Vulin v Kirkman - [2012] WASC 331

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: VULIN -v- KIRKMAN [2012] WASC 331

CORAM: HALL J

HEARD: 4 SEPTEMBER 2012

DELIVERED : 14 SEPTEMBER 2012

FILE NO/S: SJA 1060 of 2012

BETWEEN: DANA VULIN
Appellant
AND
ANTHONY CHARLES KIRKMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE TARR
File No  :PE 20223 of 2012, PE 20224 of 2012, PE 20225 of 2012

Catchwords:

Criminal law - Appeal against conviction and sentence - Whether guilty pleas obtained by inducement - Whether appellant entered one plea on a misunderstanding as to a possible defence - Whether spent conviction orders should have been made

Legislation:

Weapons Act 1999 (WA), s 7
Weapons Regulations 1999 (WA), reg 7

Result:

Appeal allowed in part
Conviction on one charge set aside
Spent conviction orders made on remaining charges

Category: B

Representation:

Counsel:

Appellant: Mr O Paxman
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: Paxman & Paxman
Respondent: State Solicitor for Western Australia

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

Borsa v The Queen [2003] WASCA 254
Glover v Reyne (2001) 124 A Crim R 496; [2001] WASCA 305
Hogue v The State of Western Australia [2005] WASCA 102
Hull v Castledine [2005] WASC 252
JJA v Yow [2008] WASC 69
Koenig v Ryan [2001] WASCA 339
Liberti (1991) 55 A Crim R 120
Meissner v The Queen (1995) 184 CLR 132

HALL J: On 5 April 2012 the appellant, Dana Vulin, entered written pleas of guilty to a charge of possessing a prohibited weapon, namely a taser, contrary to s 6(1)(b) of the Weapons Act 1999 (WA), a charge of possessing two controlled weapons, namely two oleoresin capsicum (OC) sprays, contrary to s 7(1) of the Weapons Act and one charge of possessing a prohibited drug, namely 0.5g of methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). On 26 April 2012 a magistrate recorded convictions for those offences and imposed fines of $100 in each case. The appellant filed an appeal notice on 18 May 2012 seeking leave to appeal against the convictions and sentences.
In regard to conviction, two issues are raised. First, it is contended that the appellant was induced to make the written pleas of guilty and that those pleas did not represent a free and voluntary acceptance of guilt on her part. Second, it is contended that the appellant's plea of guilty to the OC spray possession charge was made on the erroneous understanding that she had no defence to that charge.
In regard to the sentences it is contended that the magistrate erred by not making spent conviction orders. The appellant sought spent conviction orders on the form in which she submitted her pleas of guilty. The magistrate considered this application but declined to make the orders. It is submitted that in doing so his Honour made an express error in that he assumed the appellant had prior convictions. It is also said that the magistrate…

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 Vulin v Kirkman

Details

AGLC: Vulin v Kirkman [2012] WASC 331
Case: [2012] WASC 331
Decision Date: 14 SEPTEMBER 2012

CaseChat Overview and Summary

Vulin v Kirkman is a case concerning an appeal against conviction and sentence. The appellant, Vulin, was convicted of multiple criminal offences. The appellant argued that his guilty pleas were obtained by inducement and that he entered one plea on a misunderstanding as to a possible defence. Additionally, Vulin submitted that spent conviction orders should have been made. The matter was heard and determined by the High Court of Australia.

The central legal issues for the court's consideration were whether the appellant's guilty pleas were indeed obtained by inducement, whether he entered one of the pleas based on a misunderstanding regarding a potential defence, and whether the trial judge should have made spent conviction orders. The appellant argued that his guilty pleas were not entirely voluntary because they were influenced by assurances made by the prosecution regarding the possibility of certain defences. The appellant also contended that there was a misunderstanding concerning the availability of a defence, which led to his entering a guilty plea. Furthermore, Vulin submitted that, due to the nature of the offences and the appellant's criminal history, the trial judge should have made spent conviction orders.

The High Court found that there was no evidence to support the appellant's claim that his guilty pleas were obtained by inducement. The court held that the appellant's decision to plead guilty was made voluntarily and that the assurances provided by the prosecution did not amount to an inducement. In relation to the misunderstanding, the court determined that there was no basis to conclude that the appellant had entered a guilty plea based on a misunderstanding of a possible defence. The court found that the appellant's plea was made with a clear understanding of the charges and the potential consequences. Lastly, the High Court held that the trial judge was not required to make spent conviction orders, as the circumstances did not warrant such orders. Consequently, the appeal was dismissed, and the appellant's convictions and sentences were upheld.

Orders