Bertolino v Director of Public Prosecutions for Western Australia
[2022] WASC 423
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BERTOLINO -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 423
CORAM: FORRESTER J
HEARD: 5 DECEMBER 2022
DELIVERED : 5 DECEMBER 2022
PUBLISHED : 9 DECEMBER 2022
FILE NO: SJA 1038 of 2022
BETWEEN: LARA BRANDLE BERTOLINO
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1038 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S DE MAIO
File Number : PE 52719 of 2015
Catchwords:
Criminal Law – Single judge appeal – Dangerous driving occasioning grievous bodily harm – Appeal against failure to make a spent conviction order – Turn on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Transport (Road Passenger Services) Act 2018 (WA)
Transport (Road Passenger Services) Regulations 2020 (WA)
Result:
Application for extension of time refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | L G Knuckey & G N Beggs |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
AZY v McIntosh [2021] WASC 34
Brady v Carter [2013] WASC 140
Brewer v Bayens (2002) 26 WAR 510
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Cramphorn v Bailey [2014] WASCA 60
GNR v The State of Western Australia [2015] WASCA 5
JAD v McRae [2022] WASC 220
Lancaster v The Queen [1989] WAR 83
M v Seidner [2013] WASC 395
R v Tognini (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wimbridge v The State of Western Australia [2009] WASCA 196
FORRESTER J:
(This judgment was delivered extemporaneously on 5 December 2022 and has been edited from the transcript).
Introduction
On the morning of 19 October 2015, the appellant drove her car away from her home and turned right into a nearby driveway, intending, in effect, to do a three-point turn. As she went to turn right the victim was riding his motorcycle towards her. The appellant did not see him, and turned her car into him, causing him a leg injury which constituted grievous bodily harm.
The appellant stood trial on 30 and 31 August 2016 on the charge of dangerous driving causing grievous bodily harm. On 16 September 2016 she was convicted of the charge and fined $3,000 with costs. She was disqualified from holding or obtaining a driver's licence for a period of 2 years.
At the sentencing, the appellant's counsel applied for a spent conviction order. That application was opposed by the prosecution and the application was adjourned to enable further evidence to be obtained.[1] The prosecution notice records that the application was 'withdrawn' and the adjourned hearing was vacated.
[1] ts 16 September 2016, 9 - 13.
On 26 April 2022 the appellant filed a notice of appeal containing the sole ground that there was a miscarriage of justice by reason of the failure of the magistrate to grant the appellant a spent conviction order. The appellant has also applied to adduce additional evidence.
The appellant requires an extension of time in which to appeal.
On 4 October 2022 a registrar ordered that the application for leave to appeal, the application for an extension of time and the application to adduce additional evidence be referred to the hearing of the appeal.
Statutory framework
The appeal
The application for leave to appeal is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).
A refusal to make an order that might be made as a result of a conviction is a decision which may be appealed.[2]
[2] CA Act s 6(1)(g) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]
[3] CA Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] CA Act s 9(3).
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.[6]
[6] CA Act s 14(2).
As I have indicated, an extension of time is required in this case.[7]
Admission of additional evidence
[7] CA Act s 11(3).
Pursuant to s 40(1)(e) of the CA Act, the court may admit any other evidence on the appeal. The question is whether, had the evidence been before the sentencing court, a different sentence may have been imposed. Evidence of facts since the sentence was imposed may be received to show facts relevant to the sentencing process, which were in existence at the time of a sentence but either not known to the sentencing judge or not properly appreciated at the time.[8]
[8] M v Seidner [2013] WASC 395 [26] - [27]; Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [30].
The discretion to admit evidence not before the lower court is wide and designed to serve the demands of justice, confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially.[9]
Spent convictions
[9] Cramphorn v Bailey [2014] WASCA 60 [60].
The power to make a spent conviction order is found in s 39(2)(a) ‑ (d) of the Sentencing Act 1995 (WA). Preconditions for the making of such an order are set out in s 45 of the Act, which reads:
(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 precondition in s 45(1)(b) cannot be satisfied unless either the offence is trivial or the offender is of previous good character.[10]
[10] GNR v The State of Western Australia [2015] WASCA 5 [45].
If the preconditions in s 45(1)(a) and (b) are satisfied, the court has a discretion, not a duty, to make a spent conviction order.[11]
[11] R v Tognini (2000) 22 WAR 291 [24]; Brewer v Bayens (2002) 26 WAR 510 [11], [16].
The discretionary power should be regarded as being of an exceptional character. If the preconditions are established, consideration must be given to the seriousness of the offence, the offender's personal circumstances, and the public interest, which includes maintaining the community's confidence in the judicial system and giving effect to the ordinary rule that a conviction will be a matter of record, with all the consequences that may entail.[12]
[12] R v Tognini (2000) 22 WAR 291 [27].
In the absence of a spent conviction order made at the time of sentence, an application can be made for a serious conviction to be declared spent after 10 years has elapsed since the applicant's latest conviction.[13]
[13] Spent Convictions Act 1988 (WA) s 11.
Jurisdictional issue
There is a preliminary question whether, in circumstances in which the application was made and adjourned, then withdrawn, the magistrate made a 'decision' such that an appeal is permitted pursuant to the CA Act.
Given the terms of s 39(2)(c) of the Sentencing Act, even if a magistrate does not state they have determined that a spent conviction order is not appropriate, a magistrate's failure to make a spent conviction order must be taken to be such a refusal.[14]
[14] AZY v McIntosh [2021] WASC 34 [24] - [30]; JAD v McRae [2022] WASC 220 [21].
In such circumstances, the appropriate ground of appeal in a case such as this is that there was a miscarriage of justice.[15]
[15] See, for example, Brady v Carter [2013] WASC 140 [3].
In this case, the prosecution notice records that the application was withdrawn and the hearing vacated. The notice does not record that the application was refused. However, it must be inferred that the magistrate either determined that the application should be refused in the absence of further evidence, or failed to consider it further. In either case, this case is sufficiently analogous to AZY v McIntosh[16] and JAD v McRae[17] that I am satisfied that the appeal is competent. The respondent did not contend I should find otherwise.
[16] AZY v McIntosh [2021] WASC 34.
[17] JAD v McRae [2022] WASC 220.
Application to adduce additional evidence
The appellant has applied to adduce additional evidence by three affidavits.
Affidavit sworn 17 September 2021
By an affidavit sworn on 17 September 2021, the appellant stated that at the time of her conviction she was a clinical psychologist. She provided a copy of the legal advice she received regarding pursuing her application for a spent conviction order which states, in effect, that the application would only be successful if her conviction caused a problem with her registration with the relevant professional association or if travel to Canada or the USA would be made near impossible and this would cause her considerable hardship.[18] The appellant stated that, as her conviction would not impact on her professional registration, she decided against pursuing the application at the time.
[18] Annexure B.
The appellant also stated that she had obtained alternative employment, as a casual travel guide, which required that she have a Western Australian Passenger Transport Driver Authorisation (PTD authorisation), as the role's responsibilities involve driving a tour bus.[19]
[19] Annexure C.
The appellant also annexed a number of character references which all attest to the appellant's good character and the unlikelihood of her committing another offence in the future.[20]
Affidavit sworn 29 September 2022
[20] Annexures D - I.
In her affidavit sworn on 29 September 2022, the appellant stated that her inability to obtain a PTD authorisation impacted adversely on her employment as a casual travel guide such that she was the first to be removed from the tour schedule when COVID-19 restrictions impacted on the business.[21]
[21] Annexure J.
The appellant has now opened a small clinical psychology private practice. She seeks a PTD authorisation so she can, as she put in the affidavit, 'grow my services in a way that provides cost effective and equitable access for clients.'[22]
[22] Affidavit sworn on 29 September 2022 [6].
Apart from the conviction the subject of this appeal, the appellant had no other convictions.[23]
Affidavit sworn 11 October 2022
[23] Affidavit sworn on 29 September 2022 [8].
By her affidavit sworn 11 October 2022, the appellant has annexed a copy of the correspondence from the Department of Transport refusing her a PTD authorisation.[24]
[24] Annexure K.
The appellant also claims that she was 'attending carefully to the traffic' and that she 'kept checking the traffic' prior to turning into the path of the victim's motorcycle.[25]
[25] Affidavit sworn 11 October 2022 [10].
Finally, the appellant also attests to her lack of criminal and traffic history, both prior to the offence and as at 11 October 2022.
Email dated 29 November 2022
At the hearing of the appeal, the appellant sought to introduce further evidence of the impact her conviction is having on her employment. She sought to adduce an email regarding the need for her to submit, among other documents, a National Police Certificate as information to enable her to be listed on a permit related to a clinical trial. The State did not oppose that application and, on that basis, I received the document as further evidence on the appeal.
Conclusion on the application to adduce additional evidence
The respondent does not object to the application to adduce additional evidence, except for paragraphs [6] ‑ [10] of the affidavit dated 11 October 2022, which the respondent submits are irrelevant.
These paragraphs relate to the appellant's offer to plead guilty prior to the trial to careless driving, and her assertion that the offence of careless driving occasioning grievous bodily harm was created shortly after her trial. The offence of careless driving occasioning grievous bodily harm was created in October 2016. The offence occurred in October 2015, almost a year earlier.
As I will shortly explain, the timing of the creation of the new offence is not a factor which is relevant to the determination of this appeal.
Further, the appellant's claims at [10] as to the nature of her driving are inconsistent with the factual findings of the magistrate and the verdict of guilty of dangerous driving occasioning grievous bodily harm.
I therefore accept the submission that the paragraphs are irrelevant and inadmissible and decline to admit that part of the affidavit on sworn 11 October 2022, in this appeal.
Otherwise, the additional evidence is admissible and relates to matters which have arisen since the appellant was sentenced and, in my view, it is appropriate to admit the additional evidence on this appeal.
Appellant's submissions
The appellant submits that the conviction has and will likely continue to have a significant impact on her future employability, work prospects and positive impact on the community.
She submits that she has suffered additional adverse effects flowing from the offence which should be taken into account. She also refers to the creation of the offence of careless driving causing grievous bodily harm created since the offence.
The appellant also made extensive and well-prepared oral submissions at the hearing of this appeal.
In her oral submissions, she argued that regard should be had to PTD authorisation disqualifications which are mandated in relation to other offences, including for people with multiple driving convictions. In effect, she submits that people with worse driving records than hers receive a disqualification of a shorter duration.
She also submitted that the Department of Transport employees to whom she had spoken had told her she would likely be granted a PTD authorisation if her conviction was spent.
She submitted that the magistrate only had the option of convicting her of dangerous driving occasioning grievous bodily harm and that placed her Honour in the difficult position of either convicting the offender or failing to recognise the impact on the victim. She submitted she was convicted simply for not seeing the victim on his motorcycle and that this was relevant to my determination on this appeal.
Finally, the appellant sought to raise further matters of evidence, by detailing the reasons she needed to drive patients as part of her business. She submitted that she needed to drive disadvantaged patients to locations for treatment, where they could not do so themselves, as her treatment involved being in natural locations. She submitted that sometimes an inability to be in a vehicle is a condition for which treatment of driving patients would be required.
She also submitted that at times she would need to drive suicidal patients to obtain appropriate medical treatment if they refused an ambulance and that, if she did not have a PTD authorisation, she would be prevented from doing so while receiving payment for her services in doing so.
Respondent's submissions
The respondent did not oppose the appellant's application for an extension of time in which to appeal.
The respondent accepted that it would be open to the court to find that the preconditions for the making of a spent conviction order were satisfied. While the offence could not be considered trivial, it was not challenged that the appellant is of previous good character. However, the respondent submitted that the discretion should not be exercised so as to immediately relieve the appellant of the adverse consequences of the conviction.
In effect, the respondent submitted that the legislature intended that a person convicted of dangerous driving occasioning grievous bodily harm would be prevented from obtaining a PTD authorisation permanently, and the making of a spent conviction order would undermine that legislative intention.
A spent conviction order would prevent potential employers or the Department of Transport having the necessary information to assess whether the appellant, as a driver for hire or reward, would meet the standards required for a PTD authorisation.[26]
[26] Respondent's submissions [42] - [43].
The respondent also pointed to the fact that driving for reward is only an incidental aspect of the appellant's current clinical psychology practice and that the appellant had not explained how having a PTD authorisation would assist her to 'grow' her business or make it more 'cost effective'.
In oral submissions, in response to the appellant's submissions, the respondent maintained that the appellant's evidence as to the impact of her inability to obtain a PTD authorisation demonstrated that passenger transport was incidental to her business and did not prevent her carrying out her occupation.
Has there been a miscarriage of justice?
The question to be determined in this case is whether I am satisfied, taking into account the additional evidence admitted on the appeal, that the magistrate's failure to make a spent conviction order has occasioned a miscarriage of justice.[27] In this case, that requires an assessment of the merits of the appellant's application afresh, having regard to the circumstances established on the material before me.
[27] JAD v McRae [2022] WASC 220 [71].
In making the assessment, I need to balance the circumstances of the offence and the appellant, the consequences of the conviction, and whether the circumstances require that the appellant be relieved of the consequences of the conviction immediately. In saying 'immediately', I do bear in mind that this application is filed five and a half years out of time.
The dangerous nature of the driving was towards the lower end of the range for such offending. While the magistrate found it to be objectively dangerous in all of the circumstances, the driving was not wilful or prolonged, and did not involve driving of an inherently dangerous nature. It involved a relatively short period of inattention, during which, as the magistrate found, the appellant turned into the path of the victim's motorcycle without adequately checking for oncoming traffic.[28] Notwithstanding these factors, the offence committed by the appellant was serious, and had grave consequences for the victim.
[28] Transcript of proceedings on 16 September 2016, 8.
The evidence establishes that the appellant's employment was not compromised in any way by the conviction until she sought to work in a casual role as a travel guide. While I am satisfied that that employment was impacted by the inability of the appellant to obtain a PTD authorisation, it is apparent that the COVID-19 pandemic restrictions were also a significant factor impacting on this employment. It was also insecure employment, in the sense that it was casual employment and there is no evidence as to whether this was or was intended to be the appellant's sole source of income. There was also an option for her to continue in some form as a travel guide.
The appellant now owns and operates her own business as a clinical psychologist. In the materials submitted prior to the hearing, she provided no detail as to what aspect of her business requires a PTD authorisation on her part in order to grow it or make it more cost effective.
In seeking to put further material before the court, which I have already outlined, as to how her inability to drive passengers for reward impacts on her business, this was not supported by evidence. However, I will address the matters raised.
The appellant has provided no information as to how often any of the situations she outlines might potentially arise, and some are, in my view, spurious. If the appellant were required to drive a suicidal patient to hospital in an emergency, the fact that she did not have a PTD authorisation would not prevent her doing so, nor would it likely prevent her charging the patient for it if she wished to do so.
Further, her submission that she needs to charge people for her time to transport them as part of her business is somewhat inconsistent with her claim that it would not be cost-effective for her patients to use other means of transport or for her to provide it.
I am not satisfied that driving passengers for reward is anything more than an incidental and somewhat rare requirement of her business. I am also not satisfied on the available evidence that it would have a marked impact on increasing accessibility for her patients.
The submission that the offence of careless driving occasioning grievous bodily harm was created a year after the offence, and only a few days after the appellant's conviction, does not advance the appellant's position. The appellant was dealt with according to the available offences at the time. Her submission that the magistrate was only left with the option of convicting her of dangerous driving occasioning grievous bodily harm in the absence of the new offence is misconceived. Had the magistrate had not been satisfied beyond reasonable doubt of the appellant's guilt of the offence of dangerous driving occasioning grievous bodily harm, she would have been obliged to acquit the appellant entirely. Whether the appellant would still have been prosecuted for dangerous driving occasioning bodily harm had the offence of careless driving occasioning bodily harm been available is speculative, at best.
Contrary to the appellant's submission, she was not convicted of the offence for failing to see the victim on his motorcycle. She was convicted of failing to keep a proper lookout such that, in all of the circumstances, her driving was objectively dangerous to the public. Further, while the appellant may disagree with the magistrate's factual findings on the evidence, it is not appropriate for me to go behind the magistrate's decision on this appeal.
The appellant's submission that she might be prevented from participating in the clinical trial by reason of her conviction is speculative. There is no evidence to that effect before me.
The statutory regime created by the Transport (Road Passenger Services) Act 2018 (WA) and the Transport (Road Passenger Services) Regulations 2020 (WA) was designed to regulate the driving of passengers for hire or reward and to implement minimum standards which need to be established before a person should be permitted to do so. The community is entitled to expect that those standards will be rigorously adhered to and that the people authorised to transport passengers are required to have a driving record of a suitably high standard. Similarly, employers who provide passenger transport services are entitled to rely upon the statutory regime to only authorise suitable drivers to transport passengers. The legislature has decided that drivers who commit the offence of dangerous driving causing grievous bodily harm are, on the face of it, not suitable to do so.
It is a matter for the legislature as to how it determines which disqualifications are to apply in respect of which offences. The fact that it may seem to the appellant to be inequitable is not for me to determine.
I acknowledge that the legislation does not preclude the operation of s 45 of the Sentencing Act and I do not suggest that there is no room for the application of s 45 in any case in which a person has been convicted of dangerous driving causing grievous bodily harm. I also accept that, in the event that the appellant is granted a spent conviction, she would almost certainly be granted a PTD authorisation. This is not on the basis of the appellant's submissions as to what the Department of Transport advised her, but on the basis of the combined effect of s 95 of the Act and the Regulations.
However, the fact that this consequence, that is permanent disqualification, has been provided for over and above the mandatory disqualifications set out in the Road Traffic Act 1974 (WA), suggests that, in the ordinary course, those who seek to drive passengers for hire or reward should not be immediately or readily relieved of the consequences of serious driving offences.
The legislation does not preclude the operation of a spent conviction. A person who commits a serious offence of this nature is prevented for a significant period from driving passengers for hire or reward, and potentially for life, but after an appropriate period, and in appropriate circumstances, the person might be relieved of that consequence under the Spent Conviction Act 1988 (WA).
I also note that the evidence does not establish that the consequences of the appellant's conviction subject her to any particular hardship. She is not prevented from carrying out her professional occupation to its full extent, and she is not deprived of making an income in that profession. Further, she is not deprived of operating in the travel industry as a guide; she is only prevented from transporting passengers for hire or reward. Although I appreciate that being unable to may inhibit the various kinds of guide that she may be, it does not prevent her changing profession if she wishes.
Balancing all of these considerations, I am not satisfied that there has been a miscarriage of justice in this case.
Application for an extension of time
Where there has been a lengthy delay, a court should only grant an extension of time within which to appeal if exceptional circumstances are shown unless it can be shown that failure to grant an extension would result in a miscarriage of justice.[29]
[29] Lancaster v The Queen [1989] WAR 83, 85; Wimbridge v The State of Western Australia [2009] WASCA 196 [19].
As I have found that there was no miscarriage of justice in the failure to make the spent conviction order, no extension of time should be granted.
Orders
The application for extension of time in which to appeal is refused.
The application for leave to appeal is refused.
The appeal is taken to be dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
9 DECEMBER 2022
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