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Evans v Richards

Evans v Richards

Case [2015] WASC 53 12 February 2015

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: EVANS -v- RICHARDS [2015] WASC 53

CORAM: McKECHNIE J

HEARD: 5 FEBRUARY 2015

DELIVERED : 12 FEBRUARY 2015

FILE NO/S: SJA 1080 of 2014

BETWEEN: RUSSELL GRANT EVANS
Appellant
AND
ADRIAN LEE RICHARDS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J SCUTT
File No  :CAR 652 of 2014

Catchwords:

Criminal law and procedure - Police officer convicted of assault - No injuries - Whether fine of $7,000 excessive - Spent conviction - Whether error of discretion in declining to make order - Reduction for plea of guilty - Whether the Sentencing Act 1995 (WA) s 9AA has application - Pleading - Whether particulars required

Legislation:

Sentencing Act 1995 (WA), s 9AA, s 45
Criminal Procedure Rules 2005 (WA), r 65(2)

Result:

Appeal against amount of fine allowed
Appeal against refusal to make a spent conviction order dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L B Black & Mr T Gask
Respondent: Mr J L Winton

Solicitors:

Appellant: Bentley Lawyers
Respondent: State Solicitor for Western Australia

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

Burkhart v Bradley [2013] NTCA 5; (2013) 33 NTLR 79
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Johnson v Ayling [2013] WASC 312
M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511
Poduti v The State of Western Australia [2011] WASCA 169
R v Hirst [2013] SASCFC 54; (2013) 116 SASR 300
Strahan v Brennan [2014] WASC 190
Trompler v The State of Western Australia [2008] WASCA 265
Whitelaw v O'Sullivan [2010] QCA 366

McKECHNIE J: The appellant, a serving police officer, unlawfully assaulted a mouthy adult who had been detained after walking away from police. He pleaded guilty and sought a spent conviction order. The magistrate declined to make such an order. The appellant was fined $7,000. He remains a police officer but was transferred to other duties and had to move from the country. He has lost much money and prospects as a result. The appellant appeals on the grounds:
•the sentence was excessive; and
•the learned magistrate erred in law by not allowing the application for a spent conviction order.

The background to the offence and the offender

The facts and the matters of mitigation were outlined by the magistrate:
[T]the complainant was a passenger in a vehicle that was travelling on a public road in Carnarvon. He was recognised by police who were in the area and also in their vehicle was a person for whom there was a current outstanding bench warrant. The vehicle which the complainant was travelling stopped and the complainant got out and fled from police on foot and he was pursued and eventually cornered. He responded to commands by police and he lay face-down on the ground and he was then cuffed with his hands cuffed behind his back and he did not resist the police officer who effected that arrest.

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 Richards

Details

AGLC: Evans v Richards [2015] WASC 53
Case: [2015] WASC 53
Decision Date: 12 FEBRUARY 2015

CaseChat Overview and Summary

The case of Evans v Richards involved a dispute between the complainant, Evans, and the respondent, Richards, who was a police officer. The case was heard by the Supreme Court of Western Australia. The issue in this case was whether the fine imposed on Richards was excessive and whether the court erred in declining to make an order for a spent conviction. Additionally, the case examined whether the reduction for a plea of guilty applied under section 9AA of the Sentencing Act 1995 (WA) and whether particulars were required in the pleadings.

The court was required to decide if the $7,000 fine imposed on Richards was excessive, considering the lack of injuries and the circumstances of the case. The court also had to consider whether the error of discretion in declining to make an order for a spent conviction was valid. Furthermore, the court needed to determine whether section 9AA of the Sentencing Act 1995 (WA) applied in this case and if particulars were required in the pleadings. The court's analysis focused on the appropriate application of the law and the circumstances of the case in determining the appropriate sentence.

The Supreme Court found that the fine imposed on Richards was not excessive, taking into account the seriousness of the offence and the need for deterrence. The court also held that there was no error of discretion in declining to make an order for a spent conviction. Regarding the reduction for a plea of guilty, the court found that section 9AA of the Sentencing Act 1995 (WA) did not apply in this case as the offence was committed before the amendment of the Act. Finally, the court held that particulars were not required in the pleadings as the allegations were clear and the respondent was not misled.

In conclusion, the Supreme Court of Western Australia upheld the fine imposed on Richards and found no error in the court's decision regarding the spent conviction. The court also determined that section 9AA of the Sentencing Act 1995 (WA) did not apply and that particulars were not required in the pleadings. No further orders were made in the case.

Orders