JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: TAYLOR -v- McLERNON [2009] WASC 211
CORAM: BEECH J
HEARD: 21 JULY 2009
DELIVERED : 30 JULY 2009
FILE NO/S: SJA 1036 of 2009
BETWEEN: MICHAEL JOHN TAYLOR
Appellant
AND
JOHN PATRICK McLERNON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B LANE
File No :PE 65126 of 2008
Catchwords:
Criminal law - Sentencing - Application for spent conviction order - Whether any ground to interfere with sentencing magistrate's exercise of discretion - Turns on own facts
Legislation:
Sentencing Act 1995 (WA) s 39(2), s 45
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms K J Farley
Respondent: Ms S J Keighery
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Harper v Page [2004] WASCA 267
Hull v Castledine [2005] WASC 252
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McKenzie v Daly [2008] WASC 284
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Robertson v Lawrence [2008] WASC 111
Tambyrajah v Gablonski [2004] WASCA 105
BEECH J:
Introduction
The appellant was convicted, on his plea of guilty, of use of a prohibited drug, namely amphetamine. He sought a spent conviction order. The prosecution did not oppose the making of a spent conviction order. Nonetheless, the learned magistrate declined to make a spent conviction order.
The appellant appeals against the learned magistrate's refusal to grant a spent conviction order. In my opinion, for the reasons that follow, the appellant has not established a ground to interfere with the magistrate's discretionary decision not to make a spent conviction order.
The charge and the facts
The appellant was charged that on 4 October 2008 he used a prohibited drug, namely amphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for the offence at that time was 2 years' imprisonment or a $2,000 fine.
The facts, as set out in the statement of material facts, were as follows:
At about 4.50 am on Saturday the 4th of October 2008 the accused and another charged were observed and recorded via the City of Perth closed circuit television footage in Russell Square, Parker Street, Northbridge.
Both were observed to be sniffing a substance of a cigarette packet.
Beat officers attended and spoke to both who admitted they were sniffing amphetamine powder.
Police located a clipseal bag with traces of a white powder which both stated contained amphetamine.
Both made full admissions to the offence outlined above.
The appellant pleads guilty
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- AGLC
- Taylor v McLernon [2009] WASC 211
- Case
- [2009] WASC 211
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide centred on the authority of the court to interfere with a sentencing magistrate's exercise of discretion. The court was required to determine whether there were any grounds to interfere with the magistrate's decision and whether the case presented any unique circumstances that warranted such interference. The court had to consider whether the sentence was manifestly excessive or inadequate, and whether there were any errors in the application of the law or in the consideration of relevant factors.
The court's reasoning focused on the principle that the sentencing magistrate's discretion should generally be respected unless there were clear grounds for interference. The court examined the specific circumstances of the case, including the nature of the offence, the defendant's criminal history, and the sentence imposed. After a detailed analysis, the court concluded that there were no grounds to interfere with the magistrate's decision. The sentence was deemed appropriate in the context of the offence and the defendant's circumstances, and there were no errors in the application of the law.
The court's final orders were to dismiss the application for a spent conviction order. The court found that there were no grounds to interfere with the sentencing magistrate's exercise of discretion, and the defendant's application was unsuccessful. The decision underscored the importance of respecting the sentencing magistrate's discretion unless there were compelling reasons to do otherwise.
Orders
Orders of the court
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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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