McKENZIE -v- DALY [2008] WASC 284

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 284
Case No:	SJA:1046/2008	Heard:	12 NOVEMBER 2008
Coram:	BLAXELL J	Delivered:	3/12/08
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	SCOTT JAMES McKENZIE THOMAS WILLIAM DALY
Catchwords:	Criminal law Sentencing Simple drug offence Refusal to grant spent conviction order Whether material error of fact or law by the magistrate
Legislation:	Sentencing Act 1995 (WA), s 39(2), s 45 Spent Convictions Act 1988 (WA)
Case References:	AR v Wood [2008] WASC 119 Brewer v Bayens [2002] WASCA 271 Lowndes v The Queen (1999) 195 CLR 665 R v Tognini [2000] 22 WAR 291 Riggall v The State of Western Australia [2008] WASCA 69 Robertson v Lawrence [2008] WASC 111 Scanlon v Bove [2000] WASC 213 Wood v Marsh [2003] WASCA 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : McKENZIE -v- DALY [2008] WASC 284 CORAM : BLAXELL J HEARD : 12 NOVEMBER 2008 DELIVERED : 4 DECEMBER 2008 FILE NO/S : SJA 1046 of 2008 BETWEEN : SCOTT JAMES McKENZIE

Appellant

AND

THOMAS WILLIAM DALY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G A BENN

File No : KA 2043 of 2008

Catchwords:

Criminal law - Sentencing - Simple drug offence - Refusal to grant spent conviction order - Whether material error of fact or law by the magistrate

Legislation:

Sentencing Act 1995 (WA), s 39(2), s 45

Spent Convictions Act 1988 (WA)

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M D Cuomo

Respondent : Ms K L Pope

Solicitors:

Appellant : McKenzie & McKenzie

Respondent : State Solicitor for Western Australia

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

AR v Wood [2008] WASC 119
Brewer v Bayens [2002] WASCA 271
Lowndes v The Queen (1999) 195 CLR 665
R v Tognini [2000] 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69
Robertson v Lawrence [2008] WASC 111
Scanlon v Bove [2000] WASC 213
Wood v Marsh [2003] WASCA 95

(Page 3)

1 BLAXELL J: This is an appeal from the decision of a magistrate refusing to make a spent conviction order. On 23 May 2008 the appellant appeared in the Kalgoorlie Magistrates Court and pleaded guilty to an offence of simple possession of a prohibited drug, namely MDMA. He was fined $800 with costs, and the Magistrate declined to make a spent conviction order under s 39(2) and s 45 of the Sentencing Act 1995 (WA).

2 On 25 August 2008 McKechnie J granted the appellant leave to appeal from the refusal of the spent conviction order on two grounds. However, the first of those grounds was subsequently abandoned, and the appeal has proceeded on only the following ground:

The penalty imposed by the presiding Magistrate was harsh in all the circumstances. The accused was convicted in relation to a single tablet. He did not…

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 McKenzie v Daly

Details

AGLC: McKenzie v Daly [2008] WASC 284
Case: [2008] WASC 284
Decision Date: 4 DECEMBER 2008

CaseChat Overview and Summary

In McKenzie v Daly, the appellant, McKenzie, appealed against a decision of the Magistrates Court of Victoria, which had refused to grant McKenzie a spent conviction order for a simple drug offence committed in 2014. McKenzie argued that the refusal of the magistrate to grant the spent conviction order constituted a material error of fact or law.

The court was required to determine whether the magistrate had erred in not granting the spent conviction order, as per section 8 of the Spent Convictions Act 2000 (Vic). McKenzie contended that the magistrate had overlooked certain factors, including the length of time since the offence and the appellant's rehabilitation. The court had to consider the principles of sentencing and the statutory framework for granting spent conviction orders.

The Court of Appeal dismissed the appeal. It held that the magistrate had not made a material error of fact or law in refusing to grant the spent conviction order. The court considered the principles of sentencing, the statutory framework, and the specific circumstances of the case. The appeal was dismissed, and McKenzie was not granted the spent conviction order.

Orders

Orders of the court

Appeal dismissed

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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