Sharpe v Vinning

[2020] WASCA 79

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Spent conviction orders
4. › Preconditions to exercise of discretion
5. › Whether offence is 'trivial'
6. › Meaning of 'the offence is trivial' in s 45(1)(b)(i)
7. › Whether material facts establishing guilt may be taken into account
8. › Distinction between 'the offence' and 'the circumstances of the offence'
9. › Sentencing Act 1995 (WA), s 45(1)(b)(i)
1. Criminal Law
2. › Sentencing
3. › Spent conviction orders
4. › Offence of failing to comply with reporting obligations
5. › Whether failure to report use of communication application was trivial
6. › Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)
1. Criminal Law
2. › Appeal
3. › Appeal from refusal to make spent conviction order
4. › No substantial miscarriage of justice
5. › Criminal Appeals Act 2004 (WA), s 14(2), s 18

Quick Take

When determining whether an offence is 'trivial' under s 45(1)(b)(i) of the Sentencing Act 1995 (WA), the sentencing court must consider both the type and nature of the offence (including inherent seriousness and maximum penalty) and the material facts establishing guilt, but not mitigating factors or the offender's personal circumstances. The question left open in GNR is now resolved: the material facts establishing guilt are relevant to the triviality inquiry. However, a failure to comply with reporting obligations under s 63(1) of the CPOR Act involving a communication application with extensive messaging capabilities (such as Viber) is unlikely to be characterised as trivial.