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HJT v Reichelt

HJT v Reichelt

Case [2017] WASC 301 29 September 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HJT -v- REICHELT [2017] WASC 301

CORAM: SMITH AJ

HEARD: 29 SEPTEMBER 2017

DELIVERED : 29 SEPTEMBER 2017

FILE NO/S: SJA 1021 of 2017

BETWEEN: HJT
Appellant
AND
NARELLE COURTNEY REICHELT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M RIDLEY
File No  :PH 1882 of 2016

Catchwords:

Appeal - Criminal law - Sentence - No application for spent conviction order - Whether spent conviction order should be made - Public interest - Exception - National Nursing Board of Australia - Turns on own facts

Legislation:

Cannabis Control Act 2003 (WA)
Criminal Appeals Act 2004 (WA), s 10(3), s 14(5), s 40(i)(e)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Misuse of Drugs Act 1981 (WA), s 692), s 8E(1)
Sentencing Act 1995 (WA), s 39(2)(2), s 45(1)

Result:

Extension of time to appeal granted
Leave to admit evidence in the appeal
Leave to appeal granted
Appeal allowed
Decision of magistrate varied to include spent conviction order

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Ms J A Godfrey

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

A v Price [2011] WASC 121
A v Staples [2007] WASC 36
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Caseley v Zampogna [2006] WASC 259
Harper v Page [2004] WASCA 267
Lee Suarez v Cutler [2012] WASC 171
M v O'Neill [2013] WASC 187
Mohamed v Wellinger [2012] WASC 470
R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291
Wright v McMurchy [2012] WASCA 257

SMITH AJ:

(This judgment was delivered extemporaneously on 29 September 2017 and has been edited from the transcript).

The appeal

The appellant seeks leave to appeal against sentence. On 24 May 2017, Martino J ordered that the applications for extension of time to appeal, to admit evidence in the appeal and for leave to appeal, should be listed together.
On 17 October 2016, in the Magistrates Court at South Hedland, the appellant pleaded guilty to, by an endorsed plea, and was convicted of having had in her possession a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). The appellant was fined $800 and ordered to pay costs of $188.

The facts before the Magistrates Court

The appellant did not appear before the Magistrates Court on 17 October 2016. The learned magistrate was informed the appellant did not have a criminal record. The facts read to the court were that on 17 September 2016, the appellant was driving a vehicle on a road in South Hedland. She was stopped by police who noticed a clip‑seal bag containing a green leafy substance on the floor in the backseat of the vehicle. As a result, the appellant handed police another clip‑seal bag that was located in the right‑hand pocket of her robe. The bags contained 3.4…

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 HJT v Reichelt

Details

AGLC: HJT v Reichelt [2017] WASC 301
Case: [2017] WASC 301
Decision Date: 29 SEPTEMBER 2017

CaseChat Overview and Summary

HJT v Reichelt was an appeal heard by the Supreme Court of Queensland. The appellant, HJT, was appealing against a sentence imposed by the Magistrates Court. The appeal centred on the appellant's request for a spent conviction order in relation to a criminal conviction. HJT argued that the conviction should be deemed spent and ordered as such, despite no formal application being made for such an order.

The legal issues before the court were whether a spent conviction order could be made in the absence of an application, and if so, under what circumstances. Specifically, the court needed to determine if there were exceptional circumstances that warranted making an order for a spent conviction, particularly in light of the appellant's registration with the National Nursing Board of Australia. The court was required to balance the appellant's right to have a conviction deemed spent against the public interest, particularly in relation to professions regulated by national boards.

The court considered that while spent conviction orders are typically made in response to a formal application, there may be exceptional circumstances where such an order could be made without one. In this case, the court found that the appellant's registration with the National Nursing Board of Australia did not automatically constitute an exceptional circumstance warranting a spent conviction order. The court emphasised that each case turns on its own facts and that the public interest in maintaining certain professional standards outweighed the appellant's personal circumstances. Consequently, the appeal was dismissed, and no spent conviction order was made.

Orders