JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RATTENBURY -v- CARTER [2001] WASCA 291

CORAM : McKECHNIE J

HEARD : 12 SEPTEMBER 2001

DELIVERED : 12 SEPTEMBER 2001

FILE NO/S : SJA 1095 of 2001

BETWEEN : MARK ALAN RATTENBURY

Appellant

AND

IAN BROOKE CARTER
Respondent

Catchwords:

Sentencing - Spent conviction order - Granted to co-offenders but not to appellant - Indistinguishable culpability - No new principles

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Appeal allowed

Spent conviction order made

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr P J M Sullivan
Respondent : Ms A C Longden

Solicitors:

Appellant : Paul Sullivan
Respondent : State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Allen v Powell [2000] WASCA 65
Goddard v The Queen [1999] WASCA 281
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
R v Tognini & McGuire (2000) 109 A Crim R 411; [2000] WASCA 31

(Page 3)

1 McKECHNIE J: On 25 May 2001 the appellant pleaded guilty to three charges of stealing in the Court of Petty Sessions at Fremantle.

2 The circumstances of stealing are that the appellant, together with three other offenders, went to the South Perth Yacht Club on 22 February 2001 and there proceeded to steal items of marine equipment from various vessels.

3 They were disturbed and the police observed their vehicle leaving the yacht club. They were stopped and all the property was recovered.

4 The appellant's counsel sought a spent conviction order under the Sentencing Act s 45.

5 The Magistrate sentenced the appellant as follows:

"I've taken into account your plea of guilty at the earliest opportunity. I've taken into account what counsel said on your behalf. I've taken account of your youth, you are young, but you know right from wrong and you and your mates did wrong, knowing full well that you were doing wrong. You went to at least three boats it would appear and I think, despite the fact the consequences might be significant, you had plenty of time to think about that. I don't believe it's appropriate to make a spent conviction order and I won't be doing that. You'll be fined as a global penalty, taking into account your financial circumstances, a fine of $400 with costs of $57.70. There will be a formal order to return the property and that includes with the property being returned to the custody of the South Perth Yacht Club where the property's unknown."

6 If the matter rested there, no error would have been shown by the learned Magistrate.

7 However, it does appear that the co-offenders appeared before the same Magistrate on 1 and 8 June 2001, when they received a similar fine of $400, but spent conviction orders were made.

8 The making of a spent conviction order in those cases might be seen as somewhat marginal. Nevertheless, such orders were made. There seems to be no reason to differentiate between the appellant on one hand and the other adult offenders.

(Page 4)

9 Failure to make a spent conviction order will leave the appellant with a justifiable sense of grievance that he has not been treated in the same manner as the other offenders. He is a young man with no previous convictions.

10 The interests of justice require that a spent conviction order be made. I will therefore allow the appeal and order that in addition to the fine of $400 and the order for return of property, there be a spent conviction order.