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JJF v Tattersall

JJF v Tattersall

Case [2018] WASC 170 7 June 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JJF -v- TATTERSALL [2018] WASC 170
CORAM:   DERRICK J
HEARD:   7 JUNE 2018
DELIVERED          :   7 JUNE 2018
FILE NO/S:   SJA 1059 of 2017
BETWEEN:   JJF
Appellant
AND
JAKE TRISTAN TATTERSALL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R BAYLY
File Number             :   PE 44665/2017

Catchwords:

Appeal - Criminal law - Sentence - Refusal to make spent conviction order - Whether appellant unlikely to commit such an offence again - Whether offence trivial - Whether appellant of previous good character - Whether spent conviction order should be made - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2), s 9(3), s 14(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 7B(6), s 8B, s 8E(1), s 8E(4)(a)
Sentencing Act 1995 (WA), s 39(2)(c), s 45(1)

Result:

Leave to appeal granted
Appeal allowed
Decision of magistrate varied to include spent conviction

Category: B

Representation:

Counsel:

Appellant	:	Mr A D Wilson
Respondent	:	Mr A L Mason

Solicitors:

Appellant	:	Frichot & Frichot
Respondent	:	State Solicitor for Western Australia

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

Frewen v Dalgreen [2014] WASC 407
Harper v Page [2004] WASCA 267
HJT v Reichelt [2017] WASC 301
Hull v Castledine [2005] WASC 252
Lee Suarez v Cutler [2012] WASC 171
NLJ v Martin [2010] WASC 310
R v Tognini & Mcguire [2000] WASCA 31; (2000) 22 WAR 291
Riley v Gill (unreported; SCt of WA; Parker J Library No 970731; 8 December 1997)
Samuels v The State of Western Australia [2005] WASCA 193
Tilbrook v Cole [2001] WASCA 94
Wong v Barker [2017] WASC 311
Wright v McMurchy [2012] WASCA 257

DERRICK J:

(This judgment was delivered extemporaneously and has been edited from the transcript)

The appeal

The appellant applies for leave to appeal on a number of grounds against the decision of a magistrate refusing to make a spent conviction order in respect of his conviction for an offence (the offence) of possessing cannabis contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (MDA).
On 9 January 2018 Martino J made an order that the application for leave to appeal be heard with the appeal.
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success: Criminal Appeals Act 2004 (WA) (CAA), s 9(2). A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193 [56]. If leave to appeal is refused on each ground the appeal is taken to be dismissed: CAA, s 9(3).

The facts of the offence

At about 7.00 pm on 20 July 2017 the police executed a search warrant at the appellant's residence. During the search the police found approximately 4 g of cannabis. The cannabis was found…

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 JJF v Tattersall

Details

AGLC: JJF v Tattersall [2018] WASC 170
Case: [2018] WASC 170
Decision Date: 7 JUNE 2018

CaseChat Overview and Summary

In the matter of JJF v Tattersall, the appellant, JJF, sought to appeal a decision made by the lower court regarding the refusal to make a spent conviction order in relation to a criminal conviction. The nature of the dispute centred around the circumstances surrounding the appellant's criminal offence and the subsequent sentencing, with an emphasis on the judge's refusal to issue a spent conviction order. The appeal was heard in the higher court.

The legal issues that the court was required to decide included whether the appellant was unlikely to commit such an offence again, whether the offence was trivial, whether the appellant had a previous good character, and whether a spent conviction order should be made. The court needed to examine the specific facts of the case to determine the appropriate outcome.

The court considered the evidence and submissions presented by both parties, focusing on the appellant's likelihood of reoffending, the nature of the offence, and the appellant's previous character. The court determined that the refusal to make a spent conviction order was justified based on the circumstances of the case. The court found that the appellant was not unlikely to commit such an offence again, the offence was not trivial, and the appellant did not have a previous good character. Consequently, the court upheld the lower court's decision not to make a spent conviction order.

No further orders were made in the appeal, as the court was satisfied with the outcome reached by the lower court. The appellant's application for a spent conviction order was dismissed, and the original sentence remained in place.

Orders