Criminal law and procedure - Spent conviction - Fresh evidence - Whether recording a conviction a miscarriage of justice

Sentencing Act 1995 (WA), s 39, s 45

Criminal Appeals Act 2004 (WA), s 14(5)

A v Staples [2007] WASC 36

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510

Caseley v Zampogna [2006] WASC 259

De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18

(This judgment was delivered extemporaneously on 10 December 2009 and has been edited from the transcript.)

1 Late on the evening of Saturday, 1 August 2009, Daniel Redding did a very silly thing. He had been out drinking and was in Murray Street in the City, when he was, to use the vernacular, caught short. He relieved himself against a shop. The police arrested him and charged him with disorderly behaviour. He was and still is 18 years of age.

2 On 13 August 2009 he appeared before the Chief Magistrate and pleaded guilty. Not unusually for these sorts of matters the proceedings were very brief. Mr Redding was not represented. The facts were read and he agreed with them. When asked for a reason for his behaviour he said, 'I had previously drunk a little bit and was rather desperate to urinate'. The Chief Magistrate then said, 'It still doesn't really justify the behaviour'. Mr Redding responded, 'No, it's very unlike me and I was really very embarrassed afterwards'. His Honour then asked, 'What do you do with yourself, Mr Redding?'. Mr Redding replied that he worked. His Honour then imposed a fine of $500 with costs of $60. Mr Redding now appeals to this court.

3 The ground of appeal as contained in the notice of appeal is as follows:

His Honour erred in imposing a sentence that was excessive in that a spent conviction should have been ordered.

Particulars:

1. Minor nature of the offence,
2. Appellant [is] a first offender,
3. The adverse consequences to the Appellant from a conviction.

4 I do not understand that there is any suggestion that a fine of $500 was excessive. In any event, in my view such a fine was entirely appropriate. Conduct of this type must be discouraged. It is antisocial conduct that disgusts the general public and must be frustrating for business owners who are entitled to conduct their businesses without the unpleasant task of cleaning up urine on their doorsteps. The maximum penalty for this type of offence is $6,000.

5 The appellant's submission is that the Chief Magistrate should have made a spent conviction order. Such an order was open to be considered pursuant to s 39(1) and s 45 of the Sentencing Act 1995 (WA). Of course the problem with asserting that his Honour erred by not ordering a spent conviction is that one was not sought. Perhaps that is not surprising given that Mr Redding is, as I have noted, 18 and was unrepresented and has no convictions whatsoever. The possibility was not raised and it was not apparent that Mr Redding even knew it was an option.

6 The Chief Magistrate's discretion to order a spent conviction did not depend on there being a formal application. However, before such an order can be made the court must be satisfied of the matters set out in s 45. They are that the court considers that the offender is unlikely to commit an offence of this nature again and that the court considers that the offender should be relieved of the adverse consequences of a conviction.

7 In regard to the latter matter the court can have regard to whether the offence is trivial or the previous good character of the offender. In that regard I refer to the Court of Appeal's decision in Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, his Honour Murray J said:

It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable [24].

8 Almost invariably an appeal against the failure to make a spent conviction order will arise in circumstances where one was applied for and refused. For example, Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18.

9 That is not the position here. No application was made. No refusal occurred. There was no cogent evidence before the Chief Magistrate upon which a discretion to grant an order could operate, thus it would not be possible to conclude that the Chief Magistrate made an error on 13 August 2009.

10 But the matter does not end there. Section 14(5) of the Criminal Appeals Act 2004 (WA) provides:

On an appeal against a sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.

11 Furthermore, s 40(1)(e) which relates to all appeals provides that an appeal court may admit, 'any other evidence', for the purposes of dealing with an appeal. The Court of Appeal has considered the latter provision and concluded that it was not intended to obliterate the distinction between original and appellate jurisdiction. I refer to De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291. In that case Pullin JA held that the power to admit new evidence is intended to be the same power as that which previously existed, namely to admit evidence only where it is fresh in the sense that it could not have been available through diligent inquiry in the court below. The basis for admitting fresh evidence is not that the court below made an error but that for reasons that were not then known the result is a miscarriage of justice.

12 There is not here a ground that asserts a miscarriage of justice, or at least there was not until this hearing, but an application to add such a ground was made by Mr Gunning and I granted leave. That ground is that given the personal circumstances of the appellant and the adverse consequences for him he would suffer a miscarriage of justice if he does not receive a spent conviction.

13 As to the question of admitting further evidence the distinction between new and fresh evidence is not always easily drawn. In some cases involving appeals against sentences from the Magistrates Court the power under s 14(5) has been quite liberally applied: Caseley v Zampogna [2006] WASC 259.

14 In my view it is important to apply the test taking into account the very specific circumstances of the appellant. He was 18 with no record and was unrepresented. The proceedings were very brief and there is nothing to suggest that he appreciated the possible consequences of a conviction or that an application for a spent conviction was a possibility.

15 In these circumstances I am of the view it is appropriate to admit the additional evidence and to take it into account on this appeal. In that regard I take into account the affidavit of the appellant in which he attests that he was embarrassed and accepted that his conduct was disorderly, that the circumstances of the offending were that the shops were shut, that there was nobody in close proximity, that he was 'busting' and was not aware of any nearby toilets and ducked into a corner with his back to the street. He did not think anyone could see him. He urinated against a corrugated tin roller door that was pulled down in front of the shop. He states that being arrested was a shock and a reality check and that he never wants to put himself in such a situation again. He states that he was wanting to get the matter over with as quickly as possible and did not seek legal advice and did not realise the implications of a conviction, nor that a spent conviction could be considered. He attests that he only finished school last year and planned to have a year off working and travelling before going back to full-time study. He was working at the time for a settlement agent as an outside clerk. He states that he wishes to go to university and study and is considering a course in Asian Development at Murdoch University. He states that from the age of nine he has been involved with the Children's International Summer Villages, an organisation which encourages children to meet and engage with each other and promote harmony between nations. He states that he is hoping to be a leader to children which means travelling overseas and helping host group discussions. He states that this requires a police clearance and without such a clearance he could not be a leader in the future. He also attests that he recently applied for a job at Woolworths and was asked to provide a police clearance. He was not successful in getting the job but does not know why. He now appreciates the significance a conviction can have on his life in jeopardising employment, travel and voluntary work. He states that this was an isolated incident, that he does not have a problem with alcohol and he was simply 'caught short' and doing something which he now regrets.

16 I have also admitted into evidence a reference from Mr Redding's father. He refers to this being totally out of character for the appellant, that not long after the appellant appeared in court he, Mr Redding senior, raised concerns about the appellant's future employment prospects and that he would be unable to do things he planned and wanted to do. In particular he refers to the fact that the appellant is part-way through a certificate in health care promotion and that a conviction would hamper him obtaining employment in the health care industry. He refers to the voluntary work that I have previously referred to and that the appellant has applied for employment as a liquor store assistant, which I assume relates to the same matter referred to in the appellant's own affidavit, and that in that regard he was obliged to disclose his conviction.

17 I have received also a reference from Ms Sharon Harford, manager of Commercial Services at Edith Cowan University, who has known the appellant for many years and who states that as part of her due diligence checks in her workplace a police clearance is required for employment and that in her area of work it would be highly unlikely that she would employ a potential candidate who submitted a police clearance which indicated a record.

18 I have also received this morning a further reference from a Mr Damien Yorg, junior branch president of the Children's International Summer Villages organisation. He has known Mr Redding for many years and confirms that the appellant has been involved with that organisation since he was nine years of age. Significantly, he refers to the fact that a police clearance certificate is required to be a member of that organisation, that having a criminal record would effectively prevent the appellant from participating further in the organisation and that that would result in a major loss to the organisation as a whole as well as to the appellant as an individual. He would not be permitted to develop as a potential leader and a participant in future programs.

19 On the basis of this evidence it is apparent that the appellant is a young man of good character without previous record. In light of this information I turn to consider whether the recording of a conviction is a miscarriage of justice.

20 I note that in the case of A v Staples [2007] WASC 36 his Honour Hasluck J allowed an appeal and made a spent conviction order in very similar circumstances. That case involved a 19-year-old man who was arrested urinating in Northbridge late at night and who had been out with friends and expressed that he was in urgent need to go to the toilet. That man also said he was embarrassed and that the behaviour would not be repeated. He was studying at university and was concerned about the impact on travelling and on future employment.

21 In the present case I am satisfied that the appellant is unlikely to offend in this way again. I am also satisfied that the offending conduct was substantially mitigated by the circumstances that are described, in particular his youth, that there was no evidence it was in public view, that the reason for the offending did not include anything from which I could infer that this was a wilful act of disrespect of the property or rights of others, nor was it intended to offend others. I also take into account the previous good character of the appellant.

22 In the circumstances I am of the view that a spent conviction is appropriate and that not to accord a spent conviction in this case would be a miscarriage of justice. Accordingly the appeal is allowed. I make a spent conviction order. The orders made by the Chief Magistrate in regards to the fine and costs otherwise stand unaffected.