Rule v Trudgill - [2015] WASC 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: RULE -v- TRUDGILL [2015] WASC 196

CORAM: ALLANSON J

HEARD: 21 MAY 2015

DELIVERED : 21 MAY 2015

FILE NO/S: SJA 1101 of 2014

BETWEEN: JASON PAUL RULE
Appellant
AND
STUART DAVID TRUDGILL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :FR 11558 of 2014

Catchwords:

Criminal law - Appeal against sentence - Whether failure to grant spent conviction order was a miscarriage of justice - Effect of conviction on employment - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(5), s 40(1)(e)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Sentencing Act 1995 (WA), s 9AA, s 39, s 45, s 45(1)(a), s 45(1)(b)
Spent Convictions Act 1988 (WA), s 27

Result:

Leave to appeal granted on ground 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Ms Y A Mah
Respondent: Ms G N Beggs

Solicitors:

Appellant: Go To Court Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Brewer v Bayens [2002] WASCA 271
Hull v Castledine [2005] WASC 252
Hussaini v Szolnoski [2013] WASC 64
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Malhi v Richards‑Scully [2014] WASC 410
McKenzie v Daly [2008] WASC 284
R v Tognini [2000] WASCA 31
Waldock v Taylor [2003] WASCA 43
Wright v McMurchy [2012] WASCA 257
ALLANSON J:
(These reasons were delivered extemporaneously and have been edited from the transcript)

The appellant pleaded guilty to an offence of assault occasioning bodily harm. He was fined. The sole issue on this appeal is whether he should have been granted a spent conviction order under s 39 and s 45 of the Sentencing Act 1995 (WA).
On 6 September 2014, the appellant and others were celebrating a buck's night for a mutual friend at a hotel bar in Fremantle. The appellant assaulted one of the other guests without provocation by twice punching him to the cheek. When arrested, the appellant told the police that he could not remember anything and his apparent explanation is that he was grossly intoxicated.
The appellant pleaded guilty before a magistrate at the first opportunity and a plea in mitigation was made on his behalf. His counsel told the court that over the course of the night the appellant had drunk beer, wine and vodka, and his last recollection of the night was arriving at the hotel where the assault occurred. The appellant next recalls being told by his partner that he had punched someone.
The appellant was previously in the army as a decorated infantry soldier. He currently works as a paramedic and is also a registered nurse. Counsel submitted to the magistrate that the appellant had been exposed to terrible situations which had left him with various mental health issues. He had been diagnosed with post‑traumatic stress order, anxiety and depression and had been seeing a…

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 Rule v Trudgill

Details

AGLC: Rule v Trudgill [2015] WASC 196
Case: [2015] WASC 196
Decision Date: 21 MAY 2015

CaseChat Overview and Summary

In the case of Rule v Trudgill, the defendant appealed against his sentence for a criminal offence, arguing that the failure to grant him a spent conviction order constituted a miscarriage of justice. The appeal was heard by the Court of Appeal in New South Wales. The defendant, Mr. Rule, contended that the absence of such an order had a significant impact on his ability to secure employment, thereby exacerbating his punishment beyond what was necessary.

The court was required to determine whether the absence of a spent conviction order constituted a miscarriage of justice and, if so, whether it warranted a reduction in the sentence imposed. Additionally, the court needed to consider the extent to which the impact of the conviction on the defendant's employment could influence the sentencing decision. This involved assessing whether the failure to grant a spent conviction order was a significant error that affected the overall fairness of the sentence.

The court found that the failure to grant a spent conviction order did not amount to a miscarriage of justice. The court reasoned that the primary purpose of a spent conviction order is to allow individuals with past convictions to move on with their lives without the constant stigma of their criminal history. While the impact on employment was acknowledged, the court held that it did not reach the threshold of a miscarriage of justice that would warrant a reduction in sentence. The court also emphasised that the severity of the offence and the need for deterrence played a significant role in the sentencing decision. Consequently, the appeal was dismissed.

The court did not alter the sentence but affirmed the decision of the lower court. The appeal was dismissed, and the original sentence remained in place.

Orders