Norbu v WA Police - [2024] WASC 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NORBU -v- WA POLICE [2024] WASC 473
CORAM:   MCGRATH J
HEARD:   2 DECEMBER 2024
DELIVERED          :   11 DECEMBER 2024
FILE NO/S:   SJA 1064 of 2024
BETWEEN:   DAWA NORBU
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J SCUTT
File Number            :   PE 35607/24

Catchwords:

Criminal law - Appeal against failure to make a spent conviction order - Miscarriage of justice - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 39(2)(a) - (d), s 45
Spent Convictions Act 1988 (WA), s 7

Result:

Leave to adduce additional evidence granted
Extension of time in which to appeal granted
Leave to appeal not granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S Naughton
Respondent	:	Ms A Kildea

Solicitors:

Appellant	:	Assurance Legal
Respondent	:	State Solicitor's Office

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

Bardsley v The Queen (2004) 29 WAR 338
Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510
Eastough v State of Western Australia [No 2] [2010] WASCA 88
GNR v The State of Western Australia [2015] WASCA 5
M v Seidner [2013] WASC 395
R v Tognini [2000] WASCA 31
Rule v Trudgill [2015] WASC 196
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
Wright v McMurchy [2012] WASCA 257

MCGRATH J:

Introduction

The appellant was convicted on his plea of guilty to one charge of driving with a blood alcohol content exceeding 0.08 g of alcohol per 100 ml of blood, contrary to s 64(1) of the Road Traffic Act 1974 (WA) (RTA). The appellant's blood alcohol content was recorded as 0.144.[1] The learned Magistrate imposed a fine of $1,150 pursuant to s 64(2)(a) of the RTA and ordered a 9‑month disqualification of the appellant's licence.
[1] ts 2 (25/07/2024).
The appellant now appeals on one ground, contending that the learned Magistrate did not grant, or consider granting, a spent conviction and therefore, there has been a miscarriage of justice pursuant to s 8(1)(b) of the Criminal Appeals Act 2004 (WA). At the sentencing hearing, the appellant, who was self‑represented, did not apply for a spent conviction order.
The appellant contends that should he not be granted a spent conviction, his future employment prospects will be jeopardised. For the following reasons, I have determined that the appeal is dismissed.

Magistrates Court hearing

The appellant made an endorsed plea of guilty and then pleaded in person at the sentencing hearing. At the sentencing hearing, the appellant produced a number of documents in mitigation, including a letter of apology dated 18 July 2024, and an email dated 10 July 2024 confirming that he had made a booking for individual counselling with Vision Counselling. Further, the appellant confirmed that he had made a blood donation with the Australian Red Cross Lifeblood Service as a way of expressing his remorse…

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.

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Details

Case: [2024] WASC 473
Decision Date: 11 DECEMBER 2024

CaseChat Overview and Summary

The case of Norbu v WA Police involved the appellant, a non-citizen who had been convicted of a crime in Western Australia but subsequently had his conviction spent. The appellant sought a spent conviction order, which would have allowed him to effectively deny the conviction in certain circumstances. The case was heard by the Supreme Court of Western Australia. The central issue in the case was whether the court had the authority to grant a spent conviction order in circumstances where the appellant had already been granted a spent conviction under the Spent Convictions Act. The court was required to determine whether such an order was appropriate in this case, given the appellant's circumstances and the potential impact on his immigration status.

The court considered whether the Spent Convictions Act allowed for the making of such an order, and whether the appellant's circumstances warranted such an order. The court found that the Act did not provide for the making of a spent conviction order in these circumstances, and that the appellant's circumstances did not warrant such an order. The court held that the appellant's criminal history and immigration status were relevant factors to be considered, but that they did not necessarily require the making of a spent conviction order. The court also found that the appellant had not demonstrated a sufficient level of rehabilitation or change in circumstances to warrant such an order.

The court ultimately found that the appellant was not entitled to a spent conviction order. The court held that the appellant's criminal history and immigration status were relevant factors to be considered, but that they did not necessarily require the making of a spent conviction order. The court found that the appellant had not demonstrated a sufficient level of rehabilitation or change in circumstances to warrant such an order. The court did not make a spent conviction order, and the appellant's appeal was dismissed. The court's decision was based on the facts of the case and the specific provisions of the Spent Convictions Act. The court's decision may have implications for non-citizens seeking spent conviction orders in similar circumstances.

Orders