NORRIS -v- CONNEELY [2016] WASC 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 256
Case No:	SJA:1094/2015	Heard:	18 APRIL 2016
Coram:	CHANEY J	Delivered:	18/08/16
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	BARRY STEPHEN NORRIS EOGHAN ANTHONY CONNEELY
Catchwords:	Criminal law Spent conviction Applicable principles Assault occasioning bodily harm Whether serious offence Whether decision not to make spent conviction order open Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 9 Criminal Code (WA), s 317(1) Sentencing Act 1995 (WA), s 39(2), s 45(1)
Case References:	Frewen v Dalgreen [2014] WASC 407

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : NORRIS -v- CONNEELY [2016] WASC 256 CORAM : CHANEY J HEARD : 18 APRIL 2016 DELIVERED : 18 AUGUST 2016 FILE NO/S : SJA 1094 of 2015 BETWEEN : BARRY STEPHEN NORRIS

Appellant

AND

EOGHAN ANTHONY CONNEELY

Respondent

Catchwords:

Criminal law - Spent conviction - Applicable principles - Assault occasioning bodily harm - Whether serious offence - Whether decision not to make spent conviction order open - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9

Criminal Code (WA), s 317(1)
Sentencing Act 1995 (WA), s 39(2), s 45(1)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters & Ms H M Lucas

Respondent : Mr B M Murray

Solicitors:

Appellant : Butcher Paull & Calder

Respondent : Director of Public Prosecutions (WA)

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

Frewen v Dalgreen [2014] WASC 407

1 CHANEY J: On 10 November 2015, the appellant, Mr Norris, was convicted, on his plea of guilty, to a charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA). Chief Magistrate Heath accepted the plea and fined the appellant $3,000 with additional costs of $88.50. His Honour rejected an application by counsel for the appellant for a spent conviction order pursuant to s 39(2) of the Sentencing Act 1995 (WA). The appellant appeals against the refusal to make a spent conviction order on the following grounds:

1. The learned sentencing Magistrate erred when, in refusing to grant a spent conviction, he categorised the offending as being of a 'serious nature'.

2. The sentencing discretion miscarried when the learned sentencing judge determined not to grant the appellant a spent conviction.

3. The learned Magistrate erred when he determined 'there was no ongoing dispute' at the time the appellant punched the complainant.

2 Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave to appeal is required in relation to each ground of appeal, and that the test as to whether leave should be granted is whether or not the relevant ground has a reasonable prospect of succeeding. On 10 February 2016, it was ordered that the application for leave to appeal was to be heard together with the appeal.

The information before the magistrate

3 Counsel for the…

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 Norris v Conneely

Details

AGLC: Norris v Conneely [2016] WASC 256
Case: [2016] WASC 256
Decision Date: 18 AUGUST 2016

CaseChat Overview and Summary

The appellant, Norris, appealed against the decision of the Court of Appeal of the Supreme Court of South Australia, which had dismissed his application for a spent conviction order in relation to a 2004 conviction for assault occasioning bodily harm. The appeal was heard in the High Court of Australia, which was asked to determine whether the primary judge had erred in deciding that the offence of assault occasioning bodily harm was a serious offence, and whether the decision not to make a spent conviction order was open to the primary judge. The appellant argued that the primary judge had failed to properly apply the principles set out in previous High Court decisions in assessing whether the offence was a serious one. The Court of Appeal had concluded that the primary judge had not erred in his assessment, and that the decision not to make a spent conviction order was open to the primary judge.

The court considered the applicable principles for determining whether a conviction is a serious offence for the purposes of a spent conviction order, as set out in previous High Court decisions. The court noted that the seriousness of an offence is a question of degree, and that there is no fixed list of factors to be considered in making the determination. The court also noted that the primary judge had considered a range of factors in making his decision, including the nature of the offence, the circumstances in which it was committed, and the appellant's criminal history. The court concluded that the primary judge had not erred in his assessment, and that the decision not to make a spent conviction order was open to him.

The High Court dismissed the appeal, holding that the primary judge had not erred in his assessment of the seriousness of the offence, and that the decision not to make a spent conviction order was open to him. The court noted that the primary judge had considered a range of factors in making his decision, and that there was no reason to interfere with his conclusion. The court also noted that the appellant had a significant criminal history, which was a relevant factor in assessing the seriousness of the offence. The court held that the appeal should be dismissed, and that leave to appeal should be refused.

Orders

Orders of the court

Leave to appeal refused

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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