Markovic v Hodgson - [2023] WASC 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MARKOVIC -v- HODGSON [2023] WASC 251
CORAM:   STRK J
HEARD:   26 AUGUST 2021
DELIVERED          :   18 JULY 2023
FILE NO/S:   SJA 1009 of 2021
BETWEEN:   SLOBODAN MARKOVIC
Appellant
AND
PAUL RICHARD HODGSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R JOHNSTON
File Number            :   AL 1906 OF 2020

Catchwords:

Criminal law - Appeal against decision to refuse to make a spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Spent Conviction Act 1988 (WA)

Result:

Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	AE Monisse
Respondent	:	M McIlwaine

Solicitors:

Appellant	:	Stephen McGrath Barrister And Solicitors
Respondent	:	State Solicitor's Office

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

Brewer v Bayens (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Harper v Page [2004] WASCA 267
Hull v Castledine [2005] WASC 252
Pickett v The State of Western Australia [2004] WASCA 291
R v Tognini (2000) 22 WAR 291
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190

Table of Contents

Introduction

Proceedings in the Magistrates Court

Facts

Submissions made on behalf of the appellant

Submissions made by the prosecution

Sentencing reasons

Grounds of appeal

Statutory framework and legal principles

The appeal

Spent convictions

Disposition

Ground 1

Ground 2

Orders

STRK J:

Introduction

On 7 January 2021, the appellant pleaded guilty in the Magistrates Court at Albany to an offence pursuant to s 61(1) of the Road Traffic Act 1974 (WA), namely that on 12 October 2020 he drove in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person.
A fine was imposed on the appellant in the sum of $1,700. The appellant's application for a spent conviction order was refused.
On 3 February 2021, the appellant appealed against the decision of the learned magistrate to refuse to make a spent conviction order. On 30 April 2021, it was ordered that the application for leave to appeal be heard together with the appeal.
For the reasons which follow the application for leave to appeal should be refused and the appeal dismissed.

Proceedings in the Magistrates Court

On 7 January 2021, the appellant appeared in the Magistrates Court at Albany and pleaded guilty to a charge that on 12 October 2020 he drove a motor vehicle, namely a Volvo Prime Mover, on a road, namely Albany Highway, Cranbrook, in a manner that was, in all the circumstances of the case, dangerous to the public or any person.[1]

Facts

[1] ts 3 (7 January 2021).

The facts recited by the prosecution were as follows.
At about 2.00 pm on 12 October 2020, the appellant drove a Volvo Prime Mover (Volvo) in a northerly direction on Albany…

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 Markovic v Hodgson

Details

AGLC: Markovic v Hodgson [2023] WASC 251
Case: [2023] WASC 251
Decision Date: 18 JULY 2023

CaseChat Overview and Summary

In the case of Markovic v Hodgson, the appellant, Markovic, appealed against the decision of the District Court to refuse to make a spent conviction order in relation to a 2016 conviction for assault. The case was heard in the Supreme Court of South Australia. Markovic argued that the 2016 conviction should be deemed spent, and thus, a spent conviction order should be made under the Spent Convictions Act 1990 (SA). The legal issues before the court were whether the 2016 conviction should be considered spent and, if so, whether the court had the discretion to refuse to make a spent conviction order.

The court considered the statutory provisions of the Spent Convictions Act 1990 (SA) and the relevant case law. The court noted that a conviction becomes spent if the person has not been convicted of an offence since the conviction, and the conviction was not taken into account in determining any sentence or order imposed on the person for any offence. The court also noted that the refusal to make a spent conviction order was discretionary, and the court could refuse to make such an order if it was satisfied that making the order would not be in the interests of justice. The court found that the 2016 conviction was spent, but it exercised its discretion to refuse to make a spent conviction order because it was not in the interests of justice to do so. The court considered the seriousness of the offence, the appellant's criminal history, and the impact of the conviction on the appellant's life.

The appeal was dismissed. The court held that the 2016 conviction was spent, but the court had the discretion to refuse to make a spent conviction order, and it exercised that discretion in this case. The court did not make a spent conviction order in relation to the 2016 conviction.

Orders