Criminal law - Appeal against sentence - Offence of disorderly conduct - Plea entered in absence of appellant by endorsed plea of guilty - Whether Magistrate gave sufficient consideration to making of a spent conviction order - Appeal allowed - Spent conviction order made - Turns on own facts

Criminal Appeals Act 2004 (WA), s 14

Sentencing Act 1995 (WA), s 45(1)

Spent Convictions Act 1988 (WA)

"A" v Ray [2001] WASCA 340

Caseley v Zampogna [2006] WASC 259

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Smith v "C" [2001] WASCA 262

1 The appellant has obtained leave to appeal in respect of a conviction and related sentence in the Magistrates' Court at Perth. The question is whether the learned Magistrate ought to have made provision for a spent conviction order.

2 By a prosecution notice dated 26 September 2006 the appellant was charged with behaving in a disorderly manner at Northbridge on 24 September 2006 contrary to s 74A(2)(a) of the Criminal Code.

3 The effect of the provision in question is that a person who behaves in a disorderly manner in a public place is guilty of an offence and is liable to a fine of $6000.

4 The matter in question, being 52985/06, was brought before Magistrate Heaney at the Magistrates' Court at Perth on 7 November 2006. A plea of guilty was entered on behalf of the appellant but without any appearance on his part. The appellant's endorsed plea of guilty included a note to the effect that this was his first offence. He said: "I have learnt my lesson and this will not happen again." Counsel for the prosecution informed the Court that the appellant had no prior record.

5 The Court was informed also that at approximately 1.45 am on Sunday, 24 September 2006 the appellant was in a driveway approximately 5 metres from the footpath on Aberdeen Street, Northbridge. Police were conducting patrols in the area and observed the appellant urinating on a wall. He was in clear view of other pedestrians in the area. The police spoke to the appellant with respect to his behaviour but no explanation was given.

6 After this brief summary of the material facts and without any plea in mitigation being received the learned Magistrate proceeded to impose a fine of $300 and costs of $105.70. The short transcript of the hearing indicates that no consideration was given to the nature of the endorsed plea of guilty or to the making of a spent conviction order.

7 The appellant lodged an appeal notice dated 17 November 2006 with the Supreme Court of Western Australia. The grounds of appeal were that the sentence was excessive and no conviction should have been recorded; the appellant was a first offender, the offence a minor one and a spent conviction order should have been made.

8 On 29 November 2006 Blaxell J granted leave to appeal in respect of the ground of appeal just mentioned and made other programming orders. On 12 December 2006 a notice of respondent's intention to take part in the appeal was filed on behalf of the respondent by the State Solicitor for Western Australia.

9 The application for leave to appeal was supported by the appellant's affidavit sworn 27 November 2006. This was to the effect that he was 19 years of age and lived at home with his parents. He is studying at the University of Western Australia and is in his second year of Engineering and Commerce. He described the nature of his casual employment in a surf shop.

10 The appellant admitted pleading guilty to the subject charge of disorderly behaviour. He said that he did not think he was in clear view of other pedestrians in the area as he was about 5 metres down a driveway and believed that he was shielded from view by the presence of two or three friends. He said that he urgently needed to go to the toilet at the time but could not locate a public toilet.

11 He said that he was embarrassed by his behaviour and indicated that it would not be repeated. He said that he did not seek advice before pleading guilty on the back of the summons and did not realise that he might receive a criminal conviction if he did not attend before the Court and ask for a spent conviction order. He said that he was concerned that having a criminal conviction would jeopardise his chances of travelling overseas in the future, as well as having an adverse impact on his future working life.

12 By s 14 of the Criminal Appeals Act 2004 (WA), the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. If the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

13 The Spent Convictions Act 1988 (WA) facilitates rehabilitation by limiting the effects of the convictions. The effect of the Act is to make it unlawful to discriminate against a person on the ground of a spent conviction. Hence, questions put to a convicted person about his past should not be taken to relate to a spent conviction or the charge to which the conviction relates. Nonetheless, a court may take account of spent convictions in fixing a punishment for some further offence: Smith v "C" [2001] WASCA 262.

14 A spent conviction order cannot be made unless the preconditions set out in s 45(1) of the Sentencing Act 1995 (WA) are met. In effect, a court is not to make a spent conviction order unless it considers the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial, or the previous good character of the offender, it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

15 The decided cases indicate that the offender does not have to satisfy both criteria in s 45(1)(b). It will be sufficient to show that the offender is unlikely to commit such an offence again and that he should be relieved of the adverse effect of the conviction, having regard either to the fact that the offence is trivial, or to his previous good character.

16 However, a spent conviction order will not necessarily be made simply because the relevant criteria are satisfied. The crucial question is whether the appellant has demonstrated that the power in s 45(1), which is to be sparingly exercised, should be exercised in his favour, so as to relieve him of the adverse effects of the convictions: "A" v Ray [2001] WASCA 340.

17 For the purpose of determining whether the Magistrate's failure to make a spent conviction order amounts to a miscarriage of justice an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of the conviction upon his future career: Caseley v Zampogna [2006] WASC 259 per Blaxell J at [19].

18 For an appeal to succeed against the exercise of a discretionary power to determine the appropriate sentence it is generally necessary to establish that the judicial officer at first instance failed to properly exercise his discretion by acting upon a wrong principle, mistaking the facts, or allowing irrelevant matters to effect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671.

19 The appellant submitted that a spent conviction order should have been made having regard to the statutory criteria.

20 The respondent conceded that the appellant's written plea may constitute evidence that he was unlikely to offend again. The respondent conceded also that the subject offence could be characterised as trivial and that the criteria are arguably met in this instance.

21 The respondent accepted that the appellant may suffer a miscarriage of justice if he does not receive a spent conviction order. Further, the respondent acknowledged that there is no pressing public interest in the appellant's conviction remaining on the record.

22 The subject hearing in the present case was brief and in the absence of any representation for or on behalf of the appellant, it is not entirely surprising that the Magistrate in the present case moved promptly to the imposition of a fine and related costs order in respect of the matter before him. Nonetheless, in the case of a young offender with no prior record, and in respect of a comparatively trivial offence, it was obviously open to the learned Magistrate to consider whether a spent conviction order should be made. To my mind, having regard to the nature of the endorsed plea and the circumstances underlying the subject charge, his Honour did not give sufficient consideration to the making of a spent conviction order. To that extent his Honour was in error in a way that can be corrected on appeal.

23 I take account of the various matters referred to in the appellant's affidavit which demonstrate that he is a person of good character and is unlikely to offend again. He has presented cogent evidence in that regard.

24 I take account also of the nature of the facts and circumstances giving rise to the offence and of the respondent's stance on the appeal that it is appropriate for a spent conviction order to be made. Accordingly, as I am satisfied that the criteria specified by the relevant provisions have been made out, I will allow the appeal and make a spent conviction order in respect of the subject offence.

25 I will make an order also that the hearing of this application is not to be reported so as to identify the appellant and the case is to be described as "A" v Staples.

2. A spent conviction order is to be made in accordance with s 45 of the Sentencing Act.

3. The appeal is not to be reported so as to identify the appellant and the judgment will be identified as "A" v Staples.