DT v Flynn

[2009] WASC 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   DT -v- FLYNN [2009] WASC 124

CORAM:   McKECHNIE J

HEARD:   30 APRIL 2009

DELIVERED          :   30 APRIL 2009

FILE NO/S:   SJA 1005 of 2009

BETWEEN:   DT

Appellant

AND

BENJAMIN BRETT FLYNN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G MIGNACCA-RANDAZZO

File No  :FR 12973 of 2008, FR 12974 of 2008

Catchwords:

Criminal law and procedure - Spent conviction order - Whether appropriate - No new principles

Legislation:

Nil

Result:

Appeal allowed
Spent conviction order made

Category:    B

Representation:

Counsel:

Appellant:     Mr G F Edwards

Respondent:     Ms L J Finlay

Solicitors:

Appellant:     Gerard Edwards

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. McKECHNIE J:  On 14 October 2008, the appellant pleaded guilty to one count of assault occasioning bodily harm and one count of threatening to harm.  He was ordered to pay fines totalling $2,000.  The sole issue on appeal is whether or not the magistrate erred in refusing to exercise his discretion to make a spent conviction order in view of the evidence of good character and antecedents of the appellant.  The offences arose out of a dispute between band members.  There is no suggestion that the offences were other than serious as the appellant's counsel has conceded. 

2. When the magistrate came to consider the question of the spent conviction, he had before him a comprehensive plea in mitigation by counsel and a series of character references, all of which have been made available to me.  The law in relation to these matters is not put in issue, it being acknowledged by the appellant that there must be something out of the ordinary to show that a spent conviction order ought be made; that is, the mere fact that the statutory criteria are filled simply enlivens the discretion.  It does not automatically lead to the exercise of the discretion.

3. In dealing both with the disposition by way of fine but also relevant to the spent conviction, the magistrate said:

   You are a person of otherwise good character, you certainly have no record and again there is mitigation flowing from that fact.

   You are 36 years of age, you are someone who as I understand it has abandoned alcohol and has resisted taking up alcohol and participate in AA meetings to that effect.  You are someone who according to the references that have been put before me, you are quite frankly in the eyes of others you have made a significant valuable contribution in a philanthropic manner and you are a valued member of the community and I certainly see that you are a person of very high standing in the eyes of those that know you better and have dealings with you, that is certainly of significant mitigatory effect in my judgment and you have taken steps as I understand it to address potential anger management issues and have enrolled in a course.  (ts 6)

4. He further said:

   You are an industrious valued person by reference to those references that I mentioned earlier and in my view they are added reasons why there is no need for you to be supervised. 

5. That was in the context, as I say, of determining the proper penalty but nevertheless it is also relevant in relation to the exercise of the discretion under appeal.  The magistrate took all matters into account but said:

   [W]eighed against that is the nature of the offences and the seriousness of the offences.  These were offences of violence and threat to harm.  I have taken the view and given it careful consideration, but in all of the circumstances, notwithstanding all that can be said on your behalf and the potential impacts on your behalf that the court is not prepared to exercise its discretion.  (ts 7, 8)

6. It is not suggested that the magistrate erred by failing to take into account any relevant consideration or taking into account any irrelevant consideration.  Rather the appellant's central submission is that the result manifests error. 

7. This court should always be careful to accord sentencing discretion and discretions of this nature to a trial court who deal with these matters daily.  It is for that reason that many authorities have established the principle that it is not sufficient for a judge of this court to reach the view that he or she may have come to a different view in the exercise of discretion.  It must be shown that the exercise of discretion positively miscarried.  This court is not a resentencing court.  It is a court of review.

8. Having said all that and having looked at the material, I am satisfied that in this case the sentencing discretion did miscarry in a way which justifies intervention.  The overwhelming preponderance of material in the references and the other matters indicate to me that this was a case where the adverse effects of a conviction, notwithstanding the seriousness of the offence, should have been relieved by a spent conviction order.  I therefore allow the appeal and will order that there be a spent conviction order.