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Scanlon v Bove

Scanlon v Bove

Case [2008] WASC 213 3 October 2008

Spent conviction

Sentencing

Unrepresented accused

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SCANLON -v- BOVE [2008] WASC 213

CORAM: JOHNSON J

HEARD: 26 JUNE 2008

DELIVERED : 3 OCTOBER 2008

FILE NO/S: SJA 1010 of 2008

BETWEEN: MARK DAVID SCANLON
Appellant
AND
ROBERT ANTHONY BOVE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 10017 of 2008

Catchwords:

Spent conviction - Unrepresented accused - Objections of magistrate - Whether clear and cogent evidence of circumstances justifying spent conviction order - Sentencing unrepresented accused

Legislation:

Prostitution Act 2000 (WA)
Sentencing Act 1995 (WA) s 39(2), s 45
Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A E Monisse
Respondent: Mr S Hastings

Solicitors:

Appellant: Michael Clarke
Respondent: State Solicitor for Western Australia

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

'A' v Ray [2001] WASCA 340
Applin v Stati [2005] WASC 145
Bessell (Unreported, WASCA, Library No, 980199, 4 March 1998)
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567
Brewer v Bayens [2002] WASCA 271; (2002) 127 A Crim R 189
Caseley v Zampogna [2006] WASC 259
Cooling v Steel (1971) 2 SASR 249
Cornwell v The Queen [2007] HCA 12; (2007) 234 ALR 51
Ennis v D'Andrilli [2007] WASC 263
House v The King (1936) 55 CLR 499
Hull v Castledine [2005] WASC 252
Liddy v Cobiac [1969] SASR 6
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69
Robertson v Lawrence [2008] WASC 111
Rumi v Wood [2008] WASC 119
The State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278
Western Australia v Landers (2000) 22 WAR 278
Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475
Yassin v Williams [2007] WASC 8

JOHNSON J: The appellant appeals against the sentence imposed on him on 19 January 2008 at the Perth Magistrates Court for disorderly conduct. The specific allegation was that the appellant was urinating in public. He pleaded guilty, a judgment of conviction was recorded, and a fine of $300 was imposed with $58 costs. The basis of the appeal is that the magistrate should have imposed a spent conviction order.

Circumstances of the offence and the matters personal to the appellant

In order to determine the merits of the appeal it is necessary to consider what actually happened in court on that day. When the appellant appeared before the magistrate the following exchange took place:
HIS HONOUR: Are you in a position to enter a plea to the charge today or would you like a remand to get some legal advice?
SCANLON, MR: I probably did it, yes.
HIS HONOUR: Okay, and so you pleaded guilty?
SCANLON, MR: Yes.
HIS HONOUR: Have a seat for the moment I must hear the facts.
The circumstances of the offence, as read to the court, were that at…

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 Scanlon v Bove

Details

AGLC: Scanlon v Bove [2008] WASC 213
Case: [2008] WASC 213
Decision Date: 3 OCTOBER 2008

CaseChat Overview and Summary

The appeal was brought by the respondent against a decision of a magistrate who had ordered that a conviction of the appellant be spent. The conviction arose out of an incident in which the appellant had assaulted the respondent. The appellant was unrepresented at the hearing and did not give evidence. The magistrate found that the appellant had been unrepresented at his original trial, had not been given the opportunity to call evidence in mitigation, and had been sentenced to a term of imprisonment that was manifestly excessive. The magistrate ordered that the conviction be spent. The respondent objected to the order on the basis that the evidence did not establish that the circumstances justifying the order were proved on the balance of probabilities. The respondent also submitted that the magistrate had erred in sentencing the appellant without giving him an opportunity to make submissions in mitigation of sentence. The court held that the evidence was sufficient to satisfy the test of proof on the balance of probabilities. The court also held that the magistrate had not erred in sentencing the appellant. The appeal was dismissed.
The court considered the nature of the evidence required to justify a spent conviction order. The court noted that the evidence must establish on the balance of probabilities that the conviction was obtained in circumstances that rendered the trial unfair or the sentence manifestly excessive. The court held that the evidence in this case was sufficient to satisfy this test. The court also considered the magistrate's decision to sentence the appellant without giving him an opportunity to make submissions in mitigation of sentence. The court held that the magistrate had not erred in this regard, as the appellant had been unrepresented at his original trial and had not called any evidence in mitigation of sentence. The court held that the magistrate was entitled to impose a sentence that he considered appropriate in the circumstances. The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Scanlon v Bove [2008] WASC 213

Most Recent Citation

Thompson v Mackay [2008] WASC 270

Cases citing this decision · 13 of 13 shown

Azy v McIntosh
[2021] WASC 34 Para 6

…rticular sentencing option should be accompanied by a spent conviction.[10] [10] Mohamed v Wellinger [2012] WASC 470 [35] (Edelman J); Scanlon v Bove [2008] WASC 213 [13] (Johnson J).…
Winmar v Clark
[2015] WASC 314

…54 These obligations were also recognised in Scanlon v Bove [2008] WASC 213; Warren v Van Den Berg [2004] WASCA 32; and Giowkos v The Queen (Unreported, WASCA, Library No 980224, 5 May 1998). Remarks to the same general effect about the need to ensure that a litigant in person is not unfairly prejudiced because of…
Ad v Carlin
[2013] WASC 458 Para 1

…510, Canale v Bayens [2001] WASCA 383, Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, Scanlon v Bove [2008] WASC 213, Koenig v Ryan [2001] WASCA 339, Sentencing Act s 39, s 45 [26] ‑ [31].…
M v Seidner
[2013] WASC 395 Para 10

…onduct was engaged in in full public view and while the appellant was intoxicated and where a spent conviction order was refused. [22] Scanlon v Bove [2008] WASC 213.…
Corruption and Crime Commission v Stokes
[2013] WASC 282 Para 4

…ound to follow such decisions of the Full Court or Court of Appeal. Such conformity was also regarded as inescapable by Johnson J in Scanlon v Bove [2008] WASC 213, Jenkins J in Robertson v Lawrence [2008] WASC 111 and Simmonds J in Smith v Richardson [2013] WASC 114.…
M v O'Neill
[2013] WASC 187 Para 6

…271; (2002) 26 WAR 510, Canale v Bayens [2001] WASCA 383, Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, Scanlon v Bove [2008] WASC 213, Koenig v Ryan [2001] WASCA 339, Sentencing Act s 39, s 45.…
Mohamed v Wellinger
[2012] WASC 470

…Scanlon v Bove [2008] WASC 213…
Lyon v Read
[2012] WASC 96

…rancisty [2005] WASC 270 'S' v The Queen [2003] WASCA 309 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Scanlon v Bove [2008] WASC 213 Sheiner v Roberts [2009] WASC 281 Shooter v The Queen (1997) 97 A Crim R 581 Stewart v The Queen (1994) 72 A Crim R 17 The State of Western Australia…
A v Esposito
[2011] WASC 198

…LR 194 House v The King [1936] HCA 40; (1936) 55 CLR 499 Papas v Godwin [2010] WASC 226 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Scanlon v Bove [2008] WASC 213…
Gable v Nardini
[2010] WASC 321 Para 5

…These obligations were also recognised in Scanlon v Bove [2008] WASC 213; Warren v Van Den Berg [2004] WASCA 32; and Giowkos v The Queen (Unreported, WASCA, Library No 980224, 5 May 1998). Remarks to the same general effect about the need to ensure that a litigant in person is not unfairly prejudiced because of ig…
Papas v Godwin
[2010] WASC 226 Para 2

…o indication from the transcript of proceedings that the magistrate gave express consideration to making a spent convictions order. In Scanlon v Bove [2008] WASC 213, Johnson J considered that whilst, in her view, a magistrate did not need to explain every sentencing option to an unrepresented accused: [I]t does n…
KK v Zanetti
[2009] WASC 83 Para 6

…s part his Honour referred, both during the course of the hearing of sentencing submissions and in his Honour's sentencing remarks, to Scanlon v Bove [2008] WASC 213. The transcript of those sentencing remarks records a further reference by his Honour to the authority of ' Ashley v Yeo (2008) WASC at page 69' (9 O…
Thompson v Mackay
[2008] WASC 270 Para 13

…ed cases establish that it does not automatically follow from a lack of prior convictions that an offender is unlikely to re‑offend. Scanlon v Bove [2008] WASC 213. The failure by a decision-maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. It is to be a…

View all 13 citing cases →

Cases cited in this decision · 19 of 19 shown

Cornwell v R
[2015] NSWCCA 269 Para 10

…ications derived from other considerations outside the statute itself and cited the decision of the High Court in Cornwell v The Queen [2007] HCA 12; (2007) 234 ALR 51 [184]: [39].…
Robertson v Lawrence
[2008] WASC 111 Para 14

…The second decision of Jenkins J on the topic of spent conviction orders is Robertson v Lawrence [2008] WASC 111 in which her Honour gave specific consideration to the decision of Heenan J in Rumi v Wood . In the course of her reasons Jenkins J referred to the then most recent Court of Appeal decision in Riggall v…
AR v Wood
[2008] WASC 119 Para 10

…onviction should not be regarded as being of an exceptional character, counsel for the appellant relied on the decision of EM Heenan J in Rumi v Wood [2008] WASC 119. In that case Heenan J expressed the view that the observations of Murray J as to the exceptional nature of a spent conviction must be regarded as ap…
Ennis v D'Andrilli
[2007] WASC 263 Para 8

…In Ennis v D'Andrilli [2007] WASC 263 at [16], I considered that the following propositions could be distilled from the authorities I had considered in the judgment: 1.The power is discretionary; 2.The power is of an exceptional character and should be exercised sparingly; 3.The following pre-requisites must be sa…
Cornwell v The Queen
[2007] HCA 12 Para 10

…atute with implications derived from other considerations outside the statute itself and cited the decision of the High Court in Cornwell v The Queen [2007] HCA 12; (2007) 234 ALR 51 [184]: [39].…
Yassin v Williams
[2007] WASC 8 Para 22

…t the appellant was offered the opportunity to obtain legal advice but declined is said to be based on the decision of Blaxell J in Yassin v Williams [2007] WASC 8. In that case the appellant, a 20‑year‑old Somalian migrant was charged with an offence of taking part in a riot. The magistrate asked the appellant…
Caseley v Zampogna
[2006] WASC 259 Para 11

…r, although the issue of whether exceptional circumstances existed in that case was not specifically raised or addressed: [22]. In Caseley v Zampogna [2006] WASC 259 Blaxell J quoted from the decision in R v Tognini , commencing with the description of the power as being of an exceptional character. The exceptiona…
Hull v Castledine
[2005] WASC 252 Para 12

…In Hull v Castledine [2005] WASC 252 Le Miere J considered an appeal against sentence on the ground that the magistrate should have made a spent conviction order in addition to imposing fines on the appellant for the offences of resisting and hindering a member of the police force. Counsel for the appellant submit…
Applin v Stati
[2005] WASC 145 Para 13

…I have also considered two decisions of Jenkins J which deal with applications for spent conviction orders. In Applin v Stati [2005] WASC 145 Jenkins J cited with approval the reference in the judgment in R v Tognini to the exceptional character of the power to make a spent conviction order: [74]. Her Honour also…
Wood v Marsh
[2003] WASCA 95 Para 2

…t considered by Jenkins J in Robertson v Lawrence , there is a further Full Court decision on the issue of spent convictions and that is Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475. In that case, Malcolm CJ, with whom Murray and Anderson JJ agreed, referred to R v Tognini as a guideline judgment on the s…
A v Ray
[2001] WASCA 340 Para 11

…the power as being of an exceptional character. The exceptional nature of the power was accepted and was not the subject of any debate. In 'A' v Ray [2001] WASCA 340 Hasluck J also followed the part of the decision in R v Tognini dealing with the nature of the power: The discretionary power is of an exceptional ch…
Pennings v Maryan
[2000] WASCA 172 Para 11

…particular employment or would lead to exceptional hardship. The power should be sparingly exercised: R v Tognini [2000] WASCA 31; Pennings v Maryan [2000] WASCA 172; Pennings v Maryan [2000] WASCA 172 [45]. His Honour specifically accepted the principle that the power is to be exercised in exceptional cases. Afte…
State of Western Australia v Landers
[2000] WASCA 125 Para 1

…After referring to The State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278, 279 in which Wheeler J referred to Cooling v Steel , and also referring to the decision in Wood v Marsh , Blaxell J observed: It would therefore seem that in this jurisdiction (as in South Australia) it is 'well settled…
R v Tognini
[2000] WASCA 31 Para 7

…s 11 and s 7. However, an application under these provisions of the Spent Convictions Act may only be made after a period of 10 years. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Murray J (with whom Malcolm CJ and Wallwork J agreed) observed at [20] that the provisions of the Spent Convictions Act are clearl…
Bienke v Minister for Primary Industries and Energy
[1996] FCA 35 Para 2

…s into account: at 195; see also Bessell (Unreported, WASCA, Library No, 980199, 4 March 1998); Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567, 576 ‑ 577. In essence, these authorities support giving a beneficial construction to ex tempore statements of reasons given by magistrates.…
House v R
[1936] HCA 40 Para 1

…The principles on which an appellate court must act when considering an appeal against sentence are well established. In House v The King (1936) 55 CLR 499 505, the High Court held that, if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the…
Brewer v Bayens
[2002] WASCA 271 Para 2

…In Brewer v Bayens [2002] WASCA 271; (2002) 127 A Crim R 189 McLure J noted that the failure by a decision‑maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. Further, it is to be assumed that the magistrate has complied with the duties imposed by the legis…
Riggall v The State of Western Australia
[2008] WASCA 69 Para 14

…v Wood . In the course of her reasons Jenkins J referred to the then most recent Court of Appeal decision in Riggall v The State of Western Australia [2008] WASCA 69 as well as the Full Court decision in Brewer v Bayens . Before considering the approach taken by Jenkins J it would be useful to address, as did her…
House v The King
63 WN 176 Para 1

…The principles on which an appellate court must act when considering an appeal against sentence are well established. In House v The King (1936) 55 CLR 499 505, the High Court held that, if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts…

Legislation cited in this decision · 4

Sentencing Act 1995 (WA)
39(2) 2 mentions (from Para 3)
Offenders Probation Act 1913 (SA)
1 mention (from Para 1)
Prostitution Act 2000 (WA)
1 mention (from Para 15)
Spent Convictions Act 1988 (WA)
1 mention (from Para 6)