Dean v Legal Practice Board
[2016] WASCA 63 (S)
•9 JUNE 2016
DEAN -v- LEGAL PRACTICE BOARD [2016] WASCA 63 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 63 (S) | |
| THE COURT OF APPEAL (WA) | 09/06/2016 | ||
| Case No: | CACR:147/2015 | ON THE PAPERS | |
| Coram: | McLURE P BUSS JA MAZZA JA | 9/06/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES DEAN MARK JEFFREY SIMONSEN LEGAL PRACTICE BOARD |
Catchwords: | Criminal law Unqualified persons engaged in legal practice Aiding an unqualified person to engage in legal practice Convictions, sentences and costs orders recorded in the Magistrates Court of Western Australia Application for leave to appeal against decisions of a single judge of the Supreme Court dismissed by the Court of Appeal Appeals dismissed Final orders perfected Subsequent application by appellant to reopen the appeals in order to seek a spent conviction order |
Legislation: | Sentencing Act 1995 (WA), s 39(2)(c), s 45(1) |
Case References: | Dean v Legal Practice Board [2016] WASCA 63 JS v The State of Western Australia [2014] WASCA 177 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEAN -v- LEGAL PRACTICE BOARD [2016] WASCA 63 (S) CORAM : McLURE P
- BUSS JA
MAZZA JA
- MARK JEFFREY SIMONSEN
Appellants
AND
LEGAL PRACTICE BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTINO J
Citation : DEAN -v- LEGAL PRACTICE BOARD [2015] WASC 260
File No : SJA 1026 of 2014
Catchwords:
Criminal law - Unqualified persons engaged in legal practice - Aiding an unqualified person to engage in legal practice - Convictions, sentences and costs orders recorded in the Magistrates Court of Western Australia - Application for leave to appeal against decisions of a single judge of the Supreme Court dismissed by the Court of Appeal - Appeals dismissed - Final orders perfected - Subsequent application by appellant to reopen the appeals in order to seek a spent conviction order
Legislation:
Sentencing Act 1995 (WA), s 39(2)(c), s 45(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellants : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
Appellants : In person
Respondent : Legal Practice Board
Case(s) referred to in judgment(s):
Dean v Legal Practice Board [2016] WASCA 63
JS v The State of Western Australia [2014] WASCA 177
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: It appears from correspondence received by the court from Mr Simonsen that he wishes to reopen his appeals in order to seek a spent conviction order.
4 On 18 April 2016, final orders were signed and sealed by the Acting Court of Appeal Registrar, and a Certificate of Conclusion of Criminal Appeal was issued, in accordance with this court's reasons in Dean v Legal Practice Board [2016] WASCA 63, regarding Mr Simonsen's and Mr Dean's appeals against decisions of Martino J. Those appeals were treated as appeals against convictions, sentences and costs orders.
5 By email to the court dated 21 April 2016, Mr Simonsen pointed out that one of the 'alternative orders' that he sought in the appeals - presumably, in respect of his appeal against sentence - was a spent conviction order. He noted that the reasons of the court did not deal with this issue. By further email to the court dated 22 April 2016, he said that he 'would still seek a spent conviction order'. I will treat Mr Simonsen's emails as an application to reopen the appeals for the purpose of asking this court to make a spent conviction order in respect of him.
6 Of course, this court does not sit as a court of first instance. An application for a spent conviction order should have been made in the Magistrates Court. Mr Simonsen made no application for a spent conviction order in the proceedings in the Magistrates Court. In the appeals to Martino J, there was no ground of appeal alleging a miscarriage of justice by reason of the failure to make a spent conviction order. There was neither a ground of appeal before this court directed to the question of a spent conviction order, nor was the matter addressed in Mr Simonsen's oral or written submissions (or, for that matter, those made by Mr Dean). In the circumstances, the reference to a spent conviction order in the 'orders sought' section of the appellant's case was only relevant in the event that the court allowed the appeal against sentence and resentenced Mr Simonsen. As the appeals were dismissed, no question of resentencing arose with respect to either appellant.
7 The orders of the court made on 18 April 2016 have been perfected. The appeals have been considered on the merits and finally disposed of. Save for limited exceptions which do not apply in this case, this court does not have the power to reopen an appeal that has been dismissed and the order to that effect perfected: JS v The State of Western Australia [2014] WASCA 177 [14].
8 In any event, I would not have granted a spent conviction order pursuant to s 39(2)(c) and s 45(1) of the Sentencing Act 1995 (WA), having regard to the deliberate nature of the offence, its seriousness and Mr Simonsen's evident lack of remorse.
9 Mr Simonsen's application to reopen the appeals fails; accordingly, it must be dismissed.
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