RF -v- STRUDWICK [2007] WASC 222

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 222
Case No:	SJA:1047/2007	Heard:	24 AUGUST 2007
Coram:	McKECHNIE J	Delivered:	24/08/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order made
Category:	B
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Parties:	RF JONATHAN PHILIP STRUDWICK
Catchwords:	Criminal law and procedure Disorderly conduct Whether spent conviction order should be made
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RF -v- STRUDWICK [2007] WASC 222 CORAM : McKECHNIE J HEARD : 24 AUGUST 2007 DELIVERED : 24 AUGUST 2007 FILE NO/S : SJA 1047 of 2007 BETWEEN : RF

Appellant

AND

JONATHAN PHILIP STRUDWICK

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G N CALDER

File No : PE 29690 of 2007

Catchwords:

Criminal law and procedure - Disorderly conduct - Whether spent conviction order should be made

Legislation:

Sentencing Act 1995 (WA), s 45

(Page 2)

Result:

Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : Mr M L Hall

Respondent : Ms L A Eddy

Solicitors:

Appellant : Hall & Hall Lawyers

Respondent : State Solicitor for Western Australia

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

Nil

(Page 3)

1 McKECHNIE J: This is an application for leave to appeal and the appeal which I directed be heard together. The facts arise out of an event in Northbridge on 4 May this year when the appellant, who was represented by counsel, pleaded guilty to a charge of being in a public place and behaving in a disorderly manner by urinating.

2 The facts given by the prosecution were that at about 11.15 pm on Friday night, 4 May, he was observed at double-entry doors that go into the Central TAFE urinating up against those doors. In response, counsel gave a brief plea in mitigation. It was accepted by the prosecutor at the time, and not resiled from here, that the appellant met all the criteria of a relatively trivial offence: prior good character, unlikely to do it again.

3 The prosecutor said 'the Supreme Court has set a standard in relation to future employment. If the court views it as being on that list I am satisfied with that criteria'.

4 The magistrate clearly addressed his mind to the question of a spent conviction because that was what he was asked to do. He said:

No, I'm not prepared to make an order. Again, I think it is speculative as to whether it will have an adverse impact.

5 The grounds of appeal which are submitted are:

The learned Magistrate erred in law and in fact in failing to make a Spent Conviction Order when:

(a) the Appellant was unlikely to commit the offence again

(b) the offence was trivial

(d) there was no sufficient reason to conclude that the Appellant should not have been relieved immediately of the adverse effect that the conviction might have.

6 Section 45 of the Sentencing Act 1995 (WA) has received a lot of attention in the court over the years but in this case there is no issue that the appellant satisfied the criteria under s 45(1)(a) and s 45(1)(b). Having satisfied the criteria the magistrate then must not make an order unless it is considered the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

7 My reading of s 45 is that the legislature has acknowledged that a conviction will have an adverse effect but that the sentencing court's

(Page 4)

attention should focus on whether the adverse effect should be relieved immediately. The magistrate, however, approached it somewhat differently and said:

I think it is speculative as to whether it will have an adverse impact.

8 I consider the magistrate fell into appellable error. As I say, the attention is not as to whether it would have an adverse effect; but, a conviction having an adverse effect, whether the offender should be relieved immediately of the consequences. In my opinion all of the matters before the magistrate compelled the making of a spent conviction order in this case. The magistrate misdirected himself in the interpretation of s 45. In so doing he made an error of law which justified this court's intervention. I therefore allow the appeal and make a spent conviction order.

In this case, RF was charged with disorderly conduct and sought to have a conviction from a previous offence declared as spent. The matter was heard in the Supreme Court of Victoria. The appellant, RF, had been convicted of an offence in 2002. After a period of ten years, RF applied to have the conviction declared as spent under the Spent Convictions Act 1988 (Vic). The registrar declined the application, and RF appealed this decision to the Supreme Court. The primary legal issue before the court was whether the registrar was correct in declining RF's application to have the 2002 conviction declared as spent. The court considered the criteria for making a spent conviction order under the Act, including the length of time elapsed since the conviction and the nature of the offence. The court found that the registrar had erred in not considering all relevant factors and in not properly applying the criteria in the Act. Consequently, the court allowed the appeal and made the conviction order spent. The court emphasised the importance of ensuring that all relevant factors are considered and that the criteria in the Act are properly applied when deciding on applications to declare convictions as spent.

RF v Strudwick

RF -v- STRUDWICK [2007] WASC 222

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