Ad v Carlin

[2013] WASC 458

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   AD -v- CARLIN [2013] WASC 458

CORAM:   McKECHNIE J

HEARD:   10 DECEMBER 2013

DELIVERED          :   10 DECEMBER 2013

FILE NO/S:   SJA 1058 of 2013

BETWEEN:   AD

Appellant

AND

JOSEPH THOMAS CARLIN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P M HEANEY

File No  :PE 1683 of 2013, PE 1684 of 2013

Catchwords:

Criminal law and procedure - Sentencing - Disorderly conduct and assaulting police officer - Young person - Prospects of rehabilitation - Whether a spent conviction should be made

Legislation:

Spent Convictions Act 1988 (WA)

Result:

Appeal allowed
Spent conviction order made

Category:    B

Representation:

Counsel:

Appellant:     Mr P J M Kelly

Respondent:     Mr J D Berson

Solicitors:

Appellant:     Youth Legal Service (WA)

Respondent:     State Solicitor for Western Australia

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

Davy v Fletcher [2011] WASC 351

M v O'Neill [2013] WASC 187

McKECHNIE J: 

What happened

1. The appellant had a bad night on the evening of 8/9 December 2012.  She went out clubbing with her boyfriend and had too much to drink.  During the course of the evening her mobile phone was stolen.  When they went back to their car they found a parking infringement notice.

2. On their way home, the car was stopped by police officers at about 1.55 am.  The driver of the car failed a preliminary breath test.  He did not take kindly to being arrested and was eventually handcuffed and placed in the rear of the police vehicle.

3. The appellant says in an affidavit:

   My friend (who, in the event, returned a positive breath sample) hesitated when directed to alight from the vehicle and one of the Policemen in attendance said to him with his voice raised 'Get out of the car, you black Arab'.

   I cannot be certain as to the identity of the Policeman who made the statement.  In any event, the words 'black Arab' are recorded in the notes of Constable Carlin, the Complainant in this matter, which were provided to me by way of disclosure. 

4. An examination of the notebook supports the fact that someone said the words 'black Arab'.  Whether it was a police officer who uttered these words however may be open to question.  There were approximately 20 people within 10 m of the event.  The police officer's notebook records the following:

   Balding with blonde hair - called POI [the driver] black Arab.  Passenger - POI2 exited the vehicle [and spoke].

5. The police officer Constable Carlin has sworn an affidavit in these proceedings which explains that those words were put in his notebook at the station when the driver made the comment that those words were spoken.  He denies either saying the words or hearing another officer say them.

6. In the event, I do not need to decide who said them.  It seems clear enough that words were said but who said them, I do not know.

7. What happened thereafter is not in dispute.  The appellant shouted four letter words of abuse.  The statement of facts read out in court:

   At about 1.55 am on Sunday, 9 December 2012 the accused was a passenger in a vehicle that was stopped by police for a random breath test.  The accused became angry with police while they were speaking with the driver of the vehicle.  Whilst police were attempting to convey the driver of the vehicle to Wembley police station for another matter, the accused exited the vehicle and shouted, 'You fucking cunts. I want your names, you cunt.'

   Police responded to the accused advising that they would provide her with their details once they had finished dealing with the current situation.  The accused again shouted, 'I'm fucking coming with you.'  The accused proceeded to walk to the rear of the police car and attempted to sit in the rear seat.  Police attempted to remove her from the car as there was no requirement for her to accompany police.

   At this time there were approximately 20 persons within 10 metres of the accused who were aware of what was happening and able to hear what the accused was saying and her language.  At this time the accused was shouting loudly and becoming increasingly aggressive towards police.  First Class Constable Carlin attempted to remove the accused from the rear doorway of the vehicle at which time she has struck out at First Constable Carlin with a semi‑clenched fist to his chest and attempted to push the officer away.

   The accused was removed from the doorway of the car and escorted onto a nearby walkway.  The police had reason to handcuff and restrain the driver of the vehicle.  While attempting to restrain the driver the accused has run up behind police and continued to attempt to intervene and stop them restraining the driver of the vehicle.  The accused constantly using both arms hit and pushed into the backs of the officers (ts 2 ‑ 3).

8. On 8 March 2013 the appellant pleaded guilty to one charge of disorderly behaviour in a public place for which she was fined $500 and one count of assaulting a police officer who was performing a function of his employment for which she was fined $750.  Realistically, no complaint can be made about the amount of either fine and none is.

Why the magistrate did not grant a spent conviction order

1. Counsel for the appellant sought a spent conviction order which the magistrate refused.  This is what the appeal is really about.

2. After quoting from Davy v Fletcher [2011] WASC 351 [41] the magistrate said:

   This case here is one of a multitude that we see in this court.  There's a procession of violent (indistinct) coming through this court day in and day out and they're not coming through as not abated, they just keep coming through, and one of the reasons that perhaps they are coming through is because they’re not prepared to take any consequences for their behaviour.

   If they want to be able to go out - and people want to be able to go out and get drunk, assault a copper and then come along to the court and ask for a spent conviction because the consequences of a conviction may be damaging.  What people have got to start doing is thinking about that consequence before they go out and get drunk and start behaving in a drunken manner and a violent manner.  That statement of Heenan J says that is a discretionary power of an exceptional nature only to be used sparingly.

   So I'm going to exercise my discretion and say that there's not going to be a spent conviction order under the circumstances where this drunken lady assaulted a police officer.  I've read the references.  She comes from a good home.  People speak highly of her.  Obviously they know her when she's sober.  I'm dealing with someone today who was drunk, so there's no spent conviction (ts 5 ‑ 6).

Disposition

1. In M v O'Neill [2013] WASC 187, I set out a series of questions to be asked when considering whether to make a spent conviction order:

   The principles which I rephrase as questions are:

   1.Is the offender unlikely to commit such an offence again?

   2.Is the offence trivial?

   or

   Is the offender of previous good character?

   3.Should the offender be relieved immediately of the adverse effect that the conviction might have on the offender?

   The answer to the first question involves a prediction, noting the prediction is of the likelihood of committing 'such' an offence, not 'any' offence.

   The answers to the alternatives in the second question are matters of fact.

   The answer to the third question is a matter of discretion.  The discretion will be informed by a number of considerations including:

   A.The discretion should be exercised:

   •sparingly;

   •in a clear case; and

   •for good reason is desirable.

   B.The court should take into account:

   •the nature and seriousness of the offence (both in its commission and referable to the offender); and

   •the rehabilitative effect of immediate removal of the conviction, the effect both on the offender and the community being considered.  The conviction for a lesser offence (of which this is one) will be able to become spent after 10 years so emphasis is placed on immediacy.

   In taking into account the rehabilitative effect it may be necessary to consider, among other things:

   •impact on employment, present or future; and

   •exceptional hardship to offender or family.

   C.The court must also take into account the public interest which includes:

   •any employer or potential employer being aware of the offences in assessing suitability and reliability for the type of work; and

   •general and personal deterrence.

   These principles are distilled from Neale v Sloan (1997) 27 MVR 246, Riley v Gill (Unreported; WASCA, Library No 970731, 8 December 1997), Tognini, Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, Canale v Bayens [2001] WASCA 383, Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, Scanlon v Bove [2008] WASC 213, Koenig v Ryan [2001] WASCA 339, Sentencing Act s 39, s 45 [26] ‑ [31].

2. The magistrate focused on two issues:

   •the power is to be exercised sparingly;

   •aspects of general deterrence.

3. The magistrate was dismissive of the appellant's good character.  The references tendered before the magistrate not only speak of her when sober.  One of the referees had spoken to her about the events before concluding 'Based on what I have seen of the appellant I strongly believe her actions were completely and utterly out of the ordinary and one which will not ever happen again'.  The other referee said:

   Often this behaviour management comes with maturity, however, I am convinced that [the appellant] does recognise the need to modify her reactions to situations and believe that she will move forward having learnt from this experience.

   As she matures [the appellant] will be a very valuable citizen in our community.

4. Returning to the questions earlier set out, as a prediction the offender is unlikely to commit such an offence again.  The offences are certainly not trivial but the offender is of previous good character with no criminal record.

5. The answer to the third question is a matter of discretion.  The appellant in her affidavit has given evidence of her part‑time work to support herself through university and her prospects of employment following the completion of her degree.  These matters were raised with the magistrate:

   She is, as is mentioned, studying environmental science.  She has aspirations of being employed in professional environments in the future so clearly any conviction (indistinct) such opportunities (ts 4).

6. This caused the magistrate to respond:

   Well, why didn't she think about that?  Why are you asking me to take that into account?  Why didn't she take it into account when she went out and got drunk and started assaulting this policeman?  Why should I be interested in her future when she's got no interest in it herself (ts 5).

7. At the time of the offences the appellant had just turned 19.  If only wiser heads could be put on young shoulders, the work of police and magistrates would be substantially reduced.  The Spent Convictions Act 1988 (WA) recognises in part that even young people of good character can do stupid things, especially when they have had too much to drink.

8. The magistrate's intervention failed to focus on one aspect of consideration, namely the extent to which the appellant's rehabilitation might be hastened by the making of a spent conviction.  This is not as a favour to this appellant or to any other appellant.  It reflects the strong public interest that where possible people who have committed offences go on to live productive law abiding lives.  Rehabilitation comes in many forms and one recognised form is an order under the Spent Convictions Act.

9. To the extent that the magistrate did not take this sufficiently into account I infer error in the result.

10. Having regard to the additional material tendered by way of affidavit in these proceedings, the appellant's rehabilitation will be aided by a spent conviction order.  I allow the appeal and make a spent conviction order.