KERDEL -v- WICHMAN [2016] WASC 128 (21 April 2016)

2 Section 8(1)(b) of the Criminal Appeals Act 2004 (WA) allows an appeal to be made on the ground that there has been a miscarriage of justice. On 4 February 2016 Corboy J ordered that the application for leave to appeal be heard together with the appeal.

3 In support of his application the appellant has filed an affidavit of his lawyer Trent Mark Andrews made 20 January 2016 to which are attached copies of the prosecution notice, the transcript of the sentencing hearing before the Chief Magistrate, the statement of material facts for the prosecution and the appellant's Western Australian Court history, a second affidavit of Mr Andrews made 24 February 2016 to which character references are attached, an affidavit of the appellant made 28 January 2016 in which he provides information as to the offence he committed, his previous offence of disorderly behaviour and of the impact of the conviction on him professionally and personally and an affidavit by the complainant, the appellant's former partner, made 1 February 2016. The respondent has filed an affidavit of Mathieu Jean Bertrand Collard made 18 April 2016 to which is attached a Queensland Court Outcomes report in respect of the appellant. That shows that on 29 January 2003 the appellant was fined $150 for obstructing a police officer with no conviction recorded.

4 The principles upon which the Supreme Court will admit evidence on the hearing of an appeal against sentence were explained in Colwell v The State of Western Australia [No 2]:[1]

The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: Criminal Appeals Act 2004 (WA), s 39(1). However, the court has broad powers to admit other evidence: s 40(1)(e). In determining whether additional evidence should be admitted the general test to be applied is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: s 31(4)(a); Wheeler v The Queen [No 2] [2010] WASCA 105 [3], [53]; The State of Western Australia v Hyder [2011] WASCA 256 [25].

It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177,178; R v Vachalec [1981] 1 NSWLR 351, 353 354; R v Babic [1998] 2 VR 79, 80 81; ElJaklh v The Queen [2011] NSWCCA 236 [26] [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].

Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, 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 the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] [69].

5 The parties do not oppose the admission of further evidence. I allow the admission of the evidence.

The hearing before the learned Chief Magistrate

6 The appellant was charged that on 20 September 2015 he, bound by a police order, breached that police order, contrary to s 61(2a) of the Restraining Orders Act 1997 (WA).

7 He appeared before the learned Chief Magistrate on 16 November 2015 and pleaded guilty.

8 The facts of the offence provided to his Honour by the prosecutor were that at 1.00 am on Sunday, 20 September 2015 the appellant was issued with a police order against the protected person, being his partner. The order provided that the appellant not communicate or attempt to communicate with the protected person by any means or be within 100 m of her. The order was to expire at 1.00 am on 23 September 2015. At 1.05 am, five minutes after the issuing of the order, the appellant was removed from the house and placed in the back seat of a police vehicle. While seated in the vehicle, he sent a text message to the protected person in the following terms:

If you don't vacate within the next 72 hours I'm not sure what will happen. I cannot believe you have done this again. You will never be welcome within 100 metres of me.

9 The appellant was represented by a legal practitioner at the sentencing hearing. That legal practitioner made a plea in mitigation and applied for a spent conviction order. He informed his Honour that the appellant was 34 years old, had one spent conviction for disorderly conduct, no other prior record and no history of violence.

10 He informed his Honour that the appellant was a business owner, the director of an ASIC listed company, responsible to shareholders, and by and large, a hardworking, law abiding citizen.

11 In relation to the facts of the offence he informed his Honour that the appellant's relationship with the complainant was generally amicable. He had purchased the house in Victoria Park and the complainant had recently moved in with him. They had only one key to the house. An argument had taken place and the complainant locked him out of the house

12 There was a verbal argument through the door of the house. In that argument the appellant yelled at the complainant to let him in and to get out of his house. The appellant was upset that he had been locked out of his own house.

13 The appellant's counsel informed his Honour that it was not known who had called the police, but perhaps a neighbour had heard the yelling and done so. When the police attended they served the appellant with the police order and placed him into the police vehicle. He informed his Honour that the appellant had, within minutes, sent the message to the complainant. Counsel said that there had not really been time for the order to really sink in.

14 The learned Chief Magistrate asked whether the order would have been very clear in the appellant's mind because he had just been given it and he was in the back of a police car. The appellant's counsel said that the complainant, the police and the appellant were all still at the scene. He informed his Honour that the appellant accepted that he did breach the police order, but in the circumstances, counsel submitted that it was a trivial breach.

15 He also submitted that despite his spent conviction for disorderly behaviour, that the appellant was a person of prior good character and unlikely to commit such an offence again.

16 In his sentencing remarks his Honour acknowledged that the situation was frustrating for the appellant as he was the owner of the house from which he had been removed. He informed the appellant that the provisions of the Restraining Orders Act do not necessarily take into account ownership but they place a high priority on the protection of people. His Honour said that he appreciated that the police may not have had the opportunity to fully analyse the ownership of the home and come to a reasoned decision as to who was to be ordered to be removed from it.

17 His Honour said that police officers are often provided with competing versions of events and have to make a decision.

18 His Honour noted that the appellant was still in the police vehicle at the time he sent a text message in clear breach of the police order. His Honour said that the message, while not having any threats of immediate violence, certainly contained an undertone of threat within its context. His Honour said that in the circumstances, given his lack of record, apart from a prior disorderly conduct some two years previously, he was satisfied that the matter could be adequately dealt with by a fine. He fined the appellant $750 for the offence and ordered that he pay costs of $88.50.

19 In relation to the application for a spent conviction order His Honour said that the application had been put to him on the basis that the offence was committed before the impact of the order had time to sink in, and that, as a company director, the appellant may suffer a detriment by the conviction, and that notwithstanding the prior conviction for and grant of a spent conviction order for the disorderly conduct, that the appellant could still be treated as a person of good character.

20 His Honour noted that he did not have any documentary evidence by way of references or anything in relation to the appellant's directorship or evidence of the detriment that might follow, but, in any event, his Honour said that it was inappropriate to exercise the discretion in the appellant's favour. His Honour said that the Restraining Orders Act has clear objects of protecting persons and the appellant had breached the police order at the very earliest opportunity. His Honour was not prepared to exercise the discretion to grant the appellant a spent conviction order and did not do so.

The law regarding the making of a spent conviction order

21 A court sentencing an offender is not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial or 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.[2]

22 The power to make a spent conviction was explained by Murray J in R v Tognini.[3] The power should be regarded as being of an exceptional character. If the conditions in s 45(1) 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.

23 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.

24 I have referred earlier to the facts of the offending as presented to his Honour by the prosecutor and the appellant's counsel. Further background is provided in the affidavits of the appellant and of the complainant. On the evening of Saturday 19 September 2015 the appellant went out for drinks with work colleagues. The complainant sent him text messages during the course of the evening telling him that she was going to lock the appellant out of the home.

25 The appellant arrived home at about 11.00 pm. The doors and windows were locked and the complainant would not allow the appellant to enter the home. A verbal argument took place. Eventually the complainant allowed the appellant to enter the home. The appellant demanded that she pack her possessions and leave. The complainant telephoned the police because she did not want to leave. She has no family in Perth and suffers from anxiety.

26 The complainant did not regard the text message the appellant sent to her as being threatening or violent.

27 I do not regard the offence committed by the appellant as being trivial. Communicating with a protected person by a telephone text message can be instantaneous. It has the potential to be distressing to the protected person. I accept that the text message that the appellant sent to the complainant was not distressing to her. In this case the appellant communicated with the protected person immediately after he had been served with the police order. I accept that the appellant was in a heightened emotional state at the time, as he says in his affidavit. That provides some explanation for the offending, but it also highlights the importance of the order being complied with. It is at times of high emotion that there is a risk of a person doing things that they would not do when they are calm.

28 As the offence was not trivial the discretion to grant a spent conviction order only arises if the court considers that the appellant is unlikely to commit such an offence again and, having regard to the previous good character of the appellant, it considers the appellant should be relieved immediately of the adverse effect that the conviction might have on the appellant.

29 The appellant acknowledges in his affidavit that he should not have sent the text message. He is aged 34. His previous conviction in this State arose out of his urinating on a fence down an alleyway late at night after the restaurant he was in was closing and did not permit him to use its bathroom. I do not regard that offending as detracting from the appellant's good character or as indicating that he will commit an offence of breaching a police order in the future.

30 However I regard the conviction in Queensland for obstructing a police officer as being potentially different. That is an occasion on which he obstructed a police officer. In this case the appellant disregarded a police order that had just been served on him. The appellant has now on two occasions broken the law in his dealings with police officers. However the Queensland offence was committed over 13 years ago. By reason of the length of time since that offence was committed and the appellant's youth at the time I can decide that the appellant is unlikely to commit an offence of breaching a police order in the future. That is my conclusion.

31 A discretion to grant a spent conviction order exists. I have read the references that have been provided. The appellant's father is very proud of him. The appellant is a hard worker who has coped with the loss of his mother at an early age. In his father's view the offending is not in the appellant's nature. People that the appellant deals with personally and professionally have provided references to the appellant's good character. The complainant has also deposed that the appellant has never been aggressive or violent toward her. She attempted to stop the police from charging the appellant as she knew that his conduct was completely out of character. The complainant does not believe that the appellant is likely to reoffend.

32 While the appellant has made the mistakes that have resulted in charges on three occasions I do not regard those mistakes as meaning that he is not of good character. I accept that he is a person of good character.

33 I also accept that the conviction has the potential to have adverse effects on him professionally and in his plans for travel. The appellant is a financial planner accredited by the Financial Planning Association of Australia. He is required to disclose his conviction to that association, which he has done. I understand his concern that the disclosure of the conviction runs a risk that he may lose his accreditation. I accept that is possible.

34 The appellant is accredited by the Australian Securities and Investment Commission as an authorised representative for a company which holds an Australian Financial Services licence. The conviction for breaching a police order may lead to his losing his authority to be an authorised representative of companies holding AFS licences.

35 The appellant wishes to apply to ASIC to obtain an Australian Financial Services licence. Currently he is the only person in his company who is qualified to obtain Responsible Manager status. If he applies to obtain an AFS licence he will need to disclose his conviction for breaching a police order. This may result in him not receiving a licence.

36 The appellant has experience working in the corporate finance industry and if he were to return to employment in that industry it is likely that he would have to disclose his conviction and this may make it more difficult for him to obtain employment.

37 The appellant intends to travel overseas for business and personal reasons. His conviction for breaching a police order may delay his obtaining a visa to go to other countries and may result in his application for a visa being refused.

38 While matters personal to the appellant's rehabilitation and career are relevant to the exercise of the discretion to grant a spent conviction order, it is also appropriate to have regard to the wider public interest that publicity provides general deterrence and also ensures that those who may legitimately be required to take a conviction into account may do so.[4] Having regard to those matters of public interest it is my view that there would not be a miscarriage of justice if a spent conviction order is not made. In fact it is my view that a spent conviction order should not be made. This will enable those responsible for the supervision of persons in the financial planning industry accurately to assess whether it is appropriate for the appellant to retain the accreditation and authorisation he currently holds and whether he should be granted an AFS licence having regard to his conviction for breaching a police order and, if so, whether there should be any conditions imposed on that accreditation, authorisation and licence. It will also enable any prospective employer to make an informed decision as to whether or not to employ him.

39 For those reasons leave to appeal is refused and the appeal is dismissed.

[1] Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] [30] (Newnes JA, Pullin & Mazza JJA agreeing).

[2] Sentencing Act 1995 (WA) s 45(1).

[3] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] - [28] (Murray J).

[4] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [16] - [19] (Burchett AUJ).