MARCHESANI -v- DALTON [2006] WASC 204

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 204
Case No:	SJA:1009/2006	Heard:	29 AUGUST 2006
Coram:	McKECHNIE J	Delivered:	13/09/06
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	D
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Parties:	ANTHONY MARK MARCHESANI COREY HENRICUS ANDREW DALTON
Catchwords:	Criminal law Sentencing Whether a spent conviction order should be made No new principles
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Brewer v Bayens (2002) 26 WAR 510 Harper v Page [2004] WASCA 269 Lynch v Heidrich & Anor [2002] WASCA 154 Neale v Sloan (1997) 27 MVR 246 Nichols v Harnett [2004] WASCA 311 R v Tognini (2000) 22 WAR 291 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 Nichols v Harnett [2004] WASCA 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MARCHESANI -v- DALTON [2006] WASC 204 CORAM : McKECHNIE J HEARD : 29 AUGUST 2006 DELIVERED : 13 SEPTEMBER 2006 FILE NO/S : SJA 1009 of 2006 BETWEEN : ANTHONY MARK MARCHESANI

Appellant

AND

COREY HENRICUS ANDREW DALTON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE E A WOODS

File No : PE 56507 of 2005, PE 56508 of 2005, PE 56509 of 2005, PE 56510 of 2005, PE 56511 of 2005, PE 56392 of 2005

Catchwords:

Criminal law - Sentencing - Whether a spent conviction order should be made - No new principles

(Page 2)

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : Mr A D Wilson

Respondent : Ms M J Michalka

Solicitors:

Appellant : Frichot & Frichot

Respondent : State Director of Public Prosecutions

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

Brewer v Bayens (2002) 26 WAR 510
Harper v Page [2004] WASCA 269
Lynch v Heidrich & Anor [2002] WASCA 154
Neale v Sloan (1997) 27 MVR 246
Nichols v Harnett [2004] WASCA 311
R v Tognini (2000) 22 WAR 291
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

Case(s) also cited:

Nichols v Harnett [2004] WASCA 311

(Page 3)

McKECHNIE J

Background to the appeal

1 On 12 December 2005 the appellant appeared in the Magistrates Court Perth and pleaded guilty to a charge (PE 59392/05) that on 7 November 2005 at Belmont:

"… being a security guard at Chubb Security, stole one men's Nixon watch, property of Masaru Tasuki, which came into your possession on account of your employment with Chubb Security."

2 He was fined $1500 and the Magistrate declined to make a spent conviction order. He also pleaded guilty and was dealt with for other less serious charges as follows:

Charge	Penalty
1 x possession of controlled weapon (PE 56507/05)	$200 fine
1 x possession of police clothing (PE 56508/05)	$50 fine
2 x possession of prohibited drug (PE 56509/05 & PE 56511/05)	$300 fine
1 x possession of smoking implement (PE 56510/05)	$100 fine

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 Marchesani v Dalton

Details

AGLC: Marchesani v Dalton [2006] WASC 204
Case: [2006] WASC 204
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appeal by Anthony Mark Marchesani against Corey Henricus Andrew Dalton was dismissed. Marchesani had pleaded guilty to stealing a watch from a passenger at Perth Domestic Airport, where he was employed as a security guard, and to various other charges. The Magistrate had declined to make a spent conviction order in respect of the stealing charge, which was the subject of the appeal. The central legal issue was whether the Magistrate erred in law by failing to consider if Marchesani was unlikely to commit such an offence again, a key factor under s 45(1) of the Sentencing Act 1995 (WA). The court held that while the Magistrate did err in not considering this aspect, the error was not material as there was insufficient evidence to conclude that Marchesani was unlikely to reoffend. The court also found that the nature of the offence and Marchesani's other charges indicated a breach of trust of significant magnitude, justifying the Magistrate's decision not to make a spent conviction order. The appeal was therefore dismissed.

Orders