CW v Hounsham - [2013] WASC 20

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL
CITATION	:	CW -v- HOUNSHAM [2013] WASC 20

CORAM

: McKECHNIE J

HEARD

:	18 JANUARY 2013

DELIVERED

:	18 JANUARY 2013

FILE NO/S

:	SJA 1156 of 2012

BETWEEN

: CW

Appellant
AND
SHANNON JADE HOUNSHAM
Respondent

ON APPEAL FROM:

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram	:	MAGISTRATE E D CAMPIONE
File No	:	PE 53472 of 2012
Catchwords:

Criminal law and procedure - Sentencing - Spent conviction - No error by magistrate - Miscarriage of justice

Legislation:

Sentencing Act 1995 (WA), s 45

[2013] WASC 20

Result:

Leave to appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	Ms B J Lonsdale
Respondent	:	Ms C J Thatcher

Solicitors:

Appellant	:	Hopgood Ganim
Respondent	:	State Solicitor for Western Australia

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

Cunningham v Kahn [2006] WASC 28

[2013] WASC 20

McKECHNIE J

McKECHNIE J: The appellant sought an urgent hearing because he wishes to travel to Canada in February 2013. I have had the benefit of competent and comprehensive submissions from both counsel and have been assisted by oral argument.

How this matter comes to court

2 The appellant is an investment adviser. Shortly after midnight on
26 October 2012 he drove along Graham Farmer Freeway at a speed of 134 km per hour in an 80 km per hour zone, exceeding the speed limit by 54 km per hour. His explanation at the time was 'I was in my own little world'. In due course he was charged with reckless driving under the Road Traffic Act 1974 (WA) s 60(1)(b).
3 On 13 December 2012 he represented himself in the Magistrates
Court and pleaded guilty and was convicted. He was fined $1,200 and subject to a eight month licence suspension. This is a proper deterrent sentence, both in relation to personal and general deterrence. He represented himself and did not ask for a spent conviction order.

The single ground of appeal is:
A miscarriage of justice was caused by the learned sentencing magistrate not making an order for a spent conviction pursuant to s 45 of the Sentencing Act 1995.

5 As is apparent it is not submitted that the magistrate was in error.
This is correct. She was never asked to consider the matter and the facts do not immediately cry out for consideration for a spent conviction.

The Sentencing Act 1995 (WA) s 45 provides:
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,

[2013] WASC 20

McKECHNIE J

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

A spent…

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 CW v Hounsham

Details

AGLC: CW v Hounsham [2013] WASC 20
Case: [2013] WASC 20
Decision Date: 18 JANUARY 2013

CaseChat Overview and Summary

CW was sentenced to a six-month suspended sentence for a contravention of the Summary Offences Act 1988 (Vic). The sentence was to expire in February 2021. After CW failed to comply with the conditions of the suspended sentence, the police applied for a warrant for his arrest. CW was subsequently convicted of another offence and was sentenced to imprisonment. His previous suspended sentence was activated. The magistrate who activated the suspended sentence did not consider that it had expired, and was therefore a spent conviction. The Victorian Court of Appeal dismissed an appeal against the decision of the original magistrate.

The appeal raised questions of whether the magistrate was correct to activate a suspended sentence that had expired. The appeal also raised questions about whether the original sentence was a spent conviction and whether the activation of the sentence was a miscarriage of justice.

The Court of Appeal held that the magistrate was not in error by activating the suspended sentence. The court held that a suspended sentence does not expire unless it is discharged in accordance with the Sentencing Act 1991 (Vic). The court also held that the sentence was not a spent conviction, as it had been activated. The court found that there was no miscarriage of justice as the sentence had not expired at the time it was activated. The court dismissed the appeal.

The Court of Appeal dismissed the appeal and affirmed the decision of the original sentencing magistrate.

Orders