R v Tognini & McGuire

(2000) 22 WAR 291; [2000] WASCA 31

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Spent conviction orders
4. › Discretionary power under s 45 Sentencing Act 1995 (WA)
5. › Whether power is of exceptional character
6. › Principles governing exercise of discretion
7. › Whether sparingly exercised in clear case for cogent reasons
8. › Sentencing Act 1995 (WA), s 45
1. Criminal Law
2. › Sentencing
3. › Spent conviction orders
4. › Crown appeal against spent conviction order
5. › Whether sentencing judge erred in exercise of discretion
6. › Indecent assault on vulnerable person in care
7. › Public interest in knowledge of conviction
8. › Sentencing Act 1995 (WA), s 45
1. Criminal Law
2. › Appeal
3. › Crown appeal against sentence
4. › Double jeopardy considerations
5. › Principles applicable to Crown appeals against spent conviction orders
6. › Criminal Code (WA), s 688(2)(d)

Quick Take

The discretionary power to make a spent conviction order under s 45 of the Sentencing Act 1995 (WA) is of an exceptional character and should be sparingly exercised in a clear case for cogent reasons. Satisfaction of the statutory pre-conditions in s 45(1)(a) and (b) does not automatically lead to the making of an order. The court must also consider the seriousness of the offence, whether there is a particular circumstance showing it would be desirable from both the offender's and the community's perspective to set aside the conviction's adverse effect, and whether there is a public interest in maintaining access to the fact of conviction. A particular career impediment or exceptional hardship may support the making of an order.