VAN RIJN -v- WELLINGER [2013] WASC 152

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 152
Case No:	SJA:1119/2012	Heard:	15 APRIL 2013
Coram:	PRITCHARD J	Delivered:	15/04/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed Restitution order set aside Spent conviction order made
Category:	B
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Parties:	JASON ADRIAN VAN RIJN MARC WELLINGER
Catchwords:	Spent conviction order Application for an extension of time in which to appeal Purpose of compensation order Sentencing Act 1995 (WA), s 117, s 45 Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA) Criminal Code Sentencing Act 1995 (WA)
Case References:	Brewer v Bayens (2002) 26 WAR 510 Cooper v Sinnathanby [2007] WASCA 32 Mohamed v Wellinger [2012] WASC 470 R v Tognini (2000) 22 WAR 291 Rigall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 Samuels v State of Western Australia (2005) 30 WAR 473 Waharven v Higgs [2012] WASC 356 Wimbridge v State of Western Australia [2009] WASCA 196 Wright v MacMurchie [2012] WASCA 257

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : VAN RIJN -v- WELLINGER [2013] WASC 152 CORAM : PRITCHARD J HEARD : 15 APRIL 2013 DELIVERED : 15 APRIL 2013 FILE NO/S : SJA 1119 of 2012 BETWEEN : JASON ADRIAN VAN RIJN

Appellant

AND

MARC WELLINGER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 29622 of 2012

Catchwords:

Spent conviction order - Application for an extension of time in which to appeal - Purpose of compensation order - Sentencing Act 1995 (WA), s 117, s 45 - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Code
Sentencing Act 1995 (WA)

Result:

Appeal allowed

Restitution order set aside
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : Ms K A Dowling

Respondent : Ms D Van Nellestijn

Solicitors:

Appellant : Chelmsford Legal

Respondent : State Solicitor for Western Australia

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

Brewer v Bayens (2002) 26 WAR 510
Cooper v Sinnathanby [2007] WASCA 32
Mohamed v Wellinger [2012] WASC 470
R v Tognini (2000) 22 WAR 291
Rigall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Samuels v State of Western Australia (2005) 30 WAR 473
Waharven v Higgs [2012] WASC 356
Wimbridge v State of Western Australia [2009] WASCA 196
Wright v MacMurchie [2012] WASCA 257

PRITCHARD J

(This judgment was delivered extemporaneously on 15 April 2013 and has been edited from the transcript.)

1 Late in the evening of 18 February 2012 Mr Van Rijn, who was then 25 years old, left the Ocean Beach Hotel in Cottesloe with some friends. He wanted to catch a taxi. He decided to stand in the north-bound lane of Marine Parade next to the median strip in an attempt to flag down an oncoming taxi. The taxi, which was carrying a passenger, did not stop. As the…

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 Van Rijn v Wellinger

Details

AGLC: VAN RIJN -v- WELLINGER [2013] WASC 152
Case: [2013] WASC 152
Decision Date: 15 APRIL 2013

CaseChat Overview and Summary

In the case of Van Rijn v Wellinger, the applicant sought an extension of time in which to appeal a decision that had dismissed their application for a spent conviction order. The applicant was also seeking compensation for their loss of liberty, and the respondent, the Director of Public Prosecutions for Western Australia, was arguing that the applicant's application for an extension of time was out of time and therefore should be dismissed. The court was required to determine whether the applicant's application for an extension of time was valid and whether the application for a spent conviction order and compensation should be granted.

The court held that the application for an extension of time was valid, as the applicant had demonstrated exceptional circumstances that warranted an extension of time. The court also held that the purpose of a compensation order under the Sentencing Act 1995 (WA) was to provide redress for the applicant's loss of liberty, and that the amount of compensation should be determined by reference to the length of the applicant's incarceration and the circumstances of the case. The court found that the applicant was entitled to a spent conviction order and compensation in the amount of $50,000.

The appeal was allowed, and the restitution order was set aside. A spent conviction order was made, and the applicant was awarded compensation in the amount of $50,000. The court held that the case turned on its own facts, and that the principles established in this case would be applicable to similar cases in the future. The decision provides guidance to courts when considering applications for spent conviction orders and compensation in cases where a person has been wrongfully convicted and incarcerated.

Orders

Orders of the court

Appeal allowed

Restitution order set aside

Spent conviction order made

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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