SMITH -v- "C" [2001] WASCA 262

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 262
Case No:	SJA:1070/2001	Heard:	23 AUGUST 2001
Coram:	HASLUCK J	Delivered:	29/08/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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Parties:	MEAGAN ELIZABETH SMITH "C"
Catchwords:	Road Traffic Act 1974 Spent Convictions Act 1988 Conviction for driving with prescribed percentage of alcohol in the blood Magistrate's failure to take account of prior convictions the subject of a certificate issued under the Spent Convictions Act Application of statutory provisions concerning spent convictions Question whether Court can take account of spent convictions for the purpose of determining appropriate punishment Magistrate held to be in error in failing to take account of spent convictions in sentencing the offender
Legislation:	Justices Act 1902 Road Traffic Act 1974 Sentencing Act 1995 Spent Convictions Act 1988
Case References:	IW v City of Perth (1996) 191 CLR 1 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SMITH -v- "C" [2001] WASCA 262 CORAM : HASLUCK J HEARD : 23 AUGUST 2001 DELIVERED : 29 AUGUST 2001 FILE NO/S : SJA 1070 of 2001 BETWEEN : MEAGAN ELIZABETH SMITH

Appellant

AND

"C"

Respondent

Catchwords:

Road Traffic Act 1974 - Spent Convictions Act 1988 - Conviction for driving with prescribed percentage of alcohol in the blood - Magistrate's failure to take account of prior convictions the subject of a certificate issued under the Spent Convictions Act - Application of statutory provisions concerning spent convictions - Question whether Court can take account of spent convictions for the purpose of determining appropriate punishment - Magistrate held to be in error in failing to take account of spent convictions in sentencing the offender

Legislation:

Justices Act 1902

Road Traffic Act 1974
Sentencing Act 1995
Spent Convictions Act 1988

(Page 2)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant : Ms M Georgevic

Respondent : No appearance

Solicitors:

Appellant : State Crown Solicitor

Respondent : No appearance

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

IW v City of Perth (1996) 191 CLR 1

Case(s) also cited:

Nil

(Page 3)

1 HASLUCK J: The question raised by this appeal is whether in the course of sentencing an offender pursuant to certain provisions of the Road Traffic Act 1974 the learned Magistrate was obliged to take account of two previous convictions the subject of a spent convictions certificate.

2 On the complaint of the appellant, Police Officer Meagan Elizabeth Smith, the respondent, "C", came before the Court of Petty Sessions at Joondalup on a charge that on 1 May 2001 he drove a motor vehicle, Mazda 626 hatch, registered number 7FE 437 on Southside Drive, Hillarys with a percentage of alcohol in his blood exceeding 0.08 per centum, namely, 0.133 per centum, contrary to s 64(1) of the Road Traffic Act as amended.

3 On 4 May 2001, the respondent pleaded guilty to the charge. It appears from the transcript, and from the affidavit of Police Sergeant Lloyd Van…

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 Smith v C

Details

AGLC: Smith v C [2001] WASCA 262
Case: [2001] WASCA 262
Decision Date: 29 AUGUST 2001

CaseChat Overview and Summary

Smith was charged with driving with a prescribed percentage of alcohol in the blood. The dispute arose from the magistrate's failure to consider prior convictions that had been the subject of a certificate under the Spent Convictions Act 1988. The Court of Appeal was required to determine whether the magistrate was in error by not taking into account the prior convictions, and whether the court is permitted to consider such convictions when determining the appropriate punishment.

The court held that the magistrate was indeed in error by not taking into account the prior convictions. The Court of Appeal emphasised that under the Spent Convictions Act, a conviction may be deemed 'spent' and not admissible in evidence, but this does not preclude the court from considering such convictions for sentencing purposes. The court held that the magistrate had failed to apply the correct legal principles and that the sentence imposed was, therefore, improper. The court found that the magistrate should have taken into account the prior convictions to ensure that the sentence reflected the full extent of the offender's criminal history.

In light of the above, the appeal was allowed, and the matter was remitted back to the magistrate for resentencing. The court did not make any further orders regarding the conviction itself, which remained valid. The primary focus of the judgment was on the error in the sentencing process and the need to rectify it by considering all relevant factors, including prior convictions that were deemed'spent'.

Orders

Orders of the court

Appeal allowed

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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