AB v Lloyd - [2011] WASC 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: AB -v- LLOYD [2011] WASC 97

CORAM: JENKINS J

HEARD: 15 FEBRUARY & 15 MARCH 2011

DELIVERED : 8 APRIL 2011

PUBLISHED : 15 APRIL 2011

FILE NO/S: SJA 1105 of 2010

BETWEEN: AB
Appellant
AND
LUKE RUSSELL LLOYD
BRENDAN DAVID GRIFFITHS
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 43043 of 2010, PE 40435 of 2010, PE 40436 of 2010

Catchwords:

Criminal law - Sentencing - Aggravated assault - Breach of police order - Whether fines manifestly excessive - Relevance of appellant's personal circumstances

Criminal law - Sentencing - Aggravated assault - Breach of police order - Application for spent conviction orders - Failure to consider statutory criteria

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 313(1)(a), s 317(1)
Restraining Orders Act 1997 (WA), s 61(2a)
Sentencing Act 1995 (WA), s 39(2), s 53
Spent Convictions Act 1988 (WA)
Working With Children (Criminal Record) Act (WA), s 8(2)

Result:

Appeal allowed on ground 1
Sentence of fines imposed quashed and in lieu thereof a community based order for 12 months with a programme requirement imposed
Appeal on ground 2 dismissed

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley
Respondents : Ms C E Fitzgerald

Solicitors:

Appellant: Legal Aid (WA)
Respondents : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cunningham v Khan [2006] WASC 28
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Mieli v Beros [2006] WASC 294
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Robertson v Lawrence [2008] WASC 111
Sheppard v Blakey [2001] WASCA 309

JENKINS J:

The decision under appeal

This is an appeal from the sentencing decisions of a magistrate sitting in the Magistrates Court at Perth on [suppressed] 2010. The appeal is against the decisions of the magistrate to impose fines as opposed to a community based order (CBO) of some description and to refuse the appellant spent conviction orders in respect of three offences for which she was sentenced on that date.
On 8 April 2011 I allowed the appeal in respect of ground 1 but dismissed the appeal in respect of ground 2. These are my reasons for the orders I made on that date.

Grounds of appeal

The appellant was given leave to appeal on the following grounds:
(1)the magistrate erred in not considering any sentence dispositions other than a fine; and
(2)the magistrate erred in not granting a spent conviction order in all the circumstances of the case.

Details of charges and proceedings

Prosecution notice 43043 of 2010 alleged that on [suppressed] 2010 the appellant had unlawfully assaulted the complainant and thereby did him bodily harm in circumstances of aggravation being that the appellant was involved in a domestic relationship with the complainant, contrary to the Criminal Code (WA), s 317(1). The summary conviction penalty was imprisonment for 3 years or a fine of $36,000. However, the maximum penalty was 7 years' imprisonment.
[suppressed]
Prosecution notice 40435 of 2010 alleged that on [suppressed] 2010, the appellant being bound by a police order, breached the order, contrary to the Restraining Orders Act 1997 (WA), s 61(2a). The maximum penalty for the offence was imprisonment for 2 years or a fine of $2,000 or both. Prosecution notice 40436 of 2010 alleged that on the same date the complainant unlawfully assaulted the same complainant in circumstances of aggravation being that the appellant was involved in a domestic relationship with the complainant, contrary to the Criminal Code, s 313(1)(a). The maximum penalty was imprisonment for 3 years or a fine of $36,000.
The appellant, who was represented by counsel, appeared before a magistrate on [suppressed] 2010 and pleaded guilty to breaching the police order and not guilty to the aggravated assault charge. On [suppressed] 2010 the appellant pleaded guilty to all charges. It is not clear from the prosecution notice when the appellant indicated a plea of guilty to the aggravated assault occasioning bodily harm.
The prosecutor read out the facts. These were confusing because the facts of the offences on [suppressed] 2010 were read first as if they occurred before the offence on [suppressed] 2010. In the correct order the facts as read were:
[suppressed]. Had been drinking with friends at that house. During the early hours of the next morning the [appellant] and the victim became involved a verbal altercation which escalated. The [appellant] punched the victim twice to the face with a closed fist before throwing a bottle at the victim which struck him to the left side of the head …
As a result of being struck by the bottle the [victim] suffered cuts and swelling to his head. Required medical attention. [suppressed] (ts 10/9/10, page 3).
[suppressed] the [appellant] and the victim had been in a domestic relationship for the past [suppressed] years. [suppressed]. [The Appellant] engaged in a verbal altercation with the victim regarding relationship issues and divorce. The altercation became heated. Victim phoned police who attended, spoke to both parties. Issued the [appellant] a 72‑hour police order which was explained.
Police conveyed the [appellant] to a friend's address [suppressed] that same day the [appellant] returned to the address. At the time the victim was standing outside the front of the premises. The [appellant] charged at the victim shouting, 'I'm going to get you'. Swung (indistinct) handbag. Struck the victim on the left shoulder. Continued to swing at the victim with both her handbag and an open hand. Both parties began to struggle.
[suppressed].
The appellant's counsel then presented a plea in mitigation. Counsel told the court that the facts in respect to the offences on [suppressed] 2010 were accepted but in respect to the [suppressed] offence she admitted that she slapped the victim and threw the bottle. However, counsel said that the appellant did not throw it at him. She threw it at a wall next to him. Her aim was off and it hit the victim.
Defence counsel told the magistrate that the appellant [suppressed]. She asked the magistrate to impose a CBO and to grant spent conviction orders.
Without hearing further the magistrate said:
Well, you won't get one of them.
Defence counsel asked if she could address the magistrate further. The presiding magistrate responded:
Its an assault on [suppressed] and then a few weeks later - where are we - a few weeks before she assault occasioning bodily harm. She doesn't deserve a spent conviction order.
To defence counsel's credit, even in the face of these signs of prejudgment by the magistrate, she more than adequately fulfilled her duty to the appellant and presented a comprehensive plea in mitigation.
She told the magistrate that [suppressed].
Counsel said that the appellant had [suppressed].
[suppressed]
[suppressed]
[suppressed]
[suppressed]
As a result of the last incident, the appellant had sought assistance to deal with anger management problems and alcohol abuse. She was volunteering at a children's school and was attending counselling.
Counsel submitted that, because of the appellant's lack of financial independence and need for counselling, a CBO would be an appropriate disposition.
In respect of the application for spent conviction orders, counsel referred to the appellant's previous conviction for drink‑driving which she said was her only previous conviction. Counsel submitted that the appellant was unlikely to reoffend. The magistrate responded that she would not do so until she drank again. Counsel said that the appellant was addressing that with counselling and the magistrate responded 'well, that's fair enough'.
Counsel presented character references from a local school which attested to her good character. The reference is now unable to be located.
Counsel said that the appellant hoped to be able to find employment in the future and that this would be more difficult with convictions. It was also said on the appellant's behalf that she would like to study and get a full‑time job.
In respect of the public interest in knowing about the convictions, counsel said that as they were domestic in nature and peculiar to their own facts it was not in the public interest for the public to be made aware of them. Counsel referred to the decision of Mieli v Beros [2006] WASC 294 [35].
His Honour then proceeded to sentence the appellant. His Honour said:
This first offence occurred on [suppressed]. She appeared in court for the first time on [suppressed] on that one. The second one didn't occur while she was on bail for the first one but it certainly occurred two months later. So if [the appellant] was going to learn anything she should have learned it the first time. She was aware of the consequences of assaulting people. She didn't learn anything from the first one and then she went out again and did it again when she got on the drink. I've got a reference here from the … Primary School that tells the court she is an extremely respectful and a gentle and kind nature.
She's a willing helper at the primary school. That's [the appellant] when she's sober. I'm not dealing with the sober [appellant]. I'm dealing with what appears to be [the appellant] when she's drunk. No‑one forced her to drink. So on the charge from the - the first charge, the assault occasioning bodily harm on [suppressed], on that one there's be a fine of 750, costs of 119.20. Then the repeat assault on [suppressed], on that assault - it will be a lesser assault, of course - there will be a fine of 300. On the charge of breaching the police order there will be a fine of 250, costs of 262.50 (ts 10/9/10, page 7).

Consideration of the grounds of appeal - ground 1

The Sentencing Act 1995 (WA) s 53 says that if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -
(a)the means of the offender; and
(b)the extent to which payment of the fine will burden the offender.
The appellant says that the magistrate failed to do this. More significantly, the appellant submits that in circumstances where her counsel had expressly requested a CBO, the magistrate failed to consider and/or express why such a sentence was not appropriate in her circumstances.
The applicable principles are well known. An appellate court may not allow an appeal and resentence an appellant merely because it would have exercised the sentencing discretion in a different manner to that of the original court. An appellate court may only interfere if a material error of fact or law is disclosed in the original court's reasons or, in the case of an offender appeal, the sentence is manifestly excessive. Even if the original court made an error, the appellate court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: Criminal Appeals Act 2004 (WA), s 14(2).
The failure of a magistrate to mention a matter expressly in his or her reasons for decision does not necessarily give rise to an inference that the matter was not considered. However, reasons for sentence should disclose the essential reasoning by which the sentence was arrived at. In the absence of credible evidence to the contrary, it is to be assumed that a magistrate has complied with the duties imposed by the Sentencing Act and taken relevant matters into account: Sheppard v Blakey [2001] WASCA 309 [25].
The Sentencing Act s 39(2) contains a hierarchy of sentencing options. It is a requirement of that section that a court not impose a sentence within that hierarchy unless it is not appropriate to use any other sentencing option listed before that option. The sentencing options listed before a fine are imposing no sentence and imposing a conditional release order (CRO), either of which may be made with or without making a spent conviction order. The option of imposing a CBO is the sentencing option which follows the power to impose a fine. All of those options may be accompanied by a spent conviction order.
Where it is evident that a magistrate has overlooked the possibility of a sentencing option that appears in s 39(2) before the option which was imposed, there will be error shown in failing to consider all relevant sentencing options. However, this does not mean that a magistrate is in every case required to mechanically work through each of the options set out in s 39(2): Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA) (Roberts‑Smith JA agreeing).
Defence counsel did not submit to the magistrate that he should impose a CRO. Given that counsel's submissions were predicated on the basis that the appellant would benefit by supervision in the community and a CRO does not allow for such supervision, it can not be said that the magistrate erred by not considering the imposition of a CRO.
Defence counsel asked the magistrate to impose a CBO on the appellant. In his sentencing remarks, the magistrate did not say why a CBO was not appropriate. Further, defence counsel told the magistrate that the appellant was not employed, was financially dependent on her partner and that her partner gave her access to limited money to pay for household expenses. In support of the application for a CBO, defence counsel had told the magistrate that the appellant had an anger management problem and an alcohol problem and was attempting to address these issues through counselling. It was a matter of commonsense, as acknowledged by the magistrate, that these issues had contributed to the appellant's offending.
Given all of the above circumstances and the applicable law, it is my view that there is error shown in the magistrate's reasons in that they do not disclose the essential reasoning by which the magistrate concluded that fines were appropriate in lieu of the CBO sought by the appellant.
The respondent submits that, in any event, there was no substantial miscarriage of justice because fines are the usual and appropriate penalty for offences of this type, the submissions made on behalf of the appellant to the magistrate did not disclose that the appellant would be unable to pay the fines imposed and a CBO is a sentencing option which comes after a fine in s 39(2). Consequently, the fines were a less serious sentencing option. Further, the respondent says that the submissions to the magistrate disclosed that the appellant was already receiving counselling for her problems and, therefore, there was no reason for the magistrate to believe that a CBO was necessary to enable her to address the causes of her offending.
As I concluded that there was error shown in the magistrate's reasons, in order to assist me to determine whether there was a substantial miscarriage of justice as a consequence, I ordered a pre‑sentence report (PSR). The appellant told the author of the PSR much the same things that her counsel told the magistrate and has told me. Additionally the report says that:
[The appellant] advised that because she is not working she is entirely reliant on her partner for money … She said that currently she may go months without being provided with money. However, that on occasion will be given a lump sum by her partner for sustenance. She indicated she then needs to budget accordingly to make the money last as long as possible. She said this problem has existed since her she offended against her partner.
…
Further, although it is recognised that [the appellant] appears to have taken substantial measures to address issues related to her offending in the community of her own volition, details of her counselling were unable to be clarified or confirmed. Therefore, given the nature of the current offence before the Court, it is respectfully suggested that there may be some benefit in having [the appellant's] needs formally assessed, to ascertain whether she needs further counselling. This assessment may be carried out by a Departmental Psychologist and it is respectfully suggested that this could be facilitated by the imposition of a Community Based Order with a program requirement only. It is also noted, with respect, that in accordance with Section 62(4) of the Sentencing Act 1995, this Order would cease to be in force once this requirement was satisfied. This may be a means of the matter being dealt with whilst also ensuring [the appellant's] needs are assessed and assistance provided if need be.
I agree with the respondent's submissions in respect to the usual penalty for offences of these types. As the appellant's counsel also conceded the correctness of that view, I will not refer to the cases which substantiate it.
It is also correct that the sentencing option of a CBO appears after the option of a fine in s 39(2). However, that has to be considered in the light of the appellant's circumstances and the particular submission made to the magistrate that a CBO was the appropriate disposition because of those circumstances.
In respect of the respondent's submission that the submissions to the magistrate did not disclose that the appellant could not pay a fine, I am of the view that they should have certainly put the magistrate on notice that there was a real issue as to whether the appellant would be able to pay any fine imposed on her.
Having regard to the matters disclosed in the PSR, I am of the view that the error I have referred to by the magistrate did lead to a substantial miscarriage of justice. I am satisfied that the fine did not take into account the means of the appellant, which are entirely dependent on the provision made for the appellant by the complainant, and the extent to which payment of the fine will burden the appellant, in that it will increase the obligation of the appellant towards the complainant in circumstances where, already, the appellant feels she is bound to stay with the complainant in an unhappy, stressful and sometimes abusive relationship.
Further, the PSR makes it clear that the appellant may have treatment needs which could be addressed by way of a CBO. The combination of these factors takes the appellant's case out of the usual range of cases where fines are imposed on offenders with limited financial resources. In those usual cases the provisions which the law makes for allowing time to pay are sufficient to take into account the offender's means and the burden of payment on the offender. This was and is not such a case.
The respondent submitted that a lesser fine should be imposed, but in my view this was an appropriate case to impose a CBO with a programme requirement, as suggested by the author of the PSR. This is not to say that in most cases of offences of this type fines are not the appropriate penalty. It is the appellant's unusual personal circumstances which take her case outside of the usual range of cases. I set aside the fines imposed and in lieu there of imposed a CBO for 12 months with a programme requirement. The parties have liberty to apply in respect of costs in the Magistrates Court.

Consideration of the grounds of appeal - ground 2

The Sentencing Act s 39(2) provides that a court sentencing an offender may, with or without making a spent conviction order, fine an offender. Section 45 of that Act states that 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.

A spent conviction order made under s 39 is an order that the conviction to which it relates is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA). When a conviction becomes a spent conviction for the purposes of the Spent Convictions Act, it is unlawful for a person to discriminate against the offender on the ground of that spent conviction.
Examples of unlawful discrimination on the grounds of a spent conviction order include discrimination by an employer in respect to determining who should be offered employment, discrimination by an authority that is empowered to confer or renew an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in an occupation and discrimination by a principal against a contract worker. If a person has been granted a spent conviction order then, even where a written law requires a person to disclose or acknowledge matters relating to convictions, they do not have to disclose or acknowledge a spent conviction or the charge to which the spent conviction relates. There are other protections granted to persons who have been granted a spent conviction order.
The principles relating to the granting of spent conviction orders are well known as they have been set out in a number of cases including Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211. Most recently, I have referred to them in Robertson v Lawrence [2008] WASC 111 [38] ‑ [41]. I apply the principles, which I there stated, to the facts of this case. I will not repeat them.
The seriousness of the offences was one matter which the magistrate did, and was obliged to, take in to account in the exercise of his discretion. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Murray J (Malcolm CJ and Wallwork J agreeing) said:
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions 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].
Whilst the ground of appeal is expressed in general terms, the appellant's submissions focused on the allegation that the magistrate had prejudged the application for a spent conviction order before hearing the plea in mitigation. I think that there is much to be said for this submission. The magistrate's categorical comment as soon as defence counsel requested spent conviction orders could not but leave a fair‑minded observer with the view that the magistrate had already determined that he would not grant spent conviction orders regardless of any mitigatory circumstance that was brought to his attention during the plea in mitigation. The respondent says that this impression was dispelled during the course of defence counsel's submissions because the magistrate interacted with defence counsel in a fair manner which revealed that he was appropriately considering the submissions.
There is no error in a magistrate indicating to counsel a preliminary view prior to the conclusion of a plea in mitigation. In most cases, the expression of such views will assist counsel to focus on matters which are truly in issue. They are apt to assist the just and efficient determination of a sentence, rather than hinder it. However, in my view, the magistrate did much more than express a tentative or preliminary view about the application for spent conviction orders. He categorically stated that the appellant would not be receiving such orders. This was despite the fact that he had not yet heard the plea in mitigation and there was nothing in the nature of the offences themselves or in the appropriate disposition of them which disqualified the appellant from receiving spent conviction orders. Consequently, I am of the opinion that there was a relevant error in the sentencing process.
The next issue then is whether, despite this error, the appeal should be dismissed on this ground because there was no substantial miscarriage of justice.
The appellant submits that by the time she came to be sentenced she had sought professional assistance with her problems, was progressing well, and was therefore unlikely to reoffend. Further, she says that while her offences were not trivial, she was of excellent character. It is submitted again, on her behalf, that convictions would severely disadvantage her prospects of obtaining work and permanent residency. It is said on her behalf that whilst she had endured years of domestic abuse, these were the first occasions on which she had retaliated. It is said that in these circumstances the magistrate erred in not granting spent conviction orders.
The respondent accepts that the magistrate appeared to accept that the appellant was unlikely to reoffend because she was addressing her alcohol problem. The respondent submits that although the appellant may be regarded as being of good character, the recidivist nature of her offending was such that it was in the public interest that the convictions be disclosed for the purpose of both general and specific deterrence. It is submitted that deterrence is an important factor in sentencing offences of this type, particularly as the second assault evidenced a continuing attitude of disobedience to the law.
The respondent also submits that there was no evidence that the convictions would have any deleterious effect on the appellant's employment prospects. This is particularly so as the appellant was unemployed at the time of sentence, had not been actively seeking employment and would like to study and work full‑time at some point in the future. On these bases, it is said that the magistrate's decision to decline to grant the spent conviction orders was entirely within the discretionary power of the magistrate.
I accept the respondent's submission that it would have been an error for the magistrate, or indeed for this court, to grant spent conviction orders in an attempt to prevent the relevant Commonwealth Minister or officer from taking the convictions into account for the purposes of deciding whether the appellant ought to be granted permanent residency or a visa to remain in Australia. There is, in any event, a serious issue as to whether the grant of spent conviction orders would be effective in this respect: Cunningham v Khan [2006] WASC 28 [20] ‑ [32].
Whether or not spent conviction orders are made the State police will consider the offences when an application is made under the Working with Children (Criminal Record) Act 2004 (WA) (see definition of conviction in that Act s 8(2)). The author of the PSR also states that the Federal police will be able to consider them when determining whether the appellant is given clearance to work in any aged care facility licensed by the Commonwealth government. This view was not challenged by the appellant.
Taking all these matters into account, I think that the magistrate's decision not to grant spent conviction orders was entirely appropriate. There is a public interest for potential employers and other persons who might have a right to know that when affected by alcohol the appellant can commit violent offences. There is no evidence that the recording of convictions is going to result in exceptional hardship to the appellant. The offences, especially those committed on [suppressed] 2010, were serious. The principle of general deterrence requires offenders to know that domestic violence offences are taken seriously by the courts. For the above reasons, I dismissed the appeal in respect of ground 2.