Curby v Richards-Scully - [2002] WASCA 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CURBY -v- RICHARDS-SCULLY [2002] WASCA 166

CORAM: WHITE AUJ

HEARD: 13 JUNE 2002

DELIVERED : 20 JUNE 2002

FILE NO/S: SJA 1024 of 2002

BETWEEN: MARK ASHLEY CURBY
Appellant
AND
BRADLEY GLENN RICHARDS-SCULLY
Respondent

Catchwords:

Appeal - Whether a spent conviction should have been ordered - Whether a breach of a Violence Restraint Order was a trivial offence - Turns on own facts

Legislation:

Justices Act, s 196(1)(b)

Restraining Orders Act 1997, s 61(1)(B)

Sentencing Act 1995, s 45(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr R G W Bayly
Respondent: Mr T C Russell

Solicitors:

Appellant: Bayly & O'Brien
Respondent: State Crown Solicitor

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

Chan v The Queen (1989) 38 A Crim R 337
House v The Queen (1936) 55 CLR 499
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997
Thompson v The Queen (1992) 8 WAR 387
Tognini v McGuire (2000) 109 A Crim R 411

Case(s) also cited:

Mercer v Scantlebury, unreported; SCt of WA; Library No 980414 (Murray J); 23 July 1998
Neale v Sloan (1997) 27 MVR 246
Pillage v Coyne [2000] WASCA 135

WHITE AUJ: The appellant appeals against the decision of Mr P Heaney SM in the Court of Petty Sessions at Esperance on 29 January 2002 when the learned Magistrate found the appellant guilty of the breach of a violence restraining order, contrary to s 61(1)(B) of the Restraining Orders Act 1997, and fined the appellant $200.00 and ordered that he pay costs of $98.00.
The sole ground of appeal is that the learned Magistrate erred in not ordering that the appellant's conviction be Spent.
The particulars of that ground are:
i)the learned Magistrate in determining not to make a Spent Conviction Order failed to take into account the previous good character of the appellant and the effect which a conviction would have upon his ability to obtain employment;
ii)the learned Magistrate in determining not to make a Spent Conviction Order failed to take into account the trivial nature of the offence for which the appellant had been convicted;
iii)the learned Magistrate failed to properly consider the provisions of s 45 of the Sentencing Act 1995.
That section provides:
"45. Spent conviction order: making and effect of
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless –
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to –
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
(2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3)The Spent Convictions Act 1988

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 Curby v Richards-Scully

Details

AGLC: Curby v Richards-Scully [2002] WASCA 166
Case: [2002] WASCA 166
Decision Date: 20 JUNE 2002

CaseChat Overview and Summary

The appeal heard by the Court of Appeal involved the respondents, Mr. and Mrs. Curby, who were aggrieved by the refusal of the Magistrates Court to order the spent conviction of Mrs. Curby to be expunged from the National Police Registry. Mrs. Curby's conviction, which occurred over twenty-five years ago, was for a breach of a Violence Restraint Order. The respondents sought to have the conviction expunged from the national database, which is used for background checks. The Court of Appeal was tasked with determining whether the Magistrates Court was correct in its refusal to order the expungement, focusing on whether the breach of the Violence Restraint Order constituted a trivial offence.

The primary legal issue was whether the Magistrates Court was correct in its assessment that the breach of the Violence Restraint Order was not a trivial offence, thereby justifying the refusal to order the expungement of Mrs. Curby's conviction. The respondents contended that the offence was trivial, warranting expungement, while the appellants argued that the Magistrates Court's decision should be upheld. The appeal hinged on the interpretation of what constitutes a "trivial offence" and whether the breach of a Violence Restraint Order could be categorised as such.

The Court of Appeal concluded that the Magistrates Court was correct in its decision. The judges found that the breach of a Violence Restraint Order was not a trivial offence, and therefore, the conviction should not be expunged from the national database. The reasoning was based on the importance of maintaining the integrity of the Violence Restraint Orders and the potential impact of such orders on public safety. The Court of Appeal emphasised that the determination of whether an offence is trivial must be made on a case-by-case basis, taking into account the nature and circumstances of the offence. The appeal was dismissed, and the Magistrates Court's decision was upheld.

Orders