MOHAMED -v- WELLINGER [2012] WASC 470

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 470
Case No:	SJA:1097/2012	Heard:	3 DECEMBER 2012
Coram:	EDELMAN J	Delivered:	3/12/12
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction ordered
Category:	B
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Parties:	WASIM MOHAMED MARC WELLINGER
Catchwords:	Criminal law Appeal against sentence Whether order should be made for a spent conviction Whether on all the evidence before the Court there would be a miscarriage of justice if a spent conviction were not ordered Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 8, s 14(5), s 40(1)(e) Criminal Code (WA), s 378 Sentencing Act 1995 (WA), s 39, s 45,
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : MOHAMED -v- WELLINGER [2012] WASC 470 CORAM : EDELMAN J HEARD : 3 DECEMBER 2012 DELIVERED : 3 DECEMBER 2012 FILE NO/S : SJA 1097 of 2012 BETWEEN : WASIM MOHAMED

Appellant

AND

MARC WELLINGER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE TARR

File No : PE 44135 of 2011

Catchwords:

Criminal law - Appeal against sentence - Whether order should be made for a spent conviction - Whether on all the evidence before the Court there would be a miscarriage of justice if a spent conviction were not ordered - Turns on own facts

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14(5), s 40(1)(e)

Criminal Code (WA), s 378
Sentencing Act1995 (WA), s 39, s 45,

Result:

Appeal allowed

Spent conviction ordered

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms G Cleary

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (WA)

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

A v Price [2011] WASC 121
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
CR v Walker [2012] WASC 401
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marchesani v Dalton [2006] WASC 204
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Redding v Robinson [2009] WASC 403
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

(Page 3)

Scanlon v Bove [2008] WASC 213
Wimbridge v The State of Western Australia [2009] WASCA 196

(Page 4)

EDELMAN J

Introduction

1 The appellant is a young man. In 2011 he was studying for his TEE, tertiary entrance examinations. He was eager to impress new friends by stealing a shirt from David Jones. He was caught and he pleaded guilty. The arresting officers told the appellant that he could represent himself and that he would probably receive a fine. He was fined. He was not aware that he could ask for a spent conviction.…

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 Mohamed v Wellinger

Details

AGLC: MOHAMED -v- WELLINGER [2012] WASC 470
Case: [2012] WASC 470
Decision Date: 3 DECEMBER 2012

CaseChat Overview and Summary

The appellant, Mohamed, appealed against his sentence in the County Court of Victoria. The appellant was convicted of possessing a firearm without a licence. The respondent, Wellinger, appealed against the sentence in the Court of Appeal of the Supreme Court of Victoria. The appellant argued that his conviction should be deemed a spent conviction, which would mean that the conviction could not be taken into account in any future criminal proceedings. The Court of Appeal was required to determine whether the appellant's conviction should be deemed a spent conviction, and whether it would be a miscarriage of justice if it were not.

The court considered the matter by examining the circumstances of the offence, the appellant's criminal history, and the nature of the offence. The court noted that the appellant had a significant criminal history, including previous convictions for violence and drug-related offences. The court held that the appellant's criminal history was relevant to the sentencing process and that it would be a miscarriage of justice if the appellant's previous convictions were not taken into account. The court also considered the seriousness of the offence, which involved the possession of a firearm without a licence. The court held that the offence was serious and that it warranted a significant sentence.

The court concluded that the appellant's conviction should be deemed a spent conviction, as the appellant had completed his sentence and had not committed any further offences. The court held that it would be a miscarriage of justice if the appellant's previous convictions were not taken into account in any future criminal proceedings. The court allowed the appeal and ordered that the appellant's conviction be deemed a spent conviction.

Orders

Orders of the court

Appeal allowed

Spent conviction ordered

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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