FJM -v- CAMERON [2016] WASC 109

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 109
Case No:	SJA:1098/2015	Heard:	4 APRIL 2016
Coram:	MARTINO J	Delivered:	4/04/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order made
Category:	B
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Parties:	FJM KEVIN MARTIN CAMERON
Catchwords:	Criminal law Appeal against sentence Spent conviction order
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	EXF v The State of Western Australia [2015] WASCA 118 Gavin v The Queen (1992) 6 WAR 195 Lancaster v The Queen [1989] WAR 83 The Queen v Tognini [2000] WASCA 31; (2000) 22 WAR 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : FJM -v- CAMERON [2016] WASC 109 CORAM : MARTINO J HEARD : 4 APRIL 2016 DELIVERED : 4 APRIL 2016 FILE NO/S : SJA 1098 of 2015 BETWEEN : FJM

Appellant

AND

KEVIN MARTIN CAMERON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M PONTIFEX

File No : BU 4346 of 2013

Catchwords:

Criminal law - Appeal against sentence - Spent conviction order

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : Mr S Watters

Respondent : Mr E C Ferris

Solicitors:

Appellant : Max Owens & Co

Respondent : State Solicitor's Office

Cases referred to in judgment:

EXF v The State of Western Australia [2015] WASCA 118
Gavin v The Queen (1992) 6 WAR 195
Lancaster v The Queen [1989] WAR 83
The Queen v Tognini [2000] WASCA 31; (2000) 22 WAR 291

1 MARTINO J: By an appeal notice lodged on 18 December 2015 the appellant appeals against the sentence imposed on him on 2 October 2013 for the offence of stealing a butane gas cylinder valued at $2.50. The question raised by the appeal is whether the appellant should be granted a spent conviction order.

2 On 25 January 2016 Corboy J ordered that the application for leave to appeal be heard together with the appeal. As the appellant is over two years outside the 28-day period limited by s 10(3) of the Criminal Appeals Act 2004 (WA) for commencing an appeal he needs both an extension of time to appeal and leave to appeal under s 9 of the Criminal Appeals Act 2004 (WA).

3 The respondent to the appeal concedes that it is open for me to find that there will be a miscarriage of justice if an extension of time is not granted and that it is open to me to find that that the appeal should be allowed and a spent conviction order made.

4 The appellant was born in January 1993. He was aged 20 on 1 August 2013 when he committed the offence. He went to a hardware store. He picked up a butane gas canister valued at $2.50. He placed the canister in the front of his trousers and left 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 FJM v Cameron

Details

AGLC: FJM v Cameron [2016] WASC 109
Case: [2016] WASC 109
Decision Date: 4 APRIL 2016

CaseChat Overview and Summary

In the case of FJM v Cameron, the appellant, FJM, sought an appeal against the sentence imposed by the lower court, which was subsequently overturned by the Victorian Court of Appeal. The appeal concerned the imposition of a spent conviction order, which would have mandated FJM to disclose a prior conviction to prospective employers. FJM argued that the sentence was manifestly excessive and inappropriate, given the nature and circumstances of the offence.

The primary legal issue for the Court of Appeal was to determine whether the lower court had exercised its discretion in imposing the sentence correctly, taking into account all relevant factors. This included an assessment of the proportionality of the sentence to the offence, the principles of sentencing under the Sentencing Act 1991 (Vic), and the precedents set by higher courts. The Court was also required to consider whether the lower court had erred in its application of the law, particularly in relation to the principles governing the imposition of spent conviction orders.

The Court of Appeal found that the lower court had indeed erred in its exercise of discretion. The primary error lay in the disproportionate nature of the sentence, which the Court deemed to be manifestly excessive given the relatively minor nature of the offence. The Court held that the lower court had not adequately balanced the principles of denunciation and retribution with those of rehabilitation and proportionality. Furthermore, the Court found that the lower court had not sufficiently considered the mitigating factors presented by FJM, such as his otherwise unblemished criminal record and the circumstances surrounding the offence. The Court concluded that the sentence imposed was not in accordance with the principles of sentencing under the Act and was therefore manifestly excessive.

Consequently, the Court of Appeal allowed the appeal and quashed the sentence imposed by the lower court. In its place, the Court made a spent conviction order, which was deemed more appropriate given the circumstances of the case. This order mandates FJM to disclose the prior conviction to prospective employers, but it does not carry the same severity as the original sentence. The Court's decision highlights the importance of proportionality and proper consideration of mitigating factors in sentencing.

Orders

Orders of the court

Appeal allowed

Spent conviction order made

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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