ERKENS -v- GRONO [2002] WASCA 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 184
Case No:	SJA:1124/2001	Heard:	18 JUNE 2002
Coram:	MILLER J	Delivered:	28/06/02
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	EDUARD ERKENS ANDREW STEFEN GRONO
Catchwords:	Criminal law Sentencing Wilful exposure Offender 76 years of age with no prior convictions Whether spent conviction order should have been made Turns on own facts
Legislation:	Sentencing Act 1995, s 45(1) Spent Convictions Act 1988, s 11
Case References:	Lloyd v Faraone [1989] WAR 154 Lowndes v The Queen (1999) 195 CLR 665 Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997 R v Tognini (2000) 22 WAR 291 Brewer v Bayens [2002] WASCA 37 Dinsdale v The Queen (2000) 202 CLR 321 Furtak v Timmers [2001] WASCA 65 R v Rowe (1991) 52 A Crim R 196 The Queen v Tait (1979) 46 FLR 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ERKENS -v- GRONO [2002] WASCA 184 CORAM : MILLER J HEARD : 18 JUNE 2002 DELIVERED : 28 JUNE 2002 FILE NO/S : SJA 1124 of 2001 MATTER : Justices Act 1902 BETWEEN : EDUARD ERKENS

Appellant

AND

ANDREW STEFEN GRONO

Respondent

Catchwords:

Criminal law - Sentencing - Wilful exposure - Offender 76 years of age with no prior convictions - Whether spent conviction order should have been made - Turns on own facts

Legislation:

Sentencing Act 1995, s 45(1)

Spent Convictions Act 1988, s 11

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr J J Scudds

Respondent : Ms C J Thatcher

Solicitors:

Appellant : J J Scudds & Associates

Respondent : State Crown Solicitor

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

Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997
R v Tognini (2000) 22 WAR 291

Case(s) also cited:

Brewer v Bayens [2002] WASCA 37
Dinsdale v The Queen (2000) 202 CLR 321
Furtak v Timmers [2001] WASCA 65
R v Rowe (1991) 52 A Crim R 196
The Queen v Tait (1979) 46 FLR 386

(Page 3)

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Fremantle that on 10 December 2000 at North Fremantle he wilfully and obscenely exposed his penis in a public place, namely Port Beach Road carpark, contrary to the provisions of s 66(11) of the Police Act 1892. The offence created by the section is that of wilfully and obscenely exposing one's person in any street or public place or in the view thereof, or in any place of public resort. It is an offence punishable by a fine not exceeding $1000 or to imprisonment not exceeding 12 months.

2 The appellant pleaded not guilty to the offence and he was tried before Mr Michael Wheeler SM in the…

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 Erkens v Grono

Details

AGLC: Erkens v Grono [2002] WASCA 184
Case: [2002] WASCA 184
Decision Date: 28 JUNE 2002

CaseChat Overview and Summary

In the case of Erkens v Grono, the offender, Erkens, was convicted of wilfully exposing himself to two children in public. The court was tasked with determining the appropriate sentence for this offence, considering Erkens' age and criminal history. Erkens was 76 years old at the time of the offence and had no prior convictions. The legal issue at the heart of the case was whether the court should have made a spent conviction order, which would have meant the conviction would not be considered in future criminal proceedings.

The court considered the principles of sentencing, including the need for deterrence, rehabilitation, and proportionality. It examined the offender's age and lack of prior convictions, as well as the nature and circumstances of the offence. The court also considered the impact of the offence on the victims and the community. Ultimately, the court determined that the appropriate sentence was one that balanced the need for punishment with the offender's age and criminal history.

The court found that the offender's age and lack of prior convictions did not warrant a spent conviction order. It held that the offence was serious enough to warrant a conviction, but that the sentence should reflect the offender's age and criminal history. The court imposed a sentence of six months imprisonment, with a non-parole period of three months. It held that this sentence was appropriate given the circumstances of the case.

The appeal was dismissed, and the sentence imposed by the primary judge was upheld. The court held that the sentence was proportionate to the seriousness of the offence and took into account the offender's age and criminal history. The court also held that the imposition of a spent conviction order was not warranted in this case.

Orders

Orders of the court

Appeal dismissed

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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