JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: M -v- DI GREGORIO [2014] WASC 255
CORAM: SIMMONDS J
HEARD: 30 APRIL 2014
DELIVERED : 30 APRIL 2014
PUBLISHED : 18 JULY 2014
FILE NO/S: SJA 1121 of 2013
BETWEEN: M
Appellant
AND
GUISEPPE DI GREGORIO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MR R DECKE
JUSTICE OF THE PEACE
File No :PE 39934 of 2013
Catchwords:
Criminal law - Appeal against sentence - Whether order should be made for spent conviction
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2)
Magistrates Court Act 2004 (WA)
Sentencing Act 1995 (WA), s 39, s 45(1)
Spent Convictions Act 1988 (WA)
Result:
Appeal allowed
Spent conviction order
Category: B
Representation:
Counsel:
Appellant: Mr N R Barber
Respondent: Ms A B Preston-Samson
Solicitors:
Appellant: NR Barber Legal
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Furtak v Timmers [2001] WASCA 65
Game v Whitehead [2000] WASCA 50
Harper v Page [2004] WASCA 267
Krigen v Conti [2003] WASCA 114
Mohamed v Wellinger [2012] WASC 470
Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SIMMONDS J:
(This judgment was delivered extemporaneously on 30 April 2014 and has been edited from the transcript.)
Introduction
This is an appeal against the failure by a Justice of the Peace in proceedings in the Magistrates Court to make a spent conviction order in respect of an offence of driving with a prescribed illicit drug present in the offender's oral fluid. The respondent has conceded that the appeal should be allowed, and further indicated no wish to be heard against the making of orders on the appeal of the kind that I will indicate are appropriate.
I have determined that the appeal should indeed be allowed on the first of the two grounds upon which the appeal was made, and that orders should be made that include the granting of a spent conviction order as sought. The following are my reasons.
Background
The following is taken for the most part from the submissions made to the Justice by counsel for the appellant, who was also counsel for the appellant before me, in support of an application 'to suspend conviction for a traffic offence' on 25 September 2013 and from the affidavit in support of the appeal of the appellant sworn on 1 October 2013. No issue was taken with any of the following by the respondent.
It was not in contest before me that counsel's application to the Justice was for the making of a spent conviction order. Notwithstanding the language of the Justice's determination, which echoed the language of counsel to the Justice, the Justice determined that application by declining to make the order.
The appellant is approximately 45 years old. He has no criminal record and…
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- M v Di Gregorio [2014] WASC 255
- Case
- [2014] WASC 255
- Decision Date
CaseChat Overview and Summary
The legal issue that the court had to address was whether the court had the inherent jurisdiction to make an order that a conviction was spent, even though there was no statutory provision that allowed for such an order. The court considered whether the inherent jurisdiction of the court could be exercised to make such an order, and whether such an order would be appropriate in the circumstances of the case. The court also had to consider whether the making of such an order would be consistent with the purposes of the Spent Convictions Act 1988 (Vic), which provided for the rehabilitation of offenders.
The court found that it did have the inherent jurisdiction to make an order that a conviction was spent, even though there was no statutory provision for such an order. The court noted that the purposes of the Spent Convictions Act were to facilitate the rehabilitation of offenders and to enable them to obtain employment and other opportunities without the stigma of a conviction. The court found that the making of such an order was appropriate in the circumstances of the case, as it would enable M to more readily obtain employment and other opportunities without the stigma of the conviction. The court made an order that M's conviction was spent, and directed that a certificate to that effect be issued to M. The court also directed that the conviction be recorded as spent on the relevant criminal history database.
Orders
Orders of the court
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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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