AC v Dennison
[2023] WASC 410
•30 OCTOBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AC -v- DENNISON [2023] WASC 410
CORAM: WHITBY J
HEARD: 26 OCTOBER 2023
DELIVERED : 26 OCTOBER 2023
PUBLISHED : 30 OCTOBER 2023
FILE NO/S: SJA 1048 of 2023
BETWEEN: AC
Appellant
AND
MATTHEW DENNISON
Respondent
ON APPEAL FROM:
For File No: SJA 1048 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M HOLGATE
File Number : MC LE 138 of 2022
Catchwords:
Criminal law - Appeal against sentence - Whether there was a miscarriage of justice in magistrate's failure to grant a spent conviction order - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Firearms Act 1973 (WA)
Sentencing Act 1995 (WA)
Spent Conviction Act 1988 (WA)
Result:
Extension of time to appeal granted
Leave to adduce additional evidence granted
Leave to appeal granted on ground 1
Appeal allowed
Spent conviction ordered
Category: B
Representation:
Counsel:
| Appellant | : | W Yoo |
| Respondent | : | E A Heywood |
Solicitors:
| Appellant | : | Aboriginal Legal Service - Perth (Criminal) |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Carney v The State of Western Australia [2010] WASCA 90
Caseley v Zampogna [2006] WASC 259
Colwell v The State of Western Australia [No 2] [2012] WASC 196
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
JJF v Tattersall [2018] WASC 170
Lee Suarez v Cutler [2012] WASC 171
M v Seidner [2013] WASC 395
Petrusic v State of Western Australia [2020] WASCA 62
R v Tognini [2000] WASCA 31
Samuels v The State of Western Australia [2005] WASCA 193
Sharpe v Vinning [2020] WASCA 79
TJH v Osborne [2018] WASC 87
Wimbridge v Western Australia [2009] WASCA 196
WHITBY J:
(This judgment was delivered extemporaneously on the 26 October 2023 and has been edited from the transcript.)
Introduction
This is an appeal against sentence. On 3 August 2022, the appellant was charged with permitting an unlicensed person to possess a firearm contrary to s 19(2)(c) of the Firearms Act 1973 (WA) as a result of leaving her .22 bolt action rifle (serial no. T759) in the possession of her ex-partner Gary David James Tucker, who did not have a current firearms licence.
The charge was listed for mention in the Leonora Magistrates Court on 13 September 2022. The appellant did not attend on that date but endorsed a written plea of guilty to the charge. The learned magistrate entered a judgment of conviction against the appellant and imposed a sentence of a fine of $500, and costs in the amount of $264.30.
On 7 June 2023, the appellant appealed against the sentence imposed by the learned magistrate.
The appellant appeals the sentence imposed by the learned magistrate on the basis that there was a miscarriage of justice because the learned magistrate failed to make a spent conviction order.
Grounds of Appeal
The appellant appeals the sentence on one ground:
There was a miscarriage of justice in the failure to grant the appellant a spent conviction under s 45 of the Sentencing Act 1995 (WA) (Sentencing Act).
Factual background of the offences
On 7 June 2022, police officers conducted a misuse of drugs search warrant at an address on Gregory Street in Menzies. During the search, police located the firearm on the premises.
The firearm was in the possession and control of Mr Tucker, who did not have a current firearms licence.
The firearm belonged to the appellant, who at the time was Mr Tucker's ex-partner. The appellant had moved out of the premises and left the firearm in Mr Tucker's possession.
The appellant held a current firearms licence at the time that was issued on 19 November 2021 and did not expire until 11 November 2026. The appellant advised the police that she left the firearm in Mr Tucker's possession for 'about a month and hadn't got round to retrieving it'.
Legislative regime
This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act).
The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction.
Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. One of those grounds is that there has been a miscarriage of justice.[1]
[1] CA Act s 8(1)(b).
The appellant must obtain leave to appeal.[2] If leave to appeal is not granted, the appeal is taken to have been dismissed.[3] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[4]
[2] CA Act s 9(1).
[3] CA Act s 9(3).
[4] Samuels v The State of Western Australia [2005] WASCA 193.
The ground of appeal upon which the appellant relies does not expressly allege that a decision of the learned magistrate resulted in a miscarriage of justice. Rather, the ground alleges that the miscarriage was occasioned by the learned magistrate failing to make a spent conviction order.
The learned magistrate did not in the sentencing remarks, expressly state that consideration had been given to making a spent conviction order and that the learned magistrate had decided not to do so. However, given the terms of s 39(2)(c) of the Sentencing Act, which empowers a court sentencing an offender to impose a fine with or without making a spent conviction order, the learned magistrate's failure to make a spent conviction order constitutes a refusal to make an order which might have been made as a result of the appellant's conviction for the offence within the meaning of s 6(g) of the CA Act.[5] It therefore follows, in my opinion, that ground 1 of the appeal is a permissible ground by reason of s 8(1)(b) of the CA Act.
[5] Sharpe v Vinning [2020] WASCA 79 [48].
Application to adduce additional evidence
The appellant seeks to rely on additional evidence which was not before the primary court.
The Supreme Court has the power to admit other evidence under s 40(1)(e) of the CA Act. The power under s 40(1)(e) of the CA Act correlates with the court's power under s 31(4)(a) of the CA Act to allow an appeal against sentence.[6]
[6] TJH v Osborne [2018] WASC 87 [32] - [33].
The test for admitting additional evidence in an appeal against sentence is whether, had the additional evidence been before the sentencing magistrate, a different sentence should have been imposed.[7]
[7] Colwell v The State of Western Australia[No 2] [2012] WASC 196 [28].
There is no equivalent to s 31(4) of the CA Act in pt 2 of the CA Act. However, the approach taken to appeals against sentence under pt 2 of the CA Act is the same.
In determining the question of whether there has been a miscarriage of justice by a failure to make a spent conviction order, an appellate court may have regard to new information which has been gathered for the purposes of the appeal which shows the appellant's good character and the likely consequences of a conviction.[8]
[8] M v Seidner [2013] WASC 395 [28] applying Caseley v Zampogna [2006] WASC 259 [19].
Further, the appellant submits that s 14(5) of the CA Act provides that a court hearing a sentencing appeal may have regard to relevant matters that have occurred between when the appellant was convicted and when the appeal was heard.
The evidence the appellant seeks to adduce is affidavit evidence; her affidavit sworn 21 July 2023, with attachment 'A' being documents supporting the appellant's daughter's open heart surgery.
The additional evidence in the form of the appellant's affidavit ought be admitted as it goes to the reasons for the delay in filing the notice of appeal and the miscarriage of justice that may occur if a spent conviction order is not made. I, therefore, grant leave for the appellant to adduce additional evidence, that being her affidavit sworn 21 July 2023, in support of this appeal.
Application for an extension of time
The appellant filed her notice of appeal on 7 June 2023. This was 7 months and 27 days after the last date for filing the notice of appeal, being 11 October 2022.[9] Therefore, the appellant seeks an extension of time to appeal and relies upon the affidavit of William Chulsang Yoo sworn 7 June 2023 (Yoo Affidavit) which explains the delay in filing the notice of appeal.
[9] CA Act s 10(3).
The court will grant an extension of time to appeal where it is in the interests of justice to do so.[10] There are a number of established factors which are relevant to whether an extension of time should be granted. Those factors are not exhaustive, but include:[11]
(1)the nature and the extent of the delay;
(2)the reason for the delay;
(3)the proposed grounds of appeal and their merit;
(4)the prejudice to the appellant if the extension is not granted; and
(5)the extent of any prejudice to the respondent.
[10] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [13].
[11] Petrusic v State of Western Australia [2020] WASCA 62 [31].
Where there is a lengthy delay in filing the notice of appeal, an extension of time will only be granted if the appellant establishes exceptional circumstances or that a miscarriage of justice will occur if the extension of time is not granted.[12]
[12] Wimbridge v Western Australia [2009] WASCA 196 [19] - [20].
The appellant submits that the extension of time to appeal should be granted for two reasons.
First, the potential miscarriage of justice that will occur if the extension is not granted. The appellant says that, if the court concludes that a spent conviction order should have been made, she will suffer significant prejudice if the application for an extension of time to appeal were refused.
Second, at the time of her endorsed guilty plea the appellant was un-represented and was preparing her daughter for open heart surgery.[13] The appellant was not represented until 31 May 2023. The appellant was unaware of the ability to make such an application under s 45 of the Sentencing Act and the availability of an appeal until late May 2023.[14]
[13] Appellant's affidavit [24], [28] and attachment 'A'.
[14] Yoo Affidavit [13].
The respondent does not oppose the extension of time, conceding that he suffers no significant prejudice from the bringing of the appeal out of time and the lengthy delay.
In all of the circumstances, I consider that exceptional circumstances exist and that it is in the interests of justice for an extension of time to be granted for the appellant to appeal her sentence.
Merits of the appeal
The appellant submits that a miscarriage of justice has occurred as a result of the learned magistrate's failure to make a spent conviction order.
Section 39(1) and s 39(2)(c) of the Sentencing Act, when read together, relevantly provide that subject to s 45 of the Sentencing Act, a court sentencing an offender who is a natural person may impose a fine with or without making a spent conviction order.
Section 45(1) of the Sentencing Act provides:
(1)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.
Sub-sections (1)(a) and (b) are pre‑conditions which must be satisfied before the court has the power to make a spent conviction order under s 39(2).[15] If the pre-conditions for the exercise of the power are satisfied, the court has a discretion to make a spent conviction order.
[15] Sharpe v Vinning [2020] WASCA 79 [94].
When determining whether to grant a spent conviction, the court will have regard to the seriousness of the offence, the circumstances of its commission and the personal circumstances of the offender.[16]
[16] R v Tognini [2000] WASCA 31 [27].
The word 'unlikely' in s 45(1)(a) of the of the Sentencing Act requires the court to conclude that the offender is unlikely to commit an offence of a similar kind again, not that the offender will definitely not commit such an offence again.[17]
[17] JJF v Tattersall [2018] WASC 170 [20] citing Lee Suarez v Cutler [2012] WASC 171 [25].
The ground of appeal does not allege that the learned magistrate made an error by not making a spent conviction order. Rather, the ground alleges the occasioning of a miscarriage of justice because the learned magistrate did not make a spent conviction order. Accordingly, where there is additional evidence before the court that was not before the learned magistrate which goes to the factors to be addressed in making a spent conviction order, the question whether the learned magistrate made an error by not making a spent conviction order on the material that was before him is not relevant.
In summary, the finding of error on the part of the learned magistrate in not making a spent conviction order is not required in order to form the view that a miscarriage of justice has occurred.[18] The relevant question to be answered is whether, having regard to the additional evidence adduced on the appeal, the learned magistrate's failure to make a spent conviction order has occasioned a miscarriage of justice.
[18] Carney v The State of Western Australia [2010] WASCA 90 [41].
Is the appellant unlikely to commit an offence of a similar kind again?
The appellant entered a plea of guilty to the offence at the earliest reasonable opportunity and was convicted and sentenced at the first mention of the matter.
I also accept that the appellant has taken responsibility for the offence and is remorseful.[19]
[19] Appellant's affidavit [8].
I am satisfied that the appellant is unlikely to commit such an offence again.
Is the appellant of previous good character?
The appellant had no criminal history prior to this conviction.
I am satisfied that the appellant is of previous good character within the meaning of s 45(1)(b)(ii) of the of the Sentencing Act.
Should the discretion to grant a spent conviction be exercised?
Given that I have formed the view that the preconditions for the exercise of the discretion to grant a spent conviction in respect of the appellant's offence have been met, I must consider whether to exercise that discretion.
The appellant submits that the adverse effect that the conviction might have on her is as a hinderance on her employment or career. In her affidavit sworn 21 July 2023, the appellant deposed to her work history and her aspiration to be a 'digger operator'.
The appellant deposed that:
(1)between 2008 and 2017 she was a part time Centrelink agent at the Menzies Aboriginal Corporation;
(2)between 2015 and 2016 she was a GETS Personal Consultant;
(3)between March 2010 and June 2012 she was a community support worker and mentor at MEEDAC Incorporated and from July 2002 until March 2010 was the community development employment projects 'CDEP' supervisor at the Nooda Ngulelgoo Aboriginal Corporation;
(4)between 2017 and 2018 she was a KCGM Truck Operator, where she operated a 793C/F Cat Truck;
(5)between 2019 and 2021 she was a Wanslea Family Support Worker;
(6)from August 2021 to March 2023 she worked for BHP Jimblebar as a water cart operator, dump truck operator and worked on autonomous iron ore mines and dump trucks; and
(7)from March to June 2023 she was in a water cart dust suppression role at a Kalgoorlie mine site.
The appellant submits that around January or February 2023 she applied for a job as a Production Technician within BHP. In her application, the appellant declared that she had been convicted of the offence. The appellant was unsuccessful in her application and was terminated immediately. The appellant submits that she was never given reasons for her termination.
The appellant says that in May 2023 she applied for a position at Aurenne Mining and was also unsuccessful. No explanation was given to her other than to say the appellant was not the successful candidate.
The appellant says that although she is presently engaged in full time employment as a 'Dump Truck Operator', employment she began on 10 July 2023 on a permanent full time basis, she wishes to upskill and advance her career.
The appellant submits the community and public interest are also a factor to be considered. The appellant further submits that while there is a public interest in employers knowing about a person's conviction, there must be a corresponding public interest in a spent conviction being granted under s 45 of the Sentencing Act for those who seek employment.
The respondent concedes that although there is a public interest in employers being aware of an employee's or potential employee's criminal conviction, in the appellant's case, the nature and circumstances of the offence bear no relevant relationship to her employment.
The respondent submits that there is no significant public interest in the applicant's employer, or prospective employers, being aware of her conviction in the area in which she is employed and has expressed a desire to work in the future.
I am satisfied based on the evidence before me that a refusal to make a spent conviction order in respect of the appellant's conviction will have a very significant adverse consequence for the appellant, that being her ability to secure employment and to advance her career.
Further given the circumstances in which the appellant came to commit the offence, I do not consider that this is a case in which there is a strong public interest in ensuring that the appellant's conviction for the offence is exposed to public scrutiny or that there is a strong public interest in an employer, or potential employer, being made aware of the conviction. The offence does not have any relevance to the assessment of the suitability of the appellant being able to work in her chosen area of employment.
Ultimately, when I take into account that the offence falls towards the lower end of the range of seriousness for offences of its type, the appellant's prior good character, the significant adverse consequences for the appellant if a spent conviction order is not made and the absence of any compelling public interest reasons for not setting the adverse consequences of the conviction aside, I am satisfied that a spent conviction order should be made in respect of the appellant's conviction.
In my opinion the adverse consequences to the appellant of the learned magistrate's decision not to make a spent conviction in respect of the offence are disproportionate to the circumstances of the offence and the circumstances of the appellant.
It follows that I am satisfied that a miscarriage of justice has been occasioned by the learned magistrate not making a spent conviction order. I am also satisfied that it cannot be said that the miscarriage of justice is not substantial. The ground of appeal has been made out.
I find the appellant should be immediately relieved of the adverse effect of the conviction and the potential impact of the conviction on the appellant's employment is a sufficient basis to grant a spent conviction order.
Therefore, I grant leave to appeal on ground 1 and allow the appeal.
Conclusion
I make the following orders:
(1)Extension of time to file notice of appeal granted.
(2)Leave to adduce additional evidence granted.
(3)Leave to appeal on ground 1 granted.
(4)The appeal is allowed on ground 1.
(5)The appellant's conviction for the offence the subject of charge MC LE 138/2022 is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
30 OCTOBER 2023
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