AS v Wilson - [2020] WASC 434

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   AS -v- WILSON [2020] WASC 434
CORAM:   ARCHER J
HEARD:   24 NOVEMBER 2020
DELIVERED          :   24 NOVEMBER 2020
PUBLISHED           :   30 NOVEMBER 2020
FILE NO/S:   SJA 1047 of 2020
BETWEEN:   AS
Appellant
AND
JOSHUA WILSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G BENN
File Number            :   JO 3942 of 2020 and 3943 of 2020

Catchwords:

Material factual error - Oral statement of material facts different to written statement - Unrepresented accused - Spent conviction orders - Turns on its own facts

Legislation:

Nil

Result:

Leave to adduce additional evidence granted
Leave to appeal granted
Appeal allowed
Sentences set aside
Appellant resentenced to a global fine of $300 in relation to the two offences and spent conviction orders made in relation to each offence

Category: B

Representation:

Counsel:

Appellant	:	N R Sinton
Respondent	:	T B L Scutt

Solicitors:

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

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

B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271 (2002) 26 WAR 510
Canale v Bayens [2001] WASCA 383
Gaskell v The State of Western Australia [2018] WASCA 8
Hall v The State of Western Australia [2018] WASCA 151
Heesom v O'Keefe [2017] WASC 362
Koenig v Alizadeh [2002] WASCA 267
Nichols v Harnett [2004] WASCA 311
Ninyette v Holmes [2015] WASC 287
R v Tognini [2000] WASCA 31 (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Wheeler v The Queen [No 2] [2010] WASCA 105
Wilson v The State of Western Australia [2010] WASCA 82
Wright v McMurchy [2012] WASCA 257

ARCHER J:

(This judgment was delivered extemporaneously on 24 November 2020 and has been edited from the transcript.)

Introduction

The appellant seeks leave to appeal against a sentence imposed in relation to two offences, and the magistrate's refusal to make a spent conviction order. The sole ground of appeal[1] is that there was a miscarriage of justice in that the appellant, who was unrepresented at his sentencing and for whom English is a second language, was sentenced on the basis of incorrect facts.
[1] By consent, the appellant's ground of appeal was amended prior to the hearing.
The respondent concedes that the appellant was sentenced on a materially incorrect factual basis and that the appeal should therefore be allowed. The concession was properly made.
The respondent also does not oppose the making of a spent conviction order. In view of the circumstances, this was an appropriate position to take.
For the reasons that follow, I would give leave to appeal, allow the appeal, and resentence the appellant to a global fine of $300 and make a spent convention order in relation to each charge.

Background

The appellant was charged with one count of trespass and one count of stealing.
In relation to the trespass, the statement of material facts (SOMF) said:
Between about 10.00 pm on Wednesday the 25th March 2020 and 4.30 pm on the 26th of March 2020, the accused was at the Mullaloo Surf Life Saving Club which is located at 11 Oceanside Promenade, Mullaloo.
The accused was a former cleaner of the premises where the contract had been suspended as the premises had to close due to COVID‑19 laws. He used to spend between 2 and 3 hours cleaning the premises.
The accused entered the premises with a key he possessed.
Once inside the address he realised that the Mullaloo Surf Life Saving Club had been cleaned. Instead of leaving he remained in the premises and completed an assignment for University then fell asleep at the premises. He remained in the premises for approximately 18 hours.
Whilst in the premises he helped himself to beer from the Bar tap (see other charge).
At about 4.45 pm on Thursday the accused was interrupted at the premises and left. Police were contacted and located him a short distance away.
The accused was arrested and conveyed to Hillarys Police Station where he participated in an electronic record of interview.
In explanation: He went there to clean, but after working on his assignment all night he was very tired and fell asleep.
…
In relation to the stealing, the SOMF repeated the first three paragraphs of the SOMF for the trespass then said:
The accused went to the bar area and poured a jug full of tap beer. He drank the beer with no intention of paying for it or any permission from the owner.
The accused was later arrested and conveyed to Hillarys Police Station where he participated in an electronic record of interview.
In explanation: The accused stated he shouldn't have drunk the beer.
…
The appellant represented himself in the Magistrates Court. He pleaded guilty to both charges. The facts were read out in court as follows:[2]
(indistinct) this is at 10 pm on Wednesday, 25 March. And between that time and 4.30 pm on 26 March, the accused was at the Mullaloo Beach Surf Club, Mullaloo. He was a former cleaner of the premises where the contract had been suspended for that premises, and that premises having closed due to COVID laws. He used - spent two to three hours in the premises - he used to spend two to three hours cleaning the premises. He had a key to that - in his possession - for that. He has attended the address. Instead of leaving the premises, he has completed an assignment, fell asleep in the premises, remained in the premises for approximately 18 hours. While he was there, he was drinking beer from the taps, which encompasses the stealing. He was interrupted and arrested there. He has helped himself, pouring jugs of beer. He drunk the beer without any intention of paying for it, your Honour.
[2] Transcript of sentencing proceedings on 5 June 2020 (Sentencing Transcript), page 2.
The respondent acknowledges that the SOMF was served on the appellant prior to the sentencing.[3] Accordingly, by s 129(4) of the Criminal Procedure Act 2004 (WA), the prosecutor was required to state the facts as set out in the SOMF.
[3] Respondent's Outline of Submissions filed 13 November 2020 (Respondent's Submissions) [4].
The prosecutor (not counsel in this appeal) did not do this. In particular, the prosecutor omitted the sentence 'Once inside the address he realised that the Mullaloo Surf Life Saving Club had been cleaned'.
In his written submissions, counsel for the respondent succinctly set out the significance of this omission (reference to the evidence omitted):[4]
While at first glance perhaps innocuous, the omitted sentence was of significance because it was the only passage in the facts which recorded the effective concession by the prosecution, in a factually complex case, that at the time of his entry to the premises, the appellant was honestly and reasonably mistaken as to his right (or contractual duty) to enter the premises, for the purpose of cleaning. This factual concession had also been reflected in the charging of the appellant with trespass (for outstaying and exceeding his licence to enter only to clean) rather than with burglary.
The failure to fully put the facts from the SoMF was compounded by subsequent submissions on this issue made by the prosecutor immediately prior to the magistrate's sentencing remarks. Those factual submissions were to the effect that the appellant was aware prior to entry (and thus during his time in the premises) … that he no longer had a contractual duty, or any right, to enter the premises at all, due to a contract having been suspended, but that he did so anyway, and that his failure to return the keys reflected this state of mind. Significantly, the prosecutor stated that the appellant was 'lucky [that] he's not charged with a burglary'. The appellant did not have any further opportunity to address the magistrate on this issue, notwithstanding that the final submissions made to the magistrate were contrary to the appellant's earlier submissions as to a misunderstanding about his right to enter.
There was no allegation in the SoMF (or in any of the prosecution materials) that the appellant had been asked to return his keys to the premises. The issue of the appellant's state of mind at the time of the offence was the subject of a lengthy record of interview with police, during which the appellant, despite evident language difficulties, was at pains to explain to police that at the time of the offence he (perhaps mistakenly) believed that he was still required to attend the premises to clean (or rectify an earlier clean), and to point police to evidence that could confirm that. By the end of the interview, the interviewing police accepted, following a call to a second supervisor, that the appellant may have thought that he was still required to attend the surf club to clean. Eventually, after the appellant continued to give explanations on this issue to police, the interviewer told the appellant that police '[did not] care about that right now … there may have been some confusion about whether you were still meant to be cleaning there. … So I do understand why you may have thought that you needed to go there. … I understand that so don't worry about that at this point, okay'.
[4] Respondent's Submissions [5] ‑ [7].
Counsel for the respondent also advised that he had confirmed with the police that this concluding position was the basis upon which the charges and the SOMF were prepared, and that there was no contrary evidentiary material.[5]
[5] Respondent's Submissions [8].
The submissions made by the prosecutor at the sentencing, to which counsel for the respondent referred in the above extract, were made in response to the learned magistrate asking if he had any objection to a spent conviction order. After submitting the appellant would not suffer any detriment when he returned to his country of origin, the prosecutor said:[6]
He - this is someone who has breached the trust of the organisation. He was a cleaner, the business has suspended the contract. He still has the keys - he didn't even hand the keys back and then he has entered the premises. He's lucky he's not charged with a burglary, at the end of the day. And then he has ‑ ‑ ‑
…
And it's a complete breach of trust as a cleaner to a business.
[6] Sentencing Transcript, page 4.
The magistrate's reasons for refusing to make spent convictions orders and for the fines he imposed were as follows:[7]
It's just difficult to see how these convictions might have an impact on you in the future. And I'm loathe to grant you a spent conviction order and deprive a future employer of this information so they can make a fully informed decision. Because it was offences occurred - which occurred, effectively, directly connected to your employment. That's the problem I have.
I will deal with the matter by way of a global fine. It will be a global fine of $500. That covers both matters. Costs of 225.90. But - and I will make a compensation order of $10 to the Mullaloo Lifesaving Club. But given the connection with this offending with your employment, I'm just not prepared to deprive a future employer of this information by granting you a spent conviction order. So that application, I'm afraid, is refused.
[7] Sentencing Transcript, page 5.
The prosecutor also misstated how much beer had been stolen, telling the magistrate that the appellant was 'pouring jugs of beer'. This was contrary to the SOMF, which alleged a single jug of tap beer to the value of $10. It is unnecessary to consider the significance of this error, as I would allow the appeal in light of the error previously discussed.

Applications to adduce new evidence

The appellant filed three applications to admit evidence in the appeal. The evidence sought to be admitted is two affidavits sworn by the appellant, one on 4 August 2020 and the other on 2 October 2020. The third is an affidavit affirmed by his counsel on 4 November 2020.
I have the power to admit this evidence under s 40(1)(e) of the Criminal Appeals Act 2004 (WA).[8] The respondent does not oppose the admission of the evidence.
[8] See also Wheeler v The Queen [No 2] [2010] WASCA 105 [52] ‑ [53].
Some of the evidence is relevant to the merits of the appeal. The other evidence is relevant to the appellant's application for a spent conviction order in the event that the appeal is allowed and he is resentenced by me.
In my view, it is appropriate to admit the evidence.

Legal principles

Appeals from magistrates' decisions[9]

[9] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362, but is repeated here for convenience.

Section 8(1) of the Criminal Appeals Act permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[10]
[10] Criminal Appeals Act, s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[11] This means that the ground is required to have a real, rational and logical prospect of succeeding.[12]
[11] Criminal Appeals Act, s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[13]
[13] Criminal Appeals Act, s 14(2).
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[14] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[15]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

Principles relating to sentencing appeals

[14] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

[15] Strahan [90].

Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[16] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[17]

Material facts must be stated in sentencing on plea of guilty

[16] Ninyette v Holmes [2015] WASC 287 [56(3)].

[17] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].

In Hall v The State of Western Australia,[18] the Court of Appeal said:
Where an accused has entered pleas of guilty, the prosecutor must state aloud to the court the material facts of the offence before the court imposes sentence: Criminal Procedure Act 2004 (WA) s 129(3). This is an essential feature of sentencing proceedings following a plea of guilty. A plea of guilty only involves an acceptance of the essential elements of the offence. Other facts may be disputed. The stating aloud of the facts provides the offender with an opportunity to raise any dispute.
If the facts are admitted (or determined on a trial of issues), they provide the basis upon which the offender is to be sentenced. It is essential for the circumstances of the commission of an offence to be established in the course of a sentencing hearing in order to ensure that any sentence imposed is commensurate with the seriousness of the offence: Sentencing Act 1995 (WA) s 6.
[18] Hall v The State of Western Australia [2018] WASCA 151 [13] ‑ [14].

Analysis

Having regard to the sentencing transcript as a whole, I am satisfied that the learned magistrate sentenced on the version of the facts put forward by the police prosecutor, namely that the appellant knew that he had no right to enter the premises at all.
If this had been true, the trespass would have been much more serious. In my view, the stealing would also have been more serious. It would have occurred in the context that the only reason the appellant was in a position to commit the offence was because he had used his keys to gain access to premises when he knew he did not have the right to do so.
I am satisfied that the learned magistrate sentenced the appellant on an incorrect factual basis. The appellant has established that the magistrate made an error of fact (as a result of the misstatements of the prosecutor).
I do not consider that no substantial miscarriage of justice has occurred. The incorrect factual basis made a material difference to the seriousness of the offending,[19] and the appropriateness of spent conviction orders.
[19] Even if I am wrong to conclude that the error affected the sentencing for both offences, and not just the trespass offence, it would still be appropriate, in my view, to set aside both sentences - see Hall [16].
Accordingly, I would allow the appeal. This makes it unnecessary to consider the other alleged factual error.

Conclusion

For the above reasons, I would grant leave to adduce the additional evidence, grant leave to appeal, and allow the appeal.
Both parties submitted that I should resentence the appellant, and I agree it is appropriate to do so.

Resentencing

The only convictions the appellant had prior to committing these offences were two traffic convictions committed on the same day. I would treat him as a first offender.
He was 21 years old at the time. He pleaded guilty to both offences.
In my view, both offences were towards the lower end of the scale of seriousness. The trespass occurred when he stayed in the premises after entering them 'honestly and reasonably mistaken as to his right (or contractual duty)' to carry out his job as a cleaner.[20] The stealing was of a single jug of tap beer.
[20] Respondent's Submissions [5].
In my view, a global fine of $300 adequately reflects the seriousness of the offending.

Spent conviction orders

The appellant seeks a spent conviction order in relation to each conviction. The respondent does not oppose this order being made.

Principles[21]

[21] This section reproduces or draws on my reasons in Heesom, but is repeated here for convenience.

Under s 39(2) of the Sentencing Act 1995 (WA), the court may make a spent conviction order when, among other things, it imposes a fine.
Section 45(1) of the Sentencing Act provides:
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

The form of s 45 is important. It is a direction to the court not to make a spent conviction order unless the three conditions are satisfied.[22]
[22] Wright v McMurchy [2012] WASCA 257 [58].
The three conditions are:
1.the court must consider that the offender is unlikely to commit such an offence again;
2.either the offence must be trivial or the offender must be of previous good character; and
3.having regard to the relevant fact in the second condition, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The first two conditions are pre‑conditions that must be established before the court considers whether it is satisfied of the third condition. Generally, the pre‑conditions must be established by convincing evidence.[23]
[23] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14].
Making a spent conviction order is a discretionary power of an exceptional character. The discretion should only be exercised sparingly in a clear case where there are cogent reasons to make the order.[24]
[24] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24], [27].
In determining whether to exercise the power, 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.[25]
[25] Tognini [27].
The court should consider the circumstances of the case, including the seriousness of the offence and the offender's personal circumstances. For example, it may be desirable to make a spent conviction order where a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship. It may be desirable if it would positively aid the offender's rehabilitation in a way that would be in the best interests of the community.[26]
[26] Tognini [27] ‑ [28]. See also
Impediment to employment need not be immediate.[27]
[27] See, for example, Riggall v The State of Western Australia [2008] WASCA 69 [74].
The court must also consider the public interest.[28]
[28] Wright [59]; Brewer [16] ‑ [19].
One aspect of the public interest is the public interest in an employer being aware of the offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work that the offender does.[29]
[29] Brewer [17].
There is also a public interest in maintaining the community's confidence in the judicial system and in achieving deterrence. Each of those goals may be advanced by the public record of convictions.[30]
[30] Brewer [18].
The court must also consider the public interest in the rehabilitation of the offender.[31]
[31] Tognini [27].
In Nichols v Harnett,[32] McKechnie J said:
The primary purpose of a spent conviction order is to assist in the rehabilitation of an offender. Where a young person has no previous convictions, has a good work history, and has otherwise proved reliable and trustworthy … the obvious benefits of a spent conviction order may well outweigh the public interest in not making a spent conviction order.
[32] Nichols v Harnett [2004] WASCA 311 [9].
The presence or absence of information showing a specific or concrete adverse consequence if a spent conviction were ordered is a factor to be weighed in the court's analysis. However, a failure to demonstrate a specific or concrete adverse consequence is not necessarily fatal.[33]

Analysis

Unlikely to commit such an offence again

[33] B v Murphy [2016] WASC 78 [29].

The appellant submits:[34]
It is respectfully submitted that having regard to the appellant's previous character; the specific deterrent effect of his having lost his [job] of as result of the offending, and having attended court and been punished for his offending; his work ethic and dedication to attaining his future employment [in a particular field], in that he was at the time of the commission of the offences studying fulltime and working nights to support himself; and his awareness of the consequences of reoffending on his future employment prospects as demonstrated by [him] losing his job as a result of this incident, and pursuing an appeal in an attempt to have his convictions spent, the court can be satisfied that he is unlikely to commit such an offence again.
[34] Appellant's Outline of Submissions (Appellant's Submissions) [30].
I accept this submission. I am satisfied that the appellant is unlikely to commit such an offence again.

Previous good character

The second condition is that either the offence must be trivial or the offender must be of previous good character. In this case, the appellant relies on the latter alternative.
The appellant submits I should find that he is of previous good character for the following reasons:[35]
First, the appellant has no previous criminal history [he does have a traffic conviction history, but it is immaterial].
Second, the appellant has annexed to his affidavit of 4 August 2020 a reference from [a fellow student] confirming that she has found him to be honest with a strong work ethic and that she believes the offending to have been out of character.
Third, the appellant has annexed to his affidavit of 4 August 2020 a copy of an award recognising him as having provided voluntary academic support to his fellow students.
In Tambyrajah v Gablonski[2004] WASCA 105; (2004) 147 A Crim R 18 Le Miere J said: '[t]here are two aspects to "good character". If the Court is told that nothing is known against a man, it assumes that he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. Secondly, there may be positive evidence as to a man's character and reputation that adds considerably to the weight that the Court attaches to the defendant's favourable record' at [28].
The appellant has no previous convictions and there were no known 'black marks' against him.
Further, there is positive evidence before the Court of the appellant's good character in the form of his reference from [a fellow student] and confirmation that he voluntarily provides academic support to fellow students.
[35] Appellant's Submissions [33] ‑ [38].
I accept these submissions, and accept that the appellant is of previous good character.

The offender should be relieved of the adverse effect

The third condition is that, having regard to the relevant fact in the second condition (here being his previous good character), the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The appellant points out that he 'is an international student, whose capacity to work is limited and who is not eligible for financial assistance through Centrelink. Any impediment to his obtaining employment is likely to result in hardship to him while he completes his studies'.[36] The appellant also hopes to remain in Australia after he finishes his studies to gain some work experience.[37]
[36] Appellant's Submissions [43].
[37] Appellant's Submissions [24].
In cases of dishonesty related to employment, the public interest in a future employer being aware of the conviction will often outweigh the detriment to the offender of a conviction not being spent.
However, as the respondent properly pointed out,[38] the offending in this case was at the bottom of the range for offending in an employment context. The trespass occurred when he stayed in the premises after entering them honestly and reasonably mistaken as to his right (or contractual duty) to carry out his job as a cleaner, and the reason he stayed was to finish a university assignment. The stealing was an opportunistic taking of a single jug of tap beer.
[38] Respondent's Submissions [30].
The appellant is only 22 years old. Not only is he of previous good character, but he clearly had an admirable work ethic.
I am satisfied that the public interest, and in particular the public interest in any future employer being aware of the convictions, does not outweigh the detriment to him of the convictions not being spent.
A spent conviction order is a discretionary power of an exceptional character. It should only be exercised sparingly in a clear case where there are cogent reasons to make the order.
In my view, this is such a case.

Orders

I would grant leave to adduce the additional evidence, grant leave to appeal, and allow the appeal.
I would set aside the sentences imposed by the learned magistrate, and impose a global fine of $300 in relation to the two offences and make a spent conviction order in relation to each offence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer
30 NOVEMBER 2020