LEE SUAREZ -v- CUTLER [2012] WASC 171 (29 May 2012)

4 The facts of the case emerged in a way that was not entirely satisfactory. The prosecutor stated the facts. Counsel for the appellant stated a differing version of the facts in his plea in mitigation. No one identified or confronted the conflict in the facts.

5 In the circumstances, as counsel for the respondent in the appeal accepted before me (appeal ts 25), the magistrate was bound to proceed on the view of the facts most favourable to the appellant. That appears to be what the learned magistrate did.

6 On the night of the offence, the appellant went out for dinner in Dunsborough with some friends. He had, his counsel told the magistrate, six or seven beers and a couple of liqueurs. He or a member of his group ordered a taxi to take them from Dunsborough to the address where he was staying on or near Caves Road.

7 The appellant sat in the front passenger seat of the taxi. Four female members of his group sat in the back seat of the taxi (which was a 'maxi taxi').

8 An argument developed about the route that the taxi driver was taking. The driver stopped the taxi. The argument continued. The driver told the appellant, and his group, to get out of the taxi. The appellant said to the driver that he could not leave them there. They were not half way to the house, and were in a bush area.

9 The driver tried to open the passenger door, from the driver's seat. He pushed the appellant on the shoulder and said 'get out'. The appellant said 'don't touch me'. He then got hold of the driver, in a headlock, and punched him a number of times to his head and upper body. The appellant accepted that he punched him up to six times. While he was being punched, the driver covered his head with his hands and arms.

10 One of the passengers came between them and told the appellant to stop, which he did. He and the others got out of the taxi and the taxi drove away.

11 The appellant was interviewed a short time later and admitted striking the driver five or six times with a clenched right fist.

12 There were no injuries of any sort sustained by the taxi driver.

The appellant's plea of guilty and plea in mitigation

13 The appellant pleaded guilty on 30 November 2011. Counsel for the appellant sought a spent conviction order. In support of that, counsel made the following points:

(a) the appellant was alarmed by the fact that the driver was going in the wrong direction;

(b) he felt responsible for the female passengers in the rear of the car;

(c) he felt threatened when the driver tried to push him out of the vehicle;

(d) he accepted that those matters did not excuse what occurred;

(f) it was a oneoff incident that occupied less than one minute;

(g) the appellant is a flying instructor and a pilot;

(h) if a conviction were recorded, he would not or may not be able to continue working as a pilot, at least in Australia;

(i) further, he intends or aims to fly for an international airline, but that will not be possible with a criminal conviction because he would not be able to fly to the United States of America; and

14 The prosecutor did not indicate any response to the application for a spent conviction order.

15 The appellant was fined $750 and ordered to pay costs.

16 The learned magistrate gave the following reasons for declining to make a spent conviction order:

In this matter, Alexander LeeSuarez is charged that on 13/3/11 at Dunsborough he assaulted Peter Gino Rock, the driver of the passenger vehicle as defined in paragraph (a) of the definition of a passenger vehicle in section 5(1) of the Road Traffic Act.

This assault is distinguishable from just ordinary assaults because it's on a person, a taxi driver who is providing a service to the community and has obligations to the community to pick people up and drive them around. Parliament considers that these people, and people like him, are entitled to the protection of the courts.

This offence occurred in the early hours of the morning when taxi drivers and other people like that are vulnerable because there is noone else around. A spent conviction is sought pursuant - we heard the nature of the assault - he pleaded guilty. We heard the nature of the assault; we heard the circumstances of the assault; and we heard the taxi driver didn't suffer any ongoing injuries apart from the pain that you would expect from having been punched several times.

The section says - section 45, 'The 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'. That's a very difficult section because how do we know - how does a court know what's going to happen in the future?

And in fact if you had looked at Mr LeeSuarez 10 minutes before this offence occurred, you could confidently say that it's unlikely that he would commit such an offence, but he did, and that may be put down to the fact that he had had six or seven beers over four or five hours, and he himself admits that he was intoxicated; so we don't really know whether he is likely to commit such an offence again or not. He may well do if he gets under the influence of alcohol.

Then it goes on to say, 'Having regard to the fact that offence is trivial' - this offence is not trivial, even though it might be an assault at the bottom of the scale of such an assault - 'and the previous good character of the offender'.

We have heard that Mr LeeSuarez has good character; he has never been in any trouble. We have also heard the facts about how he is welleducated. He is employed in a good career. He has got the promise of a very bright future and a very exciting lifestyle as an international air pilot.

Maybe he should have thought of that fact at the time he got drunk and got involved in this assault on the individual. The section goes on and says, 'if it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on him'.

I appreciate the adverse effect that it's going to have on him, but I don't think he should be relieved immediately of the adverse effect of it because everyone has got to be responsible for their actions, and if you're going to go out and get intoxicated and do things that you wouldn't otherwise do if you were sober, then I don't think - I think society has got to learn.

If everyone can argue that I've made one mistake; I'm entitled to one mistake, so don't record a conviction for this one, then we are going to be in a bad way, so I don't think he should be relieved immediately of the adverse effect that a conviction should have on him as a deterrent to others who, when they get drunk, think that they can make just one mistake (ts 7 8).

17 The power to make a spent conviction order arises whenever a fine is imposed: s 39(2) of the Sentencing Act 1995 (WA).

18 I apply the legal principles which I outlined in Taylor v McLernon [2009] WASC 211 [14] [23]:

Section 45(1) of the Sentencing Act 1995 (WA) provides as follows:

'Under section 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

(b) having regard to -

(i) the fact that the offence is trivial; or

(ii) 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.'

It is evident from the language of the section that the power to make a spent conviction order arises only if three conditions are satisfied. Firstly, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. See Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].

It is well established that once these preconditions to the exercise of the power are satisfied the court has a discretion, not a duty, to make (or not make) a spent conviction order: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [11], [16].

The proper exercise of the discretionary power to grant a spent conviction order has been authoritatively explained in decisions of the Court of Criminal Appeal and Full Court in this State.

In R v Tognini [24], [27] [28] Murray J (Malcolm CJ & Wallwork J agreeing), said as follows:

'Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions 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. 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.

...

In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary preconditions 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.

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.'

These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State: see, for example, Brewer v Bayens [14] [16]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [72].

Among others, the following propositions emerge from these cases:

(a) the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;

(b) the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case; and

(c) in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstance of its commission and the circumstances personal to the offender.

...

In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender but also to the public interest: Tognini [27] [28]; Brewer v Bayens [16] [18].

One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect: Brewer v Bayens [18].

Because the decision whether to make a spent conviction order is discretionary, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. The question on an appeal 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 court, or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order: Hull v Castledine [2005] WASC 252 [10]; McKenzie v Daly [2008] WASC 284 [23].

20 Ground 1 complains that the magistrate erred in not being satisfied that the appellant was unlikely to commit such an offence again. Ground 2 contends that the magistrate misconstrued s 45(1) in treating the two alternatives in sub par (b) as being two distinct requirements. Grounds 3 and 4 assert that the last two paragraphs of his Honour's reasons reveal express error. I take ground 5 to assert that the refusal of the application for a spent conviction order reveals implied error, in that the decision was manifestly excessive. Ground 6 contends that the failure to make a spent conviction order gave rise to a miscarriage of justice. In oral argument, counsel for the appellant explained that this ground was founded on the affidavit of the appellant sworn 16 May 2012 in support of the appeal.

21 Much of the appellant's affidavit related to matters occurring since he was convicted. In those respects, receipt of the affidavit is supported by s 14(5) of the Criminal Appeals Act 2004 (WA). While there may have been room for argument about whether the affidavit was appropriately received on appeal in all other respects, the respondent did not oppose receipt of the affidavit. I am therefore content to receive the affidavit. In any event, as I will explain, I find that there are grounds to interfere in the magistrate's exercise of discretion. I take into account the contents of the affidavit in reexercising the discretion.

22 The question of leave to appeal was referred by Hall J to the hearing of the appeal.

24 This ground focuses on the first essential condition to a spent conviction order: that the court is satisfied that the offender is unlikely to commit such an offence again. The learned magistrate did not state in clear terms whether or not he was satisfied of this requirement. He made some observations about this requirement, to which I will come, but in the end, his decision seems to me to have rested on other elements of the enquiry dictated by s 45. In particular, the magistrate concluded that the appellant should not be relieved immediately of the adverse effect that the conviction might have on him. Consequently, success in relation to ground 1 would not, of itself, lead to success for the appellant in this appeal. The appellant would need to succeed on one or more of grounds 3 to 6.

25 In my view, there are indications in the magistrate's reasons that he was not satisfied in respect of this requirement, and that he applied too exacting a standard to the evaluative judgment required by this part of s 45. The section requires a conclusion that the offender is unlikely to commit such an offence again, not that it is certain. The learned magistrate described s 45(1)(a) as 'a very difficult section because ... how does a court know what's going to happen in the future?' (ts 7) (emphasis added). In posing the question in respect of the appellant, the magistrate concluded that 'we don't really know' (emphasis added) whether he is likely to commit such an offence again (ts 8).

26 The respondent submits that it was open to the magistrate not to be satisfied in this respect, taking into account that:

(a) the offence was committed under the influence of alcohol;

(b) the appellant did not provide any evidence of any steps he had taken in relation to any issues respecting alcohol or anger management; and

(c) the absence of any satisfactory explanation for the conduct, in the circumstances in which it occurred, gave rise to a legitimate concern over whether, in other circumstances, such conduct might recur.

27 Notwithstanding these matters, in my view, the proper conclusion on the material was that the offender was unlikely to commit such an offence again. The offence was out of character. The appellant was a 27yearold commercial pilot and flying instructor with no criminal record. The reference from his employer, who had known him for many years since university, spoke highly of his character. Through his counsel, and through his plea of guilty, the appellant expressed his remorse for what he had done.

28 Nevertheless, the third matter relied on by the respondent seems to me to be relevant to other questions bearing on whether a spent conviction order should be made. I will turn to that topic later in these reasons.

29 For these reasons, I grant leave to appeal on ground 1 and uphold ground 1.

30 I am not persuaded that the magistrate made the error alleged in ground 2. It is true that in one part of his reasons the magistrate used the word 'and', rather than 'or', in relation to the alternative requirements that the offence is trivial or that the offender is of previous good character. However, in my view, it is clear from reading the magistrate's reasons as a whole that he correctly understood that these elements of s 45(1)(b) are alternatives. Apart from anything else, having concluded that the offence was not trivial, he went on to consider whether the appellant was of previous good character, concluding that he was.

32 In my view, the gravamen of the magistrate's decision was that he was not satisfied that the appellant should be relieved immediately of the adverse effect of the conviction. Grounds 3 and 4 assert that statements made by the magistrate in the course of explaining that conclusion reveal error. Ground 3 fixes on the second last paragraph of his reasons (quoted above). Ground 4 fixes on the last paragraph. These two paragraphs are the whole of the magistrate's reasons for concluding that he was not satisfied that the appellant should be relieved immediately of the adverse effect of a conviction.

33 As I have said, there is no doubt that any general deterrent effect of recording a conviction is a legitimate consideration in the exercise of the discretion under s 45. However, in my view, the learned magistrate's reasons go further than that proposition, and are more particular. In my view, the substance of what the magistrate said was that a spent conviction order should not be made so as to avoid sending a message to society that one can go out and get intoxicated, and make a mistake, without any adverse consequences, in particular the recording of a conviction. The respondent appeared to accept that reading of the magistrate's reasons (appeal ts 23 24). In my view, the making of a spent conviction order in favour of the appellant would not have sent any such message to society. Rather, the making of a spent conviction order would have conveyed only that, if in all the circumstances a court thought it appropriate to relieve an offender immediately of the adverse effects of a conviction, then a spent conviction order could or would be available.

34 For these reasons, I would grant leave on grounds 3 and 4, and uphold those grounds.

35 The effect of this is that it is for this court to reexercise the discretion under s 45. I will deal with the remaining grounds before undertaking that process.

36 This ground asserts that the rejection of the application for a spent conviction of itself revealed error. In other words, the ground contends that that conclusion was not open to the magistrate. I reject that contention. In my view, the magistrate's conclusion was well open. Indeed, as I will explain shortly, in reexercising the discretion, my conclusion is the same as the magistrate's: I reject the application.

38 For similar reasons, I refuse leave on ground 6. I am not satisfied that, when the contents of the appellant's affidavit of 16 May 2012 are taken into account, rejection of the spent conviction application reveals a miscarriage of justice. To the contrary, my conclusion is that the application should be rejected. I turn to explain that conclusion.

Reexercising the discretion: should a spent conviction order be made?

39 As should be apparent, I am satisfied in respect of the first two essential requirements for a spent conviction order. I am satisfied that the appellant is unlikely to commit such an offence again, and of his previous good character. However, for the reasons that follow, I am not satisfied that having regard to his previous good character, he should be relieved immediately of the adverse effect that the conviction might have on him. Further or alternatively, if I were so satisfied, I would not exercise my discretion in favour of the grant of a spent conviction order.

40 In support of a spent conviction order, counsel for the appellant points to the following major matters:

(a) the appellant was a 27yearold with an impeccable record, and is of very good character;

(b) the offence occurred in unusual circumstances, unlikely to be repeated;

(d) the offence was spontaneous, not premeditated, and of very limited duration;

(e) while the offence of which the appellant was convicted is by its nature a serious one, the appellant's offence was at the lower end of the scale of offences for that class of offence;

(f) the decision to grant a spent conviction order in Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 for offences including sexual penetration of a child under the age of 16 demonstrates that the question of whether to make a spent conviction order turns on an assessment of the circumstances of the particular offence, and the offender's circumstances, and is not governed by the seriousness of the offence in the abstract; and

(g) recording a conviction is likely to have serious adverse consequences for the appellant's career as a pilot. But for the conviction, he has very real prospects of realising his intention to become an international pilot. If a conviction is recorded, those prospects will be severely diminished, and possibly destroyed. Further, a recorded conviction may in the future jeopardise the continuation of his career as a pilot within Australia.

41 Notwithstanding those matters, which I accept, I am not persuaded that a spent conviction order should be granted. I am of that opinion for the following reasons.

42 First, the grant of a spent conviction order is exceptional.

43 Secondly, the appellant's conduct, constituting this offence, was serious. He punched the taxi driver six times with a clenched fist. The taxi driver did not respond with violence when punched, but the appellant continued to punch him. He stopped when a passenger intervened. There was, as counsel for the appellant accepted (indeed emphasised), no justification for what the appellant did. That absence of justification, or of any satisfactory explanation for the conduct, is, to my mind, relevant to whether the appellant should be relieved immediately of the adverse consequences of conviction.

44 Thirdly, the victim of the appellant's assault was a taxi driver providing a service to the public in a country area late at night. The role and character of the victim added a serious element to the assault, reflected in the maximum penalty for the offence. The magistrate explained the point:

This assault is distinguishable from just ordinary assaults because it's on a person, a taxi driver who is providing a service to the community and has obligations to the community to pick people up and drive them around. Parliament considers that these people, and people like him, are entitled to the protection of the courts.

This offence occurred in the early hours of the morning when taxi drivers and other people like that are vulnerable because there is no one else around (ts 8).

45 In my view, the features of the appellant's offence, outlined above, outweigh the matters relied on by the appellant and call for the refusal of a spent conviction order.

46 For these reasons, I would not make a spent conviction order.

47 For these reasons, I would grant leave to appeal on grounds 1, 3 and 4 and would dismiss the appeal.