SURTY v Bowyer - [2009] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SURTY -v- BOWYER [2009] WASC 286

CORAM: JENKINS J

HEARD: 17 AUGUST 2009

DELIVERED : 24 SEPTEMBER 2009

FILE NO/S: SJA 1027 of 2009

BETWEEN: XERXES BEHRAM SURTY
Appellant
AND
JOHN KEITH BOWYER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R B LAWRENCE
File No  :PE 6472 of 2009, PE 6473 of 2009, PE 6474 of 2009

Catchwords:

Criminal law - Sentencing - Drug offences - Application for spent conviction orders - Relevance of offenders intention to become a commercial pilot - Turns on own facts

Legislation:

Air Navigation Regulations 1947 (Cth), reg 90(3)
Crimes Act 1914 (Cth), Pt VIIC, s 85ZV(3)
Misuse of Drugs Act 1981 (WA), s 6(2)
Road Traffic Act 1974 (WA), s 60(1a)
Sentencing Act 1995 (WA), s 39(2), s 45
Spent Convictions Act 1988 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr S D Freitag
Respondent: Mr E M Heenan

Solicitors:

Appellant: CB Legal
Respondent: State Solicitor for Western Australia

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

Brewer v Bayens (2002) 26 WAR 510
Harper v Page [2004] WASCA 267
Nichols v Harnett [2004] WASCA 311
R v Tognini (2000) 22 WAR 291
Riggall v The State of Western Australia (2008) 37 WAR 211
Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)
Robertson v Lawrence [2008] WASC 111

JENKINS J:

The decision under appeal

This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Perth on 27 February 2009. The appeal is against the decision of the magistrate to refuse the appellant spent conviction orders in respect to a number of drug offences for which he was sentenced on that date.

Grounds of appeal

The appellant was given leave to appeal on the following ground:
1.The Learned Magistrates' discretion miscarried erred in law and in fact in refusing to grant a spent conviction order despite finding that the 'pre‑conditions' set out in s 45 of the Sentencing Act were met in that:
a)His Honour considered that the 'serious nature of the offences' counted against the exercise of his discretion, when the type and quantity of the drugs involved were not so serious as to exclude the exercise of the discretion in the [Appellant's] favour;
and
b)His Honour placed undue weight on the nature of the industry (aviation) that the [Appellant] was proposing to enter.
The respondent submits that the magistrate was at liberty to take into account both the seriousness of the offences and the nature of the appellant's proposed profession in deciding not to grant the spent conviction orders.

Details of charges and proceedings

The Prosecution Notice alleged that the appellant had committed three offences being:
1.On 6 December 2008 at West Perth he had in his possession a prohibited drug, namely Amphetamine, contrary to the Misuse of Drugs Act 1981 (WA), s 6(2);
2.On 6 December 2008 at West…

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 SURTY v Bowyer

Details

AGLC: SURTY v Bowyer [2009] WASC 286
Case: [2009] WASC 286
Decision Date: 24 SEPTEMBER 2009

CaseChat Overview and Summary

The appellant was convicted of drug offences and sentenced to a term of imprisonment. He applied for spent conviction orders in relation to the convictions, which were denied. The appellant then appealed to the court, contending that the primary judge was wrong to consider his intention to become a commercial pilot as a relevant factor in the sentencing process. The respondent argued that the primary judge was entitled to consider the appellant's future intentions in determining an appropriate sentence.

The court considered the relevant legal principles concerning sentencing and the factors that a court may take into account when determining an appropriate sentence. The court noted that a court may consider a wide range of factors when determining an appropriate sentence, including the offender's personal circumstances, the nature and circumstances of the offence, and any aggravating or mitigating factors. The court held that the primary judge was entitled to consider the appellant's intention to become a commercial pilot as a relevant factor in determining an appropriate sentence. The court found that the primary judge had not erred in considering this factor and that the appellant's conviction was not a spent conviction.

The appeal was dismissed. The court found that the primary judge had not erred in considering the appellant's intention to become a commercial pilot as a relevant factor in determining an appropriate sentence. The court held that the primary judge was entitled to consider this factor and that the appellant's conviction was not a spent conviction. The appeal was dismissed, and the orders of the primary judge were upheld.

Orders

Orders of the court

Appeal 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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