HBM v Ball

[2013] WASC 167

HBM -v- BALL [2013] WASC 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 167
Case No:	SJA:1118/2012	Heard:	29 APRIL 2013
Coram:	McKECHNIE J	Delivered:	29/04/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Time extended in which to appeal Appeal allowed Spent conviction order made
Category:	B
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Parties:	HBM DAVID STANLEY BALL
Catchwords:	Criminal law Procedure Disorderly conduct Spent conviction order No new principles
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : HBM -v- BALL [2013] WASC 167 CORAM : McKECHNIE J HEARD : 29 APRIL 2013 DELIVERED : 29 APRIL 2013 FILE NO/S : SJA 1118 of 2012 BETWEEN : HBM

Appellant

AND

DAVID STANLEY BALL
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G N CALDER

File No : PE 11825 of 2009

Catchwords:

Criminal law - Procedure - Disorderly conduct - Spent conviction order - No new principles

Legislation:

Sentencing Act 1995 (WA), s 45

(Page 2)

Result:

Time extended in which to appeal

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : Mr K P Bates
Respondent : Ms J N Harman

Solicitors:

Appellant : Bates Legal Pty Ltd
Respondent : State Solicitor for Western Australia

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

Nil

(Page 3)

McKECHNIE J:

How this matter comes to court

1 In early January 2009 the appellant was caught short in Russell Square, Northbridge, and urinated against a large tree about a hundred metres from the nearest toilet block. He had a quick look around to see if anyone was watching. Although he saw no-one, police officers saw him. He explained to the police, 'I have a medical condition'. He was charged with disorderly conduct, pleaded guilty by endorsement and was fined $250 which he duly paid.

2 Three years on he appeals against the decision on the basis that there was a miscarriage of justice in failing to receive a spent conviction order. The reasons for an extension of time are quite inadequate. Decisions must be made promptly. The appellant has lost the right to appeal and can only succeed if there has been a miscarriage of justice which must be corrected.

3 The ground of appeal is:

Given the personal circumstances of the appellant and the adverse consequences for him, he would suffer a miscarriage of justice if he does not receive a spent conviction.

Disposition

4 The appellant has a commerce degree and is a licensed land valuer. He deposes at paragraph 27 of his first affidavit:

[I]f my licence is not renewed then I will not be able to work as a licensed Land Valuer and I will not be able to remain in employment with my current employer or in the industry.

5 That may be so. However, there is no indication that his employment is imperilled. He disclosed the circumstances of this offence and was subsequently granted a land valuer's licence in 2010 and again in 2013 for a further three years.

6 This matter is governed by the Sentencing Act 1995 (WA) s 45(1). I have had regard to a relevant matter that has occurred following the conviction: Criminal Appeals Act 2004 (WA) s 14(5). That is a medical report obtained in 2012 indicating the appellant has suffered both bladder urgency and frequency associated with mucosal prolapse syndrome. When urinary urgency occurs, the appellant requires rapid access to toilet facilities. This supports the applicant's explanation given to the police officers at the time.

(Page 4)

7 The appellant has detailed his background in an affidavit. He has a university degree. He has been continuously employed for many years. He is married with one child. References attest to his good character. I consider he is unlikely to commit such an offence again.

8 In the particular circumstances, having regard to his medical condition, I would regard the offence as trivial: s 45(1)(b)(i). But in any event, having regard to his previous good character, and all the circumstances, it would be a miscarriage of justice not to relieve him immediately of any adverse effects which the conviction may have.

9 The respondent has quite properly conceded that there is no pressing public interest against the making of the order. I am positively of the view that the public interest means that an order should be made.

10 Time within which to appeal is extended. Appeal allowed and a spent conviction order made.