UK v Taylor - [2021] WASC 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   UK -v- TAYLOR [2021] WASC 141
CORAM:   ALLANSON J
HEARD:   3 MAY 2021
DELIVERED          :   7 MAY 2021
FILE NO/S:   SJA 1097 of 2020
BETWEEN:   UK
Appellant
AND
BENJAMIN TAYLOR
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   KA3453 of 2020

Catchwords:

Criminal law - Appeal against sentence - Whether miscarriage of justice in not granting spent conviction order

Legislation:

Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Young Offenders Act 1994 (WA)

Result:

Leave to appeal allowed
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms R J Eaton

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor for Western Australia

Cases referred to in decision:

JJA v Yow [2008] WASC 69
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Sharpe v Vinning [2020] WASCA 79

ALLANSON J:

Introduction

The appellant was convicted on 27 October 2020 of breach of bail in Kalgoorlie Magistrates Court. She was fined $100 and ordered to pay costs.
On 7 December 2020, the appellant filed a notice of appeal containing the sole ground that there was a miscarriage of justice in the failure to grant the appellant a spent conviction.

Extension of time

The appellant requires an extension of time in which to appeal. The application for extension of time and for leave to appeal were ordered to be heard together with the appeal.
The application to extend time was not opposed.
The solicitor for the appellant filed an affidavit on 7 December 2020 explaining the delay in commencing the appeal.
I am satisfied that the delay is excusable, and would extend time.

The hearing before the magistrate

The appellant was charged that, on 13 October 2020, she breached a requirement of a bail undertaking entered into on 23 August 2020 by failing to appear in the Kalgoorlie Magistrate Court.
The magistrate confirmed that the appellant understood the charge being put to her. The appellant plead guilty.
Duty counsel who appeared for the appellant stated that she had no criminal record. Counsel advised the court that the appellant had been in Perth and had tried to buy a ticket back to Kalgoorlie, but was short of funds. She then was given money by her aunt and was able to catch a train to Kalgoorlie.[1] Due to the delay, the appellant did not make it back in time for the court hearing.
[1] ts 4.
The magistrate imposed a $100 fine and costs of $130.50.[2]
[2] ts 5.
The appellant did not apply for a spent conviction order, and it appears no consideration was given to whether an order should be made.

Application to admit evidence in the appeal

On 6 April 2021, the appellant filed an application that…

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 UK v Taylor

Details

AGLC: UK v Taylor [2021] WASC 141
Case: [2021] WASC 141
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appellant, UK, appealed against her conviction and sentence for breach of bail imposed by the Kalgoorlie Magistrates Court. The primary issue before the court was whether there was a miscarriage of justice in the failure of the Magistrates Court to grant the appellant a spent conviction order. The appellant argued that the failure to grant the order was a miscarriage of justice, as she was unlikely to commit the offence again, the offence was relatively trivial, and she should be relieved immediately of the adverse effects of the conviction.

The court considered the discretion under section 45 of the Sentencing Act 1995 (WA) and noted that a spent conviction order should be regarded as an exceptional measure. The court found that the appellant was unlikely to commit the offence again and that the offence was not trivial but was of a relatively minor nature. The court also considered the appellant's prior good character and her prospects of employment and rehabilitation. The court concluded that it was in the interests of both the appellant and the community to make a spent conviction order, as it would help the appellant in her pursuit of employment and education and better serve the interests of the community by promoting her rehabilitation.

The court granted leave to appeal, allowed the appeal, and made a spent conviction order in favour of the appellant.

Orders