Criminal law - Appeal against sentence - Weapons Act 1999 (WA) offence - Failure to record spent conviction - No application made at time - Appeal commenced 2 years 6 months out of time - Whether delay explained - Whether grounds have merit - Whether miscarriage of justice

Sentencing Act 1995 (WA), s 45

(This judgment was delivered orally and has been edited from the transcript)

1 On 15 February 2010 Mohamud Elmi was convicted in the Magistrates Court of an offence under the Weapons Act 1999 (WA). He was fined $500 and ordered to pay costs. Two and a half years later he filed an appeal against the sentence imposed on him. The grounds assert that the magistrate erred by failing to consider whether a conviction should be recorded. In essence, the appellant now seeks a spent conviction order under s 45 of the Sentencing Act 1995 (WA).

2 An appeal cannot be commenced more than 28 days after a decision unless an extension of time is granted: s 10(3) of the Criminal Procedure Act 2004 (WA). In considering whether to grant an extension the court will consider whether the delay in commencing the appeal is satisfactorily explained.

3 The appellant has filed several affidavits addressing the question of the delay. In his affidavit sworn on 13 August 2012 he states that he is an immigrant from Somalia and that he did not attend the Magistrates Court on 15 February 2010 as he is 'somewhat fearful' of courts. Instead, he states he chose not to attend court and sent in a written plea of guilty. That latter part of that statement appears not to be correct. The Form 5 written plea document has a tick in the 'not guilty' box, though this appears to have been scribbled over. There is no tick in the 'guilty' box. In any event, the magistrate proceeded under s 55 of the Criminal Procedure Act and the appellant does not contest his conviction.

4 The appellant states that at that time of his conviction he was a taxi driver. On or about 26 March 2010 he received a notice from the Department of Transport advising him that the T extension to his driver's licence had been cancelled; the T extension is the authority required to drive a taxi. He was advised that the reason for cancellation was that he was not considered to be of good character due to his Weapons Act conviction and other traffic convictions.

5 The appellant states that he then sought a review of the cancellation decision. On or about 14 June 2010 he was advised that, on review, the decision had been confirmed. He then sought legal advice in about August 2010 from his present solicitors. A review in the State Administrative Tribunal (SAT) of the cancellation decision was commenced in December 2010.

6 On 27 January 2011 the SAT dismissed the application and confirmed the cancellation decision. The SAT concluded that the appellant was not of good character for the purposes of the relevant regulations, having regard to the Weapons Act conviction, four cautions issued by the department regarding his conduct as a taxi driver and 11 complaints from passengers over a three year period.

7 The appellant's solicitor has sworn affidavits dated 15 August 2012, 25 October 2012 and 4 February 2013. From those affidavits the following course of events can be summarised.

8 Following the SAT decision an opinion from counsel was obtained in May 2011. It was then decided to make an application to the Magistrates Court under pt 3 div 7 of the Criminal Procedure Act to have the decision to enter a conviction on the Weapons Act charge set aside. An application in November 2011 was rejected by the Magistrates Court registry, apparently because the view was taken that the application was of a nature as to be only capable of being dealt with by way of an appeal. Whether that is correct it is not necessary to here decide. A decision was made to file another application but this appears to have been rejected on 2 May 2012 for the same reasons.

9 The appellant's solicitor states that consideration was then given to bringing an action to compel the Magistrates Court to deal with the div 7 application or, alternatively, commence an appeal. Finally, on 15 August 2012 an appeal against the original sentence was filed with this court.

10 What this history reveals is that the applicant was aware of his conviction from some time shortly after it occurred on 15 February 2010. The conviction was not unexpected because he intended, it would seem, to plead guilty and appears to have thought he had. No application for a spent conviction order was made on the written form and the applicant gave no consideration to such an order until much later.

11 From at least 26 March 2010, on receipt of the letter from the Department of Transport, the appellant knew that his conviction had contributed to the decision to cancel his taxi licence. Thereafter, a considered decision appears to have been made to pursue a different course. It was only when that course failed that attention was then given to an appeal.

12 In my view, the very lengthy delay is not adequately explained. Very largely the delay has occurred because the appellant chose to pursue another course, rather than being unaware of his appeal rights. The time to commence an appeal does not stop running because a person decides to pursue other options.

13 In any event, even if a generous view of the events is taken, some periods of the delay remain inadequately explained. These include four months from August 2010 from when the appellant sought legal advice until December 2010 when the SAT review application was filed, four months from January 2011 when the SAT decision was delivered until counsel's opinion was received in May 2011, five months from May 2011 until the first div 7 application in November 2011 was made and nine months from that time until the appeal was filed in August 2012.

14 It is important to note that not every explanation for delay will excuse it. The obligation on an appellant seeking an extension is to provide evidence that would justify the court exercising the discretion to grant an extension. Where the appellant can satisfy the court that the delay has occurred through no fault of his own that may be an important consideration. Here, however, the delay is both lengthy and unjustified.

15 Where there has been a lengthy delay, a court should only grant an extension if exceptional circumstances are shown or there would be a substantial miscarriage of justice if an extension was not granted: Lancaster v The Queen [1989] WAR 83, 85. That requires consideration of the merits of the grounds of appeal.

16 The grounds of appeal as contained in the appeal notice are as follows:

1. The learned Magistrate erred in law and fact in failing to consider sufficiently or at all whether a conviction ought to be recorded against the appellant.

1.1 The learned Magistrate did not consider the provisions of s.45 of the Sentencing Act 1995 (WA) sufficiently or at all in that the learned Magistrate did not consider whether the appellant was unlikely to commit such an offence again and the previous good character of the offender.

1.2 The learned magistrate did not consider sufficiently or at all whether the appellant should be relieved immediately of the adverse affect of that conviction might have on the appellant.

1. The learned Magistrate erred in law in recording a conviction against the appellant.

2.1 The learned Magistrate did not consider the provisions of s.45 of the Sentencing Act 1995 (WA) sufficiently or at all in that the learned Magistrate did not consider whether the appellant was unlikely to commit such an offence again and the previous good character of the offender.

2.2 The learned Magistrate did not consider sufficiently or at all whether the appellant should be relieved immediately of the adverse affect that the conviction might have on the appellant.

17 There was an amendment at the hearing to add a third ground which was not opposed, that ground is that the failure to record a spent conviction resulted in a miscarriage of justice.

18 An appeal against sentence may be brought on grounds that there has been an express or implied error or that there has been a miscarriage of justice. In this case, the grounds, as originally framed, assert error in that they state the magistrate erred by failing to consider sufficiently or at all whether a spent conviction order should be made. Implicit in these grounds is an assumption that the magistrate was obliged to give consideration to a spent conviction order even though no application was made for such an order. Also implicit is an assumption that a failure to refer to a sentencing option or to a consideration relevant to that option means that they have not been considered. Both assumptions are wrong.

19 A spent conviction order can be made even where it is not requested: Redding v Robinson [2009] WASC 403, but that does not mean that a court is under an obligation to raise the question in every case. Far less can it be said that failure to grant a spent conviction where none was sought is indicative of error.

20 There may be cases where, though no error is established, the outcome is shown to be a miscarriage of justice. That is the purpose of the amended ground 3. That, however, is not how grounds 1 and 2 are framed. As regards ground 3, that ground would depend upon reaching a conclusion that a spent conviction was not merely open in the particular circumstances but that the absence of such an order in the particular circumstances would be so clearly unjust as to be a miscarriage of justice.

21 As to the assertion that the magistrate failed, either at all or sufficiently, to consider a spent conviction, it is necessary to note that there is no transcript of the proceedings of 15 February 2010. That appears to be a product of the delay. The appellant has assumed that the magistrate did not consider a spent conviction because he did not seek one and then mounts an argument that her Honour was in error based upon that same assumption. The difficulties with that argument are obvious.

22 In any event failure to give weight to a relevant sentencing consideration only gives rise to appellable error if it amounts to a failure to exercise the discretion entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330 and Vagh v The State of Western Australia [2007] WASCA 17, 76. The fact that an option has not been specifically referred to does not lead to a conclusion that it has not been considered. Thus, even if, which I do not accept, the magistrate was under an obligation to consider a spent conviction, no error is established on the available evidence. Accordingly, grounds 1 and 2 cannot succeed.

23 As regards ground 3, it would be necessary for the appellant to show that he has suffered a miscarriage of justice by not receiving a spent conviction. A discretion to grant a spent conviction is governed by the criteria set out in s 45: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 11. An order cannot be made unless, (a) the court 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, the court considers the offender should be relieved immediately of the adverse effect that conviction might have on the offender.

24 If the criteria are met, a spent conviction order may be considered but it remains a question of discretion whether it is appropriate that it be granted: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 297. The usual outcome is that a conviction will be a matter of public record: Tognini (297). Spent conviction orders should be made only when they are desirable for the offender and the community. The protection of the community may be better served by not making an order: Tognini (297 298).

25 The circumstances of the offence in this case can be discerned from the statement of material facts. They are as follows. At about 8.03 pm on Thursday, 19 November 2009 the appellant was in Hay Street in Perth. A City of Perth parking inspector was conducting official duties along Hay Street which involved stopping his vehicle frequently in order to check vehicles' parking tickets. The appellant, who was a taxi driver at the time, became disgruntled with the inspector's actions and sounded his horn repeatedly. The inspector then turned up King Street and was followed by the appellant who was still sounding his horn. The inspector then alighted from his vehicle and with his arms held out wide to his side asked the appellant what his problem was. The appellant then alighted from his vehicle, brandishing a large metal tyre lever and abused the inspector in an aggressive manner. The inspector, who was in fear of his safety, called for police to attend. Police arrived at the scene and spoke to the appellant who admitted that he kept the lever under his seat for protection. He was informed that he would be summonsed to attend court at a later date.

26 Neither the type of offence nor the circumstances in which it was committed could be described as trivial. The appellant accepts it was a serious offence. As to whether the appellant would commit such an offence again, there appears to have been nothing before the magistrate one way or the other, however, I note that the transcript of the SAT proceedings indicates that the appellant had minimised his conduct and sought to blame others. The SAT also found that there was very little evidence of genuine remorse. In light of this it must at least have been open to conclude that this criteria was not satisfied.

27 As to the appellant's past good character, again, this was not raised in the Magistrates Court. Even if it had been the findings in the SAT must mean that a favourable conclusion in regard to the appellant's character in the Magistrates Court was far from assured.

28 For these reasons, even if the question of spent conviction order had been raised on 15 February 2010 it does not seem to me that an application for such an order would have had any realistic prospect of success. I am not satisfied that the criteria for exercise of a the discretion under s 45 would have been met, either on the basis of the information then existing or even taking into account subsequent events.

29 The only matter of substance that has occurred since the conviction is that the appellant has lost his taxi licence. That has occurred, if not solely at least in significant part, due to the conviction. But that is not an inappropriate consequence, bearing in mind that the offence occurred in the course of the appellant's work and indeed whilst he had a passenger in his vehicle. This was a conviction that should properly have been available to be taken into account in considering whether the appellant was of sufficient good character to be a taxi driver (as it was). The consequences do not appear to be such as to lead to a conclusion that the failure to record a spent conviction was unjust.

30 In my view, the grounds are without merit and no miscarriage of justice is established. In those circumstances, the application for an extension of time is refused and the appeal is dismissed.