JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: NICHOLS -v- HARNETT [2004] WASCA 311
CORAM: MCKECHNIE J
HEARD: 8 DECEMBER 2004
DELIVERED : 8 DECEMBER 2004
FILE NO/S: SJA 1111 of 2004
MATTER :Justices Act 1902
BETWEEN: ZACHARY PAUL NICHOLS
Appellant
AND
DAVID HARNETT
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram :MR P A NICHOLLS SM
Citation :THE POLICE v ZACHARY PAUL NICHOLS
File No :JO 7713 of 2004
Catchwords:
Criminal law - Sentencing - Spent conviction order - Whether appropriate - No new principles
Legislation:
Criminal Code, s 378(7)
Spent Convictions Act 1988 (WA)
Result:
Appeal allowed
Spent conviction order made
Category: D
Representation:
Counsel:
Appellant: Mr M J Bowden
Respondent: Mr S F Rafferty
Solicitors:
Appellant: Cannon Bowden & Co
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brewer v Bayens (2002) 133 A Crim R 378
Tognini v McGuire (2000) 109 A Crim R 411
Case(s) also cited:
Allen v Powell [2000] WASCA 65
Docker v Faulkner (2000) 116 A Crim R 389
Dukes v Barrett (2001) 125 A Crim R 136
Skipper (1992) 64 A Crim R 260
MCKECHNIE J: Towards 4.20 pm on 12 August 2004 Mr Nichols, who was employed as a retail assistant with Big W at the Kingsway City Shopping Centre, corner Wanneroo Road and Hepburn Avenue, Madeley, did a really silly thing. He went into the lock up area and stole a small digital camera valued at $338. A month or so later police executed a search warrant at his home and found the camera hidden between two towels in a cupboard beneath the laundry trough. Mr Nichols was charged with stealing as a servant: Criminal Code s 378(7). At the first opportunity he pleaded guilty. The Magistrate imposed a conditional release order for a period of 12 months in the sum of $500. However, he refused to make a spent conviction order. He was satisfied that Mr Nichols was unlikely to commit such an offence again and that he was of previous good character. Correctly, he said: "That the offence is not trivial." As to the exercise of his discretion he said:
"Well, there's been an adverse effect already in the sense you've lost your job, but in all the circumstances, bearing in mind your personal circumstances but in particular the nature of the offence, there is clearly a public interest in prospective employers knowing that you've done something like this. And on balance, I am not persuaded that it would be appropriate to exercise the discretion to make such an order in your favour."
On 2 December 2004, I granted leave to appeal on the ground that the learned Magistrate erred in concluding that it was not appropriate to exercise his discretion and grant a spent conviction order. As the ground indicates, the point at issue is a simple one that does not require great elucidation on either…
Continue reading Nichols v Harnett
Sign in free to access the full text
- AGLC
- Nichols v Harnett [2004] WASCA 311
- Case
- [2004] WASCA 311
- Decision Date
CaseChat Overview and Summary
The court considered the criteria for granting a spent conviction order and whether it was appropriate to do so in the circumstances of this case. The court noted that the criteria for granting such an order had been established in previous cases and that there were no new principles of law to be considered. The court found that the application for a spent conviction order was appropriate and that the order should be made.
Accordingly, the court made a spent conviction order in favour of the respondent, Nichols. The order declared that the conviction was spent for all purposes and could not be relied upon in any legal proceedings or for any other purpose. The order also directed that the respondent's criminal history record be amended to reflect the spent conviction. The applicant, Harnett, was not successful in their opposition to the order.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.