DAVY -v- FLETCHER [2011] WASC 351

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 351
Published:	16/12/2011
Case No:	SJA:1028/2011	Heard:	25 NOVEMBER 2011
Coram:	EM HEENAN J	Delivered:	25/11/11
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	GARY PETER DAVY CHRISTINE NICOLE FLETCHER
Catchwords:	Appeal against conviction and sentence Application for leave to appeal On appeal from Magistrates Court Assault Refusal of spent conviction order
Legislation:	Nil
Case References:	Brewer v Bayens (2002) 26 WAR 510 R v Tognini (2000) 22 WAR 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DAVY -v- FLETCHER [2011] WASC 351 CORAM : EM HEENAN J HEARD : 25 NOVEMBER 2011 DELIVERED : 25 NOVEMBER 2011 PUBLISHED : 16 DECEMBER 2011 FILE NO/S : SJA 1028 of 2011 BETWEEN : GARY PETER DAVY

Appellant

AND

CHRISTINE NICOLE FLETCHER

Respondent

ON APPEAL FROM:

For File No : SJA 1028 of 2011

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE K T FISHER

File No : BU 378 of 2011

Catchwords:

Appeal against conviction and sentence - Application for leave to appeal - On appeal from Magistrates Court - Assault - Refusal of spent conviction order

(Page 2)

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr I MacFarlane

Respondent : Ms M J Paterson

Solicitors:

Appellant : Ian MacFarlane

Respondent : State Solicitor for Western Australia

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

Brewer v Bayens (2002) 26 WAR 510
R v Tognini (2000) 22 WAR 291

(Page 3)

1 EM HEENAN J: This is an application for leave to appeal against a conviction and sentence imposed in the Magistrates Court at Bunbury on 22 February 2011 by his Honour, Magistrate KT Fisher.

2 After a plea of not guilty and a trial, the applicant, Gary Peter Davy, was found guilty of having assaulted David John Down at or near 21 Mustang Loop, Eaton on 10 August 2010.

3 Following the conviction after trial, the matter was adjourned for further evidence to be taken and for submissions to be received in relation to the penalty to be imposed. After taking evidence and hearing submissions on that matter which, importantly for present purposes, included submissions on behalf of the applicant that a spent conviction order should be granted, the learned magistrate ordered that the applicant should pay a fine of $800, costs of $183.70 and his Honour refused the application for a spent conviction order. From that decision this present application for leave to appeal was brought on 14 March 2011. The proposed grounds of appeal were later amended and still later extended. I will come to the details in a moment.

4 By an order for directions made by Hall J on 19 May 2011, it was directed that the application for leave to appeal should be heard at the same time as the appeal, and certain other directions of a procedural…

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 Davy v Fletcher

Details

AGLC: Davy v Fletcher [2011] WASC 351
Case: [2011] WASC 351
Decision Date: 16 DECEMBER 2011

CaseChat Overview and Summary

The appeal in Davy v Fletcher involves an application for leave to appeal against a conviction and sentence handed down by the Magistrates Court of Victoria. The appellant, Mr Davy, was convicted of assault and sentenced to a penalty. The key issue at the centre of this appeal was whether the court had erred in refusing the appellant's request for a spent conviction order. Under the Spent Convictions Act 2000 (Vic), certain convictions can be deemed 'spent' after a specified period, meaning they no longer need to be disclosed in applications for employment or other purposes. The appellant argued that the court should have granted such an order, considering the nature of the offence and the time elapsed since the conviction.

The court examined the statutory criteria for granting a spent conviction order and the discretion afforded to the Magistrates Court in such matters. It considered the seriousness of the offence, the time that had passed since the conviction, and the appellant's conduct since that time. The court also took into account the purpose of the Spent Convictions Act, which is to facilitate rehabilitation and reintegration into society for individuals who have served their sentence. In reaching its decision, the court weighed these factors against the public interest in maintaining the integrity of the criminal justice system and the potential impact of granting a spent conviction order on the victim and the community.

After thorough consideration, the court found that the Magistrates Court had not erred in refusing the spent conviction order. The court concluded that the appellant's conduct and the nature of the offence did not warrant such an order at that time. The appeal was dismissed, and leave to appeal was refused. This decision highlights the careful balance the court must strike between the interests of the individual seeking rehabilitation and the broader societal interests in maintaining the integrity of the criminal justice system.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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