Majewski vs. Ingram

Australia

07.08.2020

Criminal

Leave to appeal can only be granted by present Court, if failure to make a conviction order amounts to a miscarriage of justice

The Appellant seeks leave to appeal against sentence. On 8 November 2019, following a plea of guilty, the Appellant was convicted for attempting to convey into a prison an article likely to jeopardise the good order, security or good government of the prison, contrary to Section 50(1)(b) of the Prisons Act, 1981. The Appellant was fined $750 and ordered to pay costs.

In an appropriate case, leave to appeal may be granted by present Court, if the failure to make a spent conviction order amounts to a miscarriage of justice. An appellant Court can only intervene, if error is established in one of two ways. The first is if an express error is made out which involves acting on the wrong principle, by mistaking a law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is if an implied or inferred error is found which arises where it is not possible to discover the exact nature of the error, but the end result is so unreasonable or unjust.

The Appellant's notice of appeal simply states that, her grounds of appeal are that she has no criminal record. Consequently, pursuant to Section 8(1)(b) of the Criminal Appeals Act, 2004, the Appellant has raised a permissible ground of appeal.

Section 45(1)(a) of the Sentencing Act, requires a conclusion that, the offender is unlikely to commit such an offence again, not that the offender will definitely not commit such an offence again. Unless this pre-condition is satisfied, the Court has no power to exercise its discretion to make, or not to make a spent conviction order. If the pre-conditions in Section 45(1)(a) and Section 45(1)(b)(i) or (ii) of Sentencing Act are satisfied, the sentencing judicial officer has a discretion, not a duty, to make a spent conviction order. Consequently, unless the Appellant is able to satisfy the court that the pre-condition in Section 45(1)(a) of Sentencing Act is met, the Court cannot then go on and consider whether the further pre-conditions in Section 45(1)(b)(i) or (ii) of the Sentencing Act are satisfied, so as to enliven the discretion to make a spent conviction order.

There must convincing evidence before a sentencing judicial officer, to satisfy the first precondition, that is, the only reasonable inference open on the evidence is that the offender is unlikely to commit such an offence again. Although counsel for the Appellant at first instance made a submission that, the Appellant was unlikely to commit the offence again on grounds that, the Appellant would not visit her partner in prison, if he was to be incarcerated again, no submission was put to the sentencing magistrate at first instance, or in the appeal, by or on behalf of the Appellant that, she would not succumb to such pressure (put on her by her partner) in the future.

For the Appellant to simply state that, she would not attend prison again in the future (if her partner was incarcerated again) on its own, without more, is not enough to establish that the sentencing magistrate erred in failing to form the view that, the Appellant is unlikely to commit such an offence again. The Appellant's application to adduce additional evidence in the appeal should be dismissed, leave to appeal refused and the appeal dismissed.

Tags : Conviction Fine Legality

Share :