Dean v Shaw
[2001] WASCA 292
•13 SEPTEMBER 2001
DEAN -v- SHAW [2001] WASCA 292
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 292 | |
| Case No: | SJA:1098/2001 | 13 SEPTEMBER 2001 | |
| Coram: | McKECHNIE J | 13/09/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Spent conviction order made | ||
| B | |||
| PDF Version |
| 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
- 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 for appealing was extended on the following grounds:
"4. The appeal be determined on the ground that the learned Magistrate miscarried in exercise of his discretion in determining whether the offence was of a trivial nature pursuant to section 45 of the Sentencing Act 1995 by:
(a) having regard solely to the seriousness of the type of offence of which the appellant was convicted;
(b) having regard to an inappropriate consideration; namely that persons convicted of stealing as a servant were once gaoled as a matter of course;
(c) failing to take into account relevant considerations, namely the circumstances of the commission of the offence and in particular the modest value of the goods stolen, and the circumstances personal to the offender, namely his youth and previous good character."
(Page 4)
- "This is of course a serious offence. It's an indictable matter than (sic) can be dealt with summarily with the election of yourself. It wasn't all that long ago in history that people who were convicted of stealing as a servant automatically got a gaol sentence.
Times have changed somewhat and courts certainly do not impose gaol sentences for first offenders of this nature. I'll also take into account the relatively minor nature of the items that you took. But it wasn't on one occasion; it was, on the evidence, on two separate occasions you embarked upon this campaign.
Whilst you are a young man of 19, I do note that you are currently employed as a storeman elsewhere and obviously luckily you got that, I suppose, before this matter arose. In all the circumstances I believe I cannot impose a spent conviction. The offence is certainly not trivial and there is nothing remarkable in your previous character that I can see that would justify a spent conviction for such a serious matter."
8 I do not consider that the Magistrate misled himself in the comments that he made. Sentencing remarks are not to be read precisely as a judgment and often contain elements of homily and warning. In my opinion, the Magistrate was doing no more than emphasising to Mr Dean the serious nature of the offence.
9 I would not uphold the appeal on the first two grounds.
Provisions of the Sentencing Act
10 Section 39 empowers a court to make a spent conviction order in respect of a range of penalties up to a CBO.
11 Section 45 provides:
"(1) Under section 39(2) to 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 -
(Page 5)
- (i) the fact that the offence is trivial; or
(ii) the previous good character of the offender,
- it considers the offender should be released immediately of the adverse effect that the conviction might have on the offender."
12 The guidelines for spent convictions are set out in R v Tognini & Maguire [2000] WASCA 31, particularly at par 28 and par 28.
13 At par 28 Murray J said:
"That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."
Resolution of the present case
14 An appeal court will not lightly interfere with the exercise of a sentencing discretion. In the present case the learned Magistrate clearly adverted his mind to a spent conviction order and decided against it. Mr Dean was to some degree in a position of trust, he being an employee. A record of conviction may be a warning to others who might be minded to employ him in a similar position of trust in respect of goods.
15 On the other hand, most employment positions are positions of trust and involve the handling of the goods of the employer.
16 In the particular case Mr Dean was young. The value of the items taken was very low. There was a dispute about the glue and tape such that I do not consider there was an unequivocal plea of guilty concerning them. The actual items taken therefore were a packet of Tic-Tacs and a key ring.
(Page 6)
17 Having regard to all of the circumstances, including the disposition by way of a CRO, I would regard the stealing as trivial in the sense used within s 45. If I am wrong about that, I nevertheless would consider that having regard to the previous good character of the offender and the purposes of a spent conviction order, such an order would be appropriate for the reasons expressed by Murray J set out above.
Conclusion
18 I allow the appeal and vary the order of the Magistrate by making a spent conviction order.
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