Criminal law - Appeal against sentence - Offences of criminal damage by graffiti and possession of markers - Pleas of guilty entered - Whether sentencing magistrate's discretion miscarried - Powers to adduce new evidence in appeal - Principles concerning fresh evidence - Discretion in relation to due diligence - Principles of sentencing - Need for general deterrence to be balanced with appellant's personal circumstances - Criteria for considering whether a spent conviction order should be made - No new principles - Turns on own facts

Criminal Appeals Act 2004 (WA), s 40

Sentencing Act 1995 (WA), s 6, s 45(1)(b)

Spent Convictions Act 1988 (WA)

1 The appellant, Kieran Ben Gherardi, obtained leave to appeal in respect of a conviction and related sentence in the Magistrates Court at Perth on 10 May 2007. The questions raised in this appeal are whether the fines imposed were an appropriate disposition and whether the learned magistrate ought to have made provision for a spent conviction order.

2 The appellant, by counsel, has applied for leave to adduce additional evidence in support of the grounds the subject of the appeal. I will deal with that matter also in the course of my reasons for judgment.

3 By a prosecution notice dated 17 April 2007, the appellant was charged with possession of paint markers with the intention of using them to cause damage consisting of graffiti, contrary to s 557G of the Criminal Code (WA).

4 By a second prosecution notice dated 17 April 2007, the appellant was charged that on the same date he wilfully and unlawfully damaged an advertising signboard, the property of Code Apartments, on Wellington Street, valued at $200, contrary to s 444(b) of the Criminal Code.

5 I pause to note that s 557G of the Criminal Code concerning the possession of things for applying graffiti provides that a person who is in possession of a thing with the intention of using it to cause damage consisting of graffiti is guilty of an offence and is liable to a fine of $6,000.

6 Section 444(b) of the Criminal Code concerning criminal damage provides that any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if the property is not destroyed or damaged by fire, to imprisonment for 10 years.

7 The latter provision establishes that in the case of summary conviction for such an offence, where the property is not destroyed or damaged by fire, and the amount of the injury done does not exceed $25,000, the penalty is to be imprisonment for three years and a fine of $36,000.

8 The size of the penalty indicates that the offence of criminal damage is regarded seriously by the legislature. The question of imposition of penalty must be approached accordingly.

9 The prosecution notices came on for hearing before his Honour Magistrate Malley on 10 May 2007 at the Magistrates Court in Perth. On that occasion the appellant was represented by counsel and pleas of guilty were entered on his behalf.

10 The prosecutor put this statement of material facts to the judicial officer:

At 9 pm on 14 April 2007, the accused was seen on Wellington Street by two police officers writing on a signboard. A marking approximately five inches by five inches was found in the top left-hand corner of the signboard advertising Code Apartments. The accused was stopped by the police and a block permanent marker of a size consistent with the graffiti was found in the top of his backpack. The backpack was further searched and found to contain a thick paint marker that is often used for graffiti. [The appellant] stated to the police that he had seen it lying on the street, just picked it up and was holding it in case it belonged to someone.

He was arrested and the present charges were preferred. The prosecutor applied for an order seeking destruction in relation to the permanent marker and paint marker. Costs of $55.50 were sought in respect of each matter.

11 Having received the pleas of guilty, and after hearing submissions from counsel directed to the mitigation of any penalty that might be imposed, the learned magistrate expressed certain views which were designed to underline the seriousness of the offences and the need for significant penalties to be imposed in respect of damage done by the use of graffiti.

12 The views expressed by his Honour were apt and are probably shared by many of those working in the legal system. His Honour then moved to the core of his reasoning in a passage which occurs at page 4 of the transcript. His Honour said this:

In relation to possession of the implement, there is a fine of $1000, costs $55.50. In relation to the damage, there is a fine of $3000, Mr Gherardi. No order to costs in that matter. In my view the fine should reflect the seriousness and the problem within the community and the need for deterrence at the same time. I have taken into account your plea of guilty and no prior record.

In relation to a spent conviction, the answer is simply "no". In my view the requirement - this is a serious matter that could well involve a custodial term. It is not a matter that happens by accident. It's not just a momentary slip. The fact is it's an intentional act by an adult who knows the consequence of what he does. In my view the deterrent element to you and to others is overwhelming. It's a discretionary matter. In my view simply because it's a first offender or there's now remorse is not sufficient to outweigh those factors. The application for a spent conviction is refused.

13 There is no need for me to cover everything that was said at the hearing. I note in passing that there were some references to the situation of the appellant, but there was scant information before his Honour as to the appellant's capacity to pay fines of the order imposed upon him. It was common ground at the hearing before me that the assertion that the appellant had no prior record is indeed correct.

14 I note in passing that the materials before me establish that the appellant was 26 years of age at the time of the offences.

15 An appeal notice was filed on behalf of the appellant and forms part of the materials before me at this hearing. The relevant document is dated 5 June 2007. The grounds of appeal are expressed in this way:

(1) the learned Magistrate erred in that the fines imposed were manifestly excessive having regard to the appellant's youth, good antecedents and the relatively minor nature of the offences.

(2) the learned Magistrate erred in not granting the appellant a spent conviction having regard to the factors referred to in ground 1 and the potential adverse impact on the appellant's future employment and prospects.

16 The appellant obtained leave to appeal from McKechnie J on 17 July 2007. Orders were made that the time within which the appeal was to be advanced was extended to 5 June 2007; leave to appeal was granted in respect of grounds 1 and 2. Certain other consequential orders were made concerning the entry of the matter for appeal.

17 There is before me also, as I mentioned earlier, an application to admit further evidence. I will come to the details of that in a moment.

18 Essentially, by an application dated 17 September 2007, the appellant applied for leave to adduce new evidence in the form of a recently sworn affidavit of the appellant, Kieran Ben Gherardi.

19 Before I proceed to the merits of the appeal, and deal with the evidentiary issues, let me briefly call to mind some principles bearing upon the matters in question.

20 Sentencing principles are referred to in the Sentencing Act 1995 (WA). By s 6, a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of any victim, any aggravating factors and any mitigating factors. The sentence may be reduced because of any mitigating factors or any rule of law as to the totality of sentences.

21 It is well recognised that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing court or sentencing judge exercised his or her discretion. It must be shown by the appellant that the court at first instance failed to properly exercise its discretion by acting upon wrong principles, mistaking the facts or allowing irrelevant matters to affect the decision. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671.

22 By s 14 of the Criminal Appeals Act 2004 (WA), the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred it may dismiss the appeal, notwithstanding that a ground of appeal has been decided in favour of the applicant.

23 It is apparent from s 39 of the Criminal Appeals Act, that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40, an appeal court may admit other evidence.

24 The principles concerning spent convictions and the relevant principles may be summarised in this way.

25 The Spent Convictions Act 1988 (WA) facilitates rehabilitation by limiting the effects of the convictions. The effect of the Act is to make it unlawful to discriminate against a person on the ground of a spent conviction. Hence, questions put to a convicted person about his past should not be taken to relate to a spent conviction or the charge to which the conviction relates. Nonetheless a court may take account of spent convictions in fixing a punishment for some further offence.

26 A spent conviction order cannot be made unless the pre-conditions set out in s 45(1) of the Sentencing Act are met. In effect the court is not to make a spent conviction order unless it considers the offender is unlikely to commit such an offence again and having regard to the fact that the offence is trivial, or because of 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.

27 The decided cases indicate that the offender does not have to satisfy both criteria in s 45(1)(b). It will be sufficient to show that the offender is unlikely to commit such an offence again and that he should be relieved of the adverse effect of the conviction having regard either to the fact that the offence is trivial or to his previous good character. However a spent conviction order will not necessarily be made simply because the relevant criteria are satisfied. The crucial question is whether the appellant has demonstrated that the power in s 45(1), which is to be exercised sparingly, shall be exercised in his favour so as to relieve him of the adverse effects of the convictions. A v Ray [2001] WASCA 340.

28 For the purpose of determining whether the magistrate's failure to make a spent conviction order amounts to a miscarriage of justice, an appellant court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of the conviction upon his future career. Caseley v Zampogna [2006] WASC 259 per Blaxell J at [19].

29 This brings me to the question of the admission of new evidence.

30 I have already mentioned that by section 40 of the Criminal Appeals Act there is a broadly expressed power to admit new evidence.

31 Further, the Court of Criminal Appeal in McMaster v The Queen [2004] WASCA 52 enunciated certain principles bearing upon an issue of this kind. It was said at [43] in that case that, if the fresh evidence relates entirely to events which have occurred since the sentence, the evidence may only be receivable if there has been an error in sentencing discretion by the judge. Fresh evidence may be admitted in the exercise of the court's discretion to bring before the court facts which were in existence at the time of the imposition of a sentence but were not known to the sentencing judge.

32 It was said also that fresh evidence may be admitted by discretion to explain facts which were before the sentencing judge so as to put them in a new light. Even when the discretion to admit fresh evidence has been enlivened, the discretion will only be exercised in exceptional or unusual cases.

33 Other decided cases establish that a matter bearing upon exercise of the discretion is whether due diligence has been exercised by the party seeking to admit fresh evidence with consideration being given to the question of whether with due diligence the evidence in question should previously or could previously have been brought forward.

34 However, I pause here to say that, in my view, these considerations do have to be examined having regard to the nature of the charge, the particular context and the circumstances of the matter. It is important that some sense of proportion be kept in mind as one reviews the nature of the fresh evidence sought to be admitted.

35 Against this background I come now to the affidavit which is sought to be admitted, namely, the affidavit of the appellant, Kieran Ben Gherardi, sworn 17 September 2007.

36 It is said in the affidavit that prior to his eventual plea of guilty on 10 May 2007, the appellant had inadvertently failed to attend a court date as a result of getting the dates mixed up. When he first attended court his case was adjourned to explore mediation and after he missed the court, the mediator rang him to advise of that fact. He then handed himself in the next day, which was on 10 May. When he handed himself in he had some character references and a letter that he had drafted himself to hand to the magistrate. Those materials were placed in his property. He thought the duty lawyer would retrieve them for the court but they remained in his property before being handed back to him when he was being released.

37 Given that he was unable to produce the references in the Magistrates Court, the appellant said that he would now appreciate an opportunity to place that material before the court. The references in question are then described. They come from his employer and a deputy principal of the Hamilton Senior High School and both references speak well of him.

38 The appellant said also in the affidavit that since his conviction he has enrolled in a diploma of education course at Notre Dame. A document is exhibited to the affidavit purporting to confirm his enrolment in the teaching course.

39 The appellant went on to say that after finishing Year 12 at Bunbury Cathedral College he did a year at TAFE followed by a three year bachelor of arts degree at Murdoch University majoring in multimedia. Since finishing that course he has worked in hospitality, mainly at Clancy's Fish Bar, and has done freelance graphic design work. His ambition is to be a secondary teacher in media studies and he is concerned that a recorded conviction and the nature of the penalty imposed on him would greatly jeopardise his career prospects.

40 The appellant said at paragraph 6 of the affidavit that he is earning about $550 per week gross. He pays rent of $150 per week and is paying a $10,000 car loan at the rate of $100 per week. He will have great difficulty in paying a fine at the magnitude of $4,000. The appellant said further that he is very remorseful for his behaviour on the night in question. He was making his way home from a football game where he had consumed some alcohol. He came across a sign that had already been heavily damaged by graffiti. He then added his nickname, 'Reboot', in the top left-hand corner of the sign.

41 The appellant said that at the time he did not think of the consequences, nor was he aware of the scale and costs of pleading guilty to a graffiti charge. He did seek mediation before pleading guilty with a view to apologising to the owner of the property and cleaning it or paying for cleaning but the court mediator was unable to locate the owner.

42 Finally, exhibited to the affidavit are pictures of the graffiti that the appellant drew on 14 April 2007. The appellant took the photographs shortly after his court appearance when he decided that he wished to appeal this sentence.

43 The appellant said that whilst he does not wish to downplay his behaviour, the graffiti drawn by him was very small by comparison with the sign as a whole and by comparison with other graffiti that had already been painted on the sign. I note in passing that this observation is correct. The sign had been significantly defaced by large central markings before the comparatively small inscription made by the appellant was added to it, in one corner.

44 In my view, pursuant to the principles concerning fresh evidence mentioned earlier, and the power allowed to me by the statute, the proposed fresh evidence, in the form of the affidavit as I have described it should be admitted.

45 It seems to me that the additional matters sought to be placed before the court do not introduce entirely new elements of evidence; they do not change the nature of the issue that was before the court. They can be characterised as seeking to clarify the plea in mitigation that the appellant sought to place before the court.

46 As to the matter of financial details, it seems to me that this is important evidence that bears upon the fines imposed.

47 Accordingly, I am of the view, having regard to the nature of the offence, the size of the penalties and the scale of the fresh evidence to be adduced (in comparison to and relative to the other evidence before the court) that the evidence should be admitted. These are my reasons for so ruling.

48 Upon the basis that the fresh evidence is now before the court, I must now return to the issues I described initially, being the question of the extent of the penalty imposed and the question of whether a spent conviction order should have been made.

49 I note that as to ground 1 the respondent in his submissions submits that the issue before the court is whether or not the sentencing magistrate's discretion miscarried. The appellant contends that it did miscarry as the learned magistrate did not take into account the following factors, namely, the appellant's age and excellent antecedents and the relatively minor nature of the offences.

50 On the other hand, it is said by the respondent, contrary to the appellant's contention, that the learned magistrate was clearly aware of the appellant's age and specifically referred to it on several occasions. The appellant was not a youth of 18 or 19 years, having only just entered adulthood, but rather a man of 26 years of age. Thus any mitigation for his youth progressively diminished in relation to his age.

51 I see force in those observations and it is true that it does appear from the transcript that the age of the appellant was squarely before the magistrate. Nonetheless, it does seem to me, as I move to the merits, that although there was undoubtedly a need for general deterrence (as the learned magistrate asserted), this factor in the sentencing process had to be considered in relation to the appellant's personal circumstances and having regard also to the nature of the offending act.

52 I pause here to remind myself that the marking implement was a comparatively familiar form of pen which could, of course, be carried for entirely innocent purposes. This was not the case of someone carrying a spray can or some other device with which graffiti is systematically imposed upon signs. Moreover, there are indications in the evidence before me that the misconduct complained of occurred impulsively.

53 Further, as I look at the photographs which are now before the court, it is clear that this is a sign which had already been defaced very significantly by a heavy scoring of graffiti in the centre of the sign and the marking imposed by the appellant was one word, comparatively small in size in relation to the other markings.

54 These consequences, of course, do not excuse or serve as a defence to the criminality alleged. However, I do consider that they were matters which had to be kept in mind as the sentencing magistrate came to the question of penalty. It does seem to me, all things considered, as I review the sentencing remarks of the learned magistrate, that there was an undue or inordinate emphasis given to the general deterrence factor.

55 In the course of reviewing the relevant principles I notes that an appellate court does not lightly interfere with or seek to displace the exercise of a sentencing judge's discretion. Some error in the exercise of that discretion must be shown. However in my respectful opinion this is a case in which the emphasis upon general deterrence amounts to an error. The sentence is so manifestly excessive as necessarily to reflect an error of principle. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605.

56 The offence while serious was one which seems to have been opportunistic and committed on the spur of the moment, and not in circumstances which suggest that the appellant was in the business of imposing graffiti systematically or in a regular way. As I have said, the presence of a sign, already defaced, seems to have clouded his judgment and had an unfortunate influence on what he did.

57 I have to say also that I give weight to the mitigatory matters that were raised before the magistrate and that are emphasised again before me now. The appellant has no prior record. There were before the magistrate expressions of remorse and they are now repeated, and indeed underlined, in the affidavit that I have received as fresh evidence.

58 For these reasons, and without any way minimising the seriousness of the offence, I consider that the sentencing process miscarried and the fines imposed were too severe. I am minded to reduce the fine concerning possession of an implement to $500. I am minded to reduce the fine concerning damage to property to $1,500.

59 As to the matter of the spent conviction, this is a troubling issue. The magistrate was invited to consider the question of whether a spent conviction order should be made. It was therefore an issue squarely before the court. It cannot be said that the issue was overlooked or not addressed directly by his Honour.

60 Nonetheless, it does seem to me that comparatively little consideration was given to the issue. There was scant discussion in the reasons as to whether the appellant was likely to re-offend or as to whether he should be relieved of the detrimental effect of the conviction.

61 In my view, the apparent failure by the learned magistrate to weigh up relevant considerations of this kind, in a case concerning a man who was proposing to be a teacher, does suggest that insufficient attention was paid to the statutory provisions and principles bearing upon this issue. The discretion to make a spent conviction does indeed have to be exercised sparingly but I do consider that this is a case, having regard to the nature of the offence, the appellant's career prospects, the need for rehabilitation and the expressions of remorse that are before me, where the adverse effect of the conviction should be ameliorated by the making of a spent conviction order.

62 In other words, I am persuaded that the offence is not likely to be repeated and weight must be given to the other discretionary considerations I have mentioned, including the potentially detrimental effects upon the appellant's career. This all suggests that a spent conviction order should be made. Accordingly, as to this ground also I will allow the appeal and make the necessary order for a spent conviction. The orders imposing fines will be varied in the manner previously indicated.