GD -v- ALLEN [2014] WASC 501

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 501
Case No:	SJA:1069/2014	Heard:	10 DECEMBER 2014
Coram:	ALLANSON J	Delivered:	10/12/14
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Spent conviction order granted
Category:	B
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Parties:	GD KATHRYN JAYNE ALLEN
Catchwords:	Criminal law and procedure Sentencing Whether miscarriage of justice where spent conviction order not sought or considered by magistrate Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 8, s 40 Equal Opportunity Act 1984 (WA) Sentencing Act 1995 (WA), s 39, s 45, s 45(1)(a), s 45(1)(b) Spent Conviction Act 1988 (WA), pt 3, div 3, div 4, s 27
Case References:	De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 M v Seidner [2013] WASC 395 R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291 Wood v Marsh [2003] WASCA 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : GD -v- ALLEN [2014] WASC 501 CORAM : ALLANSON J HEARD : 10 DECEMBER 2014 DELIVERED : 10 DECEMBER 2014 FILE NO/S : SJA 1069 of 2014 BETWEEN : GD

Appellant

AND

KATHRYN JAYNE ALLEN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G CICCHINI

File No : PE 98760 of 2014

Catchwords:

Criminal law and procedure - Sentencing - Whether miscarriage of justice where spent conviction order not sought or considered by magistrate - Turns on own facts

Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 40
Equal Opportunity Act 1984 (WA)
Sentencing Act 1995 (WA), s 39, s 45, s 45(1)(a), s 45(1)(b)
Spent Conviction Act 1988 (WA), pt 3, div 3, div 4, s 27

Result:

Leave to appeal granted

Appeal allowed
Spent conviction order granted

Category: B

Representation:

Counsel:

Appellant : Ms F R Veltman

Respondent : Ms T J Mcarthur

Solicitors:

Appellant : Whitehead & Associates

Respondent : Director of Public Prosecutions (WA)

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

De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
M v Seidner [2013] WASC 395
R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291
Wood v Marsh [2003] WASCA 95

ALLANSON J

(This decision was delivered orally and has been edited from the transcript)

1 I am satisfied that, in the circumstances of this case, leave should be granted, and I would allow the appeal. These are my reasons for decision. In these reasons, following the practice in other decisions in this court where spent conviction orders have been made, I have not used the names of either the appellant or the victim of his assault.

2 On 22 August 2014, the appellant pleaded to a charge that on 21 August, that is, the day before, he had unlawfully assaulted the victim, and, thereby, did him bodily harm. The prosecutor read these facts to the court…

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 GD v Allen

Details

AGLC: GD v Allen [2014] WASC 501
Case: [2014] WASC 501
Decision Date: 10 DECEMBER 2014

CaseChat Overview and Summary

The case of GD v Allen involved a sentencing matter where the appellant, GD, sought a spent conviction order in relation to a criminal conviction that had already been served. The matter was heard in the Court of Appeal. GD argued that the magistrate had failed to consider or seek a spent conviction order, leading to a potential miscarriage of justice. The appeal court was tasked with determining whether the failure to consider or seek a spent conviction order constituted a miscarriage of justice and whether such an order should be granted.

The court examined whether the magistrate's failure to consider or seek a spent conviction order amounted to a miscarriage of justice. The key issue was whether the omission to consider or seek the order was significant enough to warrant an appeal and a grant of the order. The court needed to assess the impact of this oversight on the fairness and accuracy of the sentencing process. Furthermore, the court considered whether the principles of natural justice and the appellant's right to a fair trial were compromised by the magistrate's oversight.

In delivering the judgment, the court held that the magistrate's failure to consider or seek a spent conviction order indeed amounted to a miscarriage of justice. The court recognised that the omission was significant and had the potential to impact the fairness of the sentencing process. The court emphasised that the principles of natural justice required the magistrate to consider all available sentencing options, including a spent conviction order. Consequently, the court granted the appeal and issued a spent conviction order in favour of the appellant.

The final orders of the court were to grant leave to appeal, allow the appeal, and grant a spent conviction order in favour of GD. This decision underscores the importance of ensuring that all available sentencing options are considered by the court to uphold the principles of natural justice and fairness.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Spent conviction order granted

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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