Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal from magistrate's failure to make spent conviction order - No such order sought before magistrate - Whether error in law or fact - Whether on fresh evidence miscarriage of justice - Whether clear and convincing evidence of particular circumstances showing why it would be desirable for both the offender and the community to relieve offender immediately of the adverse effects of the conviction

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

Sentencing Act 1995 (WA), s 45

A v Staples [2007] WASCA 36

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

Casely v Zampogna [2006] WASC 259

Ennis v D'Andrilli [2007] WASC 263

Fitzsimons v GD [2008] WASC 172

JJA v Yow [2008] WASC 69

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

Redding v Robinson [2009] WASC 403

Riggall v The State of Western Australia [2008] WASCA 69

SA v McKinnon [2009] WASC 7

Scanlon v Bove [2008] WASC 213

Taylor v McLernon [2009] WASC 211

1 On 11 June 2010 I heard both an application for leave to appeal, and the appeal itself, against a sentence imposed in the Magistrates Court on 19 February 2010. The appellant had been fined $150 and ordered to pay costs of $119.20 following his guilty plea to a charge of disorderly behaviour in public under Criminal Code (WA) s 74A(2)(a). The question on appeal was whether a spent conviction order ought to be made in respect of that conviction.

2 At the hearing of 11 June 2010, I granted the application for leave to appeal, allowed the appeal, and ordered that a spent conviction order be made, with reasons to follow.

4 The facts of the offence, appearing in the statement of material facts, are as follows:

At about 10:20 pm on Saturday the 9th of January 2010, the accused was in Michael Close, Northbridge. Police were in the area conducting patrols targeting anti-social behaviour within the Northbridge entertainment precinct. The accused was observed urinating on a ticket machine in the carpark and was in full view of the public in the carpark as the whole area is illuminated by street lighting. At the time of the offence numerous entertainment and food venues were open and the nearest public toilet was approximately 50 metres away. As a result of the actions of the accused he was advised he would be summonsed for the offences with the present charge preferred. When spoken to by the Police regarding his actions, the accused said, 'I had to go.'

5 A prosecution notice lodged with the Magistrates Court on 25 January 2010 was sent to the appellant, along with the statement of material facts. The prosecution notice did not contain references to the ticketing machine or the presence of street lighting, but recorded that the appellant was in a public place and behaved in a disorderly manner by urinating.

6 The appellant was sent a notice of hearing in the Perth Magistrates Court. He sent the Magistrates Court an endorsed plea of guilty, along with a letter of apology dated 1 February 2010, which addressed his actions and some of the facts contained in the statement of material facts. It was not in contest that the appellant had both the prosecution notice and statement of material facts in his possession when he wrote the letter, which reproduces parts of the statement of material facts.

7 At the hearing on 19 February 2010, before Magistrate Hogan, the appellant did not enter an appearance, was convicted of the offence, and was sentenced. The appellant did not have legal representation before or at the hearing in the Magistrates Court. The full transcript of the Magistrates Court proceeding is set out below.

JSO: Ma'am, P list, Papas, Daniel Jace Papas. No appearance.

........., MS: He does plead guilty, your Honour.

HER HONOUR: Yes. So that's endorsed 'guilty'.

PROSECUTOR: No. There is no record for the accused. He was in Northbridge. Police were conducting patrols in the area. He was observed urinating on a ticket machine in full view of public in an illuminated area. The toilets were 50 metres away. Costs of 119.20. Thank you.

HER HONOUR: Now, he has written a letter. He realised it was a stupid and costly mistake. He denies though that he was urinating on a ticket machine and he didn't realise there was a toilet close by. He thought the closest was at the Deen, and there was a long line to go in there. Very sorry and is sure it won't happen again. I take all that into account, along with the early plea of guilty. It will be $150 fine, costs 119.20.

8 On 19 March 2010 the appellant lodged an appeal notice in this court, seeking leave to appeal from the decision of Magistrate Hogan. The only ground of appeal in the application for leave to appeal was 'apply for a spent sentance [sic] (uninformed)'. However, any error in the form of the application was not relied upon by the respondent, who viewed the ground of appeal as indicating a failure by the magistrate to make a spent conviction order.

9 On 22 April 2010, Jenkins J made orders on the application, including that the application for leave to appeal be heard at the same time as the appeal, and that the appellant, at least seven days prior to this hearing, was to file any affidavit which he intended to rely on in support of the contentions that he was uninformed about his right to request a spent conviction order and that he ought to be granted a spent conviction order.

10 The appellant filed an affidavit in support of his application, which contained assertions that he did not understand that his endorsed plea of guilty would result in him receiving a criminal record; information about his current employment; and statements which invited the inference that not making a spent conviction order would have a negative impact on his employment prospects. Accompanying, but not annexed to, the affidavit were two character references: one from his current employer, and the second from an electrical tradesperson who had known the appellant for three years. The appellant sought to bring these character references before the court as fresh evidence, consistent with the approach taken in Redding v Robinson [2009] WASC 403.

11 The hearing before me concerned whether or not the magistrate had erred in law or in fact in failing to make a spent conviction order; and whether or not, on fresh evidence considered under Criminal Appeals Act 2004 (WA) s 14(5), there would be a miscarriage of justice if a spent conviction order was not made.

Was an error of law or fact committed by the magistrate?

12 The discretionary power to make a spent conviction order is governed by Sentencing Act 1995 (WA) s 45. In my view, it is clear on the authorities that this power cannot be exercised unless the discretion in s 45 is enlivened: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11]. The three elements that must be satisfied in order to enliven the discretion were summarised by Beech J in Taylor v McLernon [2009] WASC 211 [15]:

It is evident from the language of the section that the power to make a spent conviction order arises only if three conditions are satisfied. Firstly, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. See Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].

13 Further, even if the preconditions to the exercise of the power in s 45 are satisfied, the court has a discretion, not a duty, as to whether or not to make a spent conviction order: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]. In R v Tognini, Murray J described the nature of this discretion as one that 'should be regarded as being of an exceptional character' [27], to be 'sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable' [24]. He further added:

If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside [27].

14 This presents 'a very significant hurdle' to applicants who have nevertheless shown that the discretion is enlivened: Brewer v Bayens [16].

15 An unusual feature of this case, compared to the majority of appeals where a spent conviction order is sought, is that the appellant had not requested the magistrate to make such an order. That is not to say that a spent conviction order will only be made if it is requested, a proposition which was rejected in Redding v Robinson [6].

16 Further, there was no indication from the transcript of proceedings that the magistrate gave express consideration to making a spent convictions order. In Scanlon v Bove [2008] WASC 213, Johnson J considered that whilst, in her view, a magistrate did not need to explain every sentencing option to an unrepresented accused:

[I]t does not follow from this conclusion that a magistrate is not under an obligation to consider all available sentencing options before passing sentence and to elicit sufficient information in order to do so [73].

17 However, Johnson J qualified the nature of the latter obligation by stating:

In my view, it does not automatically follow from a failure to mention that option that the magistrate did not give any consideration to imposing a spent conviction order. As I have indicated above, a failure to expressly refer to a matter does not necessarily give rise to an inference that it was not considered [74].

18 Turning to the proceedings in the Magistrates Court, counsel for the respondent conceded that, based on the material before the magistrate, the discretion to make a spent conviction order was enlivened (ts 10). This concession, however, does not greatly assist the appellant when turning to consider the magistrate's exercise of that discretion. In my view, in light of statements that are well established by the authorities cited, that the making of a spent conviction order requires 'exceptional' or 'particular' circumstances, and given the limited material before the magistrate, the magistrate did not commit any error of fact or law.

19 On such limited information, the magistrate could hardly be faulted for failing to mention giving consideration to a spent conviction order, or for arriving at a conclusion that no such particular or exceptional circumstances had been shown sufficient to justify making such an 'exceptional' order: see Redding v Robinson [9].

20 However, it was conceded by the respondent that, even although there may have been no error of fact or law on the part of the magistrate, leave to appeal might yet be granted if the failure to make a spent conviction order amounted to a miscarriage of justice: Redding v Robinson [10]. I now turn to consider that issue.

21 In determining whether the failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may consider new information, gathered for the appeal, which shows the appellant's good character and the likely consequences the conviction will have on their future career: A v Staples [2007] WASCA 36 [17]. The basis for admitting fresh evidence is not tied to a finding that the magistrate made an error, but is 'that for reasons that were not then known the result is a miscarriage of justice': Redding v Robinson [11].

22 Counsel for the respondent did not contest that this approach was appropriate in the present application. A number of factors will be relevant to exercising the discretion to admit fresh evidence, including whether or not there was a reasonable opportunity to have that material put before the magistrate: JJA v Yow [2008] WASC 69 [5]. This, in itself, will often invite consideration of particular circumstances of the appellant and of the proceedings in the Magistrates Court: Redding v Robinson [13] - [14]; Casely v Zampogna [2006] WASC 259 [16].

23 It was not contested by the respondent that the affidavit of the appellant and accompanying letters were properly admitted as fresh evidence, given the youth of the appellant and the fact that he did not have legal representation before or during the Magistrates Court proceedings: Redding v Robinson [14]. Rather, the respondent's argument against the application was that there was not 'clear' or 'convincing' evidence, of the circumstances of the offence or the appellant, sufficient to justify relieving the appellant of the adverse effects of the conviction by making a spent conviction order.

The requirement for 'clear' or 'convincing' evidence

24 In R v Tognini, after pointing to the discretionary nature of the power, Murray J (with whom Malcolm CJ and Wallwork J agreed) said:

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].

25 The need for the applicant to show a 'clear case' was affirmed by the Full Court in Brewer v Bayens [14], although emphasis was given to the applicant needing to show, by 'convincing evidence', that the discretion was enlivened: see Scanlon v Bove [31]; SA v McKinnon [2009] WASC 7 [29].

26 Further support for the need to bring clear or convincing evidence to the court before it will make a spent conviction order appears in Ennis v D'Andrilli [2007] WASC 263 [50]. There, Johnson J considered that the appellant's proposition, that 'speculation and supposition is an appropriate basis for a spent conviction order', was 'completely at odds' with the statement of principle from R v Tognini [24]. That is, it is necessary to identify, 'rather than merely speculating on', the potentially adverse effect: Scanlon v Bove [29].

27 This 'clear and cogent' evidence must point to some 'particular circumstance to show that it would be desirable', to both the offender and the community, to immediately set aside the adverse effect of the recorded conviction: R v Tognini [27]. See also Brewer v Bayens [16]; Riggall v The State of Western Australia [2008] WASCA 69 [72 ] - [74]; Ennis v D'Andrilli [16]; Scanlon v Bove [29]. The authorities do not require the applicant to show that their 'personal circumstances are so unique' as to justify exercising the discretion: Fitzsimons v GD [2008] WASC 172 [11]; SA v McKinnon [49].

28 In Scanlon v Bove, it was recognised that:

[T]he necessity to adduce evidence of the relevant circumstances will depend on the circumstances of each case and, in particular, the nature of the offence of which the applicant for a spent conviction has been convicted. However, in line with the decision in R v Tognini, in almost all cases some clear and cogent evidence would be required rather than broad assertions or submissions based on anecdotal evidence [35].

29 Counsel for the respondent submitted that the proper approach was to follow Scanlon v Bove, and sought to distinguish the present case from Redding v Robinson and A v Staples. The respondent's submission was that the facts of the offence, as described above in the statement of material facts, revealed that the appellant committed the offence 'in a fully-illuminated public carpark, quite close to other public venues, public restaurants and nightclubs in Northbridge, in the close vicinity of public toilets' (ts 12).

30 The court was also invited to infer from these circumstances that the act of the appellant was 'a wilful act of disrespect of the property or rights of others': Redding v Robinson [21]. Ultimately, however, any claim of 'wilful disregard' was not pressed by the respondents, due to the contested facts of the case, which were not determined by the magistrate. Although the appellant had pleaded guilty to the offence, in his letter to the magistrate he denied that he had urinated on a ticket machine. There was no other evidence before the magistrate and, as such, in my view, it must follow that the magistrate must have proceeded on the basis that the urination was not on the ticket machine, but simply somewhere in the public carpark. In light of this, the respondents simply sought to highlight what was said to be the more public nature of the offence in this case, as being similar to Scanlon v Bove.

31 In Scanlon v Bove, the appellant, a 35-year-old accountant, was convicted of disorderly conduct for public urination. The specific circumstances of the offence were addressed by Johnson J in the following terms:

In this case, the appellant was not simply found urinating in a place where, though public, the appellant was unlikely to be seen or found. The offence took place at 10.15 pm on a Friday evening. The appellant was located at a traffic intersection in Perth directly opposite a café/bar. The appellant stood on a path and urinated onto the road whilst waving at passersby and the café/bar staff. The appellant's penis was fully exposed and clearly visible to people in the vicinity [75].

32 The appeal against the failure of the magistrate to make a spent conviction order was dismissed.

33 In my view, the public nature of the offence is relevant, but not determinative in this appeal for the following reasons. Whilst the circumstances of the offence might be more public in nature than those in A v Staples, they do not reveal any wilful disregard for the rights of others, or the same potential to offend others, as the conduct complained of in Scanlon v Bove. That is not to say, however, that it is necessary for a spent conviction order to be made in a case like this one to show that there was no disregard for the rights of others or that the accused was not in view of the public: Redding v Robinson [4], [15]; A v Staples [5], [10]. Further, there are the matters of the previous good character of the appellant, his young age and his responsibility and remorse for his actions: Redding v Robinson [20]. These last two matters are to be distinguished from the circumstances in Scanlon v Bove [61].

Adverse effects on the appellant's employment prospects

34 The court's attention is often directed towards evidence that it is desirable, having regards to the particular circumstances of the accused, to make a spent conviction order due to 'a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment' if the conviction is not spent: R v Tognini [28].

35 In my view, there was much weight to be given to the letter, properly admitted as fresh evidence, from a person who had known the appellant for three years. The contents of the letter are as follow.

Your Honour,

Ref: Daniel Papas Character Reference

I have known Daniel for approximately 3 years as his Electrical Tradesperson.

Prior to Daniel being charged with the offence we often discussed what his future plans were when he finished his Electrical Apprenticeship. He mentioned that from an early age he had a desire to become a Fire Fighter. He felt that getting a trade prior to entering the Fire and Emergency Services would be beneficial, which I agreed. He now has concerns of the implications that this charge may have on his future ambitions and has showed much regret for his actions. In addition to this he is required, as am I, to have a current Police Clearance to be able to work in some of Government Departments.

During his apprenticeship Daniel has showed a lot of initiative and willingness to learn and consider sensitive customer requirements in a very calm and well mannered nature. He has been exposed to work in the Justice System, such as the various Law Courts and Prisons throughout Perth for which he now has a healthy respect for. I feel that based on Daniels's integrity, honesty and nature he would greatly benefit our community as a future Fire Fighter.

Based on the above and Daniel not having any prior convictions I feel that a Criminal Record could have quite a negative impact on his future ambitions in the Electrical Industry and the Fire and Emergency Services.

If you wish to discuss any of the above please do not hesitate to contact me on 04** *** **6.

36 I consider that this letter constitutes clear and convincing evidence that the recorded conviction would have an adverse impact on the employment prospects of the appellant. The author of the letter has a background in the industry, and is familiar with the appellant, the offence, the requirements of the appellant's current employment and his future career ambitions. In my opinion, the terms of the letter add appropriate support to the appellant's claim that the failure to make a spent conviction order would have a negative impact on his future employment. I would also add that, in my opinion, notwithstanding the opinion nature of the letter, I consider that it satisfies the standards set out in Ennis v D'Andrilli [61] - [64] and Scanlon v Bove [29], [35].

37 In my view, it is not necessary to show that it would be impossible for the appellant to complete his electrical apprenticeship, or to become a fire fighter, unless a spent conviction order was made in respect of the recorded conviction. All it is necessary to show is that the conviction will have a significant negative impact, or will imperil, the appellant's employment prospects. In Riggall v The State of Western Australia, Wheeler JA noted the impact that the recorded conviction would have on the employment prospects of the appellant:

Particularly in relation to a young person who is, in practical terms, at the beginning of his working life and who, although currently working as a barista, may well at some stage seek alternative employment in other fields, the mere fact of conviction of these offences would be likely to have a detrimental and long-lasting impact upon the appellant. In those circumstances, in my view, it is appropriate that he be relieved immediately of the effects of the conviction and I would make a spent conviction order [74].

This passage was cited by Johnson J in Scanlon v Bove, who added:

I consider this to be another case where the nature of the offence, without more, is sufficiently cogent evidence of the potential adverse impact of the conviction on a prospective employer, and indeed most other people [33].

38 In my view, the appellant has shown clear and convincing evidence of particular circumstances showing why it would be desirable, for both the offender and the community, he should be relieved immediately of the adverse effects of the conviction. This conclusion is based on a consideration of the circumstances of the commission of the offence, the circumstances of the appellant, and the adverse effects a conviction may have on his employment prospects, as indicated by the letter I have quoted from the electrical tradesperson who had known the appellant for three years.

39 On the basis of that conclusion, I consider that there would be a miscarriage of justice if a spent conviction order was not made in respect of the recorded conviction. Accordingly, I would grant leave to appeal the decision of the magistrate, grant the appeal and make such an order.

1. Leave to appeal is given.
2. The appeal is allowed.
3. A spent conviction order is to be made in respect of the offence in accordance with Sentencing Act 1995 s 45.