NORRIS -v- CONNEELY [2016] WASC 256 (18 August 2016)

2 Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave to appeal is required in relation to each ground of appeal, and that the test as to whether leave should be granted is whether or not the relevant ground has a reasonable prospect of succeeding. On 10 February 2016, it was ordered that the application for leave to appeal was to be heard together with the appeal.

3 Counsel for the prosecution on 10 November 2015 outlined the material facts as follows:

On 4 October 2015, just after midnight, the accused was on Lake Street, Northbridge, standing in a queue outside the Mustang Bar when he has become involved in an altercation with a group of males. Security intervened to stop the altercation. However, when security speak [sic] to both parties the accused has suddenly punched the victim to the face with a closed fist, this causing a fracture to the victim's left cheekbone and bruising to the eye, which had [sic] to undergo operations in regards to those injuries (ts 2).

4 A DVD of CCTV footage of the incident was provided to the magistrate but was not formally tendered during the hearing. Counsel for Mr Norris described the incident as depicted on the DVD. He said that it showed Mr Norris and his friend, Sean, getting into an argument with a group of men standing in front of them in the queue waiting for entry to the bar. One of the other men was the complainant, Mr Warner. Mr Warner grabbed Sean by the neck and pushed him backwards. Mr Warner then moved away. Security then intervened and Mr Warner then returned and again pushed Sean, before turning away and standing with his arms up to his chest. Mr Norris then punched Mr Warner to the side of the face, and he walked away.

5 Counsel's description of the incident was not challenged by the prosecutor. It is unclear whether his Honour had had the opportunity to, or did, view the footage, but his sentencing remarks suggest that he proceeded on the basis of the descriptions of the event given by the prosecutor and defence counsel orally at the hearing.

6 The magistrate was then told that, after the incident, Mr Norris was taken to the police station where, in a video record of interview, he stated 'I don't think there's anything I can say, I'm at fault here'. It was submitted on Mr Norris' behalf that he accepted that he was at fault and that he regretted his actions. It was not in dispute that Mr Norris was heavily intoxicated at the time.

7 Mr Norris was described as being 30 years of age, and a father of a 9yearold girl, who lives in Ireland with his former partner. Counsel for Mr Norris also submitted that Mr Norris had no criminal record in either Australia or Ireland, and provided the magistrate with six character references from colleagues and relatives attesting to his good character, the uncharacteristic nature of the offending, his remorse and the impact of a conviction on his future plans.

8 The magistrate also had before him the following documents in relation to Mr Norris' travel information:

• Qantas booking details from Perth to Ireland and then America;
• a United States Customs and Border Protection Authorisation Approval Form dated 15 June 2015;
• an email from the United States Visa Service Desk dated 5 November 2015; and
• a Qantas Itinerary and Activity Statement.

9 These documents were provided to the magistrate as evidence of Mr Norris' intention to relocate to America, where he has family, and to demonstrate the effect that a conviction would have on those plans. Counsel for Mr Norris accepted that 'Mr Norris may well need to declare a spent conviction', but submitted that 'it's a question of discretion on the part of the authorities [in America] with regard to how it's viewed by them'. That submission is supported by the United States Customs and Border Protection Authorisation Approval Form, which states that '[authorization approval] does not guarantee admission to the United States' and that 'a Customs and Border Protection (CBP) officer at a port of entry will have the final determination' (TAC2), and the email from the United States Visa Service Desk dated 5 November 2015, which states:

Australian applicants that have been arrested or charged with a crime ... are required to apply for a US visa prior to travel. Applicants who have been arrested or charged with a crime should bring their Australian police certificate and/or court records which show their crime/crimes and punishment with them to their interview (TAC3).

10 Counsel for Mr Norris submitted that 'the way [the offence is] viewed or dealt with by this court would ... greatly impact upon how it's dealt with in America'.

11 The magistrate determined that Mr Norris should be fined $3,000 and the application for a spent conviction order should be refused. His Honour's reasons in imposing the fine were as follows:

Mr Norris, this is yet another example of someone who, it appears, leads a contributing role in society, and is thought well of by his friends and colleagues, who, for whatever reason then, consumes far too much alcohol, goes to Northbridge, and gets involved in an assault involving a level of violence that the community are sick and tired of.

In this case, it appears there was an argument between the victim and your friend. You then intervened with a punch to this person at a point when, it appears from the descriptions I've had, there was no ongoing dispute, with such force that you fractured his ... cheekbone. [T]hat indicates a punch of some force. To your credit, you have no record. You pleaded guilty at the first opportunity, and notwithstanding the seriousness of the offence, given those factors and those other factors personal to you, the matter can be adequately dealt with by way of a substantial fine.

12 As for the application for a spent conviction order, his Honour stated:

I accept that you have no record, therefore being of prior good character. I accept that there may be consequences as a result of a conviction, given your plans to travel to the United States and perhaps to seek employment and permanent residency there, although that, of course, would be, in any event, without conviction, dependent upon the decision of the United States authorities.

However, in any event, in my view, this offence is of such a serious nature that you need to be responsible for the consequences of it. Too many people consume alcohol and then think that they should not be responsible for their actions whilst intoxicated. That is not the case. You remain responsible for your actions, and you should remain responsible for the consequences. As such, I'm not prepared to exercise discretion to grant a spent conviction order where there is such a serious offence.

13 Section 45(1) of the Sentencing Act 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.

14 In Frewen v Dalgreen [2014] WASC 407, Beech J identified the principles to be applied in the consideration of the imposition of a spent conviction order:

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.

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.

In R v Tognini, 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 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.'

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

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 circumstances 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.

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.

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

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. 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 [14] [22].

15 The first issue, therefore, is whether a material error of fact or law is discerned in the magistrate's reasons. The appellant relies upon the alleged errors outlined in grounds 1 and 3 of the appeal as enlivening the court's appellate jurisdiction. As counsel for the appellant asserts that the factual error alleged in ground 3 influenced the assessment of the level of seriousness of the offending (ts 7 8), I will deal with ground 3 first.

16 Ground 3 alleges that the magistrate erred when he determined 'there was no ongoing dispute' at the time the appellant punched the complainant. The magistrate's outline of the incident was that:

[T]here was an argument between the victim and [Mr Norris'] friend. [Mr Norris] then intervened with a punch to this person at a point when, it appears from the descriptions I've had, there was no ongoing dispute ...

17 At the hearing of the appeal, counsel for both parties referred to and relied upon the CCTV footage shown on the DVD. I have had the benefit of reviewing the footage several times and am satisfied that it depicts the event consistently with the descriptions given to the magistrate, save that the footage does not depict Mr Warner pushing Sean after security intervened. Rather, when Mr Warner stepped back next to the security officer, he appears to verbally remonstrate with Sean before turning away, at which point Mr Norris stepped forward in front of the security officer and forcefully punched Mr Warner to the jaw.

18 At the hearing of the appeal, counsel for the appellant submitted that it was not the case that the dispute had finished and 'come to a finite point and then all of a sudden Mr Norris [punched] the complainant', but rather that it was an 'ongoing dispute that took place in a matter of seconds' (ts 6). Counsel for the appellant reiterated the submission that the complainant had pushed the appellant's friend after security had intervened. In substance, the appellant submits that by reason of the complainant returning after security had intervened and acting in the manner that he did, the magistrate was in error in determining that there was 'no ongoing dispute' at the time of the punch.

19 Counsel for the respondent submitted, correctly, that the footage of the incident does not show the complainant pushing the appellant's friend at, or immediately before, the time the punch was thrown.

20 Counsel for the respondent further submitted that, while, as was made clear to the magistrate, there was tension remaining between the parties at the time of the assault, security had intervened and the physical altercation had stopped up until the appellant came past security and delivered the punch. It was submitted that there 'was no need for the appellant to get involved' and that this was a very serious escalation of the situation that had existed following security intervention.

21 Taken in context, the magistrate's observation that there was no ongoing dispute is properly construed as no more than an observation that the brief physical altercation between Mr Warner and Sean had come to an end with the intervention of the security officer. The footage of the incident supports that observation. The magistrate did not make a factual error in determining that there was no ongoing dispute between the complainant and the appellant's friend at the time the appellant punched the complainant.

22 Ground 3 has no prospect of success and leave to appeal on that ground is refused.

23 Ground 1 alleges that the magistrate erred when, in refusing to grant a spent conviction, he categorised the offending as being of a 'serious nature'.

24 In the context of the application for a spent conviction order, his Honour stated that 'this offence is of such a serious nature that you need to be responsible for the consequences of it'. His Honour then refused to grant a spent conviction order for 'such a serious offence'. Similarly, his Honour, earlier in his reasons, referred to the 'seriousness of the offence' in the context of exercising the discretion to deal with the matter by way of a $3,000 fine.

25 As counsel for the appellant conceded, the offence was not 'trivial', and thus does not attract the criterion in s 45(1)(b)(i) of the Sentencing Act (ts 9). That concession is hardly surprising. The maximum penalty for an offence against s 317(1) is 5 years' imprisonment. It is a serious criminal offence.

26 The appellant particularised this ground by the assertion that categorising the offence as being of a 'serious nature' was an error by reason of the prior provocation in relation to the friend of the appellant; the fact that there was a single blow; the nature of the injury being at the lower end of the scale; and the complainant and appellant being of similar stature, size, build and age. Apart from counsel's description of the incident, none of those matters was specifically the subject of submissions by Mr Norris' counsel at the sentencing hearing. The submissions in mitigation focussed on Mr Norris' character and the potential effect of conviction on his plans to move to America.

27 In his written submissions, counsel for the appellant made comparisons between the facts of this case and a number of cases in which the Court of Appeal had described assaults occasioning bodily harm as serious offences. The thrust of the submission appears to be that, because various aspects of the assaults in those cases were absent in this case, this is not a case where the offending can properly be described as serious. I reject that submission. Because it may be easy to conceive of assaults that are more serious than this one does not lead to the inevitable conclusion that this assault was not serious. The relevant question is whether, having regard to all of the circumstances of the offending, it was open to the magistrate to describe the offence as being of a serious nature. Clearly it was.

28 Whilst, as the respondent concedes, this is neither a situation where the offender has approached someone and hit them for no reason, nor the most serious example of assault occasioning bodily harm, this assault was, as the magistrate observed, an example of alcohol related violence in Northbridge. It had serious medical consequences for the victim of a fractured cheekbone, which indicates a punch of some force. The magistrate did not err in finding that the nature of offending was serious.

29 Ground 1 has no reasonable prospect of success and leave to appeal on that ground should be refused.

30 Ground 2 states that the sentencing discretion miscarried when the magistrate determined not to grant the appellant a spent conviction. In written submissions, the appellant particularised the ground as stating that the combined effect of the relevant material before the magistrate in support of granting such an order was such that a spent conviction should have been granted.

31 As noted earlier, because the decision of the magistrate 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. 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. Error is revealed either in 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. As I have already found, the magistrate did not make the express errors alleged in grounds 1 and 3 respectively, and no other express errors were asserted.

32 At the hearing of the appeal, counsel for the appellant initially clarified ground 2 as stating that 'Mr Norris ought to have been relieved of the consequences of [the offence]' (ts 12) (emphasis added). However counsel for the appellant later conceded that '[i]t is hard to say that the only disposition for this matter was to grant a spent conviction, and I could not meaningfully push that' (ts 12).

33 Counsel for the appellant was correct to concede that it could not be argued that the only disposition for this offence was to grant a spent conviction order. The magistrate identified the seriousness of the offence in the circumstances of its commission in the manner discussed above. His Honour also considered the circumstances personal to Mr Norris. His Honour accepted that Mr Norris had no record and was of prior good character, and, having considered the six references provided, further recognised Mr Norris as appearing to be someone who 'leads a contributing role in society and is thought of well by his friends and colleagues'.

34 The magistrate also took into account the fact that a conviction may have adverse consequences for Mr Norris' plans to travel, work and permanently reside in the United States. His Honour accepted that there may be consequences as a result of the conviction but acknowledged that, even without a conviction, Mr Norris' plans would be dependent upon the decision of the United States authorities. It was accepted at the hearing of the appeal that, regardless of whether or not the conviction is spent, disclosure of the conviction to the United States immigration authorities would still be necessary. Thus the making of a spent conviction order would not have removed the impediment to entry to the United States, although it may be accepted that it may have been of some assistance to Mr Norris.

35 The magistrate, ultimately, regarded the seriousness and circumstances of the offence, and the consequent need for deterrence, as outweighing the factors in favour of a spent conviction order. It was open to his Honour to do so. No implied error in the disposition of the matter has been demonstrated.

36 Ground 2 does not have reasonable prospects of success and leave to appeal on that ground will also be refused.

37 Leave to appeal on each of the grounds of appeal should be refused, and the proceedings be dismissed.