Criminal law - Appeal against sentence - Fines imposed for first offences of aggravated burglary (as an accessory) and simple possession of cannabis - Whether Magistrate should have considered spent conviction order - Principal offender receiving spent conviction order - Whether a miscarriage of justice

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

Leave to appeal on the ground that there was a miscarriage of justice

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

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

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

Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315

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

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

Neale v Sloan (1997) 27 MVR 246

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Tambyrajah v Gablonski [2004] WASCA 105

White v Taylor [2001] WASCA 350

Wood v Marsh [2003] WASCA 95

1 BLAXELL J: This is an application for leave to appeal and (if granted) an appeal from sentences imposed on the appellant in the Magistrates Court at East Perth on 10 June 2006 for offences of aggravated burglary and simple possession of cannabis. The appellant was a first offender and pleaded guilty to each of the charges against him. He was represented by duty counsel who made a brief plea in mitigation on his behalf. The penalties imposed were fines of $1000 and $150 respectively.

2 The appellant's co-offender in the aggravated burglary subsequently appeared in the Magistrates Court at Perth and pleaded guilty to that offence as well as to an unrelated offence of stealing. The co-offender was similarly fined but was also granted a spent conviction order. The appellant's essential grievance is that he did not receive a spent conviction order, and his grounds of appeal are as follows:

"1. The Learned Magistrate erred in law in not giving consideration to the making of a spent conviction order pursuant to section 45 of the Sentencing Act which order should have been made due to

(i) the antecedents of the Appellant,

(ii) the nature of the offence,

(iii) the fact that the Appellant had no record,

(iv) the Appellant's good character, that he would not commit an offence again, and

(v) the adverse effect on the Appellant of the recording of a conviction.

The Learned Magistrate gave no consideration to the sentencing options in section 39 of the Sentencing Act.

2. There has been a miscarriage of justice by reason of the co-accused and principal offender Jerome Aaaron David Beaton receiving a spent conviction order on 5th July 2006."

The events giving rise to the appellant's appearance in court

3 The appellant is 19 years of age, and lives with his parents in Bristol, England. After completing his secondary schooling in July 2005 he decided to defer the commencement of his tertiary education until September 2006. He then engaged in work experience for six or seven months, following which he travelled to Perth, Western Australia, to stay with old family friends.

4 While holidaying in Perth, the appellant was keeping company with a son of the other family who was the same age. His friend introduced him to a number of acquaintances including the person who later became his co-offender in the burglary ("the co-offender").

5 The appellant has sworn an affidavit as to the circumstances surrounding the burglary on 9 June 2006. According to him, he went with his friend that night to a house in Nedlands where he again met the co-offender. The appellant at that time was suffering from a sore throat, and the co-offender offered to show him the way to a local service station where he could buy some cough syrup. It was while the two of them were walking to the service station that the offence occurred.

6 It is the appellant's evidence that they were walking past a restaurant which had closed for the night, when the co-offender without prior warning suddenly kicked in the glass window and entered the building. The appellant was "stunned" by what was happening and walked around the corner. The co-offender then followed him around the corner carrying three bottles of liquor, which he dropped. Two of the bottles broke, and the appellant picked up the unbroken one and threw it into a bush.

7 According to the appellant the two men then continued on to the service station where he purchased the cough syrup. On the return journey they were stopped by the restaurant owner who summoned the police. The police searched the appellant and found a small quantity of cannabis in his pocket.

8 The appellant was then taken to a police station where he was interviewed on video at about 6.30 am. At 8.30 am he was transferred to the East Perth Lock-up and told that he would be appearing in court that morning. The appellant's affidavit continues as follows:

"At about 10 am I was taken to see a lawyer who was present at the Lockup. There was a queue of people outside the lawyer's room. I waited for about 15 minutes or so. The lawyer called my name and I went into the room. He said the best thing to do was to plead guilty. He did not ask me about the facts at all. I did not want to plead guilty and told him so. He said it was best to plead guilty, as I would probably get off with a fine. There was no mention of conviction or spent conviction. He asked me what my plans for the future were and I told him I was enrolled at a University in England and I would be going to Cairns later in the month and then returning to England via Kuala Lumpar [sic]. I was in Perth on a holiday on a three month visa. He asked what I was going to study and how much money I had on me. I said I was going to study History/Politics and I was not sure what I would do afterwards. I told him I had $1000 in traveller's cheques. That's all we discussed."

9 Soon afterwards, the appellant appeared in court and entered pleas of guilty to each of the two charges against him. The transcript shows that the matters then proceeded as follows:

"HIS HONOUR: Just sit down and listen to what the sergeant tells me, please.

PROSECUTOR: It was about 12.45 in the morning. He was with a co-accused. They attended the Tiamo Cafe in Nedlands. The co-accused has kicked a hole in a glass panel on the front door, causing the alarm to activate, and he's climbed through. The accused remained outside. The co-accused alighted? a short time later with a number of bottles of alcohol. Both of them then walked from the scene. The accused took one of the bottles, placed it in a bush near the cafe. The owner of the cafe attended as a result of the alarm being activated, viewed the security footage. After viewing the footage, the owner conducted a patrol of the area, locating the accused and co-accused a short distance away. Police attended. Subsequently he was arrested and searched. They found a gram of cannabis approximately. I seek an order for destruction of that. He's got no prior record.

[DUTY COUNSEL]: Sir, Mr Caseley is a UK resident (indistinct) ... and he is currently in Australia on holidays and he is flying back to England on the 28th of June (indistinct) ... from Cairns. So he has to travel to Cairns within - - the 28th of June and travel from there to Singapore and then back to England. He is a student on holidays. In England he is about to enter university and study politics and history. He lives with his parents in England and he has got a - - just a 3 months visa in Australia. He is not the principal offender in this offence and the motivation what caused was alcohol and I leave it in your hands."

10 There was then an exchange between the learned Magistrate and duty counsel as to the appellant's means, following which fines of $1000 and $150 were imposed. The duty counsel did not at any time submit that the appellant should be granted spent conviction orders.

11 It is relevant to note that the legal practitioner identified in the transcript as duty counsel did not in fact appear that day, and does not have a practice in the criminal law. The appellant's present solicitor has made enquiries of the Legal Aid Commission but was unable to contact the practitioner who did in fact appear as duty counsel.

Other matters that are relevant to the appeal

12 After appearing in court the appellant obtained further legal advice and was told that he had had a defence to the charge of aggravated burglary. He has no prior criminal record and asserts that he is not a regular user of cannabis. He has also produced a number of references which establish his past good character and reputation. According to the Assistant Headmaster at the appellant's former school the conviction for aggravated burglary may "have a potentially profound effect on his choice of future careers, indeed he may well be ruled out of a good number".

13 The co-offender appeared in the Perth Magistrates Court on 5 July 2006 and entered pleas of guilty to the aggravated burglary and to a stealing offence which had been committed a week previously. He received fines of $1000 and $250, and was given the benefit of spent conviction orders.

14 The first ground of appeal raises the issue whether the learned Magistrate should have made a spent conviction order in respect of each offence. In this regard, s 39 of the Act confers a discretion on the court to make a spent conviction order when imposing particular penalties including a fine. However, s 45 provides that a court 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."

15 In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 297, the Court of Criminal Appeal held that the discretionary power to make a spent conviction order under s 45:

" ... should be regarded as being of an exceptional character. 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.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."

16 With hindsight, it is obvious that there was ample material concerning the appellant which could have been put to the court for the purpose of a submission that there should be spent conviction orders. The fact that the duty counsel did not take that course reflects the poor quality of the advice and representation that was provided. It can be accepted that duty counsel will often have a difficult task coping with the volume of business, particularly when (as in the present instance) he or she appears in an arrest court on a busy Saturday morning. However this can be no excuse for a level of advice and representation which risks an injustice being caused to a client. In the present case it is very plain that the representation provided to the appellant (as demonstrated by the plea in mitigation) was inadequate.

17 Notwithstanding this situation, it was not in any way the fault of the learned Magistrate that no consideration was given to spent conviction orders. When a defendant is legally represented, the court is obliged to rely upon counsel (including duty counsel) to put forward any matter or submission that needs to be taken into account by way of mitigation of penalty. In a high volume jurisdiction such as the Magistrates Court, the Bench is simply not in a position to second guess counsel or to make any assumptions as to inadequacies in the standard of representation. Of necessity, the courts must be highly reliant upon counsel fulfilling their proper role in ensuring that justice is done.

18 It follows that leave should not be granted in respect of the first ground of appeal because there is no error shown by the learned Magistrate, and the ground has no reasonable prospects of success.

19 The second ground of appeal alleges that there has been a miscarriage of justice, and allows the appellant's situation to be considered in light of all of the surrounding circumstances including the subsequent grant of a spent conviction order to the co-offender. This second ground also allows account to be taken of the additional materials gathered for the purposes of the appeal which show the appellant's past good character and the likely consequences of the convictions upon his future career.

20 As to the question of parity, it seems to me that the appellant is justified in feeling a sense of grievance that the principal offender who committed the aggravated burglary has received the benefit of a spent conviction order whereas he as an accessory has not. Accepting the facts as outlined by the prosecutor, the appellant's role was a very limited one and the degree of his culpability was certainly much less than that of the co-offender.

21 As to the consequences of the convictions, the appellant has produced cogent and convincing evidence of their likely adverse impact on his prospects in his future career. As against this, there would not seem to be any "pressing public interest" that the convictions remain on record as a way of securing the future protection of the community (whether in Western Australia or England). In my view, if the learned Magistrate on 10 June 2006 had been aware of the materials presently available to this Court, then an application by duty counsel for spent conviction orders would almost certainly have been successful. In these circumstances I consider that there has been a miscarriage of justice and that leave to appeal should be granted in respect of the second ground.

22 For these reasons the appeal will be upheld and there will be a spent conviction order made in respect of each offence pursuant to s 45 of the Sentencing Act.