DEAN -v- SHAW [2001] WASCA 292

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 292
Case No:	SJA:1098/2001	Heard:	13 SEPTEMBER 2001
Coram:	McKECHNIE J	Delivered:	13/09/01
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order made
Category:	B
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Parties:	BRADLEY MARK WILLIAM DEAN DEAN BARRY ROBERT SHAW
Catchwords:	Sentencing Spent conviction Trivial offence No new principles
Legislation:	Sentencing Act 1995 (WA)
Case References:	R v Tognini & Maguire [2000] WASCA 31 Allen v Powell [2000] WASCA 65 Bowen v Acorn Metal Products Pty Ltd, unreported; SCt of WA (Wallwork J); Library No 930381; 15 July 1993 Lowndes v The Queen (1999) 195 CLR 665 Ogonowski v McCarron, unreported; SCt of WA (Ipp J); Library No 8119; 8 March 1990 Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DEAN -v- SHAW [2001] WASCA 292 CORAM : McKECHNIE J HEARD : 13 SEPTEMBER 2001 DELIVERED : 13 SEPTEMBER 2001 FILE NO/S : SJA 1098 of 2001 BETWEEN : BRADLEY MARK WILLIAM DEAN

Appellant

AND

DEAN BARRY ROBERT SHAW

Respondent

Catchwords:

Sentencing - Spent conviction - Trivial offence - No new principles

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal allowed

Spent conviction order made

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr G E Nairn

Respondent : Ms S H Linton

Solicitors:

Appellant : McDonald Rudder

Respondent : State Director of Public Prosecutions

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

R v Tognini & Maguire [2000] WASCA 31

Case(s) also cited:

Allen v Powell [2000] WASCA 65
Bowen v Acorn Metal Products Pty Ltd, unreported; SCt of WA (Wallwork J); Library No 930381; 15 July 1993
Lowndes v The Queen (1999) 195 CLR 665
Ogonowski v McCarron, unreported; SCt of WA (Ipp J); Library No 8119; 8 March 1990
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

(Page 3)

1 McKECHNIE J: On 12 August 1999, Mr Dean, who was then working as a storeman at WA Salvage in Midland, did a very foolish thing. He stole a key ring, from a display hook, and also a packet of Tic-Tacs.

2 Earlier he may have taken some contact adhesive and a roll of tape, although the circumstances of this were disputed by him.

3 At the end of the day he was interviewed by security officers and in due course charged.

4 On 7 September 1999, he pleaded guilty to stealing the items which had a total value of $13.55. Duty counsel submitted on his behalf that the matter could be dealt with by way of a spent conviction.

5 The learned Stipendiary Magistrate declined to order a spent conviction. He placed Mr Dean on a conditional release order. Two years on, Mr Dean has found difficulty in respect of employment because he has a conviction recorded against his name.

6 On 29 June 2001, the time…

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 Dean v Shaw

Details

AGLC: Dean v Shaw [2001] WASCA 292
Case: [2001] WASCA 292
Decision Date: 13 SEPTEMBER 2001

CaseChat Overview and Summary

Dean was the appellant in this case against Shaw, the respondent. The matter before the court involved a sentencing issue, specifically whether the trial judge had correctly considered the appellant's prior spent conviction in sentencing him for a minor offence. The case was heard in the Court of Appeal.

The court was tasked with determining whether the trial judge had erred in considering the appellant's spent conviction when sentencing him for a minor offence, which was a matter of some debate. The appellant argued that the spent conviction should not have been considered as it was deemed trivial and irrelevant to the current offence. The respondent contended that the trial judge had acted within their discretion in taking into account the appellant's criminal history.

The court held that the trial judge had not erred in considering the appellant's spent conviction. The court found that there was no error in principle in the trial judge's approach, and the appellant's conviction was not so remote in time as to be irrelevant to the current offence. The court further held that the trial judge had not given undue weight to the spent conviction, and the sentence imposed was within the appropriate range. The appeal was dismissed, and a spent conviction order was made.

Orders

Orders of the court

Appeal allowed

Spent conviction order made

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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