ROGERS -v- KUSER [2015] WASC 334

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 334
Case No:	SJA:1032/2015	Heard:	14 AUGUST 2015
Coram:	TOTTLE J	Delivered:	14/08/15
No of pages:	11	Judgment Part:	1 of 1
Result:	Application refused Appeal dismissed
Category:	B
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Parties:	ROSS WESLEY ROGERS TERRENCE RUSSELL KUSER
Catchwords:	Criminal law and procedure Sentencing Refusal to grant spent conviction order Application for extension of time to bring application for leave to appeal against sentence No miscarriage of justice No error by Magistrate No reasonable prospect of success
Legislation:	Criminal Appeals Act 2004 (WA), s 9(1) Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c) Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6) Sentencing Act 1995 (WA), s 45(1)
Case References:	Lowndes v The Queen (1999) 195 CLR 665 R v Tognini [2000] WASCA 31 Samuels v The State of Western Australia [2005] WASCA 193

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : ROGERS -v- KUSER [2015] WASC 334 CORAM : TOTTLE J HEARD : 14 AUGUST 2015 DELIVERED : 14 AUGUST 2015 FILE NO/S : SJA 1032 of 2015 BETWEEN : ROSS WESLEY ROGERS

Appellant

AND

TERRENCE RUSSELL KUSER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : CHIEF MAGISTRATE S A HEATH

File No : PE 109054 of 2014, PE 109055 of 2014, PE 109056 of 2014, PE 109057 of 2014

Catchwords:

Criminal law and procedure - Sentencing - Refusal to grant spent conviction order - Application for extension of time to bring application for leave to appeal against sentence - No miscarriage of justice - No error by Magistrate - No reasonable prospect of success

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1)

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6)
Sentencing Act 1995 (WA), s 45(1)

Result:

Application refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr R Williamson

Respondent : Mrs B M Allen

Solicitors:

Appellant : Williamson Criminal Lawyers

Respondent : State Solicitor for Western Australia

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

Lowndes v The Queen (1999) 195 CLR 665
R v Tognini [2000] WASCA 31
Samuels v The State of Western Australia [2005] WASCA 193

TOTTLE J

(This judgment was delivered extemporaneously on 14 August 2015 and has been edited from the transcript.)

1 This is an application for an extension of time within which to bring an application for leave to appeal against the refusal of the making of a spent conviction order.

2 The background to the application is as follows. On 6 November 2014 the appellant was convicted in the Magistrates Court following pleas of guilty of four offences: first, driving without authority contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA); secondly, possession of 1 1/2 grams of cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA); thirdly, possession of two MDMA tablets, contrary…

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 Rogers v Kuser

Details

AGLC: Rogers v Kuser [2015] WASC 334
Case: [2015] WASC 334
Decision Date: 14 AUGUST 2015

CaseChat Overview and Summary

The case of Rogers v Kuser involved the defendant, Rogers, who sought a spent conviction order following his conviction for a criminal offence. The Magistrate had refused to grant the order, and Rogers applied for an extension of time to bring an application for leave to appeal against the sentence. The court was required to determine whether an extension of time should be granted and, if so, whether there was a reasonable prospect of success for the appeal against sentence. The legal issues included whether the Magistrate had erred in refusing to grant the spent conviction order and whether a miscarriage of justice had occurred.

The court found that there was no miscarriage of justice, and no error had been made by the Magistrate in refusing to grant the spent conviction order. The court noted that the order was discretionary, and the Magistrate had considered the relevant factors in making their decision. Furthermore, the court held that there was no reasonable prospect of success for an appeal against sentence, as the sentence imposed was within the appropriate range for the offence committed.

Consequently, the court refused the application for an extension of time to bring an application for leave to appeal against sentence. The appeal against the refusal to grant a spent conviction order was dismissed. The court's decision was based on the lack of any miscarriage of justice or error by the Magistrate, as well as the absence of a reasonable prospect of success for the appeal against sentence. The application and appeal were therefore refused and dismissed, respectively.

Orders

Orders of the court

Application refused

Appeal dismissed

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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