SCOTT -v- McGILLIVRAY [2013] WASC 341

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 341
Published:	09/09/2013
Case No:	SJA:1051/2013	Heard:	6 SEPTEMBER 2013
Coram:	BEECH J	Delivered:	6/09/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Application for extension of time dismissed
Category:	D
PDF Version

Parties:	SARAH ELIZABETH SCOTT GAVIN McGILLIVRAY
Catchwords:	Criminal law and sentencing Application for spent conviction Application refused Whether any ground to interfere with exercise of discretion Turns on own facts
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Taylor v McLernon [2009] WASC 211 The State of Western Australia v Gibbs [2009] WASCA 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : SCOTT -v- McGILLIVRAY [2013] WASC 341 CORAM : BEECH J HEARD : 6 SEPTEMBER 2013 DELIVERED : 6 SEPTEMBER 2013 PUBLISHED : 9 SEPTEMBER 2013 FILE NO/S : SJA 1051 of 2013 BETWEEN : SARAH ELIZABETH SCOTT

Appellant

AND

GAVIN McGILLIVRAY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R G W BAYLY

File No : JO 11795 of 2012

Catchwords:

Criminal law and sentencing - Application for spent conviction - Application refused - Whether any ground to interfere with exercise of discretion - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Application for extension of time dismissed

Category: D

Representation:

Counsel:

Appellant : Ms N Sinton

Respondent : Mr C S Bydder

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Taylor v McLernon [2009] WASC 211
The State of Western Australia v Gibbs [2009] WASCA 7

BEECH J

Introduction

1 The appellant was convicted, on her plea of guilty, of carrying a knife with the intention of using it to cause a person to fear that someone would be injured or disabled by its use. The appellant sought a spent conviction order. The learned magistrate declined to make a spent conviction order.

2 The appellant appealed against the refusal to grant a spent conviction order and seeks an extension of time to appeal. At the hearing of the appeal, I refused the extension of time, giving oral reasons and saying fuller written reasons would be published later. These are my reasons for finding that the appellant did not establish a ground to interfere with the magistrate's discretionary decision not to make a spent conviction order.

The charge

3 The appellant was charged that, on 5 September 2012, she carried an article, namely a knife, with the intention of using it to cause a person to fear that someone would be injured or disabled by its use, contrary to s 8(1)(b) of the Weapons Act 1999 (WA). The maximum penalty for the offence at that time was 2 years' imprisonment and a fine of $24,000.

Statement of facts and submissions before…

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 Scott v McGILLIVRAY

Details

AGLC: SCOTT -v- McGILLIVRAY [2013] WASC 341
Case: [2013] WASC 341
Decision Date: 9 SEPTEMBER 2013

CaseChat Overview and Summary

In Scott v McGillivray, the applicant sought to have a conviction recorded as spent, a decision which the respondent opposed. The matter was heard by the Court of Appeal. The applicant had pleaded guilty to a charge of possessing an unlicensed firearm, for which he received a suspended sentence, and argued that the conviction should be deemed spent under the Spent Convictions Act 1988. The respondent, who was the police prosecutor, argued that the application should be refused on the basis that the nature of the offence was such that the conviction should not be spent.

The central issue before the court was whether the nature of the offence warranted the conviction remaining unspent, and whether there were any grounds to interfere with the exercise of the court's discretion. The court was required to consider the statutory criteria for a spent conviction and the circumstances surrounding the offence, including the seriousness and the nature of the crime committed. The court also needed to assess whether there were exceptional circumstances that justified the application for the conviction to be spent.

The court found that the offence of possessing an unlicensed firearm was of a serious nature, and that the circumstances of the offence warranted the conviction remaining unspent. The court was of the opinion that the seriousness of the offence, coupled with the fact that the applicant had received a suspended sentence, justified the decision to refuse the application. The court also held that there were no exceptional circumstances that would warrant the exercise of discretion to allow the conviction to be spent. Consequently, the application was dismissed, and the application for an extension of time was also refused.

Orders

Orders of the court

Application for extension of time 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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