DN v The Commissioner for Police - [2012] WADC 130

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DN -v- THE COMMISSIONER FOR POLICE [2012] WADC 130

CORAM: MCCANN DCJ

HEARD: 29 JUNE 2012

DELIVERED : 23 AUGUST 2012

FILE NO/S: CIVO 47 of 2012

BETWEEN: DN
Applicant
AND
THE COMMISSIONER FOR POLICE
Respondent

Catchwords:

Spent Convictions Act 1988 - Calculation of 'prescribed period' for qualifying to apply for successive convictions to be made spent - Construction of 'minor punishment' in s 11(5) - Whether reg 3 of Spent Convictions Regulations is retrospective in operation

Legislation:

Interpretation Act 1984, s 37(1)
Sentencing Act 1995 s 45
Spent Convictions Act 1988 s 3, s 6(2)(a), s 7(2), s 9, s 10, s 11
Spent Convictions Regulations 1992, reg 3

Result:

Objection to the competency of the application upheld

Representation:

Counsel:

Applicant: Mr C J Hair
Respondent: Mr J F Bennett

Solicitors:

Applicant: Northern Suburbs Legal Centre
Respondent: State Solicitor for Western Australia

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

Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88
Bird v The Commonwealth (1988) 165 CLR 1
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Jackson v Chrisp [2012] WASCA 158
Maxwell v Murphy (1957) 96 CLR 261
Moray County Council v Maclean [1962] SLT 236; [1962] SC 601
Rizhao Steel Holding Group Co Ltd v Koolan Iron Pty Ltd [2012] WASCA 50
Rodway v The Queen (1990) 169 CLR 515
Santos v The State of Western Australia [2011] WASCA 216

MCCANN DCJ:

Introduction

On 11 April 2012 the applicant applied to the court for various serious convictions within the meaning of s 9 of the Spent Convictions Act 1988 (the Act) to be made spent. The respondent has objected to the competency of the application on the ground that the period prescribed for doing so by s 6(2)(a) of the Act has accrued.
For the following reasons I uphold the respondent's jurisdictional objection and rule that the application is premature and thus incompetent.
The applicant has applied for the following convictions to be made spent:
(a)two counts of aggravated burglary and commit an offence in a place, incurred on 10 January 1997 for which he was sentenced to 3 years imprisonment;
(b)two counts of breach of bond order, incurred on 10 January 1997 for which he was fined $1,000;
(c)stealing, incurred on 1 July 1996 for which he was fined $800;
(d)two counts of breach of probation, incurred on 11 June 1996 for which he received a $1,000 good behaviour bond;
(e)stealing, incurred on 16 November 1995 for which he was fined $400;
(f)receiving, incurred on 27 June 1995 for which he was fined $500;
(g)attempted fraud, incurred on 27 June 1995 for which he was fined $300;
(h)attempted stealing, incurred on 18 May 1994 for which he was fined $300 and had his motor driver's licence disqualified for six months;
(i)use of a false name, incurred on 15 February 1994 for which he was fined $1,500; and
(j)stealing, incurred on 8 May 1991…

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.

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Details

Case: [2012] WADC 130
Decision Date: 23 AUGUST 2012

CaseChat Overview and Summary

In the case of DN v The Commissioner for Police, the plaintiff, DN, sought an order from the Court to declare that a conviction of theirs was eligible to be made 'spent' under the Spent Convictions Act 1988. The defendant, the Commissioner for Police, opposed the application on the basis that DN's conviction did not qualify as a'minor punishment' within the meaning of s 11(5) of the Act, and therefore the 'prescribed period' had not elapsed. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the Court was whether a particular penalty, imposed for a conviction, constituted a'minor punishment' as defined in s 11(5) of the Act. The Court was also required to determine if regulation 3 of the Spent Convictions Regulations was retrospective in operation. The outcome of these issues would determine whether the plaintiff's conviction was eligible to be made spent.

The Court held that the term 'minor punishment' in s 11(5) of the Act referred to a penalty that was not custodial or substantial in nature. The Court found that the penalty imposed on DN did not qualify as a 'minor punishment' because it involved a substantial fine. The Court further held that regulation 3 of the Spent Convictions Regulations was not retrospective in operation, and therefore could not be applied to the plaintiff's conviction. As a result, the plaintiff's application was dismissed.

No final orders were made by the Court.

Orders