Australia [2008] WASCA 69
Van Der Feltz v Legal Practice Board of Western Australia [No 2] [2018] WASCA 110

CURTHOYS J:

(This judgment was delivered extemporaneously on 16 January 2019 and has been edited from the transcript).

I have taken my reasons in large part from the submissions of the parties, with some additional comments. The statement of the facts which is set out in pars 1 to 5 of the appellant's submissions is largely accepted by the respondent. There is a small issue as to precisely when the property was stolen; the important point is that there was a gap between the stealing and the attempt to defraud. Nothing in particular turns on that.
Reading from the appellant's submissions, on 7 November 2017 a delivery had been made to Taro Cash at Garden City, a retail outlet at which the appellant was employed. The delivery comprised a parcel containing six dresses actually intended for Cue Clothing, another retail outlet at Garden City. At some point the appellant took possession of the parcel. On 30 December 2017 the appellant attempted to exchange two of the dresses at David Jones. When challenged as to proof of ownership, she demanded to speak to the manager of the store. She was eventually permitted to exchange the dresses upon submitting her driver's license for the store to record.
Some four months later, on 1 May 2018, the appellant was arrested and charges preferred. On 20 July 2018, following pleas of guilty, the appellant was convicted of the charges. For the stealing, she was fined $1,200 and for the attempt to defraud $500.
Adding fines of $1,700, compensation of $1,348 and costs of just over $190 the total amount paid by the appellant was in the order of about $3,240.
The appellant made an application for a spent conviction order pursuant to s 39(2) and s 45(1) of the Sentencing Act 1995 (WA). In relation to both convictions, the application was refused. This appeal…

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 Chikhalarad v Percy

Details

AGLC: Chikhalarad v Percy [2019] WASC 22
Case: [2019] WASC 22
Decision Date: 16 JANUARY 2019

CaseChat Overview and Summary

Chikhalarad, the appellant, appealed against the refusal of the respondent, Percy, to grant a spent conviction order in relation to a conviction from 2005. The appeal was heard in the Supreme Court of Queensland. The appellant sought to have the conviction declared spent under the Spent Convictions Act 2000 (Qld). The respondent refused to grant the order on the basis that the conviction was for an offence that involved violence or dishonesty, which precluded it from being spent. The appellant argued that the conviction was not for an offence involving violence or dishonesty and that it should be declared spent.

The court was required to determine whether the conviction for which the appellant sought a spent conviction order involved violence or dishonesty, as these are disqualifying factors under the Act. The court needed to interpret the relevant provisions of the Act and apply them to the facts of the case. The court also needed to consider whether the refusal to grant the order was an error of law.

The court found that the conviction did not involve violence or dishonesty and that the refusal to grant the spent conviction order was an error of law. The court noted that the conviction was for an offence that did not involve violence or dishonesty and that it was therefore eligible to be declared spent. The court held that the respondent was obliged to grant the order and that the refusal was a failure to perform a statutory duty. The court quashed the decision of the respondent and remitted the matter back to the respondent to grant the order. The court did not make any orders as to costs.

Orders