Sherlock vs. Cordiner

Australia

17.08.2023

Criminal

If the preconditions in Section 45(1)(a) and (b) of Sentencing Act are satisfied, the Court has a discretion, not a duty, to make a spent conviction order

The Appellant was convicted in on a charge that, being an occupier of premises, she knowingly permitted those premises to be used for the purpose of the use or preparation of a prohibited plant, namely cannabis, contrary to Section 5(1)(a)(ii) of the Misuse of Drugs Act 1981. The Appellant seeks leave to appeal her sentence on the basis that, no spent conviction order was made.

A refusal to make an order that might be made as a result of aconviction is a decision which may be appealed.Leave to appeal must not be granted on a ground of appeal unlessthe court is satisfied that the ground of has a reasonable prospect ofsucceeding, meaning that the ground is required to have a rational andlogical prospect of succeeding.Even if a ground of appeal might be decided in favour of theAppellant, the court may dismiss the appeal if it considers that nosubstantial miscarriage of justice has occurred.

The first precondition giving rise to a discretion to make a spent conviction order is that the appellant is unlikely to commit such an offence again. The phrase 'such an offence' means an offence of a kind similar to that of which the offender has been convicted.The second precondition is that the offence was 'trivial'

An alternative basis for enlivening the discretion to make a spent conviction order is that set out in Section 45(1)(b)(ii) of Sentencing Act,1995; that the appellant is of previous good character. The appellant submitted that this precondition was made out. After consideration of the additional evidence, the Respondent did not oppose a finding that the appellant was of good character, although emphasised that the matter was one for the court to determine.If the preconditions in Section 45(1)(a) and (b) are satisfied, the court has a discretion, not a duty, to make a spent conviction order.

Present Court is not satisfied that, the Appellant's circumstances have been established to be of such a nature that the exceptional step of immediately relieving her of the consequences of her conduct should be taken. Accordingly, present Court decline to make a spent conviction order.

Tags : Discretion Spent Conviction Sentence

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