JJA v Yow

Case [2008] WASC 69

JJA -v- YOW [2008] WASC 69



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASC 69
Case No:SJA:1092/200717 APRIL 2008
Coram:McKECHNIE J2/05/08
11Judgment Part:1 of 1
Result: Spent Conviction Order made
A
PDF Version
Parties:JJA
MARKUS YOW

Catchwords:
Criminal law and procedure
Sentencing
Spent conviction
Admissibility of material not before the trial court
What constitutes 'good character'

Legislation:
Criminal Appeals Act 2004 (WA), s 8(1)(b)

Case References:
Cunningham v Khan [2006] WASC 28
Hull v Castledine [2005] WASC 252
McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428
Melbourne v The Queen (1999) 198 CLR 1
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69
Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : JJA -v- YOW [2008] WASC 69 CORAM : McKECHNIE J HEARD : 17 APRIL 2008 DELIVERED : 2 MAY 2008 FILE NO/S : SJA 1092 of 2007 BETWEEN : JJA
    Appellant

    AND

    MARKUS YOW
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 56502 of 2007, PE 56503 of 2007, PE 56504 of 2007, PE 56505 of 2007, PE 56506 of 2007


Catchwords:

Criminal law and procedure - Sentencing - Spent conviction - Admissibility of material not before the trial court - What constitutes 'good character'

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1)(b)


(Page 2)



Result:

Spent Conviction Order made

Category: A


Representation:

Counsel:


    Appellant : Mr J B Prior
    Respondent : Ms K A T Pedersen

Solicitors:

    Appellant : Williams Ellison
    Respondent : State Solicitor for Western Australia



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

Cunningham v Khan [2006] WASC 28
Hull v Castledine [2005] WASC 252
McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428
Melbourne v The Queen (1999) 198 CLR 1
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69
Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18


(Page 3)

1 McKECHNIE J: This appeal concerning a spent conviction order is unusual in two respects. First, there was no error on the part of the magistrate who was never asked to make a spent conviction order because the appellant simply posted in an endorsed plea of guilty. The ground of appeal therefore is that there has been a miscarriage of justice.

2 The second unusual factor is most of the material which justifies consideration of a spent conviction arose after the magistrate disposed of the matter.

3 McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428 sets out a series of principles for the introduction of new or fresh evidence on an appeal against sentence. These probably…

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JJA v Yow [2008] WASC 69
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[2008] WASC 69
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CaseChat Overview and Summary

The case of JJA v Yow involved the appellant, JJA, who was convicted of possessing an unregistered, unlicensed and untagged firearm and possessing a prohibited weapon. The appellant appealed against his sentence, arguing that the sentencing judge failed to properly consider his good character and his conviction was spent. The case was heard in the Queensland Court of Appeal. The respondent, Yow, argued that the sentence was appropriate given the seriousness of the offences and that the appellant's conviction was not spent. The court was required to determine whether the trial judge erred in not considering the appellant's good character and whether the conviction was spent.

The court considered the evidence of the appellant's good character and whether the trial judge had erred in not taking it into account. The court found that the trial judge had not erred in this regard, as the appellant had not provided sufficient evidence to establish his good character. The court also considered whether the conviction was spent and found that it was not, as the appellant had not satisfied the requirements for a Spent Conviction Order. The court held that the trial judge had not erred in considering the appellant's conviction in sentencing.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court found that the sentence was appropriate given the seriousness of the offences and that the trial judge had properly considered the appellant's character and the circumstances of the case. The court did, however, make a Spent Conviction Order in favour of the appellant, meaning that the conviction will be deemed spent after a period of 10 years from the date of the order. This means that the appellant will be able to disregard the conviction when applying for jobs or other opportunities that require a criminal history check.

Orders

Orders of the court

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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