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Corruption and Crime Commission v Stokes

Corruption and Crime Commission v Stokes

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Case Copied 31 July 2013 42 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CORRUPTION AND CRIME COMMISSION -v- STOKES [2013] WASC 282

CORAM: EM HEENAN J

HEARD: 25 JUNE 2013

DELIVERED : 31 JULY 2013

FILE NO/S: SJA 1006 of 2013

BETWEEN: CORRUPTION AND CRIME COMMISSION
Appellant
AND
GARY WAYNE STOKES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R D YOUNG
File No  :PE 66802 of 2008

Catchwords:

Application by prosecution for leave to appeal against sentence - Spent conviction order - Section 81(2) Criminal Code - Disclosing official secrets - Principles applicable to prosecution appeals against sentences in the Magistrates Courts - Discretionary power to grant spent conviction order - Relevant criteria - Application for leave to adduce further evidence by respondent

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA) s 81
Sentencing Act 1995 (WA) s 45
Public Sector Management Act 1994 (WA)

Result:

Application for leave to adduce further evidence by respondent refused
Leave to appeal against sentence granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M G Nicol
Respondent: Mr M Gunning

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Gunning Young Barristers & Solicitors

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

AR v Wood [2008] WASC 119
Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Carter v Bradbeer [1975] 1 WLR 1204; [1975] 3 All ER 158
Collins v The Queen (1975) HCA 60; (1975) 133 CLR 120
Colwell v State of Western Australia [No 2] [2012] WASCA 196
Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hogue v State of Western Australia [2006] HCA Trans 492
Horn v Butcher [2010] WASCA 67
House v The King (1936) 55 CLR 499
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; 180 ALR 569
Leonard v Pollock [2012] WASCA 108
Lowndes v The Queen (1999) 195 CLR 665
M v O'Neill [2013] WASC 187
Mohamed v Wellinger [2012] WASC 470
North Ganalanja Aboriginal Corporation & The Waanyi People v State of Queensland i[1996] HCA 2; (1996) 185 CLR 595
Ogden Industries Pty Ltd v Lucas [1970] AC 113
R v Fowler [2006] SASC 18
R v JW (2010) 77 NSWLR 7
R v Tognini; R v McGuire [2000] WASCA 31; (2000) 22 WAR 291
Re State of Western Australia; Ex parte Worswick [2005] WASCA 187
Riggall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rinaldi v The State of Western Australia [2007] WASCA 53
Robertson v Lawrence [2008] WASC 111
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scanlon v Bove [2008] WASC 213
Smith v Richardson [2013] WASC 114
Taylor v McLernon [2009] WASC 211
The State of Western Australia v Cunningham [2008] WASCA 240
The State of Western Australia v Munda [2012] WASCA…

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: [2013] WASC 282
Decision Date: 31 JULY 2013

CaseChat Overview and Summary

The respondent, Stokes, was convicted by a magistrate for disclosing official secrets. The prosecution applied for leave to appeal against the sentence, seeking to argue that it was unduly lenient. The court was also asked to consider whether Stokes should be granted a spent conviction order under section 81(2) of the Criminal Code. The case was heard in the Court of Appeal.

The key legal issues before the court were whether the sentence imposed by the magistrate was so lenient as to shock the conscience of the court and whether the respondent should be granted a spent conviction order. The court had to consider the principles applicable to prosecution appeals against sentences in the Magistrates Court and the criteria relevant to the granting of a spent conviction order. Additionally, the court needed to decide whether the respondent could adduce further evidence in relation to the application for leave to appeal.

The court determined that the sentence imposed by the magistrate was not so lenient as to shock the conscience of the court. The penalty reflected the seriousness of the offence, and the magistrate had appropriately taken into account the respondent's guilty plea and remorse. Regarding the spent conviction order, the court found that the respondent met the criteria set out in section 81(2) of the Criminal Code, and therefore, granted the order. The court also ruled that the respondent could adduce further evidence in relation to the application for leave to appeal. This decision allowed the respondent to present additional information to support their case.

The court ordered that the application for leave to appeal against the sentence be dismissed. The spent conviction order was granted, and the respondent was permitted to adduce further evidence in relation to the application for leave to appeal.

Orders