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[2008] WASC 213
respondent. Appeal dismissed. The court was not satisfied that a spent conviction order should have been made and found no basis to remit the matter for further evidence ([90]–[91]).
Scanlon appealed after being convicted of disorderly conduct and fined for urinating in public while intoxicated. He argued that the magistrate should have made the conviction spent and that, because he was unrepresented, the magistrate should have explained more about the process and sentencing options. The Supreme Court held that the magistrate had offered him time to obtain legal advice and that the law did not require magistrates to explain every possible sentencing option in every case. The court also held that a spent conviction order required evidence meeting the statutory criteria and, ordinarily, clear and cogent reasons for immediate relief. Scanlon’s lack of prior convictions did not establish that he was unlikely to reoffend; his account of drink-spiking was speculation, and his claimed employment difficulties were not supported by sufficiently specific evidence. The appeal was dismissed.
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2 cited instruments linked from this judgment.
In Scanlon v Bove [2008] WASC 213, Johnson J heard an appeal against a sentence imposed by the Perth Magistrates Court. Scanlon had pleaded guilty to disorderly conduct. The particular conduct was urinating in public at about 10.15 pm on 18 January 2008, on a path opposite the Belgium Beer Café at the intersection of Murray and King Streets in Perth. The prosecution facts described him as visible to police and members of the public, waving to a passerby while urinating [3].
The next morning, when the matter came before the magistrate, Scanlon responded to a question about whether he wanted an adjournment to obtain legal advice by saying, “I probably did it, yes”. He then confirmed that he was pleading guilty [2]. When asked whether there was an explanation for his conduct other than excessive drinking, he agreed that drinking was “Pretty much” the explanation [4]. The magistrate noted that Scanlon had no prior convictions and had pleaded guilty at the first opportunity. He imposed a $300 fine and $58 costs [1], [5].
On appeal, Scanlon argued that the magistrate should have made a spent conviction order. He also challenged the way the matter was dealt with while he was unrepresented. His affidavit said he had consumed substantial amounts of beer at and after a cricket match, had no recollection of the incident, and had not understood that the proceeding could result in a conviction [6]–[9]. He also asserted that the conviction could affect his employment and overseas travel, including work postings [85].
Johnson J dismissed the appeal. The decision turned on two related questions: whether the magistrate had failed to consider a spent conviction order, and whether the evidence justified the Supreme Court making or requiring such an order. The judge concluded that the record did not show that the magistrate had failed to consider the option, and the appeal evidence did not establish the statutory basis for an order [74]–[76], [89]–[91].
Section 45(1) of the Sentencing Act 1995 (WA), as set out in the judgment, required the sentencing court to consider whether the offender was unlikely to commit such an offence again and, having regard to the offence’s triviality or the offender’s previous good character, whether the offender should immediately be relieved of the conviction’s adverse effect [14]. The court also treated R v Tognini and subsequent appellate decisions as establishing that the discretion was exceptional in character and should be used sparingly, with clear and cogent reasons [18], [28].
The court emphasised that the discretion did not operate simply because an offender had no previous convictions or asserted that a conviction might cause difficulty. The relevant statutory matters had to be established, and the claimed need for immediate relief had to be supported in the context of the case. Johnson J stated that evidence would depend on the offence and circumstances, but that in almost all cases clear and cogent evidence, rather than broad assertion or anecdote, would be required [35].
On reoffending, Scanlon’s lack of prior convictions was relevant but did not establish that he was unlikely to repeat the conduct. The judge distinguished the general likelihood that Scanlon might not commit other kinds of offences from the more specific question whether he might again drink to excess and become disorderly. Scanlon had not explained why that behaviour was unlikely to recur or shown insight into the connection between excessive drinking and the offence [79]–[80]. The claimed drink-spiking did not alter the analysis because the judge found it speculative, with no evidentiary basis in Scanlon’s affidavit [61], [81].
On the required immediate relief, Scanlon relied on potential effects on current employment, overseas travel, postings, promotion, and future employment applications. Johnson J considered those assertions insufficiently clear or cogent. Unlike cases where the nature of the offence itself may make an adverse employment impact apparent, the judge considered this case did not establish a particular effect on Scanlon’s employment prospects [85]. The judgment therefore did not find that every employment concern requires independent evidence; it recognised that some convictions may themselves provide cogent evidence of likely harm, but considered this offence and the material before it did not do so [30], [33], [85].
The procedural argument was also rejected. The magistrate had asked whether Scanlon wanted a remand to obtain legal advice, and Scanlon did not request one [2], [51]. Johnson J found no basis to infer that he could not understand the offer. The judge also rejected the claim that the magistrate had to explain all possible sentencing options, including the availability and requirements for a spent conviction order, to every unrepresented accused. The court must consider available sentencing options and obtain sufficient information to do so, but the authorities did not establish a universal duty to explain every option in every case [73]–[76].
Finally, silence in brief sentencing remarks was not enough to demonstrate that the magistrate failed to consider an option. Johnson J applied the principle that a failure expressly to mention a matter does not necessarily mean it was overlooked [11], [74]. The judge found no statement by the magistrate suggesting that the spent conviction option had been rejected for an improper reason, and concluded that the known facts gave the magistrate enough information to assess whether Scanlon was an appropriate candidate [74]–[76].
The judgment describes the position before Scanlon through a line of Western Australian decisions. In R v Tognini, the Full Court treated the s 45 power as exceptional and said it should be exercised sparingly in a clear case for cogent reasons [18]. Brewer v Bayens, Wood v Marsh and Riggall v The State of Western Australia were identified as appellate decisions accepting or applying that approach [24]–[28]. Johnson J held that this appellate line bound a single judge of the Supreme Court, notwithstanding Heenan J’s different view in Rumi v Wood that describing the power as exceptional could add a gloss to the statutory wording [19], [28].
The judgment also draws together a practical evidentiary principle. Whether evidence is needed, and how much, depends on the circumstances and the nature of the offence. But, in almost all cases, applicants would need clear and cogent evidence rather than broad assertions or anecdotal material [35]. The judgment gives examples of cases where the nature of the offence or particular evidence could support a likely adverse employment effect, including 'A' v Ray, Caseley v Zampogna and Riggall [29]–[33]. That is not a rule that employment harm must always be proven in the same way. The court’s point is that the evidentiary basis must be assessed in context.
For unrepresented accused, the judgment accepted the importance of ensuring that an accused understands proceedings and has an adequate opportunity to consider their position. It discussed Cooling v Steel, Western Australia v Landers and Wood v Marsh in explaining that principle [37]–[43]. It nevertheless distinguished circumstances involving an accused who lacked an adequate opportunity to understand or present their case from Scanlon’s circumstances, where an adjournment for legal advice was offered and he did not request one [51], [64], [69], [72].
The judgment’s contribution, on its own terms, is to state that these principles do not require a magistrate to explain every possible sentencing option to every unrepresented accused. It preserves the obligation to consider all available options and elicit enough information to do so [73]. It also confirms that failure to mention an option in brief reasons does not automatically establish that it was ignored [74].
This account is confined to the authorities and legal position discussed in the judgment as at 3 October 2008. The supplied source does not establish how later courts have treated Scanlon after that date.
At [35], Johnson J stated that the need for evidence “will depend on the circumstances of each case and, in particular, the nature of the offence”. The plain-English point is that the evidence needed is not identical in every case. Some convictions may carry an obvious consequence in a particular context, while other claimed consequences need to be supported by concrete material. The judge added that in almost all cases clear and cogent evidence would be needed.
At [73], Johnson J rejected a general rule requiring magistrates to explain the full range of sentencing options to every unrepresented accused. The court reasoned that an obligation to explain all options and their requirements could be extensive and burdensome in a busy summary court. The decision did not remove the separate obligation to consider available options and obtain sufficient information to do so.
At [74], the judge observed that “a failure to expressly refer to a matter does not necessarily give rise to an inference that it was not considered”. This is important where reasons are brief. The judgment did not say that silence can never support an inference of error. Rather, it held that silence alone was not enough on this record, particularly where nothing in the magistrate’s remarks suggested an improper approach.
At [78], the judgment summarised three questions arising under s 45: whether the offender was unlikely to offend again; whether the offence was trivial or the offender had previous good character; and whether the offender should immediately be relieved of the conviction’s adverse effect. The order requires attention to the statutory criteria together, not simply a general sense that the person is a first offender.
At [85], Johnson J found Scanlon’s employment assertions insufficiently clear or cogent. The judge accepted that employment consequences can sometimes support an order, but held that the assertion of possible effects on future employment and postings was not enough on the evidence before the court. The judgment therefore distinguishes a particular, evidenced consequence from a general concern that a conviction may cause difficulty.
At [89], the judge clarified that the discussion of deterrence and public interest was not a categorical bar to spent convictions for disorderly conduct. An order could be justified in an appropriate case if other circumstances were sufficiently cogent. The outcome was based on the circumstances and evidence in this appeal, not on an absolute exclusion for this offence type.
The decision is most relevant where an offender seeks a spent conviction order under s 45 of the Sentencing Act 1995 (WA), particularly where the application relies on first-offender status, possible employment consequences, rehabilitation, or the circumstances of a summary-court appearance. It is also relevant where an appeal argues that the magistrate failed to consider an order because the sentencing remarks did not mention it.
The judgment indicates that the nature of the offence matters when assessing the evidence required. In some cases, the nature of the conviction may itself provide a strong basis to infer a particular adverse consequence, as Johnson J considered in discussing 'A' v Ray and Riggall [30], [33]. In other cases, an asserted employment effect may require specific support, as the court found in Scanlon’s case [85].
The decision also concerns unrepresented accused who are offered an adjournment for legal advice but proceed without requesting one. It does not establish that such an offer will always be enough. The judge’s analysis depended on the appellant’s responses, the absence of evidence of a relevant disability or misunderstanding, the opportunity to explain his conduct, and the fact that the magistrate had invited him to obtain advice [51], [55], [60], [64].
It should not be read as deciding that every first offender who has consumed alcohol is likely to reoffend, or that employment concerns can never justify a spent conviction order. Johnson J’s reasoning was that Scanlon had not provided evidence explaining why the conduct was unlikely to recur, and had not supported the claimed employment consequences with sufficiently particular material [79]–[85].
The supplied judgment does not report decisions after 3 October 2008, so it cannot establish how later courts have treated Scanlon. The judgment itself does describe how earlier authorities were treated by Johnson J.
Johnson J held that R v Tognini was binding as a Full Court guideline judgment and had been approved or applied by the Full Court in Brewer v Bayens and Wood v Marsh, and by the Court of Appeal in Riggall [28]. The judge therefore declined to follow the contrary approach expressed in Rumi v Wood [19], [28]. The judgment also relied on Robertson v Lawrence, where Jenkins J had concluded that the appellate authorities required something special or exceptional to justify an order [27]–[28].
For the duties owed to an unrepresented accused, Johnson J distinguished Wood v Marsh and Yassin v Williams by reference to their particular circumstances. In Wood, the court had found no evidence that the justices considered a spent conviction order or other available sentencing dispositions, and the appellant’s evidence about his lack of understanding was accepted in its factual setting [40]–[43]. In Yassin, the appellant faced immediate imprisonment and the magistrate’s initial offer of an adjournment was considered insufficient in the circumstances described [65]–[69]. Johnson J concluded that neither decision established the broad proposition advanced by Scanlon that an offer of legal advice was always irrelevant or that every sentencing option must be explained.
The judgment leaves the evidentiary threshold fact-sensitive. It says that evidence requirements depend on the nature of the offence and circumstances, while describing clear and cogent evidence as necessary in almost all cases [35]. It does not set out a fixed test for deciding when the offence itself provides sufficiently cogent evidence of likely adverse consequences, beyond examples drawn from earlier cases [30], [33].
The decision also does not define exhaustively what circumstances make a spent conviction order “exceptional”. It holds that the exceptional-character approach was the applicable law because of the appellate authorities, but its application remains dependent on the statutory criteria, the offender’s circumstances, the effects of the conviction, rehabilitation, and relevant public interest [18], [28], [84]–[89].
On procedure, the judgment does not specify exactly when an initial offer of an adjournment will be insufficient. It recognises that the adequacy of the process depends on context, and distinguishes cases involving immediate imprisonment, lack of understanding, or inadequate opportunity to make submissions [65]–[73]. It does not prescribe a universal script for magistrates dealing with unrepresented accused.
Nor does the decision make a final finding on whether disorderly conduct will generally justify or exclude a spent conviction order. Johnson J expressly rejected a categorical exclusion and said that sufficiently cogent circumstances could justify an order in an appropriate case [89]. The result therefore turns on the evidentiary record and circumstances considered in this appeal.
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SCANLON -v- BOVE [2008] WASC 213
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Spent conviction - Unrepresented accused - Objections of magistrate - Whether clear and cogent evidence of circumstances justifying spent conviction order - Sentencing unrepresented accused
Sentencing Act 1995 (WA) s 39(2), s 45
Sentencing Act 1995 (WA)
1 JOHNSON J: The appellant appeals against the sentence imposed on him on 19 January 2008 at the Perth Magistrates Court for disorderly conduct. The specific allegation was that the appellant was urinating in public. He pleaded guilty, a judgment of conviction was recorded, and a fine of $300 was imposed with $58 costs. The basis of the appeal is that the magistrate should have imposed a spent conviction order.
Circumstances of the offence and the matters personal to the appellant
2 In order to determine the merits of the appeal it is necessary to consider what actually happened in court on that day. When the appellant appeared before the magistrate the following exchange took place:
HIS HONOUR: Are you in a position to enter a plea to the charge today or would you like a remand to get some legal advice?
SCANLON, MR: I probably did it, yes.
HIS HONOUR: Okay, and so you pleaded guilty?
SCANLON, MR: Yes.
HIS HONOUR: Have a seat for the moment I must hear the facts.
3 The circumstances of the offence, as read to the court, were that at 10.15 pm on Friday, 18 January 2008, the appellant was opposite the Belgium Beer Café at the intersection of Murray and King Street in Perth. He was standing on the path and urinating in front of the café, waving to a passerby, and was clearly visible to the police and to the public. He provided no explanation for his conduct to the police.
4 After the facts were read, the magistrate asked the appellant whether there was any reason for his conduct other than just far too much drink. The appellant response was: 'Pretty much that was the case, yeah'.
5 In passing sentence, the magistrate noted that the appellant had no prior convictions and that he had pleaded guilty at the first opportunity. He then remarked that it was important that the appellant keep the drinking to a level where it does not get him into these kinds of situations. The fine was then imposed. The appellant's only response was to say, 'No worries. Thank you'.
6 In his affidavit in support of the appeal, the appellant, a 35-year-old accountant, maintains that he has no recollection of the disorderly behaviour. He further states that on Friday, 18 January 2008 he came to Perth from Sydney, where he resides, and later in the day he attended the Test cricket match being played at the WACA. Whilst at the cricket, and commencing at 2 pm, the appellant consumed a considerable amount of beer. He continued drinking after play had ended and until just before he was arrested. The appellant maintains no knowledge of the incident due, on his own admission, to his level of alcohol consumption. He states that his last recollection was talking to two unknown patrons at a bar.
7 According to the appellant, on being arrested he was taken to the East Perth Police Station and processed. He was released to bail at 11.25 pm which required him to appear before the court on the following morning at 8.45 am. The appellant maintains that he attended the East Perth Police Station shortly before 8.45 am, however, there was no-one in attendance. He waited approximately one hour before the court started and his matter was the first one to be dealt with.
8 The appellant alleges that at no stage in the 'limited' time that he had before the court hearing was he informed or advised by anyone to obtain legal advice including from a duty lawyer, engage a lawyer to represent him in court, or apply to the court for a spent conviction order. The appellant further states that he was not aware of the need to consider those matters. He also stated that the whole process on 18 and 19 January 2008 was totally foreign to him as he had never before been arrested by police and required to appear in a court.
9 The appellant maintained in his affidavit that up until and including the time that the court dealt with him he thought he was appearing in a civil court with no issue or chance of conviction of any sort being recorded against him. The appellant also asserts that, if he had known that a conviction would result from the court hearing, and if he had a lawyer representing him, he would have 'without question' asked the court to make a spent conviction order in his favour.
10 The principles on which an appellate court must act when considering an appeal against sentence are well established. In House v The King [1936] HCA 40; (1936) 55 CLR 499 505, the High Court held that, if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may then exercise its own discretion in substitution for his if it has the materials for doing so. However, in some cases error may be inferred. As the High Court observed (505):
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
11 In Brewer v Bayens [2002] WASCA 271; (2002) 127 A Crim R 189 McLure J noted that the failure by a decision-maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. Further, it is to be assumed that the magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: at 195; see also Bessell (Unreported, WASCA, Library No, 980199, 4 March 1998); Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567, 576 - 577. In essence, these authorities support giving a beneficial construction to ex tempore statements of reasons given by magistrates.
12 Section 39(2) of the Sentencing Act 1995 (WA) (Sentencing Act) sets out the penalties available when the court is sentencing an offender who is a natural person. The first three of the eight available sentencing options (imposing no sentence and ordering the release of the offender, imposing a CRO and ordering the release of the person, and imposing a fine and ordering the release of the person) are all preceded by the words 'with or without making a spent conviction order'.
13 Section 39(3) provides that a court must not use a sentencing option in subsection(2) unless satisfied that it is not appropriate to use any of the options listed before that option. It is also obvious from the inclusion of the words 'with or without making a spent conviction order' that when imposing no sentence or imposing a CRO or a fine, the court must give consideration as to whether the particular sentencing option should be accompanied by a spent conviction order.
14 Section 45 of the Sentencing Act governs the making of a spent conviction order. Section 45(1) provides:
Under s 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.
15 Sections 45(2) and (3) provide that when a spent conviction order is made the conviction becomes a spent conviction for the purposes of the application of the Spent Convictions Act 1988 (WA) (Spent Convictions Act). Under div 3 of that Act, discrimination on the basis of a spent conviction is unlawful against certain persons, such as job applicants and by specified persons, such as employers. By s 26 it cannot be taken into account in determining good character, fitness, propriety or the like and under s 27 the spent conviction is not required to be disclosed for any purpose.
16 The Spent Convictions Act also provides a mechanism for obtaining a certificate declaring that a lesser conviction is spent: see s 11 and s 7. However, an application under these provisions of the Spent Convictions Act may only be made after a period of 10 years. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Murray J (with whom Malcolm CJ and Wallwork J agreed) observed at [20] that the provisions of the Spent Convictions Act are clearly based on the proposition that after conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction.
17 In Ennis v D'Andrilli [2007] WASC 263 at [16], I considered that the following propositions could be distilled from the authorities I had considered in the judgment:
18 In relation to the last point, the decision in R v Tognini is particularly instructive. R v Tognini was decided as a guideline judgment on the operation of s 45(1). Murray J concluded at [24] that the nature of the power and the extent to which the section interferes with the ordinary operation of the Spent Convictions Act is such that the power should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable. Later in his Honour's reasons at [27], he described the discretionary power as being of 'an exceptional character': [27]. Murray J described the approach to be taken in considering the making of a spent conviction order in the following terms:
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 [27] - [28].
19 In submitting that, contrary to the clearly expressed statement in R v Tognini, the power to grant a spent conviction should not be regarded as being of an exceptional character, counsel for the appellant relied on the decision of EM Heenan J in Rumi v Wood [2008] WASC 119. In that case Heenan J expressed the view that the observations of Murray J as to the exceptional nature of a spent conviction must be regarded as applying to the particular circumstances of the offences there under consideration: [37]. His Honour added that, in view of the circumstances of the offences of dishonesty and of indecent assault which were dealt with in that case, one can readily appreciate why the learned judges described the making of a spent conviction order as sufficiently exceptional for the making of those orders to be affirmed: [37]. Heenan J concluded that he was not prepared to consider that, in every case, the making of a spent conviction order must be regarded as an 'exceptional' course because to do so would involved placing a gloss upon the requirements of s 45(1) of the Act which, in unequivocal terms, is the statement by Parliament of when the power to make such orders arises: [39]. His Honour explained that it has long been established that it is not the proper approach to put a gloss on a statute with implications derived from other considerations outside the statute itself and cited the decision of the High Court in Cornwell v The Queen [2007] HCA 12; (2007) 234 ALR 51 [184]: [39].
20 The decision in R v Tognini, including the description of the discretionary power as being of 'an exceptional character', has been accepted and applied in a number of single judge decisions. In Brewer v Bayens, McLure J quoted with approval that portion of the decision in R v Tognini where reference was made to the exceptional character of the discretionary power, although the issue of whether exceptional circumstances existed in that case was not specifically raised or addressed: [22]. In Caseley v Zampogna [2006] WASC 259 Blaxell J quoted from the decision in R v Tognini, commencing with the description of the power as being of an exceptional character. The exceptional nature of the power was accepted and was not the subject of any debate. In 'A' v Ray [2001] WASCA 340 Hasluck J also followed the part of the decision in R v Tognini dealing with the nature of the power:
The discretionary power is of an exceptional character and requires the court to determine whether there is some particular circumstance to show that it would be desirable why the adverse effect of the conviction should be immediately set aside: That may often be found in the fact that a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship. The power should be sparingly exercised: R v Tognini [2000] WASCA 31; Pennings v Maryan [2000] WASCA 172; Pennings v Maryan [2000] WASCA 172 [45].
His Honour specifically accepted the principle that the power is to be exercised in exceptional cases. After noting that the preconditions of s 45(1) had been satisfied, Hasluck J found that the appellant had been able to demonstrate that this was one of the exceptional cases in which such an order should be made: [64].
21 In Hull v Castledine [2005] WASC 252 Le Miere J considered an appeal against sentence on the ground that the magistrate should have made a spent conviction order in addition to imposing fines on the appellant for the offences of resisting and hindering a member of the police force. Counsel for the appellant submitted that the convictions might significantly impede the prospects of the appellant's future employment in the mining industry. The appellant's co-offender had been granted a spent conviction order. In reaching his decision, Le Miere J quoted the following part of the judgment of Murray J in R v Tognini [24]:
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 [14].
However, the application of that specific aspect of the principle did not arise as it was found by the magistrate that the appellant did not meet the criteria which enliven the discretion and Le Miere J was not satisfied that the magistrate fell into error in refusing to make the order.
22 I have also considered two decisions of Jenkins J which deal with applications for spent conviction orders. In Applin v Stati [2005] WASC 145 Jenkins J cited with approval the reference in the judgment in R v Tognini to the exceptional character of the power to make a spent conviction order: [74]. Her Honour also adopted the reference by the Full Court in Brewer v Bayens to the 'special nature of the jurisdiction to grant this relief': [85]. Jenkins J applied the statement in Brewer v Bayens [18] of Burchett AUJ (with whom Wallwork and Wheeler JJ agreed) to the effect that the court should be careful not to expand this exceptional provision beyond Parliament's intention: [87].
23 The second decision of Jenkins J on the topic of spent conviction orders is Robertson v Lawrence [2008] WASC 111 in which her Honour gave specific consideration to the decision of Heenan J in Rumi v Wood. In the course of her reasons Jenkins J referred to the then most recent Court of Appeal decision in Riggall v The State of Western Australia [2008] WASCA 69 as well as the Full Court decision in Brewer v Bayens. Before considering the approach taken by Jenkins J it would be useful to address, as did her Honour, the way in which the issue was dealt with by the appellate court in those decisions.
24 The Full Court in Brewer v Bayens upheld the decision of McLure J. The appellant was charged and convicted of an offence under the Prostitution Act 2000 (WA) of being in a public place and seeking another person to act as a prostitute. Burchett AUJ stated in his reasons that the courts have emphasised that a spent conviction order under s 39 of the Sentencing Act should only be made in a very special case and cited the decision of Murray J in R v Tognini at [16]. His Honour also explained the reasons why that should be the case:
One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from responses to inquiries, and placing a legal impediment in the way of some inquiries. The court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, to 'the preservation of confidence in the judicial system' requires publicity: see R v Tait (1979) 46 FLR 386 at 401, per Brennan, Deane and Gallop JJ). As their Honours also said: 'To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction' [18].
25 In Riggall v The State of Western Australia [2008] WASCA 69 the appellant pleaded guilty to two counts of indecently dealing with a child over the age of 13 and under the age of 16, and two counts of sexual penetration of a child over the age of 13 and under the age of 16. The offences arose out of a consensual homosexual relationship in circumstances where it was accepted that the appellant was entirely unaware that his partner was only 14 years of age and that the partner had initiated and willingly participated in the relationship. Further, when the appellant first became aware that his partner in the relationship was only 14 years old, he immediately ceased the sexual relationship. The particular circumstances of the offence were such as to lead Wheeler J (with whom Buss and Miller JJA agreed) to observe that it is difficult to imagine these offences being committed in circumstances less worthy of blame and, therefore, less deserving of a sentence which has an element of retribution: [50]. In considering whether the appellant should have been given a spent conviction order, Wheeler J referred to and applied the decision in R v Tognini and set out in full the statement of principle including the reference to the power being of an exceptional character: [72]. In dealing with the substance of the appeal, Wheeler J considered that, in the very exceptional circumstances of the case, the appellant's offences should be punished to the least possible extent permitted by law: [51]. Wheeler J also referred to the decision in Liddy v Cobiac [1969] SASR 6 which addressed a provision of the Offenders Probation Act 1913 (SA) which had some similarities to s 46 of the Sentencing Act. Section 46 deals with the option to release without sentence. This was another issue under consideration by Wheeler J and one to which the principle as to the nature of the discretion referred to in , should logically and equally apply, although the criteria for the exercise of the discretion are somewhat different. Her Honour noted that Bray CJ in considered that it was only in rare and exceptional cases that could be applied in favour of a defendant found guilty of driving under the influence.
26 Although not considered by Jenkins J in Robertson v Lawrence, there is a further Full Court decision on the issue of spent convictions and that is Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475. In that case, Malcolm CJ, with whom Murray and Anderson JJ agreed, referred to R v Tognini as a guideline judgment on the subject of spent conviction orders and made specific reference to that part of the judgment where Murray J said that, having regard to the nature of the power and the extent to which it interfered with the ordinary operation of the Spent Convictions Act, power should only be exercised in a clear case where for cogent reasons it was seen to be desirable: [43].
27 In Robertson v Lawrence, after referring to the decision of R v Tognini, at [41], Jenkins J expressed the view that, when determining whether a spent conviction order should be made, it is necessary for the judicial officer to decide whether there is anything special or exceptional about the particular case that would warrant the grant of spent conviction orders: [48]. Her Honour then referred to the decision in Rumi v Wood where Heenan J stated that he was 'not prepared to consider that, in every case, the making of a spent conviction order must be regarded as an 'exceptional' course because to do so would involve placing a gloss upon the requirements of the Act. Jenkins J expressed the view that, before making a spent conviction order, she was bound by cases such as Brewer v Bayens and R v Tognini to find that there is something special or exceptional in a matter. Her Honour considered that her view was reinforced by the approach of the Court of Appeal in Riggall v The State of Western Australia [51], [63] and [70] in which, according to Jenkins J, it was implicitly assumed that the case had to be exceptional in order to justify the making of a spent conviction order.
28 With the greatest respect to Heenan J, I share the view expressed by Jenkins J in Robertson v Lawrence that I am bound by cases such as Brewer v Bayens and R v Tognini. R v Tognini is a guideline judgment of the Full Court and is binding on any single judge of this court. Further, the decision in R v Tognini has been approved and applied by the Full Court in Brewer v Bayens and in Wood v Marsh, as well as by the Court of Appeal in Riggall v The State of Western Australia. In those circumstances, I do not consider that the observations of Murray J in R v Tognini as to the exceptional nature of the power to make a spent conviction order may be regarded as only applying to the particular circumstances of the offences under consideration in that case. Further, whether or not the requirement to regard the power as being exceptional can be said to be a 'gloss' upon the requirements of s 45(1) of the Act, a proposition about which I have significant reservations, it still represents the current and applicable law on the subject.
29 A further principle with which counsel for the appellant takes issue is the need for there to be clear and cogent reasons for the exercise of the power which involves the appellant in being able to point to some particular circumstance which makes it desirable for the conviction to be immediately set aside. Many judges have also followed that part of the decision in R v Tognini which requires clear and cogent reasons for the exercise of the power, including identifying, rather than merely speculating on, the potentially adverse effect. In Caseley v Zampogna Blaxell J held that the appellant had produced cogent and convincing evidence of the likely adverse impact of his convictions for aggravated burglary and possession of cannabis on his prospects in his future career: [21]. In that case, the appellant, who was about to commence university studying history and politics produced references, including one from the assistant headmaster of his former school, who observed that the appellant's conviction for aggravated burglary may 'have a potentially profound effect on his choice of future careers, indeed he may well be ruled out of a good number'.
30 In 'A' v Ray Hasluck J considered that a conviction for stealing as a servant, by its very nature, will potentially have an adverse effect upon any employer, regardless of what form of employment the appellant undertakes eventually. In my view, this is an example of one of the reasonably rare cases in which the fact of the conviction alone is compelling evidence of the likely effect of such a conviction on future employment. In Applin v Stati the appellant had been convicted of breaching a condition attached to his crowd control agent's licence. Jenkins J considered the appellant's submission that the conviction may effect his entitlement to be an approved manager under the Liquor Act 1988 (WA) (Liquor Act) and his ability to be involved in licensed premises. Her Honour observed that there was no evidence regarding this before either the magistrate or before her and the only information she had was that provided by the Liquor Act, s 35(3) to the effect that the approval of a person as an approved manager of licensed premises may be withdrawn if the manager has failed to conduct licensed premises in a proper manner or the conduct of the manager shows he or she is not a suitable person to manage licensed premises: [84].
31 The Full Court in Brewer v Bayens adopted the requirement that those who contend they come within s 45 should demonstrate that fact by convincing evidence. However, in that case, the principle was applied in relation to whether the appellant met the criteria for the exercise of the discretion: [14].
32 In Riggall v The State of Western Australia, Wheeler J concluded that the appellant fell within the criteria for the exercise of the discretion to make a spent conviction order. In the circumstances of that case, her Honour concluded that the key issue involved in whether to exercise her discretion in favour of making the order was whether there was, in the particular circumstances of the case, any public interest in being able to continue to have access to the fact of conviction. Her Honour's conclusion was expressed in the following terms:
Taking the last matter first, it seems to me there is no pressing public interest in persons generally being able to continue to have access to the fact of the appellant's conviction, since there is nothing to indicate that the community requires protection from the appellant. It is also, in my view, relevant in the present case to consider the very serious stigma which attaches, rightly, to a conviction for a sexual offence against a child. The stigma is so great that any person who becomes aware of the mere fact of the appellant's conviction will often be uninterested in staying to learn the detailed circumstances and will be prepared, without more, to regard the appellant as a person of thoroughly reprehensible character.
Particularly in relation to a young person who is, in practical terms, at the beginning of his working life and who, although currently working as a barista, may well at some stage seek alternative employment in other fields, the mere fact of conviction of these offences would be likely to have a detrimental and long-lasting impact upon the appellant. In those circumstances, in my view, it is appropriate that he be relieved immediately of the effects of the conviction and I would make a spent conviction order [73] - [74].
33 I consider this to be another case where the nature of the offence, without more, is sufficiently cogent evidence of the potential adverse impact of the conviction on a prospective employer, and indeed most other people. As Wheeler J observed, most people who became aware of the conviction would be uninterested in learning the detailed circumstances so as to obtain an accurate appreciation of the level of criminality involved in the particular offences.
34 In Wood v Marsh the Full Court also made the following statement:
In order to make a spent conviction, Murray J said in R v Tognini (at 296 - 297; 417) that there should be some particular circumstances 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 immediately be set aside [44].
35 Having considered these authorities, the position appears to be that the necessity to adduce evidence of the relevant circumstances will depend on the circumstances of each case and, in particular, the nature of the offence of which the applicant for a spent conviction has been convicted. However, in line with the decision in R v Tognini, in almost all cases some clear and cogent evidence would be required rather than broad assertions or submissions based on anecdotal evidence.
36 One of the central issues raised on behalf of the appellant was the level of information the magistrate was required to provide to the appellant in view of the fact that he was unrepresented at the time he was sentenced.
37 In Wood v Marsh Malcolm CJ (with whom Murray and Anderson JJ agreed) stated at 483 that the approach which the court should take when an unrepresented person attends at court and pleads guilty to an offence was considered by the Full Court of the Supreme Court of South Australia in Cooling v Steel (1971) 2 SASR 249 at 251 as follows:
... the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation.
If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to impose disqualifications from holding or obtaining a (p484) driver's licence, to make an order to pay compensation, to direct forfeiture of property or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath and that he may call witnesses or produce other relevant material for the consideration of the court ...
Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor ... If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.
In general the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
38 Malcolm CJ also referred to the decision in Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278 where Wheeler J (with whom Kennedy and Miller JJ agreed) referred at 279 to the fact that there are many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. Her Honour noted that the risk that this may not occur arises largely from the huge volume of work with which those courts are faced: 485. Wheeler J also referred to that part of the decision of Wells J in Cooling v Steel at 250 where his Honour said that it is imperative that courts of summary jurisdiction should follow practices that will avoid the possibility that a party should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him: 485.
39 Malcolm CJ concluded that there was no evidence put forward by the Crown that the justices were satisfied, or took any steps to enable themselves to be satisfied, that the appellant understood his rights and was aware of the various matters referred to in Cooling v Steel. His Honour concluded that it was clear that the appellant did not understand the nature and seriousness of the charges against him, in the sense that a conviction could lead him to have a criminal record; that he had a right to legal representation and a right to apply for an adjournment to obtain legal advice or representation: what sentence could be imposed: his entitlement to make submissions on penalty: his right to dispute the statement of material facts; or that he was entitled to make submissions about a spent conviction order having regard to s 6 and s 39 of the Sentencing Act, or obtain further evidence in support of a spent conviction order: 485 - 486.
40 However, in order to consider the application of the views expressed by the Full Court in Wood v Marsh it is necessary to consider the circumstances that applied in that case. The appellant, who had no previous convictions, appeared unrepresented before justices of the peace on charges of wilful damage and unlawful possession of cannabis. The justices imposed fines and costs orders and an order for restitution. The appellant claimed he was not told that he could obtain legal advice, nor that he could apply for a spent conviction order. There were no recording facilities at the court and no formal reasons were given. The only account of what transpired at the hearing came from the appellant, who said that he did not recall anyone telling him before the court appearance that he could have the matter adjourned so that he could obtain legal advice. He said that when he was called before the court one of the justices asked his name and whether he wanted the matter dealt with. He said that he did. The appellant admitted that he wanted to get the matter over and done with; however, he said that he never appreciated the seriousness of the charge and what a conviction would mean. The appellant said that at no time did either of the justices tell him that he could be remanded to obtain legal advice. Neither was it indicated to him that he could apply for a spent conviction order: 478.
41 In those circumstances, the court held that there was no evidence that the justices gave any consideration to the making of a spent conviction order or whether they could impose no sentence and order the release of the appellant or impose a conditional release order and order the release of the appellant or indeed any matters in addition to the imposition of a fine: 483. As the justices were bound to consider these matters, their apparent failure to do so had the inevitable result that there has been a miscarriage of justice. The matter was remitted to the Court of Petty Sessions to consider the making of a spent conviction order: 486.
42 It is clear from the reasons given by Malcolm CJ that his Honour accepted the appellant's assertion, made in his affidavit, that he did not understand the nature and seriousness of the charges against him, in the sense that a conviction could lead him to have a criminal record: 486. However, the acceptance by the Full Court of the appellant's assertion that he did not understand the nature and seriousness of the charges against him must also be considered in light of the particular facts of that case. The appellant's affidavit evidence was that he had attended the Settler's Tavern at about 9.30 pm in order to attend a concert. He was dancing on a very crowded dance floor and bumped into another person accidentally. Without warning, he found himself grabbed by the throat by a bouncer and dragged outside, where another bouncer attempted to put him in a headlock. He asked why he was being held and did not try to fight back, nor was it alleged that he tried to assault the bouncers. He was told to leave the premises. The appellant and a friend started to leave but the appellant was outraged at the treatment meted out to him and punched a car windscreen as he was going past it. The bouncers told the appellant to stay where he was while they called the police and he did as he was told. The appellant's friend tried to resolve the situation and the appellant agreed that he would pay for the damage to the windscreen. He understood that the bouncers had accepted that proposal. When the police arrived, they searched the appellant and discovered some cannabis. He then accompanied them to the police station. According to the appellant, the arresting officer said to him, 'I don't know why we are charging you. I thought it had all been sorted out.'
43 I consider that the appellant's understanding that there was an agreement that he would pay for the damage to the vehicle provides some evidentiary basis for the proposition that the appellant did not understand the nature and seriousness of the charges against him, including that a conviction could lead him to have a criminal record. It will be a matter for the individual judge, depending on the relevant circumstances, whether an assertion on affidavit that an offender did not understand that nature and seriousness of a charge, or did not understand whether a conviction would lead to a criminal record, is accepted as credible.
44 The appellant appeals against the sentence on the following grounds:
45 Both grounds can conveniently be dealt with together. However, before doing so, there are some aspects of the appellant's affidavit evidence about which I would make some comment. I note in passing that a number of the allegations made by the appellant bear a close connection to the issues raised in cases where appeals have been allowed from decisions by magistrates or justices not to grant a spent conviction order.
46 The appellant's proposition that he thought he was appearing in a civil court, with no issue or chance of conviction of any sort being recorded against him, does not, in my view, withstand scrutiny. I am unable to accept that any adult of reasonable intelligence could be so totally ignorant of the justice system to believe that being arrested, charged, released to bail, being required to appear before a court assisted by a police prosecutor and asked to plead to the charge, are components of a civil claim and would not result in a conviction if the charge were admitted. It should also be remembered that the appellant was specifically asked if he was pleading guilty: a clear indicator of a criminal matter. The very terms of the bail undertaking are also inconsistent with a belief that the proceedings were other than criminal in nature. The undertaking refers to 'charges' and 'accused'. There is even a portion of the document stated to be directed 'TO THE ACCUSED'. The undertaking also contains an acknowledgement that the 'accused' has been given a copy of the Notice To Accused (Form 7). That document was not attached to the copy of the bail undertaking or annexed to the affidavit but it is entitled Notice To Accused and includes information indicating that a failure to comply with a condition of the bail undertaking is an offence. It is, in my view, inherently improbable that the appellant did not know he had committed a criminal offence and was being dealt with for that offence in a criminal court with all the usual consequences that flow from behaviour of that type, including a conviction following a plea of guilty. In making those observations I am taking into account that the appellant was an adult, an accountant and hence of average intelligence and maturity, and was not suffering under any disability.
47 For the reasons to which I have already referred in considering the decision in Wood v Marsh, the decision of Malcolm CJ is not authority for the proposition that the court must accept an uncontroverted statement made by an offender in an affidavit to the effect that he did not understand the nature, seriousness or consequences of an offence with which the offender has been charged. In all the circumstances to which I have referred, I find that the statement of the appellant, a 35-year-old professional person, that he thought he was appearing in a civil court with no issue or chance of conviction of any sort being recorded against him was entirely implausible and should not be accepted.
48 Further, there was nothing about the appellant, or in the information provided in relation to him, that would lead a magistrate to conclude that it was necessary to point out to the appellant that the nature of the proceedings was criminal, that a conviction would result from a plea of guilty and a criminal record would result from a conviction. If the court were to require the magistrate to give such an explanation in the appellant's case then it would be required in almost every case before the court. In my view that is an unnecessary and onerous burden which would substantially extend the length of every criminal list in the Magistrates Courts.
49 I do accept that, as a first offender, the process was foreign to the appellant as he alleges: at least in the sense that he had not previously been involved in such a process. However, that does not mean that the appellant could not understand the process or that it was unfair. Nor does it follow that the magistrate was required to do more than he actually did to enlighten the appellant as to what he was required to do and what options were available to him, such as an adjournment for legal advice.
50 In the course of addressing the grounds of appeal, which are somewhat general in their terms, counsel for the appellant made a number of specific submissions in relation to the obligations of a magistrate in dealing with an unrepresented accused in the circumstances in which the appellant found himself on the day he was sentenced.
51 Counsel for the appellant submitted that the magistrate did not make any inquiry as to whether the appellant had had time to consider the prosecution notice and seek legal advice about it. In my view, that accusation is neither consistent with, nor justified by, the transcript. Although the appellant now maintains that he was not aware that he was charged with an offence, there is no suggestion that he was unaware of the factual circumstances alleged against him or that he disputed them. It is also apparent from the record of the proceedings that the appellant was specifically asked whether he would like a remand in order to obtain legal advice and he did not avail himself of that offer or request an adjournment at any stage. Whilst the magistrate did not specifically refer to consideration of the prosecution notice, the purport of the inquiry was to determine whether the appellant required more time to deal with the charge against him.
52 The written submissions made on behalf of the appellant were supplemented with further oral submissions identifying other aspects of the court process which are said to manifest error. It was submitted that the appellant had no idea what he was supposed to do when he appeared before the magistrate. It was also said that it all happened quite quickly in that the appellant was released on the Friday night whilst still intoxicated and appeared the next morning within eight or nine hours of offending. This submission was supplemented with the observation that 'most people get the opportunity at least to reflect over a weekend'. It was further submitted that, having consumed a substantial amount of alcohol on the day of the offence, the appellant may still have been feeling the effects on the following morning. The short duration of the proceedings was also relied upon.
53 It can immediately be seen that there is a considerable amount of conjecture involved in some of these statements which appear to be directed either at the proposition that the charge should not have been dealt with at that time, or that the magistrate was bound to compensate for or overcome these difficulties in the way in which he dealt with the appellant. Matters such as whether the appellant was still under the influence of alcohol were not referred to in the appellant's affidavit evidence. There was no evidence provided to support the statement that most people who appear in court following arrest have had more than overnight to consider their position. The appellant had a number of hours to sleep and managed to arrive at the court an hour before it started. There was nothing in his responses to indicate that the alcohol he had consumed the previous day was causing him problems in understanding what was being said to him. The appearance was of short duration but he was given the opportunity for an adjournment and to explain his conduct.
54 In considering why, in the circumstances as are now alleged by the appellant, he did not accept the magistrate's offer for an adjournment for legal advice, it is relevant to consider that the appellant was from out of the State and was in Perth only for the purpose of watching a cricket match. Even counsel for the appellant conceded that 'the court can almost read between the lines that it was a short stay'. The fact that there would have been a considerable incentive at the time for the appellant to have the matter to be dealt with should not be ignored, although the appellant makes no mention of his arrangements and whether he was required to return home at any particular time or of the consequences of not doing so.
55 Another submission made by the appellant was that, although he was asked if he wanted the opportunity to obtain legal advice, he did not actually answer the question and simply said, 'I probably did it'. On reading the transcript I considered that the reasonable interpretation of that response was that the appellant considered, because he had committed the offence, he did not require legal advice. Whether or not he was correct in that view is not of any moment. The fact is that he was capable of understanding the opportunity which was being offered to him and he could accept it if he wished to, and could have inquired whether it was still open to him at any later stage of the proceeding. There may well be circumstances in which it would be necessary for a magistrate to request a specific 'yes' or 'no' response to that question. However, in the absence of any evidence that the appellant was acting under any form of disability which might impede his understanding or under any misapprehension which might affect his response to the magistrate's questions, this was not such a case.
56 It was also submitted on behalf of the appellant that the magistrate did not seek to elicit from the appellant, or to ascertain from any other source, his personal circumstances, including his occupation, income and assets, his family situation and the fact that he was from outside the jurisdiction. The magistrate was already aware that the appellant had no prior convictions because he was told that by the prosecuting officer. He was aware of the appellant's age, and the fact that he was from outside the jurisdiction, from the information contained in the prosecution notice. It is not immediately apparent to me why it is said to be necessary for the magistrate to inquire as to the appellant's occupation or why the failure to do so is said to manifest error. Information that the appellant was an accountant would do little more than further inform the magistrate of the fact that the appellant was not under any disability with respect to understanding what was being asked of him, would be able to speak on his own behalf, and that he may have a clearer understanding of the way in which conduct of the type he engaged in on that day might be viewed by a court.
57 According to counsel for the appellant, the relevance of such questions is that they 'go into the mix' for making an assessment as to whether someone is going to offend again and I accept that to be the case. However, although information personal to the appellant is relevant to the sentencing process, including the likelihood of reoffending, it does not follow that the absence of it indicates error in the process.
58 In considering whether the absence of information manifests error it is helpful to consider what impact, if any, the information would have had if it had been elicited. Counsel for the appellant submitted that the magistrate could rely on the conservative nature of the accounting profession in reaching a conclusion as to the prospects of the appellant reoffending. This was said to be because an accountant has responsibilities and would know that if he continued to behave in such a fashion he would have to give up his profession. I reject the general proposition that a member of any particular profession is more or less likely to reoffend or has any greater or lesser insight into the consequences of reoffending. Further, I was not provided with any authority to support such propositions.
59 The explanation for why the magistrate should have inquired about the appellant's family circumstances was said to be because if he had numerous children to support he could not afford to have a drinking problem. Hence, presumably, the appellant would be less likely to reoffend. An inquiry revealed that, although married, the appellant had no children, so it is unnecessary for me to comment on counsel's submissions concerning the inherent sense of responsibility of fathers of large families. As to the proposition that the magistrate should have inquired about the appellant's finances, I accept that before imposing a fine the court should be aware of whether the offender has the capacity to pay the fine. However, as in this case the appellant does not assert that he was unable to pay a fine, this submission does not advance the appellant's position. These factors appear to be the extent of the personal circumstances about which it is submitted that the magistrate should have made inquiries.
60 It is clear from the transcript that the appellant was given the opportunity to put forward an explanation but he conceded that the only explanation was the amount of alcohol he had consumed. There is nothing to suggest that the appellant was not given the opportunity to continue to speak further on his own behalf after making that concession. There was no suggestion he was cut off whilst speaking. Further, whilst the question asked by the magistrate related specifically to explanations for the offence, the appellant had the opportunity to put forward explanations of any type but did not avail himself of the opportunity.
61 In his affidavit, the appellant expresses the belief that his behaviour was affected by the heat that he experienced at the cricket from earlier that day and the unknown surroundings that he found himself in. The appellant alleges that these factors caused him to become disorientated. In this regard, the appellant blames his conduct on everything except the fact that he had been drinking for over eight hours. Similarly, the appellant also suggested that the couple that he was drinking with at the hotel 'spiked' his drinks, although on his own affidavit evidence the appellant did not remember anything between drinking some time after play ended and talking to two unknown patrons at a bar. According to his affidavit evidence, the appellant had no recollection of the incident the subject of the charge and gave no evidence of any matter relating to his conversation with the two patrons which could lead to the conclusion that one of them spiked his drinks. I am not prepared to accept that particular proposition in the absence of any evidentiary basis. It seems to me to be the product of sheer surmise or speculation on the part of the appellant. None of these explanations were put to the magistrate at the time, despite the fact that the appellant was given an opportunity to provide a reason for his conduct. I must say that, even if he had, I would imagine the magistrate would have found those explanations to be as unlikely as did I.
62 Each of these submissions are really components of an over-arching submission made on behalf of the appellant that the magistrate was under an obligation to address those factors that a legal representative would inquire about if instructed by the appellant. It was submitted that the magistrate should have obtained more detail concerning the circumstances of the offending behaviour and that he should have elicited the matters now set out in the appellant's affidavit. The magistrate should also have asked the appellant about all matters that might relate to the grant of a spent conviction order, including that the conduct was out of character and that the appellant was unlikely to reoffend. It was also submitted that the magistrate should have specifically advised the appellant that a conviction would result from his appearance in the court. The final matter of which it was said the magistrate should have advised the appellant was any difference between the law in the State where the appellant lives and the law in Western Australia. In making these submissions, counsel for the appellant relies on the decision of the Full Court in Wood v Marsh.
63 I have already indicated my views on the likely impact on the sentencing process of the assertions made in the appellant's affidavit about his drinks being spiked. It appears to me that there are no other circumstances relating to the offence which the appellant could have drawn to the magistrate's attention. I have already addressed the proposition that the appellant should have been told that a conviction would result because the appellant otherwise believed the proceedings to be civil in nature. As to the final proposition, in order to advise an accused of the difference in the sentencing laws between that person's home State and Western Australia, the magistrate would need to be cognisant of the sentencing laws in every other State and Territory of Australia. I can see no justifiable basis for imposing such an obligation on a magistrate who has provided an accused with the opportunity to obtain legal advice.
64 Counsel for the appellant further submitted that, because the appellant was unrepresented, the fact that he declined the opportunity to obtain legal advice or to provide further information about the offence or about himself is of no significance. I find this proposition somewhat circular. It seems to suggest that the court is also required to provide advice as to whether or not the appellant should obtain legal advice. The submission made by counsel was that, because there is an obligation on the court to ensure that the proceedings are not unfair to the accused, if an unrepresented accused makes a decision which can later be said to be objectively to his detriment, then that unfairness should be removed, apparently irrespective of whether it resulted from the accused's own conduct. I consider that reasoning to be wholly without merit. I fail to see any unfairness in a situation where an adult accused, who is of average intelligence, is given the opportunity to obtain legal advice, declines that advice and is then sentenced. It matters not whether it can later be said that he would have benefitted from being legally represented. As a general proposition, the adverse consequences of an unrepresented accused's own decision should not be removed from him simply because the decision was not a wise one.
65 The proposition that it is irrelevant that the appellant was offered the opportunity to obtain legal advice but declined is said to be based on the decision of Blaxell J in Yassin v Williams [2007] WASC 8. In that case the appellant, a 20-year-old Somalian migrant was charged with an offence of taking part in a riot. The magistrate asked the appellant whether he wanted a remand in order to obtain legal advice but the appellant declined. In fact, the offer to have the matter remanded was asked of the appellant on two occasions and further verified on another. Once the facts had been read, the appellant gave his explanation for the offence in such a way as to indicate that he did not consider he had done anything wrong or at least nothing serious. At that point in the proceedings the magistrate made it known to the appellant that the offence was very serious and that the maximum penalty for the offence was a term of imprisonment. It is apparent from the transcript that only at that point did the appellant have any idea that he might receive a term of imprisonment. He said that this was the first time that anything like this had happened to him but the magistrate immediately imposed a term of imprisonment and stood the matter down. The appellant then asked if he could 'get a fine' and said that he 'can't go to prison'. The magistrate concluded the proceeding.
66 The relevant basis of the appeal was the principle set out in a line of authorities in South Australia that in the case of a self-represented accused, where a magistrate is contemplating an order of imprisonment, the accused should be informed of that and be given an opportunity of seeking legal advice.
67 After referring to The State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278, 279 in which Wheeler J referred to Cooling v Steel, and also referring to the decision in Wood v Marsh, Blaxell J observed:
It would therefore seem that in this jurisdiction (as in South Australia) it is 'well settled' that a Magistrate considering a sentence of immediate imprisonment for a self-represented offender should first inform the defendant of that prospect and offer the opportunity of an adjournment for the purpose of legal advice. Of course, in respect of minor offences in some remote areas of the State where there is no real hope of a defendant obtaining legal advice, it might be impractical to take this step. However, in the present instance, it would have been very easy for the Magistrate to have stood the matter down until later in the day to enable the appellant to consult duty counsel. By then the appellant would probably have changed his mind about obtaining legal advice given that his expectations of a fine had evaporated [18].
68 His Honour concluded that the failure to offer the appellant a final opportunity for legal advice meant that he was unable 'to give a good account of himself' and denied to him the chance of making full submissions in mitigation of penalty: [20]
69 This decision is said to support the submission that, in considering whether a magistrate has fulfilled his responsibilities to an unrepresented accused and whether the proceedings involving an unrepresented accused are unfair, there is no significance to the fact that the accused was given the opportunity to obtain legal advice. In my view, the decision in Yassin v Williams is not authority for such a broad proposition. In fact, a more accurate statement of the effect of the decision is that, in certain circumstances, the fact that an accused was given at the outset of proceedings the opportunity to obtain legal advice might not be sufficient to ensure that the sentencing process is fair. Of course, the circumstances in Yassin v Williams are vastly different from those which applied in this case. I consider that the decision in Yassin v Williams does not assist in resolving the issues raised in this case.
70 On behalf of the appellant it was further submitted that, in addition to the responsibilities referred to above, a magistrate should be obliged to explain the likely sentencing options to the accused so that the accused may request that he or she be dealt with in a specific way and adduce and address the necessary information in support of such an option being imposed. This particular obligation is said to be justified by the decision of the Full Court in Wood v Marsh and the decision in Cooling v Steel which was approved and applied in that case.
71 I have referred above to the relevant portions of Cooling v Steel as approved in Wood v Marsh at 483. In particular, the South Australian Full Court stated that the accused should be informed of the penalties that may be imposed and that this was especially so where the court has power to impose disqualifications from holding or obtaining a driver's licence, to make an order to pay compensation, to direct forfeiture of property or to record a term of imprisonment. I have also referred to the conclusion of the court in Wood v Marsh at 485 - 486 where Malcolm CJ held that there was no evidence put forward by the Crown that the justices were satisfied, or took any steps to enable themselves to be satisfied, that the appellant understood his rights and was aware of the various matters referred to in Cooling v Steel. Malcolm CJ also held that it was clear that the appellant did not understand what sentence could be imposed.
72 However, those conclusions must be considered in the context of situations where the accused was not given the opportunity to adjourn for legal advice, had little idea of what was happening and was not given a proper opportunity to speak on his own behalf. In Cooling v Steel, the appellant, who was charged with traffic offences, appeared in person on appeal but asked his father to speak on his behalf. The appellate court was told that, in the lower court, the appellant was asked if he had anything to say but declined to speak mostly because he did not know what matters he should speak about: [250]. It was apparent from the grounds of appeal and the material adduced on appeal that the appellant's concern was with the length of the licence suspension as he was a technician in training who was later in the year to commence field training and would be required to drive a vehicle: [253]. Wells J determined that the matter should be remitted to the lower court for rehearing. The primary reason for making that order was that 'in the special circumstances of this case it does not appear that enough was done to obtain from the appellant adequate representations as to penalty': [254].
73 I do not accept that the approval in Wood v Marsh and The State of Western Australia v Landers of the statement of principle in Cooling v Steel, nor the decision in Cooling v Steel itself, requires in all cases an obligation on a magistrate to explain to an unrepresented accused person the array of penalties open to the magistrate for the relevant offences. The response of counsel for the appellant to the court's comment that such an obligation would be unduly onerous was that it was a narrow issue because there was only one option which the appellant wished to avail himself of: the spent conviction power. Of course, what may, in hindsight, be a narrow issue in this case, clearly has the potential to be a much wider problem. In this case, the appellant has indicated he would have made an application for a spent conviction order if he had been represented or if he had been made aware of it by the magistrate. However, the court is not to know which of the many sentencing options any particular offender may later conclude he would have preferred. In those circumstances, in order to ensure that accused such as the appellant is made aware of his preferred sentencing option, it would be necessary to require a magistrate in the case of every unrepresented accused to advise of the availability and the requirements for all the sentencing options open in the circumstances known to the magistrate. That is an obligation which, in a busy Court of Petty Sessions, would cause extreme delays and one which I am not prepared to impose on the magistracy. Of course, it does not follow from this conclusion that a magistrate is not under an obligation to consider all available sentencing options before passing sentence and to elicit sufficient information in order to do so.
74 The criticism of the court proceedings made by the appellant's counsel which forms part of the grounds of appeal is that the magistrate did not give any consideration to imposing a spent conviction order. In this case there was nothing to suggest that the magistrate failed to consider a spent conviction order any more than it could be said that there was a failure to consider any other sentencing option identified in s 39(2), such as imposing no sentence and ordering the release of the offender or imposing a CRO and ordering the release of the person. In my view, it does not automatically follow from a failure to mention that option that the magistrate did not give any consideration to imposing a spent conviction order. As I have indicated above, a failure to expressly refer to a matter does not necessarily give rise to an inference that it was not considered. Certainly there was nothing said by the magistrate from which a conclusion could be drawn that he did not in fact consider that option or that he rejected it for an inappropriate reason. As I have also noted above, whether or not to impose a spent conviction order is an express part of the sentencing power utilised by the magistrate in this case and under s 45(4) is taken to be part of the sentence imposed.
75 Counsel submits that the failure to consider the option is confirmed by the magistrate not apprising himself of the appellant's personal circumstances. It was also submitted that the magistrate needed to obtain much more detail concerning the circumstances of the offending behaviour. The magistrate was aware of the appellant's age and the fact that he had no prior convictions. He was also aware that his offending arose from an excess consumption of alcohol. He was also well aware of the specific circumstances of the offending. In this case, the appellant was not simply found urinating in a place where, though public, the appellant was unlikely to be seen or found. The offence took place at 10.15 pm on a Friday evening. The appellant was located at a traffic intersection in Perth directly opposite a café/bar. The appellant stood on a path and urinated onto the road whilst waving at passersby and at the café/bar staff. The appellant's penis was fully exposed and clearly visible to people in the vicinity. In my view, the magistrate was aware of enough of the appellant's personal circumstances and sufficient circumstances of the offence to make a decision whether the appellant was an appropriate candidate for a spent conviction order.
76 The Sentencing Act does not require the magistrate to enunciate his reasoning for rejecting other types of non-custodial dispositions. If the issue had been raised then no doubt the magistrate would have given express reasons for excluding that option but not otherwise.
77 With respect to the specific allegations of error alleged on behalf of the appellant, I am not persuaded that any error on the part of the magistrate has been shown. However, I accept the submission of counsel for the respondent that, in accordance with the general principles relating to appeals, to which I have already referred, error will be manifest if this court is satisfied that a spent conviction order should have been made: Hull v Castledine [2005] WASC 252 [10].
78 As Burchett AUJ observed in Brewer v Bayens (513), it is clear from the terms of s 45, and the relevant authorities, that a spent conviction order made at the time of the sentencing of an offender can only be made where the court is satisfied on three questions:
(1) It must consider that the offender is unlikely to commit such an offence again;
(2) Either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character;
(3) The court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the court will have regard to the applicable alternative found in respect of the second question.
79 The appellant states that his offending behaviour was a complete aberration of his prior good character. Unfortunately, it does not automatically follow from a lack of prior convictions that an offender is unlikely to reoffend: see Brewer v Bayens, 513 - 514. The absence of prior convictions is relevant but not determinative of the likelihood of reoffending. The court would be entitled to conclude that the appellant was unlikely to engage in other forms of criminal conduct but was in no position to conclude that the appellant would not again drink to excess and become disorderly. The appellant, who was in the best position to know, gave no indication of why he was unable to control his alcohol consumption or why he chose not to. He did not address whether anything other than over-consumption of alcohol motivated his criminal conduct. In fact, the appellant gave no insight into his offending and failed to provide any reason why it was unlikely to happen again.
80 The appellant acknowledged to the magistrate that his conduct arose from his excessive drinking on that day. In my view, it was not for the magistrate to test the appellant's own admission that the primary, if not the only, cause of his offending was drinking too much on a social occasion. Further, I note that apart from the drink-spiking allegation, nothing in the appellant's affidavit evidence would assist the magistrate to conclude that the appellant was unlikely to reoffend.
81 The appellant now suggests that his drink had been spiked and that, if the magistrate had elicited more relevant information from him, that factor would have had an effect on whether the appellant was likely to reoffend. Putting to one side the view that the appellant, an intelligent adult male was perfectly capable of providing an explanation when asked whether there was an explanation other than an excess of alcohol, I have already indicated my view that the allegation that the appellant's drink had been spiked was no more than speculation and, even if known by the magistrate, could not have had any impact on the appellant's prospects of reoffending.
82 Counsel for the respondent submitted that there was insufficient information before the magistrate to establish that the appellant was unlikely to reoffend. Counsel for the appellant submitted that this was a concession by the respondent that the magistrate had fallen into error in not eliciting additional information from the appellant. However, the respondent rejected the proposition that any such concession had been made, expressing the view that the appellant had simply failed to do more than blame his conduct on his alcohol consumption.
83 If I am wrong in my conclusion that, in the circumstances, it cannot be said that the appellant is unlikely to offend then it is necessary to look at the next alternative criteria. I do not intend to address the issue as to whether the offence was trivial as the appellant had no prior convictions and therefore meets the second criteria.
84 In considering whether the appellant should be relieved immediately of the adverse effect that the conviction might have on him, I am mindful of the statement of Murray J in R v Tognini that the court 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. His Honour stated that the court should therefore look to see whether there is some particular circumstances 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: 279.
85 One such circumstance was said to be the effect on the offender following a particular career path. The appellant expresses the concern as to the effect that the conviction will have on his current employment in relation to overseas travel and postings (including to the United States) and also promotion. He states that he is also concerned about the negative effect of disclosing the conviction in future professional employment applications on his prospects of success with those applications. The appellant's assertion that his future professional employment application may be adversely affected by his conviction is, in my view, insufficiently clear or cogent to justify the exercise of the power. The authorities establish that the appellant must be able to point to some particular circumstance to show that it would be desirable for the adverse effect of the conviction to be immediately set aside. In Ennis v D'Andrilli [50] I referred to the decision in R v Tognini where Murray J clearly indicated [20] that the requirement for a 10-year waiting period is to allow sufficient time to pass to establish the absence of reoffending so that the court may consider the convicted person to be rehabilitated and deserving of relief from the effects of conviction. If the court at first instance were required, or even entitled, to speculate as to what might happen in that period and make a spent conviction order if there is any possibility of an adverse impact, however remote, and in the absence of any factual basis, the Spent Convictions Act would lose much of its effect and purpose. Further, Murray J emphasised [24] that the power in s 45 should only be sparingly exercised in a clear case and for cogent reasons. I have already addressed the appellant's submission that I should follow the decision of EM Heenan J in Rumi v Wood and not require cogent evidence of the adverse impact alleged and have concluded that I am bound by the decision in R v Tognini with which, in any event, I respectfully agree. As I have indicated above, I accept that there are cases where no evidence would be required in order to conclude that there was a very real prospect of an adverse impact on an offender's employment. However, this is not such a case. Consequently, I am of the view that on the evidence before me I am not satisfied that there is likely to be any or any sufficient adverse impact on the appellant's future employment prospects to justify making a spent conviction order.
86 Counsel for the appellant also relied upon the concession made on behalf of the respondent that, to the extent that it is relevant in this case, the respondent concedes that there is no specific public interest in this case in the appellant's conviction not being spent and in the conviction should be spent. In R v Tognini, Murray J said (297 - 298) that a particular circumstance which might show that the adverse effect of a conviction should be immediately set aside was where there might be an impediment to the offender's career or employment. However, it is the fact that this circumstance leads to the view 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, that justifies the making of the spent conviction order. When Murray J said that the court may be aided in reaching 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, his Honour was referring to the conclusion 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.
87 As Burchett AUJ observed in Brewer v Bayens at 515, the protection of the community is an aspect of the wider public interest. His Honour stated:
One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from response to inquiries, and placing a legal impediment in the way of some inquiries. The court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, 'the preservation of confidence in the judicial system' requires publicity: see R v Tait (1979) 46 FLR 396 at 401, per Brennan, Deane and Gallop JJ. As their Honours also said: 'To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction'.
88 It is true to say that there are many more serious offences in the legislation than the offence of disorderly conduct. However, disorderly conduct arising from excess alcohol consumption is a prevalent offence and something which can impair or even ruin the ability of members of the public to go about their business in peace and enjoy the community in which they live. Most importantly, disorderly conduct offences take up a great deal of police time and resources and place police officers at risk when attempting to deal with or apprehend those who are behaving in a disorderly fashion and are too inebriated to act rationally or reasonably. In my view, these circumstances suggest that there is a strong public interest in convictions and penalties for such offences being exposed to public scrutiny so they may have a strong deterrent influence. For that reason, I have some difficulty with the respondent's position that there is no specific public interest in the appellant's conviction not being spent.
89 These views should not be seen as support for the proposition that a spent conviction order cannot be granted in the case of disorderly conduct offences. In an appropriate case, other factors may be so cogent as to make it 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, that a spent conviction order should be made to a person guilty of disorderly conduct. However, I consider that the circumstances of this case do not call for the making of such an order.
90 Counsel for the appellant submitted that, if the court reached the view that the evidence adduced was inadequate, the matter should be remitted to the Magistrates Court for further evidence to be adduced. However, as I have found no identifiable error on the part of the magistrate, I am only entitled to allow the appeal and return the matter to the Magistrates Court if I am satisfied on the evidence before me that a spent conviction order should have been made. As I am not so satisfied there is no basis upon which I may allow the appeal and remit the matter for further evidence to be adduced.
91 For these reasons I am not persuaded that the appellant should have been given a spent conviction order. Consequently, I would dismiss the appeal.
(1936) 55 CLR 499
(1996) 63 FCR 567
(2000) 22 WAR 291
(2007) 234 ALR 51
(1979) 46 FLR 386
(1971) 2 SASR 249
(2000) 22 WAR 278
(1979) 46 FLR 396
Appeal dismissed. The court was not satisfied that a spent conviction order should have been made and found no basis to remit the matter for further evidence ([90]–[91]).