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KK v Zanetti

KK v Zanetti

Case [2009] WASC 83 9 April 2009

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KK -v- ZANETTI [2009] WASC 83

CORAM: SIMMONDS J

HEARD: 13 JANUARY 2009

DELIVERED : 9 APRIL 2009

FILE NO/S: SJA 1091 of 2008

BETWEEN: KK
Appellant
AND
JASON ZANETTI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G MIGNACCA-RANDAZZO
File No  :PE 57362 of 2008

Catchwords:

Criminal law - Sentencing - Offence of possession of prohibited drug (cocaine) - Appeal against refusal to make spent conviction order under Sentencing Act 1995 - Proper approach to making of such orders - Whether error to conclude adverse effect of conviction should not be immediately set aside

Legislation:

Misuse of Drugs Act 1981 (WA), s 6, s 34
Sentencing Act 1995 (WA), s 5, s 39, s 45
Spent Convictions Act 1988 (WA), s 10

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Ms T S Cole

Solicitors:

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

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

AR v Wood [2008] WASC 119
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Cranssen v The King (1936) 55 CLR 509
Ennis v D'Andrilli [2007] WASC 263
Hull v Castledine [2005] WASC 252
JJA v Yow [2008] WASC 69
Legal Practitioners Complaints Committee and Bull [2006] WASAT 217
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v State of Western Australia [2008] WASCA 69
Robertson v Lawrence [2008] WASC 111
Scanlon v Bove [2008] WASC 213

SIMMONDS J:

Introduction

This is an appeal by leave from a refusal by a magistrate to make a spent conviction order under the Sentencing Act 1995 (WA). The refusal was in respect of a conviction of an offence of possession of a prohibited drug, namely cocaine.
On the submissions of counsel for the appellant this appeal raises a question as to the proper approach to the making of such spent conviction orders. Counsel submits there is an apparent divergence of views in the court as to that approach, a divergence which this appeal requires me to address.
In these reasons I first provide background to the decision of the sentencing magistrate. I then set out the grounds of appeal before turning to consider them, and in particular the question counsel for the appellant submits I must address. The final section of these reasons is my conclusions and orders.

Background

On 9 October 2008 in the Magistrates Court at Perth before Magistrate Randazzo the appellant pleaded guilty to a charge of possession of a prohibited drug, namely cocaine, contrary to Misuse of Drugs Act 1981 (WA) (MD Act) s 6(2). The quantity involved was 0.17g. The penalty for that simple offence was under s 34(1)(e) a fine not exceeding $2,000 or imprisonment for a term not exceeding 2 years or both.
The circumstances of the offending as these emerge from the…

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 KK v Zanetti

Details

AGLC: KK v Zanetti [2009] WASC 83
Case: [2009] WASC 83
Decision Date: 9 APRIL 2009

CaseChat Overview and Summary

The case of KK v Zanetti involved the appellant, KK, appealing against the refusal of the County Court to make a spent conviction order in relation to a prior conviction for possession of cocaine. The dispute centred on the interpretation and application of the Sentencing Act 1995, specifically the criteria for making a spent conviction order. The appeal was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether the County Court had erred in its approach to making a spent conviction order. The court needed to determine if the County Court correctly applied the relevant criteria under the Sentencing Act 1995. Specifically, the court examined whether the County Court should have set aside the adverse effect of the conviction considering the passage of time and the appellant's rehabilitation. The court also assessed whether there was an error in the County Court's conclusion that the adverse effects of the conviction were not immediately set aside.

The Supreme Court held that the County Court did not err in its approach to making a spent conviction order. The court determined that the County Court correctly considered the relevant factors, including the passage of time, the nature of the offence, and the appellant's rehabilitation. The Supreme Court found that the County Court was entitled to conclude that the adverse effects of the conviction had not been sufficiently mitigated to warrant a spent conviction order. The court emphasised the importance of the discretion vested in the County Court to balance these factors and make an informed decision. As a result, the appeal was dismissed.

Orders