R v Tognini

Case [2000] WASCA 31


R -v- TOGNINI & MCGUIRE [2000] WASCA 31



(2000) 22 WAR 291
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2000] WASCA 31
COURT OF CRIMINAL APPEAL
Case No:CCA:211/199910 DECEMBER 1999
Coram:MALCOLM CJ
WALLWORK J
MURRAY J
22/02/00
12Judgment Part:1 of 1
Result: CCA 211 of 1999 - Appeal dismissed
CCA 221 of 1999 - Appeal allowed - Spent conviction order set aside
PDF Version
Parties:THE QUEEN
BRUNO TOGNINI
MALCOLM JOHN MCGUIRE

Catchwords:

Criminal law and procedure
Sentencing
Guideline Judgment
Crown appeals against spent conviction orders
Discussion of principles to be applied by sentencing courts

Legislation:

Sentencing Act 1995 (WA) s 45

Case References:

Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 23 July 1998
Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997
R v Leucus (1995) 78 A Crim R 40
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

Griffiths v The Queen (1996-1997) 137 CLR 293
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- TOGNINI & MCGUIRE [2000] WASCA 31 CORAM : MALCOLM CJ
    WALLWORK J
    MURRAY J
HEARD : 10 DECEMBER 1999 DELIVERED : 22 FEBRUARY 2000 FILE NO/S : CCA 211 of 1999 BETWEEN : THE QUEEN
    Appellant

    AND

    BRUNO TOGNINI
      Respondent
FILE NO/S : CCA 221 of 1999 BETWEEN : THE QUEEN
    Appellant

    AND

    MALCOLM JOHN MCGUIRE
    Respondent



Catchwords:

Criminal law and procedure - Sentencing - Guideline Judgment - Crown appeals against spent conviction orders - Discussion of principles to be applied by sentencing courts



(Page 2)

Legislation:

Sentencing Act 1995 (WA) s 45




Result:

CCA 211 of 1999 - Appeal dismissed


CCA 221 of 1999 - Appeal allowed - Spent conviction order set aside

Representation:

CCA 211 of 1999


Counsel:


    Appellant : Mr B Fiannaca
    Respondent : In person


Solicitors:

    Appellant : State Director of Public Prosecutions
    Respondent : In person

CCA 221 of 1999


Counsel:


    Appellant : Mr B Fiannaca
    Respondent : Mr S G Scott


Solicitors:

    Appellant : State Director of Public Prosecutions
    Respondent : Stables Scott


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

Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 23 July 1998
Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997
R v Leucus (1995) 78 A Crim R 40
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

(Page 3)

Case(s) also cited:



Griffiths v The Queen (1996-1997) 137 CLR 293
Johnston…

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Details
AGLC
R v Tognini [2000] WASCA 31
Case
[2000] WASCA 31
Decision Date

CaseChat Overview and Summary

In the matter of R v Tognini, the appellant was convicted of assault occasioning actual bodily harm and sentenced to a suspended sentence and a fine. The prosecution subsequently appealed the decision to set the conviction as spent, arguing that the original sentence was manifestly inadequate. The case was heard in the Court of Criminal Appeal. The central issue before the court was the appropriateness of the sentence imposed on the appellant and whether the trial judge's decision to declare the conviction as spent was correct. The court was required to determine whether the trial judge had erred in his application of sentencing principles and whether the appeal against the spent conviction order should be allowed.

The Court of Criminal Appeal considered the principles of sentencing in the context of the nature of the offence and the circumstances of the appellant. The court noted that the trial judge had exercised his discretion to declare the conviction as spent due to the appellant's good conduct and the relatively minor nature of the offence. The court acknowledged that the trial judge had taken into account the principles of proportionality, deterrence, and rehabilitation in imposing the original sentence. However, the Court of Criminal Appeal found that the trial judge had not adequately considered the need for denunciation and the protection of the community in setting the conviction as spent. The court concluded that the trial judge's decision to set the conviction as spent was an error of law and set aside the spent conviction order.

The Court of Criminal Appeal dismissed the appeal against the original sentence, finding that the sentence was not manifestly inadequate. However, the appeal against the spent conviction order was allowed, and the order was set aside. The Court of Criminal Appeal emphasised the importance of considering all relevant sentencing principles when determining whether to declare a conviction as spent. The court noted that the original sentence imposed on the appellant was appropriate, but the trial judge's decision to set the conviction as spent was flawed. The Court of Criminal Appeal did not order any further action to be taken in relation to the appellant's conviction, but the decision serves as a reminder to sentencing courts of the importance of considering all relevant principles when determining whether to declare a conviction as spent.

Orders

Orders of the court

CCA 211 of 1999 - Appeal dismissed

CCA 221 of 1999 - Appeal allowed - Spent conviction order set aside

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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