Criminal law - Appeal against sentence - Offence of disorderly conduct - New evidence - Whether miscarriage of justice if spent conviction not ordered - Spent conviction order made - Turns on own facts

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

A v Staples [2007] WASC 36

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

House v The King [1936] HCA 40; (1936) 55 CLR 499

Papas v Godwin [2010] WASC 226

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

Scanlon v Bove [2008] WASC 213

(These reasons for decision were delivered orally and edited.)

1 Section 74A(2)(a) of the Criminal Code (WA) provides that it is an offence to behave in a disorderly manner 'in a public place or in the sight or hearing of any person who is in a public place'. On 5 January 2011 the appellant pleaded guilty and was convicted of an offence under this section in the Magistrates Court of Western Australia. The appellant was not represented and elected not to appear in court, although she sent a short letter as a plea in mitigation. The appellant was fined $500. In my opinion, the learned magistrate made no error of fact or law on the material before him. In the absence of any error of fact or law, the simple question which arises on this appeal is whether a spent conviction order should be entered because, on the basis of new evidence before this court, the failure to make a spent conviction order occasioned a miscarriage of justice. The respondent to this appeal properly concedes that the offence in this case was trivial in comparison with other disorderly behaviour offences; that there is no pressing public interest in the appellant's conviction remaining on the record; and that the effect of the additional evidence before this court is that the pre-conditions for making a spent conviction order are now satisfied.

2 In the early hours of the morning on 28 November 2010, the appellant was apprehended by the police urinating in a driveway beside a vehicle. A prosecution notice, dated 8 December 2010, charged that the appellant 'being in a public place and in the sight or hearing of any person who is in a public place, behaved in a disorderly manner by urinating in public'. The matter came before the Magistrates Court of Western Australia by way of an endorsed plea of guilty pursuant to s 51 of the Criminal Procedure Act 2004 (WA), in the absence of the appellant (see s 51(4)). The appellant provided the court with a short written plea in mitigation which accompanied her plea of guilty. After referring to her plea of guilty she wrote:

However I would like the court to take into account that I was unable to find facilities that were offered without payment or in a timely manner. I believe that my actions were heavily influenced by alcohol consumption and in no way reflects my usual demeanour. I am extremely regretful of my actions and apologise to those I offended. I assure the court that this will be my first and only offense [sic]. (original emphasis).

3 At the hearing in the Magistrates Court of Western Australia the prosecutor gave the following summary of facts:

It was 1.05 am on Sunday, 28 November 2010, the accused was observed on Lake Street, Northbridge. The accused was observed urinating in the driveway beside a vehicle. This was in clear view of members of the public and passing motorists. At the time of the offence there were numerous venues open and a public toilet was located 150 metres away. The accused's explanation, 'I was looking for my earrings.' The accused was summonsed for the matter, the present charge preferred.

4 The learned magistrate accepted the plea of guilty and fined the appellant $500, with costs of $119.20. This was said to be at the top end of fines for offences of this nature but no appeal was brought in relation to the amount of the fine. For reasons I will explain below, I consider that on the material before his Honour the learned magistrate made no error of fact or law in failing to order a spent conviction.

5 On 19 May 2011, Hall J gave the appellant leave to appeal against the sentence. The ground of appeal was subsequently amended, by consent, to be that the failure of the learned magistrate to make a spent conviction order amounted to a miscarriage of justice. I granted leave to appeal on the amended basis. On 28 June 2011, the appellant swore an affidavit, which was filed in this court and, by consent, leave was given for the appellant to rely upon it.

6 In her affidavit the appellant provides substantially more information than was before the learned magistrate. It can be summarised as follows. She is completing a Bachelor of Creative Industries degree at university. She lives with her mother and four sisters. She works between 12 and 17 hours a week. She also receives Youth Allowance. She helps her family financially. She says that on the night of the offence she had gone to a nightclub. She wanted to use the toilet there but the male friends in her group were not admitted to the club. She asked to use the toilet at a kebab store but the proprietor would not permit her to do so without buying a kebab. She asked her friends if they knew where there was a toilet. They did not know. She did not realise that there was a toilet 150 m away. One of her friends pointed to an area which looked like an alley. It was dark and she urinated behind a car, thinking that she was out of a public area. She also thought that no-one could see her. But she was seen by the police. She had never been charged with anything before and she pleaded guilty without legal advice. She did not know that she would get a criminal record and did not realise that she could ask for a spent conviction order. Subsequent to her conviction, her mother suggested that she speak to Legal Aid, which represented her on this appeal. The appellant is concerned about the effect that the conviction will have on her future job prospects in an industry (film and video) where there are not many opportunities in Western Australia and travel to other countries can be important. She says that she realises how wrongful her behaviour was, that she realises the consequences of it and will not do anything like this again. She has only been out once since the offence and did not drink alcohol.

Appeals concerning a spent conviction order

7 An appeal from a decision of the Magistrates Court of Western Australia can be brought on the broad ground that there has been a miscarriage of justice: s 8 Criminal Appeals Act 2004 (WA). In considering whether there has been a miscarriage of justice it is necessary to consider the material which is properly before this court (as the affidavit of the appellant is conceded to be) as well as the material before the learned magistrate.

8 Section 39 of the Sentencing Act 1995 (WA) provides for the power to make a spent conviction order, as one of the sentencing options. Section 45(1) provides:

Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

(b) having regard to -

(i) the fact that the offence is trivial; or

(ii) 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.

9 The combination of s 39 and s 45 has the effect that there is no requirement upon a magistrate to make a spent conviction order merely because the pre-conditions in s 45(1) are satisfied. The power to make a spent conviction order has been described as an exceptional power, and it is a matter of discretion whether it should be exercised: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 296 [24]. Hence, it will not necessarily be the case that a spent conviction order will be made even if all of the following are satisfied: the offence is trivial (s 45(1)(b)(i)); the offender is of previous good character (s 45(b)(ii)); the offender is unlikely to commit the offence again (s 45(1)(a)); and the court considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender (s 45(1)(b)).

Whether, in light of the new evidence, a miscarriage of justice occurred

10 On the limited material before his Honour it was open to the learned magistrate to conclude that the pre-conditions for a spent conviction were not met, in particular as a consequence of the lack of sufficient evidence of the adverse effect that conviction might have on the offender. His Honour had a discretion and it cannot be said that the discretion was exercised upon a wrong principle, by reference to extraneous or irrelevant matters, by a mistake concerning the facts, or by failing to take into account some material consideration before him: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 205 [21]; House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

11 However, with the benefit of the additional material that is now before me, and to which no objection is taken, I am able to take into account the additional relevant matters raised by the appellant. In particular these include the following: the effect of conviction on the appellant's employment prospects in the film and video industry; the interests, and effect, of conviction upon the appellant's family; and further evidence of the unlikelihood of the appellant reoffending: see R v Tognini (296) [23]. Taking those additional circumstances into account, counsel for the respondent conceded that the material before the court was sufficient to make a spent conviction order. This concession was properly made. I consider that the additional material is sufficient to meet the preconditions of s 45(1) of the Sentencing Act for a spent conviction order, and I also consider that, in light of the additional evidence, such an order should have been made. In the absence of a spent conviction order a miscarriage of justice would occur.

12 Before concluding, it is worth noting that there are have been a number of appeals before this court concerning public disorder offences of this particular type, namely public urination. Some recent examples include Scanlon v Bove [2008] WASC 213; Papas v Godwin [2010] WASC 226; A v Staples [2007] WASC 36. There is reason to be hopeful that in the near future many public disorder offences of this nature, which are trivial in comparison with others, might be dealt with by infringement notice rather than by court proceedings: see the Criminal Code Amendment (Infringement Notices) Act 2011 (WA) to which assent was given on 2 May 2011 and which is awaiting proclamation.

1. Appeal allowed.
2. A spent conviction order is made.
3. The hearing of this application should not be reported so as to identify the applicant.