M v Di Gregorio - [2014] WASC 255

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
JJA v Yow [2008] WASC 69
Krigen v Conti [2003] WASCA 114
Mohamed v Wellinger [2012] WASC 470
NLJ v Martin [2010] WASC 310
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…

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 M v Di Gregorio

Details

AGLC: M v Di Gregorio [2014] WASC 255
Case: [2014] WASC 255
Decision Date: 18 JULY 2014

CaseChat Overview and Summary

The case before the court involved M, the appellant, who was appealing against a sentence imposed for a criminal offence. The respondent, Di Gregorio, was the prosecutor in the matter. The primary issue before the court was whether an order should be made to record that M's conviction had become spent, thereby enabling M to more readily obtain employment and other opportunities without the stigma of the conviction. The matter was heard in the Supreme Court of Victoria.

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