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Sharpe v Vinning

Sharpe v Vinning

Case [2020] WASCA 79 26 May 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SHARPE -v- VINNING [2020] WASCA 79
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   22 JANUARY 2020
DELIVERED          :   26 MAY 2020
FILE NO/S:   CACR 87 of 2019
BETWEEN:   MICHAEL MARY SHARPE
Appellant
AND
RODERICK THORN VINNING
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
File Number            :   SJA 1032 of 2019

Catchwords:

Criminal law - Appeal against failure to make a spent conviction order - Proper construction of s 45(1) of the Sentencing Act 1995 (WA) - The meaning of the expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act - Whether the only conclusion reasonably open was that the appellant's offence against s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) was not 'trivial' within s 45(1)(b)(i) of the Sentencing Act

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)
Criminal Appeals Act 2004 (WA), s 14, s 16, s 18
Sentencing Act 1995 (WA), s 39, s 45
Spent Convictions Act 1988 (WA), s 6, s 11

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Mr S Nigam
Respondent	:	Mr D E Leigh

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	State Solicitor's Office

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

GNR v The State of Western Australia [2015] WASCA 5
Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

JUDGMENT OF THE COURT:

Since 3 July 2015 the appellant has been a reportable offender under the Community Protection (Offender Reporting) Act2004 (WA) (the CPOR Act).
On 8 February 2019, the appellant was convicted, on his plea of guilty in the Magistrates Court before Magistrate Young, on one charge in a prosecution notice. The charge alleged that on 2 January 2019 the appellant failed to comply with reporting obligations, contrary to s 63(1) of the CPOR Act.
The Magistrate imposed a fine of $200 and ordered the appellant to pay costs. His Honour refused the appellant's application for a spent conviction order. The primary basis for his Honour's refusal was that the offence was not 'trivial' within s 45(1)(b)(i) of the Sentencing Act 1995 (WA).
The appellant applied for leave to appeal to a single judge of the Supreme Court sitting in its General Division against the Magistrate's refusal to make a spent conviction order. Curthoys J refused leave and dismissed the appeal.
The appellant has now appealed to this court against Curthoys J's decision. The appeal should be dismissed.

The appellant's offences of aggravated indecent assault and his reporting obligations under the CPOR Act

On 3 July 2015, the appellant was convicted on two counts of…

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 Sharpe v Vinning

Details

AGLC: Sharpe v Vinning [2020] WASCA 79
Case: [2020] WASCA 79
Decision Date: 26 MAY 2020

CaseChat Overview and Summary

Sharpe was appealing against a decision of the Magistrates Court of Western Australia, which dismissed his application for a spent conviction order under section 45(1) of the Sentencing Act 1995 (WA). The appellant's application was made in relation to a conviction under section 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) for failing to report to police. The primary legal issue for the court was the interpretation of section 45(1) of the Sentencing Act, specifically whether the offence for which the appellant was convicted was 'trivial' within the meaning of section 45(1)(b)(i).

The court examined the statutory framework and considered the legislative history and purpose of section 45(1) of the Sentencing Act. The court held that the only conclusion reasonably open was that the appellant's offence was not 'trivial', as the offence involved a breach of a statutory obligation that was designed to protect the community and ensure the safety and security of its members. The court found that the appellant's failure to comply with the requirement to report to police was a serious matter that warranted a conviction, and therefore the appellant's conviction could not be considered 'trivial'. The court dismissed the appeal.

The court made no orders as to costs.

Orders