Nichols v Harnett - [2004] WASCA 311

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
Tambyrajah v Gablonski [2004] WASCA 105

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…

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 Nichols v Harnett

Details

AGLC: Nichols v Harnett [2004] WASCA 311
Case: [2004] WASCA 311
Decision Date: 8 DECEMBER 2004

CaseChat Overview and Summary

The matter of Nichols v Harnett was heard in the Supreme Court of Queensland. The respondent, Nichols, sought a spent conviction order in relation to a conviction for a criminal offence for which a sentence of imprisonment had been served. The applicant, Harnett, opposed the order on the basis that it was not appropriate to make such an order. The court was required to determine whether the application for a spent conviction order was appropriate.

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