Tambyrajah v Gablonski - [2004] WASCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: TAMBYRAJAH -v- GABLONSKI [2004] WASCA 105

CORAM: LE MIERE J

HEARD: 9 MARCH 2004

DELIVERED : 21 MAY 2004

FILE NO/S: SJA 1140 of 2003

BETWEEN: JULIAN SIMON MAHESON TAMBYRAJAH
Appellant
AND
NICOLAS EDWARD GABLONSKI
Respondent

Catchwords:

Criminal law - Conviction for possession of prohibited drug - Appeal - Whether conviction ought to have been made spent - Effect of a spent conviction order - Discretionary power to award - Circumstances justifying spent conviction order - Likelihood of reoffending - Triviality - Previous good character - Detrimental effect of conviction upon employment prospects - Public interest

Legislation:

Justices Act 1902

Misuse of Drugs Act 1981
Sentencing Act 1995, s 39, s 41, s 42, s 43, s 44, s 45
Spent Convictions Act 1988, s 25, s 26, s 27

Young Offenders Act 1994, s 189

Result:

Appeal allowed
Spent conviction order made under s 39(1) of the Sentencing Act

Category: B

Representation:

Counsel:

Appellant: Mr A O Karstaedt
Respondent: Ms C Conley

Solicitors:

Appellant: Max Crispe
Respondent: State Solicitor's Office

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

R v Tognini (2000) 22 WAR 291

Case(s) also cited:

Brewer v Bayens (2002) 26 WAR 510
Brewer v Bayens (2002) 127 A Crim R 189
Docker v Faulkner (2000) 116 A Crim R 389
Game v Whitehead [2000] WASCA 50
Koenig v Alizadeh [2002] WASCA 267
Koenig v Ryan [2001] WASCA 339
Neale v Sloan (1997) 27 MVR 246
Nisbet v Fullarton, unreported; SCt of WA; Library No 930265; 14 May 1993
Riley v Gill, unreported, SCt of WA; Library No 970731; 8 December 1997
Rowlands v Caporn [2001] WASCA 66

LE MIERE J: The appellant appeals, by leave of this Court, from a decision of a Magistrate refusing to make a spent conviction order.

Further Evidence

The appellant sought leave to have his affidavit, sworn on 3 March 2004, and the annexures thereto, admitted into evidence pursuant to s 196(1)(b) of the Justices Act 1902. The respondent agreed that it was appropriate to admit the affidavit into evidence. Accordingly, I granted leave.

Circumstances of Offence

The appellant pleaded guilty to, and was convicted of, having had in his possession a prohibited drug, namely amphetamine, in contravention of s 6(2) of the Misuse of Drugs Act 1981. The circumstances of the offence are disclosed in the statement of material facts. At about 8.30 am on Thursday 22 August 2002, the appellant was at Burswood Casino. After sitting at a poker machine, the appellant stood up and walked away. As he did this he dropped his wallet on the floor. The wallet was picked up by a cleaner and handed to security staff. Security staff searched the wallet for owner identification and located a small plastic sealed bag containing white powder. Police subsequently attended and spoke to the appellant. The appellant admitted the wallet and small plastic bag belonged to him. He stated the white powder was amphetamine and it was for…

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.

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Details

Case: [2004] WASCA 105
Decision Date: 21 MAY 2004

CaseChat Overview and Summary

In the case of Tambyrajah v Gablonski, the appellant, Tambyrajah, challenged the decision of the respondent, Gablonski, who was a magistrate, to not declare his conviction for possession of a prohibited drug as spent. The matter was heard in the Supreme Court of New South Wales. Tambyrajah argued that the magistrate had erred in not making his conviction spent, and that the decision not to do so was an abuse of the magistrate's discretion.

The primary legal issue before the court was whether the magistrate had the discretion to make a conviction spent and, if so, what factors should be considered in exercising that discretion. The court had to determine the appropriate circumstances justifying a spent conviction order, the likelihood of re-offending, the triviality of the offence, the appellant's previous good character, the detrimental effect of the conviction upon employment prospects, and the public interest.

The court held that the magistrate did indeed have the discretion to make a conviction spent, but that the decision to do so should be based on a careful consideration of the relevant factors. The court outlined that the likelihood of re-offending, the triviality of the offence, the appellant's previous good character, the detrimental effect of the conviction upon employment prospects, and the public interest were all relevant considerations. In this case, the court found that the magistrate had not adequately considered these factors, and that the decision not to make the conviction spent was an error. The court ordered that the conviction be made spent.

In conclusion, the court quashed the decision of the magistrate and ordered that the conviction for possession of a prohibited drug be made spent. The court emphasised the importance of carefully considering the relevant factors when exercising the discretion to make a conviction spent, and highlighted the potential detrimental effects of not doing so on the appellant's employment prospects and overall well-being.

Orders