COSTELLO -v- BENNASAR [2012] WASC 406 (31 October 2012)

4 The application for leave to appeal had come on for directions on the papers before Hall J on 22 June and again on 23 July 2012. On those occasions his Honour made the usual directions for programming the matter, including a direction that the application for an extension of time be granted and that the application for leave to appeal be heard at the same time as the appeal.

5 The applicant has also applied, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), that he be permitted to rely on additional evidence, being his own affidavit sworn 17 October 2012. By notice dated 18 October 2012 the respondent consented to such an order granting leave being made and leave was granted at the commencement of the hearing on 22 October. This affidavit explains why the applicant did not attend the hearing in the Magistrates Court on 3 April 2012; provides details of his personal circumstances; his course of study and career prospects, and annexes four character references from responsible persons who attest to his good character. In the affidavit the applicant also sets out more details of the offence and how it came to be committed. The affidavit concludes with an explanation of why the applicant submits that such a conviction may have a prejudicial effect upon his future career and employment. No application was made to have the applicant crossexamined on this affidavit and none of the statements deposed was challenged by the respondent.

6 The transcript of the proceedings in the Magistrates Court is very brief less than one page. His Honour noted the endorsed plea of guilty. The prosecutor informed the court that there was no record relating to the defendant and the facts were that at 10.50 pm on 25 February, at Northbridge, the applicant was observed standing on a corner near a wall relieving himself in view of the public while there were toilets available within 300 m. The explanation which he gave to the police officer was, 'I just needed to go.' His Honour fined the applicant $500 and ordered him to pay costs of $125.70.

7 In the affidavit of the applicant now before the court he described how on 25 February 2012 he was at a University Football Club opening season dinner and at about 10.30 pm got a lift with a friend to Northbridge, intending to go to the Aberdeen Hotel. He was dropped off just outside the Aberdeen Hotel and, because of the amount that he had drunk at the dinner, needed to relieve himself urgently. He went to the facilities at the hotel, but there was a long queue and, because he felt he did not have time to wait, he left, noticing that there were queues for other nearby clubs and hotels. Being what is colloquially known as 'caught short', he walked down to what he believed was a small secluded area and relieved himself against the wall. At the time he noticed that there were about three other men nearby doing the same. He stressed it was only the urgency of his situation that caused him to follow this course. He was questioned by the police, who took his name and address and informed him that he would be summoned for disorderly conduct.

8 By his affidavit, the applicant deposes that on or about 20 March he received the court hearing notice, prosecution notice and statement of material facts in relation to this charge. Because of his youth and inexperience, he claims that he misunderstood the significance of these documents and did not believe that there was any prospect that he would receive a criminal conviction for this conduct. He had never been in trouble before and had no experience of the course of prosecutions or of court procedure. He wrongly expected that the matter would be dealt with in a manner similar to an infringement notice namely, that he would receive a fine but would not have a criminal record. Because he had university commitments on 3 April 2012, he did not attend the court that day but submitted an endorsed plea of guilty instead. Later, when he received the notice of his conviction, he took steps to obtain legal advice. He then engaged solicitors, who confirmed the advice which he had been given and applied to try and set aside his plea of guilty, but this was unsuccessful. He now seeks to obtain a spent conviction order because of his concern about the effects of a conviction upon his future career prospects.

9 The applicant is presently 19 years of age, he completed his secondary education in 2010, and is presently studying construction management and economics in a fouryear degree course at university. He hopes to work as a project manager for commercial and industrial projects on completion of the degree.

10 In addition, at present, the applicant works parttime as a water polo coach for years 5 and 6 at his former school, also as a parttime swimming coach for years 3 and 4 students a that school, and as a parttime swimming teacher at a commercial swimming academy. He also works casually as a pool lifeguard at a suburban swimming centre. The references speak of his positive attitude, his sense of community obligation, his dedication to study and work and his ambitions for success at university and in his career. There is every reason to believe that his devotion to study and work, which has been evident over the past, will continue and that he is a person who is anxious to participate, to the extent he can, in a variety of forms of community service. On all accounts, he is an impressive young man and it is obvious that he had no proper appreciation that his conduct might involve him in a breach of the law and result in a criminal conviction.

11 At the commencement of the application counsel for the applicant sought to make a minor amendment to the proposed ground of appeal which had been set out in the appeal notice of 2 May 2012. The proposed ground of appeal, as so amended, would read:

A miscarriage of justice was caused by the learned sentencing magistrate not making a order for a spent conviction pursuant to s 45 of the Sentencing Act 1995.

12 The proposed amendment would delete the reference in the original proposed ground of appeal to the learned sentencing magistrate erring when sentencing the applicant. There was no objection to the proposed amendment and leave was granted and the amendment then made.

13 For the applicant to have his proposed appeal heard it is necessary for him to establish that he should be granted leave to appeal on his particular proposed ground of appeal Criminal Appeals Act 2004 (WA) s 27. Leave to appeal cannot be granted unless it is demonstrated that the proposed ground of appeal has a reasonable prospect of success s 27(2). For this to be established, it is necessary to show that the proposed ground of appeal has a rational and logical prospect of succeeding or, in other words, a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. For the reasons which follow, I am satisfied that the applicant's proposed ground of appeal does have reasonable prospects of success and that leave to appeal should accordingly be granted. There was no objection to the grant of leave to appeal by the respondent.

14 It is necessary here to return to the principles applying to the reception of further evidence on this appeal and, in this case, the affidavit of the applicant sworn 17 October 2012 containing the further details of his personal circumstances, student work history and the details of the offence which have already been described. The general rule is that an appeal court must decide an appeal on the evidence and material which were before the court below Criminal Appeals Act 2004 s 39(1). However, this court has broad powers to admit other evidence pursuant to s 40(1)(e) as recognised in Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] [29]. In that case, the Court of Appeal explained that in determining whether additional evidence should be admitted the general test which should be applied is whether, had the evidence been before the sentencing Judge, a different sentence should have been imposed. In Colwell's case at [30] the Court of Appeal set out how, ordinarily, evidence will not be admitted of events which have occurred since the sentence was imposed except that evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing Judge or not properly appreciated at that time.

15 So, in a case such as the present where it is necessary for this court to consider whether or not the absence of a spent conviction order in a sentence imposed by a magistrate amounts to a miscarriage of justice, the appellate court may have regard to newer information which has been gathered for the purposes of the appeal and which shows the appellant's good character and the likely consequences of a conviction upon his future career: Caseley v Zampognia [2006] WASC 259 [19] (Blaxell J) and A v Staples [2007] WASC 36 [17].

16 It was the application of these principles which led the respondent to consent to leave being granted to the applicant to rely on his affidavit in the present case on the basis that the leave to adduce this fresh evidence was not related to any finding that the learned magistrate made an error of law or fact but was 'that for reasons that were not then known the result is a miscarriage of justice' Redding v Robinson [2009] WASC 403 [11] and Papas v Godwin [2010] WASC 226. The latter case is of significance because, like the present, that appellant had also entered an endorsed plea of guilty to a charge of disorderly conduct by relieving himself in the vicinity of a nightclub or bar. Another example of an appeal being allowed on similar facts is A v Esposito [2011] WASC 198.

17 The power to make a spent conviction order is confirmed by s 45(1) of the Sentencing Act 1995. It is necessary for the court to be satisfied that the offender is unlikely to commit such an offence again and to have regard to the factors specified in s 45(1)(b). There was no evidence before the learned magistrate about whether or not the offender was unlikely to commit such an offence again but, having regard to his antecedents, the consequences, his youth and inexperience, and the facts set out in the affidavit which has since been received, it can readily be inferred that that is the case. Again, there was no suggestion to the contrary by the respondent.

18 If these conditions are established, a court's discretion to grant a spent conviction order is established but it remains a question of discretion as to whether or not it should be exercised: Taylor v McLernon [2009] WASC 211 and R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 297.

19 Accordingly, it is necessary to address the questions of whether or not the offence is trivial or, further or alternatively, having regard to the previous good character of the offender, the court considers that he should be relieved immediately of the adverse effect that the conviction might have upon him: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].

20 There was some issue as to whether or not this offence or its manner of commission could be regarded as trivial. All offences against the law must be taken to be significant because the statutory prohibition represents the considered value judgment of the community expressed through Parliament. Nevertheless, there is the wide spectrum of severity or culpability ranging from minor regulatory offences, to minor statutory offences, to more serious examples of such offences, to very serious crimes. One does not condone or excuse the conduct of the present applicant or disorderly conduct of this sort generally by saying that, on any view, it lies well towards the lowest end of severity of criminal offences. Furthermore, this particular offence was committed at night, not in a public street or roadway but in what was thought to be a secluded area. The conduct of this young man was prompted by the pressing exigencies of nature and the offence occurred without any damage being caused or reported and without any member of the public being offended or scandalised. I am satisfied that, in all the circumstances, it should be regarded as trivial and, further, I am satisfied that the applicant is of previous good character.

21 It then becomes necessary to consider whether or not the offender should be relieved immediately of the adverse effect that the conviction might have upon him. This consideration was also examined in R v Tognini where it was identified that factors which may show that a spent conviction order should be granted would include a fact that a conviction, if not declared to be spent, might be a particular impediment to the applicant undertaking particular employment and, further, where relieving the offender against the adverse effects of conviction would positively aid his rehabilitation in a way which may be seen to accord best with the interests of the community. Spent conviction orders in similar cases have been made in A v Staples [2007] WASC 36 and in Redding v Robinson [2009] WASC 403 where Hall J examined a number of the authorities.

22 I am satisfied that this is a case where not only the conditions specified by s 45(1) have been shown to exist but that, in all the circumstances, the discretion should be exercised in favour of the applicant. Accordingly, there will be leave to appeal, the appeal will be allowed and a spent conviction order made.