Majewski v Ingram - [2020] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MAJEWSKI -v- INGRAM [2020] WASC 286
CORAM:   SMITH J
HEARD:   24 JULY 2020
DELIVERED          :   7 AUGUST 2020
FILE NO/S:   SJA 1156 of 2019
BETWEEN:   NADIA MAJEWSKI
Appellant
AND
MICHAEL INGRAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S SHARRATT
File Number            :   MI 11658 of 2019

Catchwords:

Appeal - Criminal law - Appeal against sentence - Whether refusal to grant a spent conviction order raises a miscarriage of justice - Section 45(1)(a) Sentencing Act 1995 (WA) - Preconditions for making an order considered - Insufficient evidence or material to support finding that the appellant is unlikely to commit such an offence again - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1)(b), s 30(1)(e), s 40(1)(e)
Oaths, Affidavits and Statutory Declarations Act 2005 (WA), s 9(6)
Prisons Act 1981 (WA), s 50(1)(b)
Sentencing Act 1995 (WA), s 15, s 39(2)(c), s 45(1), s 45(1)(a), s 45(1)(b)(i), s 45(1)(b)(ii)

Result:

Application to adduce further evidence refused
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms K Dias

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

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

A v Staples [2007] WASC 36
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Caseley v Zampogna [2006] WASC 259
GNR v The State of Western Australia [2015] WASCA 5
House v The King [1936] HCA 48; (1936) 55 CLR 499
Lee Suarez v Cutler [2012] WASC 171
M v O'Neill [2013] WASC 187
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Sharpe v Vinning [2020] WASCA 79
Wellstead v The State of Western Australia [2019] WASCA 130
Wilson v The State of Western Australia [2010] WASCA 82

SMITH J:

The appeal and the application to adduce further evidence

The appellant seeks leave to appeal against sentence.
On 8 November 2019, following a plea of guilty, the appellant was convicted, by Magistrate Sharratt sitting at the Midland Magistrates Court, of attempting to convey into a prison an article likely to jeopardise the good order, security or good government of the prison, contrary to s 50(1)(b) of the Prisons Act 1981 (WA). The appellant was fined $750 and ordered to pay costs of $225.90.[1]
[1] Prosecution notice.
On 6 March 2020, Principal Registrar Strk ordered that the application for leave to appeal should be heard with the appeal.
On 16 July 2020, the appellant lodged an application to adduce additional evidence in the appeal. The additional evidence the appellant seeks to adduce in the appeal is as follows:
(a)a statement made by the appellant titled 'Affidavit of Nadia Majewski sworn the 15^th July 2020', that had not been duly sworn or affirmed in accordance with s 9(6) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA);
(b)a reference addressed to whom it may concern, signed by the appellant's employer,…

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 Majewski v Ingram

Details

AGLC: Majewski v Ingram [2020] WASC 286
Case: [2020] WASC 286
Decision Date: 7 AUGUST 2020

CaseChat Overview and Summary

Majewski v Ingram involves an appeal against sentence by the appellant, who had been convicted of an offence. The central issue in the appeal was whether the refusal to grant a spent conviction order constituted a miscarriage of justice. The appellant argued that the order should be granted under Section 45(1)(a) of the Sentencing Act 1995 (WA). The court was tasked with considering the preconditions for making such an order, which include assessing whether there is insufficient evidence or material to support a finding that the appellant is unlikely to commit the same type of offence again.

The court examined the appellant's likelihood of reoffending based on the facts and evidence presented. It was determined that there was insufficient evidence or material to support a finding that the appellant was unlikely to commit such an offence again. This conclusion was reached based on the unique facts of the case, indicating that the court considered the individual circumstances surrounding the appellant's conduct and history.

Ultimately, the court found that the refusal to grant a spent conviction order did not amount to a miscarriage of justice. The appeal was dismissed, and the original sentence remained in effect. The court's decision emphasised the importance of assessing the preconditions for such orders on a case-by-case basis, highlighting the need for individualised consideration when determining the likelihood of reoffending.

Orders