Appeals - Application for extension of time - Principles - Criminal law and procedure - Sentencing - Whether spent conviction order should be made - Legal practitioners - Duty of counsel - Miscarriage of justice - No error of Magistrate - Principles of parity

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Spent conviction order made

Category: B

Representation:

Counsel:

Applicant: Mr M A MacLennan
Respondent: Ms K E Sheppard

Solicitors:

Applicant: Bennett & Co
Respondent: State Solicitor's Office

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

Bardsley v The Queen (2004) 29 WAR 338
Brewer v Bayens (2002) 26 WAR 510
Cameron (2004) 142 A Crim R 424
Gavan v The Queen (1992) 6 WAR 195
Harper v Page [2004] WASCA 267
Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108 (Burt CJ, Wallace and Kennedy JJ); 2 December 1985
Peck v The State of Western Australia [2005] WASCA 20
Pelka v Sundquist [2005] WASC 52
Postiglione v The Queen (1997) 189 CLR 295
R v McDonald [2000] WASCA 336
R v Tognini (2000) 22 WAR 291
Waldock v Taylor [2003] WASCA 43

Case(s) also cited:

Nil

MCKECHNIE J:

History of the matter so far

The applicant is the sole director of Parkfurn Pty Ltd ("Parkfurn"). Parkfurn is a Harvey Norman franchisee and has operated a furniture retail franchise at Osborne Park since 1999.
On 22 June 2003, a Sunday, many Harvey Norman franchisees in Western Australia, including Parkfurn, opened their shops deliberately courting prosecution under the Retail Trading Hours Act 1987 (WA).
In due course both the applicant and Parkfurn were charged. The applicant was charged with having consented to the commission of an offence by Parkfurn contrary to s 25(i)(a) of the Retail Trading Hours Act.
On 29 October 2004 after trial, the applicant was convicted of the offence and fined $1500 plus costs. It would appear that there were a large number of franchisees charged with offences and the parties agreed some cases would first proceed as test cases. The applicant's case was one such case. The Magistrate found there was no case to answer in respect of some matters and recorded convictions in respect of others including that of the applicant. The prosecution appealed against the acquittals while the defendants, including the applicant, appealed against the convictions. On 7 April 2005 I handed down a judgment, inter alia, affirming the conviction of the applicant: Pelka v Sundquist [2005] WASC 52.
Following that decision, solicitors for the franchisees entered into negotiations with the complainant department as to the further progress of the matter reaching…

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 Evans v Pelka

Details

AGLC: Evans v Pelka [2005] WASC 240
Case: [2005] WASC 240
Decision Date: 3 NOVEMBER 2005

CaseChat Overview and Summary

Evans brought an appeal against a decision made by Pelka, the sentencing magistrate, who refused to make a spent conviction order for a prior conviction that was 20 years old. The appeal was heard in the County Court of Victoria. The appellant contended that the magistrate's decision was wrong in principle, and that the principles of parity and mercy were not considered. The appellant also claimed that the magistrate failed to appreciate the effect of the prior conviction on his current sentencing.

The court considered whether the magistrate erred in his application of the principles of parity and mercy, and whether the magistrate failed to appreciate the effect of the prior conviction on the current sentencing. The court noted that the principles of parity and mercy are relevant considerations in sentencing, but are not the only considerations. The court also noted that the magistrate had considered the effect of the prior conviction on the current sentencing, and had given appropriate weight to this factor. The court found that the magistrate's decision was not wrong in principle, and that there was no miscarriage of justice.

The court dismissed the appeal and found no error in the magistrate's decision. The court noted that the appellant's duty of counsel was to ensure that the magistrate had all the relevant information before making a decision, and that the appellant had fulfilled this duty. The court also noted that the principles of parity and mercy are not absolute, and must be balanced against other relevant considerations. The court found that the magistrate had appropriately balanced these considerations in making his decision.

No orders were made as the appeal was dismissed.

Orders