B v Murphy
[2016] WASC 78
•11 MARCH 2016
B -v- MURPHY [2016] WASC 78
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 78 | |
| Case No: | SJA:1089/2015 | 16 FEBRUARY 2016 | |
| Coram: | BEECH J | 11/03/16 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Spent conviction order made | ||
| D | |||
| PDF Version |
| Parties: | B RYAN ERNEST MURPHY |
Catchwords: | Criminal law and sentencing Application for spent conviction order Possession of article with the intention of using it to cause fear that someone will be injured by its use Whether magistrate erred in refusing to make spent conviction order Whether spent conviction order should be made Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 45 |
Case References: | Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189 Frewen v Dalgreen [2014] WASC 407 M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RYAN ERNEST MURPHY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L J ATKINS
File No : MH 4669 of 2015, MH 4670 of 2015
Catchwords:
Criminal law and sentencing - Application for spent conviction order - Possession of article with the intention of using it to cause fear that someone will be injured by its use - Whether magistrate erred in refusing to make spent conviction order - Whether spent conviction order should be made - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 45
Result:
Appeal upheld
Spent conviction order made
Category: D
Representation:
Counsel:
Appellant : Ms B J Lonsdale
Respondent : Mr T E Pontre
Solicitors:
Appellant : Mark Andrews Legal Pty Ltd
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189
Frewen v Dalgreen [2014] WASC 407
M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
- BEECH J:
Introduction
1 The appellant appeals against the magistrate's refusal to make a spent conviction order in respect of his convictions for two charges of possessing an article with the intention of using it to cause fear that someone will be injured or disabled by its use, contrary to s 8(1)(b) of the Weapons Act 1999 (WA).
2 For the reasons that follow, I would uphold the appeal.
The facts
3 The facts were not in dispute before the magistrate and were as follows. On 9 September 2015, the appellant was driving a car and was stopped by police. Police found a sheath containing a hunting knife in the driver's door pocket and a loaded Colt 6 mm cap gun in the glovebox. When he was questioned, the appellant explained that he carried these articles for protection as someone had previously thrown an axe at his car, and he could pull out an article to scare someone off if they approached him.
Submissions before the magistrate
4 Before the magistrate, the appellant was represented by counsel. Counsel submitted that, given the appellant's prior good record, good character, the early plea of guilty and the unlikelihood of reoffending, a spent conviction order was appropriate.1 To show the appellant's good character, counsel for the appellant handed up six references from the appellant's employer, work colleagues and family.2
5 In the plea in mitigation, counsel:
(1) stated that the reason the appellant was carrying the weapons was an incident that occurred about two months earlier; while driving the appellant was followed by a car and, when he stopped, its occupants threw various projectiles, including an axe, at his car;
(2) referred to the references;
(3) referred to the fact that the appellant was 22, had no record and had pleaded guilty; and
(4) submitted that a conviction for carrying a weapon with intent to cause fear was likely to have a negative impact on his employment opportunities.3
Reasons of the magistrate
6 The magistrate's reasons may be summarised as follows. Her Honour:
(1) gave the appellant full credit for his guilty pleas;4
(2) referred to the fact that the appellant had armed himself intending to protect or defend himself, stating that this was not his job and that citizens cannot go around arming themselves with items through fear;5
(3) referred to the references that had been handed up;
(4) accepted that the previous incident, in which a tomahawk was thrown at the appellant's car, would have been terrifying, but observed that this did not excuse what the appellant did;6
(5) imposed a global fine of $1,500;7
(6) stated that the offences were serious offences, and could not be regarded as trivial;8
(7) in relation to the spent conviction order, stated that she was satisfied that the appellant was unlikely to commit a similar offence again;9
(8) stated that she then had to look at whether the appellant was of previous good character or whether the offence was trivial, finding that the appellant was 'obviously' of previous good character, but that the offence could not be regarded as trivial;10 and
(9) concluded that ['t]herefore, I cannot and will not make a spent conviction order in relation to [the appellant]'.11 The magistrate observed that as far as she was concerned, the appellant arming himself with a knife and a gun was 'too serious for [her] to consider a spent conviction order'.12
Grounds of appeal
7 There are two grounds of appeal.
8 First, it is alleged that the magistrate erred in law in concluding that because the offences were not of a trivial nature she was thereby precluded from granting a spent conviction order.
9 Secondly, it is alleged that the failure of the magistrate to grant a spent conviction order resulted in a miscarriage of justice having regard to:
(a) the appellant's age of 22;
(b) the appellant's lack of previous convictions;
(c) the significant mitigating circumstances;
(d) the unlikelihood of the appellant reoffending;
(e) the adverse effect that the recording of a conviction will have on the appellant's ability to obtain employment and to travel abroad; and
(f) the fact that there is no public interest in a conviction being recorded.
Spent conviction orders: legal principles
10 Section 45(1) of the Sentencing Act 1995 (WA) provides as follows:
(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.
It is evident from the language of [s 45(1)] that the power to make a spent conviction order arises only if three conditions are satisfied. First, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
It is well-established that once these preconditions to the exercise of the power are satisfied the court has a discretion, not a duty, to make (or not make) a spent conviction order.
In R v Tognini, Murray J (Malcolm CJ & Wallwork J agreeing) said as follows:
'Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. 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.
…
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.'
These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State.
Among others, the following propositions emerge from these cases:
(a) the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;
(b) the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case; and
(c) in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstances of its commission and the circumstances personal to the offender.
In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender, but also to the public interest.
One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect.
Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the person's reliability or suitability for a particular type of work.
Because the decision whether to make a spent conviction order is discretionary, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently. The question on an appeal is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law, revealed either by the reasons of the sentencing court or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order.
In sentencing appeals, the court has broad powers to admit further evidence. Both parties agreed in the appeal that the test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed, referring to what had been said in Wheeler v The Queen [No 2]. Wheeler dealt with an appeal to the Court of Appeal. In that context, Owen JA held (McLure P agreeing) that the test for admission of evidence under s 40(1)(e) correlates with the grounds that enliven the power to allow an appeal against sentence in s 31(4)(a) - that a different sentence should have been imposed. Part 2 of the Criminal Appeals Act deals with appeals from courts of summary jurisdiction. It does not have any provision analogous to s 31(4)(a). Nevertheless, the parties in effect agreed that the same approach should be applied. That would appear to be essentially on the basis that an appeal against sentence should be allowed only if there was a miscarriage of justice and that this would be so only if a different sentence should have been imposed. I am content to proceed on this agreed basis.
However, as Owen JA observed in Wheeler v R, the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its facts and circumstances. The circumstances in which the additional material came to light, and its probative value, will be significant considerations in deciding whether an appellant should have leave to adduce it.
Evidence of facts since the sentence was imposed is not ordinarily relevant. Evidence of such facts may be received to show facts relevant to the sentencing process which existed at the time of the sentence but were either not known to the sentencing judge or not properly appreciated at the time.
Ground 1
12 Ground 1 alleges that the magistrate made an error of law in concluding that, because the offences were not trivial, she was thereby precluded from granting a spent conviction order. There is no doubt, and the respondent accepts,14 that if the magistrate made such a finding she erred in law. The language of s 45(1)(b) makes it clear that, in order for the power to arise, one of the conditions in par (i) and (ii) must exist; it is not necessary that both exist. The court must be satisfied either that the offence is trivial or that the offender was of previous good character. The fact that an offence, in its circumstances, is serious and not trivial is relevant to the exercise of discretion under s 45(1),15 but does not of itself prevent the discretion from arising.
13 Initially the magistrate stated the position correctly in that, after finding that the appellant was unlikely to commit an offence of this nature again, her Honour observed that she then had to look at whether the appellant was of previous good character or whether the offence was trivial.16 Nevertheless, in my view, for the reasons that follow, the learned magistrate's language compels the conclusion that she found that because the appellant's offence, in its circumstances, was serious and not trivial, she was, on that account, precluded from granting a spent conviction order.
14 The magistrate referred to the circumstances of the appellant's offences and said that 'I cannot see that I can find those to be trivial matters'.17 Immediately after that her Honour said '[t]herefore, I cannot and will not make a spent conviction order'.18 Her Honour's language ('therefore' and 'cannot') indicates that she considered that she lacked power, and that her lack of power flowed from her immediately preceding conclusion that the offences were not trivial. This reading of the magistrate's reasons is, to some extent, reinforced by her Honour's next observation that the appellant's offences in arming himself with a knife and a gun were too serious for the magistrate to 'consider' a spent conviction order. In other words, the non-trivial character of the offence meant that the grant of a spent conviction order did not fall to be considered.
15 The respondent submits that the magistrate's reasons should be read as finding that the seriousness of the appellant's offence meant that the magistrate was not satisfied that the appellant should be relieved immediately of the adverse consequences of a conviction.19 I do not accept that submission. I accept that a beneficial construction is to be given to a magistrate's ex tempore reasons.20 However, I do not think the language of the magistrate's reasons can reasonably accommodate the reading invited by the respondent. Her Honour did not merely refer to the seriousness of the appellant's offence; she specifically found that the offence was not trivial. Moreover, the immediately following conclusion was said to follow ('therefore') from that finding. Further, her Honour did not make any reference to the question of whether the appellant should be immediately relieved of the adverse consequences of a conviction at this or any other stage of the reasons. To my mind, the only reasonable reading of the magistrate's reasons is that her lack of power flowed from her finding that the offences were not trivial.
16 For these reasons I would uphold ground 1.
17 As a result, the question of whether to grant a spent conviction order can be determined by this court.21 In determining that question, as the respondent accepts,22 the court can have regard to the appellant's affidavit dated 8 February 2016, filed in this appeal.
Should a spent conviction order be made?
18 In my view, there is no doubt that the appellant is unlikely to reoffend, and is of previous good character. The references before the magistrate satisfied her Honour of those matters, and also satisfy me. The conclusion that the appellant is unlikely to commit a similar offence again is reinforced by consideration of his affidavit of 8 February 2016.
19 The real questions are whether, having regard to the appellant's previous good character, he should be relieved immediately of the adverse effects that a conviction might have on him, and, if so, whether the discretion to make a spent conviction order should be exercised favourably to him. Before the magistrate, the prosecutor did not oppose the making of a spent conviction order.23 On appeal, the respondent accepts that it is open to answer both questions favourably to the appellant, but submits it is also open, as a matter of discretion, not to grant a spent conviction order.24 On balance, and not without some hesitation, for the reasons that follow, I am satisfied that both questions should be answered favourably to the appellant.
20 The starting point is the exceptional character of the power to make a spent conviction order, which is to be sparingly exercised.
21 The offence of which the appellant was convicted is, in itself, one that cannot be described as trivial or minor. It carries a maximum punishment of a term of imprisonment of 2 years. In circumstances where the appellant had in his possession in the car both a hunting knife and a cap gun, the appellant's offences, in the circumstances of their commission, also cannot be described as minor or trivial. Nevertheless, consideration of the circumstances of the appellant's offending goes some way to mitigate the seriousness of his offending and makes his offences significantly less serious than many examples of offences against s 8(1)(b) of the Weapons Act.
22 The appellant's offences were not a case of somebody arming himself or herself with the intention of acting as an aggressor, so as to cause another person to fear that somebody would be injured. About two months before he committed these offences, the appellant had been subjected to what, for him, was a terrifying experience. Noticing that a car was following him, he had pulled his car over in the hope that the other car would go around him. Instead, it came to a halt near him. Several occupants got out and, as the appellant drove away, they threw several objects at his car. One of these objects was a tomahawk. The incident was reported to police, and left the appellant terrified, having difficulty sleeping, and requiring counselling.25
23 It was the appellant's fear, arising from this incident, that led him to commit these offences.
24 In this case, the appellant carried the relevant articles with the intention that, if something like the incident he had experienced occurred again, he would use them or one of them to scare the assailant(s) away. He did not realise that he was not permitted to do this, naïve though this was.
25 This is not a case of someone possessing weapons or similar articles on their person in a public place. In committing the offences, the appellant had possession of the articles in his car. There is no evidence and no suggestion that the appellant intended to take the articles out of his car at any time unless he was subjected to the kind of attack which he had recently experienced. His intention to use the weapons to provoke fear was highly contingent; he intended to do so only if something similar to the earlier incident occurred again.
26 As I have said, the appellant is a young man, now 23. He pleaded guilty at the first opportunity, cooperated with the police when he was stopped, and is of previous good character. It is clear from the references that his commission of these offences was totally out of character.
27 The appellant's affidavit raises his concern about the potential for adverse consequences, of several kinds, arising from the recording of a conviction against him. First, he expresses concern that a conviction could impede his ability to gain promotions within his current employment, and may limit his career opportunities more generally. Secondly, he expresses concern as to his ability to obtain a visa to travel to the United States, in circumstances where he intends to do so. Thirdly, he expresses concern as to damage to his reputation as a result of having a criminal conviction.26
28 I accept the appellant's submission that, given his youth, the future effects of the recording of a conviction are not easily identified.27
29 The fact that the appellant does not point to specific and concrete adverse consequences is not in itself necessarily fatal to an application for a spent conviction order. For example, in granting a spent conviction order in M v Seidner,28 Pritchard J referred to the difficulty in determining whether the appellant's conviction was likely to impact adversely on future employment prospects, concluding that the possibility could not be excluded. Nevertheless, the presence or absence of information showing a specific or concrete adverse consequence is a factor to be weighed in the court's analysis.
30 Section 8(1) of the Weapons Act expressly states that possession of an article with one of the prescribed intentions 'whether for defence or not' is an offence. The magistrate referred to the need to discourage any view that possessing weapons for self-defence is an acceptable response.29 I respectfully agree with the magistrate's observation. There is some force in the view that general deterrence in this respect calls for the refusal of a spent conviction order.
31 However, on balance, taking into account the particular circumstances of this offence and the appellant's personal circumstances, I am satisfied that he should be relieved immediately of the adverse consequences of conviction, and that the discretion to make a spent conviction order should be exercised in his favour.
32 The respondent's submissions refer to the fact that the appellant's affidavit states that he aspires to become an auxiliary police officer.30 The respondent submits that there is a public interest in the fact of the appellant's convictions being available in that respect. The grant of a spent conviction order will not prevent reference to this convictions in the context of an application by the appellant for a position as an auxiliary police officer. The general prohibition in the Spent Convictions Act 1988 (WA) upon regard being had to the convictions in the context of employment is subject to a specific exception in the case of consideration for employment as an auxiliary police officer.31 More generally, contrary to the respondent's submission, in the circumstances of this case, I do not think there is a public interest in the appellant's employer or potential employer being aware of these offences in assessing his suitability for work.
Conclusion
33 For these reasons, I would:
(1) grant leave to appeal;
(2) uphold the appeal; and
(3) make a spent conviction order in respect of the appellant's offences.
1 ts 16 October 2015, 2 - 3.
2 Affidavit of Trent Mark Andrews sworn 6 November 2015, annexures H - M.
3 ts 16 October 2015, 2 - 3.
4 ts 16 October 2015, 4.
5 ts 16 October 2015, 4.
6 ts 16 October 2015, 4.
7 ts 16 October 2015, 4.
8 ts 16 October 2015, 4.
9 ts 16 October 2015, 4.
10 ts 16 October 2015, 4 - 5.
11 ts 16 October 2015, 5.
12 ts 16 October 2015, 5.
13Frewen v Dalgreen [2014] WASC 407 [14] - [25] (footnotes omitted).
14 Respondent's submissions dated 11 February 2016 [13].
15R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27].
16 16 October 2015 ts 4 - 5.
17 16 October 2015 ts 5.
18 16 October 2015 ts 5 (emphasis added).
19 Respondent's submissions [15] - [17].
20Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189 [31].
21Criminal Appeals Act 2004 (WA) s 14(1)(d).
22 Respondent's submissions [21].
23 ts 16 October 2015, 4.
24 Respondent's submissions [29], [37]; appeal ts 10 - 11.
25 Affidavit of B sworn 8 February 2016 [4] - [15].
26 Affidavit of B [19] - [21].
27 Appellant's submissions [26].
28M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 [66].
29 ts 16 October 2015, 4.
30 Respondent's submissions [25(e)].
31Spent Convictions Act 1988 (WA), sch 3 cl 1 item 3.
4
4
1