File No : FR 3473 of 2005, FR 3474 of 2005

Appeal - Criminal law - Appeal against sentence - Spent conviction order - Whether material error of fact or law - Discretion granted to sentencing Judge - Section 39 Sentencing Act 1995 (WA) - Likelihood of re-offending - Previous good character

Police Act 1892 (WA), s 20

Sentencing Act 1995 (WA), s 39(2), s 45

Spent Convictions Act 1988 (WA), s 25 s 26, s 27

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

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

Brewer v Bayens (2002) 26 WAR 510

Harper v Page [2004] WASCA 267

Neale v Sloan (1997) 27 MVR 246

1 LE MIERE J: The appellant appeals, by leave of this Court, from a decision of a Magistrate refusing to make a spent conviction order. The appellant was convicted in the Fremantle Court of Petty Sessions on 5 May 2002 of two offences contrary to s 20 of the Police Act 1892 (WA), namely resisting a member of the police force and hindering a member of the police force. The Magistrate imposed fines of $500 in respect of each offence.

2 The circumstances of the offences are set out in the statements of material facts read to the Magistrate. At about 10.30 pm on Friday 8 April 2005, the appellant was in Mews Road, Fremantle outside Little Creatures licensed premises. The appellant was in company with a friend, George David Wren, who police had cause to speak to about another matter. Wren was subsequently arrested. While the police were speaking with Wren, the appellant, who was extremely intoxicated, continually interjected hindering police in their efforts to obtain details from Wren. The appellant was warned on at least three occasions to back off. This warning was disregarded. However, police were unable to deal with the appellant because of the actions of Wren who was placed under arrest. When arrested, Wren ran from police. Police pursued Wren on foot and while struggling to restrain him, the appellant attempted to pull police off him. The appellant was told to back away or be arrested. However, the appellant chose to ignore this warning and again attempted to pull police off Wren. Police forced the appellant away by a push to the body and continued to struggle with Wren who was eventually restrained and escorted to the police vehicle with the appellant following. Once Wren was placed into the police vehicle, police approached the appellant, took him by the left arm and advised him that he was under arrest for hindering police. When the appellant was advised that he was under arrest, he pulled his arm free and ran south along Mews Road where he was tackled by police. A violent struggle took place during which the appellant wildly threw his body and arms around in an effort to prevent police from restraining him. During the struggle, Wren escaped from custody and as a result of that escape one of the police officers ran off after him leaving the other officer to deal with the appellant. This officer called upon bystanders to assist in restraining the appellant who, after several minutes of violent thrashing, was eventually handcuffed with both hands behind his back. Once restrained the appellant was placed into a secure police vehicle which had arrived to assist.

3 The appellant was represented by counsel before the Magistrate. Counsel informed the Magistrate that the circumstances leading up to the commission of the offence were as follows. The appellant and Wren had been out with others celebrating the fact that they had each received high awards from Murdoch University. The appellant received an award for one of the best students and received a bursary or a scholarship. The appellant did not intend to go out and become intoxicated. They started off at a barbecue at the university and had a few drinks there. A few drinks led to a few more and they decided to go into Fremantle. They went to the Little Creatures nightclub because the appellant's eldest brother was the original manager of the nightclub. Because they were intoxicated the security officer declined admission. The appellant thought that he might have some influence and used his mobile phone to phone his brother to see whether he could talk the security officers into allowing them admittance. There were some derogatory remarks made and the appellant and Wren walked away from the door and started to walk down the street. It was then that the police approached them. The police asked the appellant and Wren for their names and addresses and other details. The appellant and Wren asked the police what they had done wrong and why they were being asked those questions. Counsel submitted that the situation escalated from there.

4 Counsel submitted that after the appellant had been taken to the police station he apologised for his behaviour. He was processed and released on bail. The next morning he went to the police station and tendered an apology for his unacceptable behaviour on the night before. He addressed letters to the arresting officers and also to the manager of the nightclub expressing his apology.

5 Counsel acknowledged that the appellant had prior convictions. The WA police service court history discloses that on 2 October 1996 the appellant was convicted in the Joondalup Court of Petty Sessions of possessing a quantity of cannabis and possessing a smoking implement and fined $50 on each charge. The history further discloses that on 6 February 1997 the appellant was convicted in the Perth Court of Petty Sessions of driving under the influence and was fined $500 and disqualified from holding a motor driver's licence for six months.

6 The appellant was born on 18 August 1978. At the time of the offences and convictions the appellant was aged 26. Counsel submitted to the Magistrate that the appellant had been a good student academically and had participated in various other extracurricular activities. When he left school he went to university and obtained a Bachelor of Science degree. After a stint working as a jackeroo he then travelled overseas before returning to Australia in 2002. He then worked with his father on several mining ventures. In 2004 he enrolled in metallurgy at Murdoch University. He has been awarded both the Mining Club prize for best student and an Australasian Institute of Mining and Metallurgy bursary. It was that bursary that led to the celebrations preceding the appellant committing the offences.

7 Counsel for the appellant submitted to the Magistrate that the Magistrate should make a spent conviction order. Counsel submitted that a conviction for those offences might significantly impede the prospects of the appellant's future employment in the mining industry.

8 During the course of submissions by the appellant's counsel the Magistrate made a number of observations or comments. The Magistrate delivered her decision after submissions by the prosecutor. The Magistrate stated that the major factor in the appellant's offending was that he had far too much to drink. Her Honour stated that that was the nub of the problem and the reason why the appellant found himself in that situation on the night and acted the way he did. The Magistrate noted that the appellant had a prior record for drug and alcohol related matters but acknowledged that there was a long gap between the previous convictions and those for which the appellant was being dealt with. The Magistrate then imposed a fine of $100 for each offence. The Magistrate then refused to make a spent conviction order stating:

"And because of the prior convictions and the fact that alcohol seems to be a problem which needs to be addressed, I am not satisfied that a spent conviction order should be made on either the grounds of previous good character or unlikely to re-offend in the future. So you don't fall within the parameters for spent conviction orders."

9 Later on the day that the Magistrate sentenced the appellant, the same Magistrate dealt with the appellant's co-offender, Wren. Wren pleaded guilty and was convicted of one charge of having given a false name, date of birth and address to a police officer, one charge of resisting a police officer acting in the execution of his duty and one charge of having escaped out of legal custody. The Magistrate fined Wren $100 for the false name offence and $500 on each of the offences of resisting a police officer and escaping legal custody. The Magistrate made a spent conviction order. Her Honour stated that Wren fitted the criteria for the making of a spent conviction order and that his circumstances were different from those of the appellant. The Magistrate stated that the co-offender had no prior record, had excellent character references and had taken some steps to look at his alcohol consumption issue. All of which indicated, together with his excellent references, that he had excellent prospects.

10 The principles according to which an appellate court may interfere with a discretionary judgment by a sentencing Judge are well established. The question for the appeal court on an appeal seeking the making of a spent conviction order is whether the failure of the Magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing Magistrate or by implication from the failure to make a spent conviction order in circumstances which required the Magistrate to make such an order. The question is not whether the Magistrate had a sufficient reason not to make a spent conviction order. A court of appeal 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 Judge exercised her discretion. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672.

11 Section 39 of the Sentencing Act 1995 (WA), sets out the sentencing options that are available to the Court. Subsection 39(2) provides, in effect, that, subject to ss 41 - 45, a court sentencing an offender may make a spent conviction order regardless of whether any other sentences are imposed. Subsection 45(1) provides that under s 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

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

12 Subsection 45(2) provides that a spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA). The Spent Convictions Act makes provision for a person who has been convicted of an offence and who has not re-offended during the specified period to be rehabilitated by limiting the effects of the conviction. Generally, under the provisions of the Spent Convictions Act it is unlawful to discriminate against a person on the ground of a spent conviction in respect of matters of employment and the like. By s 25 of the Spent Convictions Act the conviction would not be a matter of disqualification for any purpose. By s 26 it could not be taken into account in determining good character, fitness, propriety or the like. By s 27 the spent conviction would not be required to be disclosed for any purpose.

13 The power conferred on the sentencing Judge by s 39(2) of the Sentencing Act was described by Murray J, with whom Malcolm CJ and Wallwork J agreed, in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 at [20], as bearing a very particular character. Ordinarily, a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Convictions Act are based on the proposition that after conviction, in time, when there has been no re-offending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the ways described in the Act, so that the offender may put the offence behind him and function in the future without the need to disclose the conviction. However, s 39(2) of the Sentencing Act is directed to relieve the offender, immediately following conviction, of its adverse effect.

14 The power conferred by s 39(2) of the Sentencing Act to make a spent conviction order is a discretionary power and the matters enumerated in s 45(1) are merely preconditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. Murray J stated in R v Tognini (supra) at [24]:

"It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable."

15 The first ground of appeal is that the Magistrate erred in law in deciding that a spent conviction order was not appropriate by reason of the appellant's prior convictions and alleged alcohol problem, and without having proper regard to the relevant statutory provisions as contained in s 45(1) of the Sentencing Act. It is asserted that, in particular, the Magistrate erred in law in not giving proper consideration to:

(a) whether the appellant was unlikely to commit the relevant offences again;

(b) whether the appellant should be relieved immediately of the adverse effect that the convictions might have on the appellant, in particular on the appellant's employment prospects; and

(c) the appellant's good character in determining whether the appellant should be relieved immediately of the adverse effect that the convictions might have on the appellant.

16 Senior counsel for the appellant submitted that a judicial officer considering an application for a spent conviction order must consider as a threshold question whether or not there is a likelihood that the offender would re-offend. That is correct to the extent that the Judge must not make a spent conviction order unless he or she considers that the offender is unlikely to commit such an offence again. Senior counsel submitted that the Magistrate erred in failing to actually consider whether the appellant was likely to re-offend in a similar fashion. Senior counsel submitted that nowhere in the Magistrate's reasons is there any indication that she embarked upon a consideration of that specific question. Senior counsel submitted that in failing to consider this question the Magistrate fell into error. Senior counsel submitted that the judicial officer is required to consider whether the offender is unlikely to again commit an offence of a similar nature as the offence for which the offender has been convicted. Senior counsel submitted that the word "such" preceding the words, "an offence" in par (a) of s 45(1) lead to that construction.

17 I find that upon a fair reading of the Magistrate's sentencing remarks, her Honour did consider whether the appellant is unlikely to again commit an offence of a similar kind to that for which he had been convicted. Her Honour stated that she was "not satisfied that a spent conviction order should be made on either the grounds of previous good character or unlikely to re-offend in the future". The reference to the ground of "unlikely to re-offend in the future" is a shorthand reference to the requirement of s 45(1)(a) of the Sentencing Act that the court considers that the offender is unlikely to commit such an offence again.

18 The Magistrate's sentencing remarks must be read as a whole, in context and not with an eye finely tuned for error. There are two pre conditions to the making of a spent conviction order under s 39(2) of the Sentencing Act. The first is that the court considers that the offender is unlikely to commit such an offence again. The second is that the offence is trivial or the offender is a person of previous good character. Earlier, in the course of the prosecutor's submissions the Magistrate stated that she did not think the appellant was arguing that the offences were trivial and referred to "the other grounds". In that context, her Honour's reference in her sentencing remarks to "either the grounds of previous good character or unlikely to re-offend in the future" are a reference to the pre-conditions for the making of a spent conviction order that are set out in par 45(1a) and subpar 45(1)(b)(ii) of the Sentencing Act. Her Honour's statement that she was not satisfied that a spent conviction order should be made on either the grounds of previous good character or unlikely to re-offend in the future was, amongst other things, a finding that she was not satisfied that the appellant is unlikely to commit such an offence again.

19 The totality of the Magistrate's statements during the course of the proceedings shows that her Honour had in mind not merely any offence but rather an offence involving some antisocial behaviour as a result of drinking excessive alcohol. That is apparent from the exchanges between the Magistrate and the appellant's counsel as well as her Honour's sentencing remarks. In the course of counsel's submissions the Magistrate said to counsel that the appellant appeared to be a completely different person when he is drunk than when he is sober. Her Honour acknowledged that it was a long time between the appellant's conviction for driving under the influence and the offence for which he was being sentenced but observed that it looked as if the appellant might have a bit of a problem when it comes to drinking alcohol and enquired if that was the case what he was going to do about it. In her sentencing remarks the Magistrate said that, amongst other things, she was not satisfied that the ground of "unlikely to re-offend in the future", was met because of the appellant's prior convictions and the fact that alcohol seems to be a problem which needs to be addressed.

20 The second part of ground 1 of the appeal concerns the pre-condition to the exercise of the discretion to make a spent conviction order that the offender is of previous good character. Senior counsel for the appellant submitted that the Magistrate failed to consider whether or not the appellant was of previous good character.

21 I find that the Magistrate did consider whether the appellant was of previous good character and was not satisfied that he was. That is the consequence of a fair reading of the Magistrate's sentencing remarks that she was not satisfied that a spent conviction order should be made on, amongst other things, the ground "of previous good character". Her Honour stated that she was not satisfied because of the prior convictions of the appellant and the fact that alcohol seems to be a problem which needs to be addressed.

22 Senior counsel for the appellant submitted in the alternative that it was not open to the Magistrate to not find that the appellant was of previous good character.

23 Traditionally, for evidence to be probative of good character, evidence of good works or positive, demonstrable character traits, are required. However, for the purposes of sentencing, the absence of discreditable acts or convictions will usually suffice.

24 Difficulty arises in respect of "blemished offenders", that is offenders whose record is not wholly free of discredit. For the purposes of s 45(1)(b)(ii) of the Sentencing Act a person may have past convictions and still be of good character. Whether a defendant with previous convictions is of previous good character is a complex problem. It is an area in which generalisations are hazardous. Whether such a person is to be treated as of good character is for the Judge to determine.

25 Some past offences may be such as to lead to the offender losing the mantle of good character entirely. Similarity between the offences past and the current offence tend to diminish the chances of the offender being of good character as will repeated offences and more recent criminal activity.

26 As a general rule a conviction for possessing a quantity of cannabis (or possessing a smoking implement) or for driving under the influence of alcohol may not preclude an offender being treated as of previous good character, particularly where those offences occurred some eight years previously.

27 However, it was for the Magistrate to determine in the particular circumstances whether she was satisfied the appellant was a person of previous good character. In making that determination her Honour was obliged to disregard the conduct of the appellant that constituted the offences for which she was sentencing him. In my view, the only matters which could lead the Magistrate to the view that the appellant was not of previous good character are his convictions in 1996 and 1997 for possessing cannabis, possessing a smoking implement and driving under the influence of alcohol. Another judicial officer may well take the view that in light of the positive evidence of good character before the court, he or she was satisfied that the appellant was of previous good character notwithstanding those earlier convictions. However, it was open to the Magistrate to find, as she did, that she was not satisfied that the appellant was of previous good character. The Magistrate made no error in making that finding.

28 Even if the Magistrate did err in not finding that the appellant was of previous good character that would not be sufficient for the appeal to succeed. As long as the Magistrate's finding that she was not satisfied that the appellant is unlikely to commit such an offence again stands, the appeal must fail.

29 The third part of ground 1 is that the Magistrate erred in not giving proper consideration to whether the appellant should be relieved immediately of the adverse effect that the convictions might have on the appellant, in particular on the appellant's employment prospects. I accept that the Magistrate did not make a finding, or exercise her discretion, whether the appellant should be relieved immediately of the adverse effect that the convictions might have on the appellant, in particular on his employment prospects. However, having found that the appellant did not satisfy the preconditions for the exercise of the discretion to make a spent conviction order it was not necessary for her Honour to do so.

31 The second ground of appeal is that the Magistrate erred in fact in deciding that a spent conviction order was not appropriate whereby the Magistrate considered that:

(a) the convictions could not have an adverse effect upon the employment prospects of the appellant;

(b) the appellant was not of previous good character purely by reason of the appellant's prior convictions, without having proper regard to the nature and time of the prior convictions, the appellant's subsequent good record, and the appellant's character references; and

(c) the appellant had an alcohol problem by reason of the appellant's prior conviction for driving under the influence.

32 As to ground 2(a) the Magistrate did not find that the convictions would not have an adverse effect upon the employment prospects of the appellant. As I have stated, the Magistrate found that the preconditions, or grounds, in par 45(1)(a) and par 45(1)(b)(ii) of the Sentencing Act were not satisfied.

33 As to appeal ground 2(b), it was open to the Magistrate to not find that the appellant was of previous good character by reason of the appellant's prior convictions. In making that determination the Magistrate was obliged to have regard to the nature and time of the prior convictions. There is nothing in the materials before me to establish that her Honour did not do so. Similarly, whilst the Magistrate was obliged to have regard to the appellant's subsequent good record, in the sense of lack of convictions, and his character references, there is no material before me to establish that the Magistrate did not do so. Those matters were referred to by the appellant's counsel in his submissions to the Magistrate. Those submissions were made a short time before the Magistrate delivered her sentencing remarks and decision. The Magistrate did not set out exhaustively the matters which led her to her conclusions. In all the circumstances, I am not satisfied that her Honour failed to have regard to those matters.

34 Ground 2(c) is that the Magistrate erred in finding that the appellant had an alcohol problem by reason of his prior conviction for driving under the influence. The Magistrate did not find that the appellant had an alcohol problem merely by reason of his prior conviction for driving under the influence. It is apparent from the exchanges between the Magistrate and counsel for the appellant that the Magistrate took into account not only the appellant's prior conviction for driving under the influence but also the fact that the offences for which he was being sentenced resulted from the appellant being grossly intoxicated and that the appellant denied that he had any problem.

35 It is arguable that a person who has been convicted of driving under the influence of alcohol at 18 years of age and eight years later is found to be very intoxicated after celebrating a significant achievement does not lead to any inference that the person has an alcohol problem. However, on the night in question the appellant was not merely excessively intoxicated. He behaved in a disgraceful and violent manner towards police officers as a result of being intoxicated. The behaviour was not a momentary lapse but rather a course of conduct that lasted for some minutes and involved repeated or persisted in acts of interfering with police in the execution of their duty. One would expect that conduct of that sort would lead a person to a realisation that he might act in an unacceptable and disgraceful manner when grossly intoxicated and to take some steps to address the situation. The appellant's response, through his counsel, was effectively that he did not have an alcohol problem and there was no problem to be addressed. It appears that it was that combination of circumstances that led the Magistrate to find that the appellant had an alcohol problem. I am not satisfied that her Honour erred in so finding.

36 The third ground is that the Magistrate erred in law and/or in fact in not granting a spent conviction order in respect of the appellant, in circumstances where the Magistrate granted the appellant's co-offender a spent conviction order by reason that the co-offender did not have prior convictions, and where:

(a) the offences committed by the co-offender arose out of the same incident as those committed by the appellant;

(b) the offences committed by the co-offender were equally or more serious than those committed by the appellant; and

(c) the appellant and the co-offender had similar employment prospects.

37 The Magistrate found that the circumstances of the co-offender were different from those of the appellant in the following respects. First, the co-offender had no previous convictions. That, either alone or combined with the character references tendered on his behalf satisfied the Magistrate that the co-offender was a person of previous good character.

38 Secondly, the co-offender recognised that his behaviour on the night in question indicated that something may need to be done about it. He intended to cut his alcohol consumption down and in the short term at least had given up alcohol altogether. He was seeking counselling to help him stay sober.

39 Thirdly, the co-offender was aged 22, four years younger than the appellant.

40 Those three factors led the Magistrate to be satisfied that the co-offender was unlikely to commit such an offence again when she was not so satisfied in relation to the appellant. Those differences are matters of substance and the Magistrate was entitled to take the view that she did.

41 For the reasons stated, I am not satisfied that the Magistrate made an error of fact or law that entitles this Court to set aside the decision of the Magistrate and to exercise afresh the discretion conferred on the sentencing court by s 39(2) of the Sentencing Act. The appeal will be dismissed.