Criminal law - Sentencing - Magistrates' Court - Aggravated unlawful assault - Fine of $1000 - No application for spent conviction order - Whether spent conviction order appropriate - Particular circumstances of offender - Turns on own facts

Criminal law and procedure - Extension of time for hearing of appeal against sentence - Nearly 12 months out of time - Whether extension of time should be granted - Turns on own facts

Criminal Appeals Act 2004 (WA), s 10(3), s 14(5)

Sentencing Act 1995 (WA), s 39, s 45(1)

Decision of Magistrate varied to include spent conviction order

Evans v Pelka [2005] WASC 240

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Mieli v Beros [2006] WASC 251

Neale v Sloan (1997) 27 MVR 246

Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189

De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Hull v Castledine [2005] WASC 252

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

Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1

Mickelberg v The Queen (2004) 29 WAR 13

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

Rowlands v Caporn [2001] WASCA 66

Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475

1 MILLER J: The appellant seeks leave to appeal against sentence and seeks an extension of time for the hearing of the application. On 10 November 2006 Blaxell J ordered that the application for extension of time for leave to appeal and the appeal itself should be listed for hearing together and today is the return date for the hearing. The applications for leave to appeal against a fine of $1000 and the application for extension of time for the hearing of the appeal is an application that comes much later than the 28 day period prescribed by s 10(3) of the Criminal Appeals Act 2004 (WA). In fact, the application for leave to appeal against sentence was filed on 25 September 2006 which was almost 12 months after the conviction.

2 This Court has power under s 10(3) of the Criminal Appeals Act to order that the appeal may be commenced later than 28 days after the date of the decision and such an order is sought by the appellant. It is opposed by the respondent.

3 The appellant has not given any specific reason as to why he was so late in making his application for leave to appeal against sentence. His solicitor Robert Young has swore an affidavit on 25 September 2006 to the effect that an appeal against conviction was filed within time and heard on 7 September 2006. Judgment was reserved and that appeal was ultimately dismissed on 10 November 2006. It appears that it was following the hearing of the appeal against conviction that the appellant instructed Mr Young that in the event that the appeal against conviction be dismissed he would like to make application for leave to appeal the penalty. Mr Young, in his affidavit, acknowledges that the appeal was "considerably out of time" but submits that because there was a related appeal against conviction on foot no prejudice would be occasioned to the respondent by any delay.

4 The respondent has made reference to numerous cases in which it has been made clear that the discretion to extend time in which to commence an appeal should only be exercised upon facts shown which, in the judgment of the Court, appear positively to call for its exercise. The onus upon an appellant for extension of time will increase as time goes by: Evans v Pelka [2005] WASC 240 per McKechnie J at [11] - [13].

5 In the present case it is true that there is no real explanation given as to why the appeal was commenced so far out of time. On the other hand, it must be accepted that there was an appeal against conviction and had the appeal against conviction succeeded the question of an application for leave to appeal against penalty would have become academic. In these circumstances it seems to me that there is a reasonable explanation for the late filing of the application for leave to appeal against sentence. As it happened, the appeal against conviction was dismissed. There is undoubtedly a live question as to whether or not the question of a spent conviction order should be considered. It is true that no submissions were made to the learned Magistrate that such an order should be made, but a close reading of the transcript reveals that the learned Magistrate dealt with the matter in a very peremptory manner and there was little if any opportunity for counsel for the appellant to advance much before the learned Magistrate in relation to the question of penalty.

6 In all the circumstances, I consider that the interests of justice necessitate a grant of extension of time within which to file the application for leave to appeal. To do so would enable the Court to do justice between the parties on the issue which is presently before it: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 per McHugh J at 480.

7 I should also deal with the question of additional materials that have been put before the Court. Section 14(5) of the Criminal Appeals Act provides that on an appeal against sentence the Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard. The affidavit of the appellant which was filed in support of the application for leave to appeal against sentence puts a good deal of new information before the Court including applications for employment since the penalty which is the subject of the application for leave to appeal. There are also character references which are recently dated and which were not before the Court at the time when the learned Magistrate dealt with the matter.

8 Given the broad discretion to take into evidence "relevant matter that has occurred between when the offender was convicted and when the appeal was heard" I am prepared to have regard to this material. This is an appeal against sentence. Leave to appeal against sentence was granted by Blaxell J on 10 November 2006.

9 The sentence or penalty imposed upon the appellant was one of $1000 fine, imposed in the Magistrates' Court on 7 November 2005 by Mr T McIntyre SM.

10 The grounds of appeal are simply that the learned Magistrate erred in failing to consider granting a spent conviction order, having regard to:

(c) the absence of any prior record on the part of the appellant.

11 The appellant was convicted of the offence of aggravated unlawful assault, contrary to the provisions of s 313(1)(a) and s 221(1) of the Criminal Code (WA). The full details of the facts of the case are set out in my judgment in Mieli v Beros [2006] WASC 251, where I reviewed all of the evidence in the context of an appeal against conviction.

12 It is sufficient for present purposes to say that the appellant was convicted of aggravated assault in relation to his former wife, following a domestic dispute when the former wife ("the complainant") had come to the home of the appellant to collect the child of the appellant and the complainant following a request from the child to be returned to her mother.

13 The learned Magistrate concluded that the evidence in relation to the matter given by the complainant and another witness was credible and acceptable, and proved beyond reasonable doubt the aggravated assault. In short, he found that the complainant had gone to the appellant's house for good reason, and legitimately, to collect their child. She was outside the premises, never went anywhere near the front door of the premises and had not gone inside as the appellant alleged. Rather, the appellant had come out and had assaulted her by grabbing her neck, leaving marks which were shown on the photograph tendered to the Court. Apparently, there was some bruising in consequence of the assault.

14 After the appellant had been convicted by the learned Magistrate, his counsel submitted that he was presently 41 years of age, earning $500 per week and paying rent and maintenance for his daughter, which left very little money over. Counsel pointed out that the appellant had been married for two years to the complainant and there were problems in relation to access to the child.

15 The learned Magistrate did interrupt counsel to say that, as the appellant had denied commission of the offence, there was not a great deal that counsel could say in favour of the appellant. He pointed out that there was no remorse and said that once he knew the appellant's occupation, it was simply for him to determine an appropriate penalty.

16 The learned Magistrate then said to the appellant that he considered his evidence in court to be a total fabrication and there was no remorse whatever. He pointed out that the complainant was acting as a mother might and, in the circumstances, had been assaulted. Although it was not a serious assault, the circumstances surrounding the matter were serious because the child was only 6 years of age and would have observed what occurred. The learned Magistrate then pointed out that heavy penalties were provided for by Parliament in the hope that the use of violence in circumstances such as occurred would clearly indicate to people that under no circumstances was such behaviour excusable. He then imposed a fine of $1000.

17 The maximum penalty that could be imposed upon the appellant on summary conviction was, in the circumstances of this case where the assault was alleged to be under circumstances of aggravation because of a family and domestic relationship and the presence of a child (s 313(1)(a) and s 221(1) of the Criminal Code), 3 years' imprisonment and a fine of $36,000.

18 The appellant has filed an affidavit in support of the proceedings in which he annexes various documents. He is 43 years of age and arrived in Australia in 1988 at the age of 24 years. He has a certificate in electronics and he has worked in the electronics industry. He presently works in a casual capacity at a duty-free shop, but hopes to work as a flight attendant with an airline company. He did the required courses for this in 2002, including security training, crowd control, senior first aid and responsible service of alcohol. He is a licensed security officer and crowd controller, and has worked in that capacity at taverns, nightclubs and shopping centres on a casual basis.

19 By reason of his conviction, he has a condition upon his crowd controller licence that he cannot engage in crowd control activities unless under supervision. This, he says, makes it difficult for him to obtain employment.

20 The appellant deposes in his affidavit that he has sought various positions where he has experienced difficulty because of his conviction. He produces numerous testimonials to his character and contends that he is unable to advance his career in any meaningful way because of the consequences of the conviction that he has sustained. He says that at no time was he informed of the possibility of applying for a spent conviction order.

21 In the present case, the learned Magistrate was not in error in failing to give consideration to the making of a spent conviction order. It had never been submitted to him by counsel that such an order should be made. As I have pointed out, counsel did not really get the opportunity to say a great deal before the learned Magistrate made his views known. Nevertheless, as counsel for the respondent properly submitted, there was no good reason why counsel should not have persisted with a submission that a spent conviction order should be made if that was the view he took.

22 On the other hand, the appellant has deposed to the fact that he knew nothing about the existence of spent conviction orders or how to apply for one. One can only assume, therefore, that he was not told about this aspect of the matter. That is understandable, as the thrust of the appellant's case was to defend the charge and, in those circumstances, any question of penalty may well have been a secondary consideration. Whilst, therefore, counsel for the respondent was correct to submit that the Court was obliged to rely upon what the appellant's counsel put to it (see particularly Caseley v Zampogna [2006] WASC 259), that is not, in my view, the end of the matter.

23 I should not be taken to disagree with the observations of Blaxell J in Caseley v Zampona at [17] - [18] to the effect that Magistrates' Courts must be highly reliant upon counsel fulfilling their proper role and putting forward any matters that need to be taken into account by way of mitigation. It is to be noted that Blaxell J in that case refused a grant of leave because no error had been shown by the learned Magistrate in failing to consider the question of a spent conviction order and because "the ground has no reasonable prospects of success".

24 Section 39 of the Sentencing Act 1995 (WA) provides that, in sentencing, the Court may, with or without making a spent conviction order, impose a fine and order the release of the offender.

25 Under s 45(1), a Court sentencing an offender under s 39(2) is not to make a spent conviction order unless:

"(a) it considers 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."

26 In the present case, there were no submissions made to the learned Magistrate in relation to the question of a spent conviction order.

27 From the material before me, there is nothing to suggest that the offender is likely to commit again the offence of which he was convicted. Indeed, it could confidently be said that he is unlikely to commit the offence again, having regard to the experience that he has been through in defending the case and appealing the decision before this Court. He must appreciate the consequences of the commission of the offence.

28 Counsel for the respondent submitted as strongly as she could that, given the appellant's poor response to the situation which arose on the day of the offence, his lack of remorse and lack of acceptance of any need to alter his behaviour, there was no basis to conclude that he would not again commit the offence of aggravated assault. She therefore contended that the first prerequisite for making a spent conviction order had not been satisfied.

29 However, I cannot accept the submission that was made. The fact is that the appellant is 43 years of age and has no prior convictions of any sort. He has worked in a variety of occupations, including service in the Israeli Army. He has offended once in circumstances which I have described in my decision in Mieli v Beros (supra) . I consider the offence to have been an isolated one, occasioned in the course of a domestic dispute over the child of the appellant and his estranged wife. There were two different accounts given before the learned Magistrate as to how the offence occurred. The learned Magistrate accepted beyond reasonable doubt the account given by the complainant and an independent witness. He regarded the testimony of the appellant as "fabricated". That does not, however, mean that one can conclude that the appellant is a person who has a poor response to a situation such as that which arose on the day in question and is at a risk of reoffending. To the contrary, everything about his antecedents suggest to me that he is unlikely to commit the offence again.

30 The offence could not be described as trivial. Anything punishable by imprisonment for 3 years and a fine of $36,000 is far from trivial. However, there is the previous good character of the offender to consider. He has not previously been convicted of any offence and he has produced a number of testimonials in his support.

31 As the learned Magistrate was not called upon to consider the provisions of s 39(2) and s 45(1) of the Sentencing Act, it becomes necessary for me to do so in the context of this appeal. It is not a question of reviewing the discretion of the learned Magistrate, because the learned Magistrate simply thought the case necessitated a fine and imposed that fine, without any question of a spent conviction order being raised before him.

32 I am satisfied that the appellant is unlikely to again commit the offence of aggravated assault upon his former wife and there is certainly no evidence to suggest that he is likely, at his age, to commit that offence generally. He has no convictions whatever at the age of 43 years and he thus has a previous good character.

33 It was submitted by counsel for the respondent that the fact of the appellant's conviction is something that a prospective employer should be aware of. Reliance was placed on Neale v Sloan (1997) 27 MVR 246 and Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997 at 13.

34 However, Riley v Gill is a good example of a case in which it would be important for a prospective employer to be aware of the prior conviction of somebody applying for employment. There the appellant was convicted of possession of cannabis and possession of an implement for the smoking of cannabis. He was a shot firer by occupation and lived at a mine site out of Port Hedland. Parker J (at 13) was of the view that it was proper for the sentencing Magistrate to take into account the public interest in the sense that the occupation pursued by the appellant involved one of considerable responsibility for safety. There was a public interest in his employer, or potential employer, being aware of the offences he had committed, because they had clear relevant in relation to his reliability and suitability for the type of work which he pursued.

35 In Neale v Sloan, Wheeler J concluded that in every case, consideration must be given to all the circumstances of the case and of the offender, and the wider interests of the public. In the present case, I am unpersuaded that the public has an interest in knowing of this appellant's conviction for aggravated assault in domestic circumstances. That is not to suggest that assaults in domestic circumstances are any less serious than ordinary assaults, but they are peculiar to their own facts. This was an assault committed in circumstances in which there was a dispute over access to a child. It is well-known that emotions can run high in those circumstances and the assault committed by the appellant, whilst inexcusable, can be seen in that light. I do not consider that prospective employers of the appellant need to know about the circumstances of that incident. Further, I am not persuaded that a man who has assaulted his estranged wife in the circumstances which existed in this case is likely to assault others if working as a crowd controller, security guard, in the airline industry, etcetera. The circumstances there would be far different from those which arose on the day of 7 February 2005, when the appellant unlawfully assaulted Ms Rivarola under circumstances of aggravation.

36 Having regard to the difficulties that the appellant is experiencing in relation to employment, I consider that he should be relieved of the adverse effect the conviction might have upon him.

37 In the circumstances, I would therefore allow the appeal and vary the decision of the learned Magistrate so as to make a spent conviction order in favour of the appellant, but otherwise leave in place the fine of $1000 with costs of $74.

(1) time for application for leave to appeal extended to 25 September 2006;

(4) decision of Magistrate varied to include a spent conviction order in favour of the appellant.