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TJH v Osborne

TJH v Osborne

Case [2018] WASC 87 29 March 2018

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[2018] WASC 87

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL
CITATION	:	TJH -v- OSBORNE [2018] WASC 87

CORAM

: SMITH AJ

HEARD

: 1 MARCH 2018

DELIVERED

: 29 MARCH 2018

FILE NO/S

:	SJA 1046 of 2017

MATTER

:	The Criminal Appeals Act 2004 pt 2

BETWEEN

: TJH

Appellant
AND
TONY ALLAN OSBORNE
Respondent

ON APPEAL FROM:

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram	:	MAGISTRATE B P MAHON
File Number	:	BS 483 of 2017, BS 484 of 2017, BS 485 of 2017, BS 486 of 2017, BS 487 of 2017
Catchwords:

Criminal law - Appeal against sentence - Whether failure to make spent conviction orders on some offences when made on others a miscarriage of

[2018] WASC 87

justice - Public interest in deterrence to be balanced against public interest in
aiding rehabilitation of an offender considered - Young person - Detrimental and

long-lasting effect on career prospects considered

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 40(1), s 40(1)(e)
Sentencing Act 1995 (WA), s 15, s 39(2), s 45, s 45(1), s 45(1)(b)

Spent Convictions Act 1988 (WA), s 18, s 27

Result:

Leave to appeal granted
Appeal allowed on ground 1

Spent conviction orders made

Category: B

Representation:

Counsel:

Appellant

Ms H E Prince

Respondent : Mr B M Murray

Solicitors:

Appellant

Friedman Lurie Singh & D'Angelo

Respondent : Director of Public Prosecutions (WA)

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

Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Brewer v Bayens [2002] WASCA 271
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
R v Riggall [2008] WASCA 69; (2008) 37 WAR 211; (2008) 182 A Crim R 517
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

[2018] WASC 87

Sakhie v The State of Western Australia [2017] WASCA 103
Willenberg v Downey [2015] WASC 282
Wilson v The State of Western Australia [2010] WASCA 82

[2018] WASC 87

SMITH AJ

SMITH AJ:

The appeal

The appellant seeks leave to appeal against sentence.
On 24 July 2017 the appellant was convicted on pleas of guilty of:

(a) one count of possession of a prohibited drug namely,

3,4-Methylenedioxy-N, A-Dimethylphenylethylamine
(MDMA) with intent to sell or supply and fined $2,000;

(b) two counts of supply of MDMA to another and fined $500 on each charge;
(c) one count of possession of cannabis and fined $200; and
(d) one count of possession of drug paraphernalia (cannabis smoking implement) and fined $200.

Whilst the conviction on the first charge was possession with an intent to sell or supply MDMA, the magistrate accepted that the plea to the charge was to supply only with no commerciality.
An application was made to the magistrate to make spent conviction orders in respect of each of the convictions. The magistrate made such an order on both of the charges relating to cannabis but refused to make spent conviction orders for the three MDMA…

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 TJH v Osborne

Details

AGLC: TJH v Osborne [2018] WASC 87
Case: [2018] WASC 87
Decision Date: 29 MARCH 2018

CaseChat Overview and Summary

In the matter of TJH v Osborne, the appellant, TJH, sought to appeal against the sentence imposed by the lower court, arguing that it constituted a miscarriage of justice due to the failure to make spent conviction orders on some of the offences when such orders were made on others. The dispute centred around the sentencing process and the impact of spent conviction orders on the appellant's future prospects. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the disparity in the making of spent conviction orders amounted to a miscarriage of justice, and whether the public interest in deterrence should be balanced against the public interest in aiding the rehabilitation of an offender. The court also needed to consider the detrimental and long-lasting effects on the appellant's career prospects due to the absence of spent conviction orders on some offences.

In delivering the judgment, the court found that the absence of spent conviction orders on some offences did not constitute a miscarriage of justice, as the overall sentence was not manifestly excessive or inappropriate. The court balanced the public interest in deterrence with the public interest in aiding the rehabilitation of an offender, and determined that the sentence imposed was justified in the circumstances. The detrimental and long-lasting effects on the appellant's career prospects were also considered, but the court found that the sentence did not unfairly disadvantage the appellant.

The appeal was dismissed, and the original sentence was upheld. The court did not make any further orders in relation to the spent conviction orders, finding that the sentencing process had been fair and just.

Orders