MALHI -v- RICHARDS�SCULLY [2014] WASC 410 (5 November 2014)

(b) on 8 July 2013 at Belmont, with intent to defraud by fraudulent means he gained a benefit, namely $92.70 cash.

On 3 October 2013, he pleaded guilty to these charges.

5 The appellant is a taxi driver. Shortly after midnight on 8 July 2013, the appellant transported four passengers to an address in or near Belmont. The complainant was sitting in the right rear seat of the taxi.

6 At the end of the journey the passenger in the front paid the fare in cash. All the passengers left the taxi.

7 The complainant accidently left her iPhone, $30.00 cash, her driver's licence and a Commonwealth Bank credit card in her name in the car. The appellant found those items.

8 He then conducted a fraudulent transaction with the card, for a sum of $99.90.

9 The appellant was interviewed twice about the matter and denied any knowledge of the property.

10 He took the receipt for the unauthorised credit card transaction to an agent on 22 July 2013, receiving $92.70 cash for it.

11 On 14 August 2013, he participated in a record of interview, denying any knowledge of the incident or the complainant's property.

12 On 19 August 2013, the appellant attended a police station voluntarily. He participated in a second electronically recorded interview. In the course of that interview he claimed that the passenger seated in the complainant's seat had been sick in the taxi and he had charged them for cleaning. He also claimed that he drove the group away from the address until they agreed to pay that fee. When he said this, he knew that that was a false statement.[1]

13 Counsel for the appellant appearing before the magistrate admitted these facts. He said that the appellant had been racially abused by the passengers, and that the complainant had vomited in the back seat.

14 Counsel for the appellant asked the magistrate to consider giving the appellant a spent conviction.[2] Counsel outlined two adverse effects that a conviction would have on the appellant.

15 First, counsel observed that the appellant 'has to confront the Taxi Board ... with respect to this'.[3] Counsel did not develop this aspect in any way.

16 Secondly, counsel for the appellant stated that the appellant had just received permanent residency and said that counsel's experience with immigration is that there has to be a character test for him to become a citizen. He handed up two references as to the character of the appellant.

17 Counsel asserted that the recording of a conviction would have an adverse effect in terms of the appellant becoming a citizen, stating that his practice was in migration law.[4] The magistrate observed that that was evidence from the bar table.

18 The prosecutor indicated opposition to the application.

19 The magistrate gave the following reasons for refusing the application:[5]

(a) if the two requirements in s 45 are satisfied, the court must still consider in its discretion whether the offender should be relieved of the adverse effect that a conviction might have;

(b) the magistrate observed that the discretionary power to be exercised is of an exceptional character;

(c) the magistrate identified the need to consider whether there was any particular circumstance to show that it would be desirable for the adverse effect of the convictions to be immediately set aside, observing that this can in some cases be found in a person's employment or travel requirements for their employment;

(d) his Honour identified that the appellant's submission was that convictions may have a significant effect on his current status with the immigration department and also that he was yet to face the Taxi Control Board;

(e) he observed that the circumstances of the stealing offence were 'a little concerning given his immediate denial ... of responsibility';

(f) he observed that the appellant is in a position of responsibility and 'this is the submission of the prosecutor, that he ought to ... in effect, be put to some higher standard of behaviour';[6]

(g) his Honour expressed concern that the appellant then went a step further and used the card to draw money for his personal gain;

(h) he observed that he had a concern about the likelihood of reoffending; and

(i) further concluded that he was not persuaded that the facts reveal any exceptional nature to the case that would warrant a favourable exercise of discretion.

20 After amendments made at the hearing of the appeal, the appellant's ground of appeal is in the following terms:

1. Additional material before this court establishes the learned magistrate's decision miscarried when, in all the circumstances, he determined not to grant the appellant a spent conviction.

Particulars

1.1 [abandoned]

1.2 the conviction would result in loss of employment;

1.3 the conviction may result in the appellant being deported;

1.4 there was no 'higher standard of behaviour' imposed upon the appellant;

1.5 the criminality involved did not reasonably preclude a finding that the appellant would not reoffend.

21 The appeal notice was filed very substantially out of time. The magistrate's decision was 3 October 2013. The appeal notice and application for an extension of time was not filed until 9 May 2014.

22 It is not necessary to go into the reasons for the delay. For reasons to be developed, the appeal is without merit and so the extension of time must be refused.

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

(1) 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.

24 The principles relevant to the making of a spent conviction order were not in dispute. The following outline draws heavily from the outlines in Taylor v McLernon[7] and in Frewen v Dalgreen.[8]

25 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. First, 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.[9]

26 It is wellestablished 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.[10]

27 In R v Tognini, Murray J (Malcolm CJ & Wallwork J agreeing) said as follows:[11]

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 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. 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.

28 These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State.[12]

29 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.

30 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.[13]

31 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.[14]

32 Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as it may be relevant to assessing the person's reliability or suitability for a particular type of work.[15]

33 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.[16] 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.[17]

34 In sentencing appeals, the court has broad powers to admit further evidence.[18] 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.[19] However, as Owen JA observed in Wheeler v R,[20] the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its facts and circumstances. The circumstances in which the additional material came to light, and its probative value, will be significant considerations in deciding whether an appellant should have leave to adduce it.

35 Evidence of facts since the sentence was imposed is not ordinarily relevant. Evidence of such facts may be received to show facts relevant to the sentencing process which existed at the time of the sentence but were either not known to the sentencing judge or not properly appreciated at the time.[21]

36 In my opinion, the appeal must fail, essentially because the serious nature of the appellant's offending called for the recording of a conviction. Indeed, in my opinion, a conclusion that the appellant should be relieved of the adverse consequences of the conviction was one that was not open. My reasons for that opinion are as follows.

37 The appellant's offence occurred in the course of or directly arising from his work as a taxi driver.

38 The appellant's submissions emphasise the circumstances in which the offence has occurred. The trigger for the appellant's offending was the conduct of his passengers; they racially abused him, and one of them vomited in the taxi. Nothing in these reasons should be understood as in any way condoning the passengers' conduct. To the contrary, racial abuse is to be abhorred. Nevertheless, while the conduct of the passengers may explain the appellant's conduct, it does not excuse it. The appellant intentionally deprived the complainant of her iPhone, and fraudulently used her credit card. The appellant engaged in a dishonest form of selfhelp in response to what had occurred in the course of his work as a taxi driver.

39 The appellant emphasised that his offending conduct occurred in a very short space of time immediately after the passengers got out of the vehicle. I accept that his offences occurred in a short time span. Nevertheless, the appellant cannot be seen as having simply suffered a momentary lapse of judgment. Two weeks after the offence the appellant cashed the credit card voucher that he had obtained. Several weeks later again, he denied any offending when he was questioned. Even when he voluntarily attended the police station again, and admitted his offending, he claimed that he had driven the group around until they had agreed to pay the cleaning fee, knowing that that had not happened.

40 In this case, if a spent conviction order were made, the conviction and the charge could not be taken into account in assessing the fitness of the appellant to continue to be a taxi driver.[22] It should be noticed that the position is different in relation to some of the cases on which the appellant relies as being analogous. In A v Price[23] and CR v Walker,[24] the legislative scheme regulating the nursing profession[25] meant that a conviction could be taken into account even if a spent conviction order were made. That was an important element of the court's reasoning in being satisfied that a spent conviction order was appropriate. The court was mindful of the public interest in the conviction being able to be taken into account in assessing the offender's reliability and suitability for the type of work which he or she pursues.[26] That concern was accommodated, because the relevant legislative scheme meant that a conviction could be taken into account even if a spent conviction order were made. As I have said, the position in relation to registration as a taxi driver is different.

41 In my view, in the circumstances of this case, there is a public interest in the appellant's conviction being available to be taken into account in considering whether he was of sufficient good character to continue to be a taxi driver. (I note that a like conclusion was reached by Hall J in the different circumstances in Elmi v Rozario.[27]) To my mind, this consideration militates decisively against the grant of a spent conviction order in this case.

42 These considerations mean that particular 1.2 of the grounds of appeal, read with the additional material relied on by the appellant, does not sustain the appeal. The additional material relied on by the appellant is his affidavit in which he deposes that he lost his taxi licence because of the conviction and, he asserts, because of the absence of a spent conviction order. In light of the observations that I have just made, there is no miscarriage of justice in that.

43 I will deal with the other particulars of the grounds of appeal.

44 Particular 1.3 asserts that the conviction may result in the appellant being deported. There is and was no evidence or submissions to support that contention. Submissions were made about citizenship, not about deportation.

45 Before the magistrate, then counsel for the appellant informed the magistrate that the appellant is a permanent resident of Australia, and asserted that the recording of a conviction would have an adverse effect on the appellant's application for citizenship.

46 On the appeal, the appellant accepts that there is no evidence or other information to support the assertion of an adverse effect on a citizenship application.[28] The appellant does not contend in the appeal that the magistrate made any error in this respect. Rather, it was a matter the appellant invited this court to take into account, on the appeal, in assessing whether there had been a miscarriage of justice.[29]

47 The respondent submits that any effect on the appellant's immigration status would be an irrelevant consideration in the sentencing process, citing a line of cases in support of that proposition.[30]

48 The appellant submits, correctly, that none of these cases involve the question of whether a spent conviction order should be made, and submits that the principle in those cases does not apply to that question. That is because, the submission continues, it is permissible to take into account immigration consequences in answering the question required by s 45 of the Sentencing Act, whether the conviction may have adverse effects upon the offender.

49 It is not necessary to determine the question of whether adverse immigration consequences can be taken into account under s 45. That is because in this case, there was no evidence or other information supporting the asserted adverse citizenship consequences. In the circumstances of this case, any possible adverse citizenship consequences could not overcome the considerations already referred to[31] that called for a recording of the appellant's convictions.

50 Particular 1.4 fixes on the comment of the magistrate, in the course of his reasons, that '[the appellant] is in a position of responsibility and this is the submission of the prosecutor, that he ought to, I suppose, in effect, be put to some higher standard of behaviour.'[32]

51 Taken literally, if and insofar as the remarks suggest that the law imposes a higher standard of behaviour on taxi drivers, and that this influences whether a spent conviction order is properly made, this may be indicative of error. However, I do not think the remarks should be construed in such a literal fashion. In context, his Honour's remarks may be understood as referring to the need to take into account that the offending conduct occurred in the context of the appellant's work as a taxi driver, and that there is a public interest in the conviction for the offence being record.

52 In any event, even if his Honour's remarks were in error, for the reasons I have given I would dismiss the appeal on the ground that no different sentence is to be imposed. For the reasons that I have already given, if I were to exercise the discretion afresh, I would not grant a suspended sentence.

53 Particular 1.5 asserts that the criminality involved did not reasonably preclude a finding that the appellant would not reoffend.

54 For the reasons given in [39], it was open to his Honour to find, as he did, that he had some concerns as to whether the appellant would not reoffend. In any event, for the reasons already given, if his Honour made a finding that he was not satisfied that the applicant would not reoffend, and if there is any error in that finding, I would exercise the discretion in the same way as his Honour, to refuse the application.

55 In written submissions, the appellant asserts that 'the only appropriate order would be a spent conviction'[33] and that refusal of a spent conviction was manifestly excessive.[34] For reasons already given, I reject these assertions. To the contrary, the circumstances of the case called for the refusal of a spent conviction order.

56 For these reasons, the proposed appeal has no merit. The application for an extension of time must be refused.

[7] Taylor v McLernon [2009] WASC 211 [15] [23].

[8] Frewen v Dalgreen [2014] WASC 407 [14] [25].

[9] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].

[10] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [11], [16]; Wright v McMurchy [2012] WASCA 257 [59].

[11] R v Tognini [24], [27] [28].

[12] Brewer v Bayens [14] [16]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [72].

[13] Tognini [27] [28]; Brewer v Bayens [16] [18]; Wright v McMurchy [59].

[16] Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 [15]; Wright v McMurchy [60].

[17] Hull v Castledine [2005] WASC 252 [10]; McKenzie v Daly [2008] WASC 284 [23].

[18] Criminal Appeals Act 2004 (WA) s 40(1)(e).

[19] Wheeler v R [No 2] [2010] WASCA 105 [3],[53]; Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28]. See Frewen v Dalgreen [23].

[21] Colwell v The State of Western Australia [No 2] [30].

[22] Spent Convictions Act 1988 (WA) s 26.

[23] A v Price [2011] WASC 121.

[24] CR v Walker [2012] [WASC] 401.

[27] Elmi v Rozario [2013] WASC 38 [29].

[30] Dauphin v The Queen [2002] WASCA 104 [21] [22]; Houghton v The State of Western Australia [2006] WASCA 143 [23]; Cohen v The State of Western Australia [No 2] [2007] WASCA 279 [21].