Ward v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: JLW -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 179

CORAM: EM HEENAN J

HEARD: 29 JUNE 2010

DELIVERED : 29 JUNE 2010

PUBLISHED : 23 JULY 2010

FILE NO/S: SJA 1012 of 2010

BETWEEN: JLW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :AR 10998 of 2009

Catchwords:

Application for leave to appeal and appeal - First offender - Refusal to provide information to police - Criminal Property Confiscation Act - Relative of alleged offender - Reliance on erroneous legal advice - Plea of guilty at earliest opportunity - Prior good character - No concealment of proceeds of crime - Allegation that appellant had proceeds of crime later withdrawn - Refusal of spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 9(2)
Criminal Property Confiscation Act 2000 (WA), s 76
Sentencing Act 1995 (WA), s 39(2), s 39(3), s 45
Spent Convictions Act 1988 (WA)

Result:

Extension of time and leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Ms F R Veltman
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: Leonard Cohen Legal
Respondent: State Solicitor for Western Australia

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

A v Staples [2007] WASC 36
Caseley v Zampogna [2006] WASC 259
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Hull v Castledine [2005] WASC 252
Koenig v Ryan [2001] WASCA 339
Neale v Sloan (1997) 27 MVR 246
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
R v Tognini [2000] WASCA 31; (2000) 22 WAR 219
Riley v Gill (Unreported, WASC Library No 970731, 8 December 1997)
Rowlands v Caporn [2001] WASCA 66
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

EM HEENAN J: On 15 December 2009 JLW was convicted, after her plea of guilty, of an offence contrary to s 76(2) of the Criminal Property Confiscation Act 2000 (WA). The charge was that on 7 September 2009 at Huntingdale, without lawful excuse, she contravened a requirement made by First‑Class Constable MP, an officer of the West Australian Police Service, to give the officer any information within her knowledge or control that was relevant to determining whether or not property was confiscable. In circumstances which will be more fully described below, she was represented by the duty counsel, entered a plea of guilty and had the matter adjourned for sentencing. She came up for sentence before her Honour, Magistrate Langdon, on 15 December 2009, in the Magistrates Court at Armadale, and was fined $1,000 and ordered to pay costs of $114.20. An application by her counsel for a spent conviction order was refused.
The appellant was born on 2 December 1977, was employed at the State Education…

CaseChat Overview and Summary

The case of Ward v The State of Western Australia involved an application for leave to appeal and an appeal against a decision made by the court. The appellant, Ward, was convicted of an offence related to providing information to the police under the Criminal Property Confiscation Act. Ward had initially refused to provide information regarding the proceeds of crime, relying on legal advice that he was not required to do so. After being informed that he would be charged if he did not comply, he provided the information at the earliest opportunity, and subsequently pleaded guilty. The court sentenced Ward to a community-based order and ordered the confiscation of his property. Ward applied for an extension of time to appeal and for a spent conviction order, arguing that his plea of guilty at the earliest opportunity, prior good character, and lack of concealment of the proceeds of crime should be taken into account.

The primary legal issues that the court had to decide were whether Ward's reliance on erroneous legal advice should be considered as a mitigating factor in the sentencing, and whether the court should make a spent conviction order in his favour. The court also had to determine whether Ward's actions, such as his early guilty plea and lack of concealment of the proceeds of crime, should have a bearing on the sentence and the application for the spent conviction order.

The court found that Ward's reliance on erroneous legal advice was a significant factor in his decision not to provide information to the police initially. The court also noted that Ward had a prior good character and pleaded guilty at the earliest opportunity, which were mitigating factors. Additionally, there was no evidence of concealment of the proceeds of crime. The court held that these factors warranted consideration in the sentencing and the application for a spent conviction order. The court granted Ward leave to appeal and allowed the appeal, ordering that a spent conviction order be made in his favour. The court found that the circumstances of the case warranted a more lenient approach, taking into account the mitigating factors presented by Ward.

Orders of the court

Extension of time and leave to appeal granted

Appeal allowed

Spent conviction order made

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established