Hogue v State of Western Australia

[2006] HCATrans 492

[2006] HCATrans 492

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P50 of 2005

B e t w e e n -

COLIN WILLIAM HOGUE

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2006, AT 9.42 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant pleaded guilty and was convicted in the District Court of Western Australia on counts of assault occasioning bodily harm and of unlawfully doing grievous bodily harm. At the time of these offences, the appellant was aged 19 years. Macknay DCJ imposed a sentence of 18 months’ imprisonment upon the count of doing grievous bodily harm and eight months’ imprisonment upon the count of assault occasioning bodily harm, the two sentences to be served concurrently. On 3 June 2005, the Court of Appeal (Malcolm CJ, Wheeler JA and Le Miere AJA) dismissed an appeal against the acceptance of the applicant’s guilty plea and against the consequent conviction. His appeal against sentence was dealt with by Wheeler JA and Le Miere AJA on 12 October 2005. The Court of Appeal quashed the sentence and in place thereof imposed a Conditional Release Order for a term of nine months. The Court refused to grant a spent conviction order under s 45 of the Sentencing Act 1995 (WA).

The applicant contends that the Court of Appeal erred in refusing to grant a spent conviction order because it considered and applied irrelevant criteria in coming to its decision, and incorrectly characterised the nature of the applicant’s behaviour.  The applicant further argues that the decision of the Supreme Court of Western Australia in R v Tognini (2000) 22 WAR 291 at [24], [27] wrongly treated the power to grant a spent conviction order as of an “exceptional character” and one that should be “sparingly exercised”.

We are not satisfied that there are sufficient prospects of success in demonstrating error in what was said in Tognini or in the application of s 45 in the present case to warrant a grant of special leave. In particular, the respondent’s written submissions indicate the special position occupied by s 45 in the statutory sentencing scheme in Western Australia. None of the other grounds urged by the applicant would attract a grant of special leave.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.44 AM THE MATTER WAS CONCLUDED