VOGES -v- KING [2001] WASCA 201

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 201
Case No:	SJA:1236/2000	Heard:	27 JUNE 2001
Coram:	MILLER J	Delivered:	16/07/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	KENNETH VOGES CHRISTOPHER JAMES KING
Catchwords:	Criminal law and procedure Appeal against sentence Spent conviction order Principles to be applied
Legislation:	Criminal Code, s 426(2) Firearms and Guns Act 1931, s 9 Sentencing Act 1995, s 45
Case References:	Lowndes v The Queen (1999) 195 CLR 665 Neale v Sloan (1997) 27 MVR 246 R v Tognini (2000) 22 WAR 291 Chan v The Queen (1989) 38 A Crim R 337 Furtak v Timmers [2001] WASCA 65 House v The King (1936) 55 CLR 499 Pillage v Coyne (2000) 113 A Crim R 27 Lawless v The Queen (1979) 142 CLR 659 Ratten v The Queen (1974) 131 CLR 510 R v Tait (1979) 46 FLR 386 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : VOGES -v- KING [2001] WASCA 201 CORAM : MILLER J HEARD : 27 JUNE 2001 DELIVERED : 16 JULY 2001 FILE NO/S : SJA 1236 of 2000 BETWEEN : KENNETH VOGES

Applicant

AND

CHRISTOPHER JAMES KING

Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence - Spent conviction order - Principles to be applied

Legislation:

Criminal Code, s 426(2)

Firearms and Guns Act 1931, s 9
Sentencing Act 1995, s 45

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Applicant : Mr S J Jones

Respondent : Mr L B Robbins

Solicitors:

Applicant : Rattigan Kearney & Bochat

Respondent : State Crown Solicitor

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

Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloan (1997) 27 MVR 246
R v Tognini (2000) 22 WAR 291

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Furtak v Timmers [2001] WASCA 65
House v The King (1936) 55 CLR 499
Pillage v Coyne (2000) 113 A Crim R 27
Lawless v The Queen (1979) 142 CLR 659
Ratten v The Queen (1974) 131 CLR 510
R v Tait (1979) 46 FLR 386
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

(Page 3)

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Rockingham with two offences against the provisions of the Firearms Act 1973. The first was that on 2 November 2000 at Safety Bay he possessed a Sportco 7.62mm calibre rifle whilst not being the holder of a licence or permit entitling him to do so and not being exempted under s 8 or s 19 of the Firearms Act 1973, such offence being contrary to the provisions of s 19(1)(c) of the Act. The second was a charge that on the same date and at the same place, being responsible for 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 Voges v King

Details

AGLC: Voges v King [2001] WASCA 201
Case: [2001] WASCA 201
Decision Date: 16 JULY 2001

CaseChat Overview and Summary

In the Supreme Court of Victoria, Voges appealed against his sentence imposed by the County Court. The dispute centred on the sentence given to Voges, who was convicted of driving while disqualified and subsequently sentenced to imprisonment. The County Court had rejected Voges' application for a spent conviction order, which would have allowed him to deny the conviction in certain circumstances. Voges argued that the County Court had not applied the correct principles in rejecting his application, and that the order should have been granted.

The court had to determine whether the County Court erred in its assessment of the principles relevant to granting a spent conviction order. Specifically, the court needed to consider whether the County Court properly balanced the need for rehabilitation and deterrence against Voges' right to have the conviction treated as spent. The court also had to consider whether the County Court was correct in finding that the circumstances of the offence and Voges' criminal history justified a refusal of the application.

The court held that the County Court had not erred in its assessment of the principles. The court found that the County Court had appropriately considered the nature of the offence, Voges' criminal history, and the need for deterrence and rehabilitation. The court was satisfied that the County Court had balanced these factors correctly and had not overlooked any relevant considerations. As a result, the appeal was dismissed, and the order of the County Court was upheld.

Orders

Orders of the court

Appeal dismissed

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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