Brewer v Bayens
[2002] WASCA 37
•26 FEBRUARY 2002
BREWER -v- BAYENS [2002] WASCA 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 37 | |
| Case No: | SJA:1177/2001 | 31 JANUARY 2002 | |
| Coram: | McLURE J | 26/02/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS FRANK BREWER CORNELIUS BAYENS |
Catchwords: | Criminal law Sentencing Public soliciting of a prostitute Whether a spent conviction order should have been made Turns on own facts |
Legislation: | Justices Act 1902 (WA), s 196(1)(b) Prostitution Act 2000 (WA), s 5(1) Sentencing Act 1995 (WA), s 39(2) and s 45 Spent Convictions Act 1988 (WA), s 6 and s 7 |
Case References: | Amuso v R (1987) 32 A Crim R 308 Bessell v R, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 Canale v Bayens [2001] WASCA 383 House v R (1936) 55 CLR 499 Knights v R (1993) 70 A Crim R 105 Lowndes v R (1999) 195 CLR 665 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Tognini (2000) 22 WAR 291 Rowlands v Caporn [2001] WASCA 66 Thompson v R (1992) 8 WAR 387 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
BETWEEN : DOUGLAS FRANK BREWER
- Appellant
AND
CORNELIUS BAYENS
Respondent
Catchwords:
Criminal law - Sentencing - Public soliciting of a prostitute - Whether a spent conviction order should have been made - Turns on own facts
Legislation:
Justices Act 1902 (WA), s 196(1)(b)
Prostitution Act 2000 (WA), s 5(1)
Sentencing Act 1995 (WA), s 39(2) and s 45
Spent Convictions Act 1988 (WA), s 6 and s 7
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr M R Gunning
Respondent : Mr R M Mitchell
Solicitors:
Appellant : Gunning
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Amuso v R (1987) 32 A Crim R 308
Bessell v R, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567
Canale v Bayens [2001] WASCA 383
House v R (1936) 55 CLR 499
Knights v R (1993) 70 A Crim R 105
Lowndes v R (1999) 195 CLR 665
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Tognini (2000) 22 WAR 291
Rowlands v Caporn [2001] WASCA 66
Thompson v R (1992) 8 WAR 387
Case(s) also cited:
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
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1 McLURE J: The appellant was charged in the Court of Petty Sessions that on 23 August 2001 at Perth he, in a public place, sought another person to act as a prostitute contrary to s 5(1) of the Prostitution Act 2000.
2 The appellant appeared at the Perth Court of Petty Sessions on 28 August 2001 and pleaded guilty to the charge. The Chief Stipendiary Magistrate, Mr Heath, imposed a fine of $1,000 and declined to make a spent conviction order. The appellant was not legally represented before the learned Magistrate.
3 Leave to appeal was granted on the following ground:
(a) the learned Magistrate erred in failing to grant the applicant a spent conviction.
PARTICULARS
(i) whilst the applicant requested that no conviction be recorded as it would affect his career, the learned Magistrate made no enquiry as to what his occupation was and in what way a conviction would affect his career;
(ii) the learned Magistrate erred in stating that the offence was of such a serious nature that a spent conviction could not be given.
4 The admitted facts were that at 7.50 pm on Thursday 23 August 2001, the appellant drove to Pier Street, Perth. He observed a female who was standing on the corner of Pier and Brewer Streets. The female was an undercover police officer acting within the provisions of the Prostitution Act. The appellant stopped and parked his vehicle and engaged the officer in conversation, during which they discussed areas of sexual services. The appellant agreed during the conversation to pay the undercover officer $40 or $80 (depending on the nature of the service).
5 The appellant in an affidavit in support of an application for an extension of time and leave to appeal swore that in the course of negotiations he asked the female if she was a police officer to which she replied she was not.
6 As also appears from the appellant's affidavit, he is 52 years of age and is married with children. He is a qualified psychologist with psychology degrees from Edith Cowan University and a Masters Degree from Murdoch University. He is a member of the Australian Psychologists Association. The appellant had no prior record of convictions.
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7 At the hearing on 28 August 2001 the appellant asked to be treated as a first offender "as a record would affect his career". The Magistrate responded as follows:
"Yes. I appreciate what you say in relation to the effect of a conviction, Mr Brewer. Unfortunately, it might be the nature of the offence, the seriousness of it, given that there is a substantial penalty imposed of up to 12 months' imprisonment. In my view, it's such a serious nature that a spent conviction order can't be given for this type of offence. There's been plenty of publicity in relation to the provisions of the Act."
8 The Magistrate's reference to 12 months' imprisonment is incorrect. The maximum penalty for a breach of s 5(1) of the Prostitution Act is two years. The appellant had been present when the Chief Stipendiary Magistrate dealt with similar charges under the Prostitution Act against other persons before his matter was heard.
Application to Adduce Further Evidence
9 At the hearing of the appeal the appellant sought leave to adduce further evidence of the consequences of a conviction on his career. The evidence was contained in an affidavit sworn on 31 January 2002 by Mr D Leach, an Associate Professor at the School of Psychology at Murdoch University. The substance of the additional evidence was that:
· the appellant is undertaking a PhD programme at Murdoch for which he has received a Commonwealth government scholarship for three years full time research/study:
· the appellant has designed a sophisticated assessment procedure to identify "true" cases of children with attention deficit hyperactivity disorder ("ADHD") which promises to make a considerable contribution to the welfare of the community;
· the appellant is at a stage in his studies where he must conduct evaluative research in schools involving children between the ages of six to twelve years. The Education Department of Western Australia requires all people working in schools to provide an Australia wide police clearance certificate to the respective school principal. The requirement for a police clearance was also a condition of approval of the Murdoch University Human Research Ethics Committee for the appellant's research;
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- · a record showing the appellant's offence "would in all probability lead to him being denied approval to conduct his PhD research, both by the schools that he must approach to test children and by the University's Human Research Ethics Committee";
· schools and research committees have become much tighter over the past five years in their screening of people who work directly with children and they are unlikely "to accept a Clearance that refers to an offence of a sexual nature";
· without completion of his post-graduate studies the appellant will be ineligible to register as a clinical psychologist with the Psychologists Board of WA and will be prevented from qualifying for work as a clinical psychologist for which he has already spent eight years of full time study;
· police clearance certificates are required by all major employers, such as the Disabilities Services Commission and the Health Department of WA;
· any person with a widely requested readily accessible record of such a significant offence who is embarking upon a career in clinical psychology will find it almost impossible to advance.
11 At my request, and with no opposition from counsel for the appellant, the respondent's counsel advised the Court from the Bar table of the matters with which the respondent took issue in Mr Leach's affidavit. Counsel said he was informed by Dr S Dyson, the Research Ethics Manager at the Research Ethics Office at Murdoch University, that:
(i) if research involved working with children, the appellant would require a police clearance and approval from the Human Research Ethics Committee at Murdoch University;
(ii) she (and the previous chairman of the Ethics Committee) could not recall any occasion in which an applicant for
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- Ethics Committee approval had any convictions notified on a police clearance ;
- (iii) if a conviction was disclosed, the Ethics Committee would have to consider the particular conviction. Whether or not the conviction would have any effect on the grant or refusal of research approval would be a matter of speculation;
(iv) the Ethics Committee comprises a member of the legal profession, a member of a religious organisation, some community members and university representatives.
12 Counsel had also spoken to Mr Paul Boddington, the Screening Officer, Teacher Recruitment at the Department of Education who advised that:
(i) if a person conducting research has close contact with children, a police clearance is required;
(ii) if the clearance notes an offence, the question whether the person could undertake the research would be decided by an Employee Screening Committee which consists of people employed at the executive director level in the Department of Education;
(iii) the screening committee would have regard to the nature and circumstances of the particular offence.
13 Thus, Murdoch University and the Department of Education have committees whose task it is to screen people who have contact with, inter alia, children. A "police clearance" is simply a statement whether a person has any convictions, and if so, of what nature.
14 In the event leave to rely on the further evidence was granted, the parties advised that they would consent to the facts put by counsel for the respondent being accepted as evidence for the purposes of the appeal.
15 I granted the appellant's application for leave to adduce the evidence of Associate Professor Leach. The Court has the power and is given a discretion to do so under s 196(1)(b) of the Justices Act 1902. The discretion is unfettered. One factor against the admission of further evidence is the public interest in the finality of legal proceedings. On the other hand, in criminal proceedings there is a strong public policy in ensuring no miscarriage of justice has occurred. A court should not be deprived of material evidence bearing significantly on the question of what was an appropriate sentence: Knights v R (1993) 70 A Crim R 105;
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- Amus v R (1987) 32 A Crim R 308; Rowlands v Caporn [2001] WASCA 66.
16 Leave was granted for the following reasons. The further evidence was materially relevant, without necessarily being determinative, on the question of whether a spent conviction order ought to have been made. In addition, the appellant was not legally represented before the Magistrate and, as a result of the consent of the parties, the respondent was not prejudiced by the additional material.
17 The respondent cross-examined Associate Professor Leach. He accepted that a central committee of the Education Department considered clearance matters rather than individual school principals although he was told of an occasion when a school principal had requested a copy of a police clearance. He accepted that the appellant would have to go before committees of the Education Department and the University to explain the nature and circumstances of the conviction and those bodies would then make a decision as to whether or not approval would be given. He had no personal experience on such committees and was not aware of any instance when research approval had been withheld because of a conviction. He accepted that it was a matter of speculation on his part as to what the committees might do. Further, he accepted that a conviction does not automatically bar a person from membership of the Australian Psychological Society or registration as a clinical psychologist.
The Legislative Framework
18 The law relating to spent convictions is contained in the Spent Convictions Act 1988. Part 2 of that Act deals with the requirements for convictions to become spent. It divides convictions which may be spent into two categories, one for "serious convictions" (s 6) and the other for "lesser convictions" (s 7). The offence for which the appellant was convicted is a lesser conviction. In such a case, after a minimum period of 10 years an application may be made to the Commissioner of Police under s 7 for a certificate that the conviction is spent. The Commissioner is obliged to issue such a certificate (s 7(3)). In the case of a serious conviction, a spent conviction order is the discretion of a District Court Judge after a minimum period of 10 years. The Spent Convictions Act prohibits discrimination against a person on the basis of a spent conviction (s 17 to s 23). The anti-discrimination provisions are very broad. Further, a convicted person is not required to disclose or acknowledge a spent conviction (s 27).
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19 The purpose of the Spent Convictions Act was considered by the Full Court in its guideline judgment in R v Tognini (2000) 22 WAR 291. Murray J (with whom Malcolm CJ and Wallwork J agreed) said at 296:
"Ordinarily of course, a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Conviction Act … are clearly based on the proposition that after the conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the way it is described in the Act so that the offender may put the offence behind them and function in the future without the need to disclose the conviction."
20 The term "spent conviction" is defined in the Spent Convictions Act to include a spent conviction order made under s 39 of the Sentencing Act 1995. Section 39(2) of the Sentencing Act gives a court sentencing an offender the power "with or without making a spent conviction order" to impose no sentence, a CRO, a fine, or a CBO.
21 Section 45 of the Sentencing Act deals with the making and effect of a spent conviction order. It materially 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.
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- (3) The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4) A spent conviction order is to be taken as part of the sentence imposed."
22 In R v Tognini at (297) Murray J said of s 45 of the Sentencing Act:
"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 preconditions 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, practicing a particular profession or undertaking particular employment."
23 Murray J noted that the Court may be aided in the exercise of the discretion if it thinks 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.
24 The necessary pre-conditions to the exercise of the discretion referred to by Murray J are the factors set out in sub-paragraphs (a) and (b)(i) or (ii) of s 45(1). However, satisfaction of those criteria does not require the making of a spent conviction order. They enliven the discretion.
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The Prostitution Act
25 The Prostitution Act does not make it an offence to use the services of a prostitute. The Act is directed at reducing, inter alia, the incidents of street prostitution and kerb crawling. The gravamen of the offence in s 5 is the public nature of the solicitation.
26 In the Second Reading Speech for the Prostitution Bill, the Minister made it clear that the legislation was in response to community concerns relating to, inter alia, street soliciting and kerb crawling. The Minister said:
"… any person who in a public place seeks another to act as a prostitute or to be the client of a prostitute will commit an offence. It is intended that the effect of this provision will bring about a reduction in the demand for street prostitutes by targeting in the first instance those persons seeking the services of prostitutes – that is, kerb crawling – for which a penalty of a maximum of two years' imprisonment will apply. In reducing the demand for services it is reasonable to assume that supply will also diminish.
Research has indicated that a number of women soliciting in this manner are looking to support a drug habit or to make a living. They are more susceptible to exploitation. Hence, a lesser penalty of a maximum of one year's imprisonment will apply to the prostitute."
27 To strengthen the effectiveness of the measures, the police were given new powers to operate covertly in order to obtain evidence of the commission of an offence. I infer from the appellant's evidence that he asked the female whether she was a police officer that he was aware of the new measures.
Whether the Magistrate Erred
28 The principles on which an appellate court must act when considering an appeal against sentence are well known. If the sentencing Magistrate acts upon a wrong principle or takes into account extraneous or irrelevant matters or mistakes the facts or does not take into account relevant matters, then the decision of the sentencing Magistrate can be reviewed. If the result is unreasonable or unjust, error may be inferred. The appellate court may exercise its own discretion in substitution for that
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- of the sentencing Judge if it has the materials for doing so: House v R (1936) 55 CLR 499 at 505.
29 Thus, an appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the sentencing Magistrate. There must be a material error of fact or law discerned in the reasoning or the circumstances of the case to require a different decision: Lowndes v R (1999) 195 CLR 665 at 671-672.
30 I start with the respondent's submission that the Magistrate erred in stating that the offence was of such a serious nature that a spent conviction could not be given.
31 It is the case, and properly so, that a beneficial construction is given to an ex tempore statement of reasons given in a Court of Petty Sessions. For example, the failure by a decision maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. Further, it is to be assumed that the Magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: Bessell v R, unreported; CCA SCt of WA; Library No 980199; 4 March 1998; Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 at 576-577.
32 If a literal construction is given to the Magistrate's reasons in this case, an error of law is disclosed. It is not the case that a spent conviction order cannot be given for an offence of a serious nature. The seriousness of the offence is a relevant factor in the exercise of any discretion that arises under s 45 of the Sentencing Act and may in appropriate circumstances be a very weighty factor: Canale v Bayens [2001] WASCA 383. However, it is not a general disqualifying factor.
33 The Chief Stipendiary Magistrate also dealt with Mr Canale on the same day (28 August 2001) as he dealt with the appellant in this case. The Magistrate's reasons in Canale were as follows:
"In relation to the application for a spent conviction order I accept that you have no prior convictions, good antecedence, but in my view, the seriousness of the offence is such that it's not appropriate to grant a spent conviction order with respect to it and that application is refused."
34 Pullin J held that the Chief Stipendiary Magistrate had not in that case erred in the exercise of his discretion to refuse a spent conviction order. However, in Canale the Chief Stipendiary Magistrate treated the
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- seriousness of the offence as a weighty discretionary factor in favour of the refusal of the spent conviction order.
35 The respondent says I should construe the Magistrate's reasons in this case as conveying the following:
The nature and seriousness of this particular offence, particularly given the way that Parliament has viewed it, is such as to provide an adequate reason for me to refuse to exercise the exceptional discretion that I have to grant a spent conviction order.
36 Having regard to the Magistrate's reasons in Canale, that indeed may have been his intention and reflect his reasoning process. However, to adopt that construction is to take a too generous approach to the reasons in this case which on their face disclose reviewable error.
37 There being a reviewable error, I may exercise the discretion in substitution because I have the materials to do so. In the circumstances it is unnecessary to rule on the question whether the Chief Stipendiary Magistrate had made an error because he was not sufficiently advised of the facts concerning the effect of the conviction to make the relevant decision. On that issue see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45: Thompson v R (1992) 8 WAR 387 at 396-397.
38 The first question is whether the necessary pre-conditions which enliven the discretion have been satisfied. The evidence establishes that s 45(1)(b)(ii) was satisfied. The appellant had no record. I have some reservations concerning whether the appellant was unlikely to commit such an offence again particularly having regard to the knowingly risky nature of his conduct demonstrated by his question as to whether the woman was a police officer. However, it is unnecessary for me to determine that matter because I have concluded that I would not in the exercise of my discretion grant a spent conviction order.
39 The nature and circumstances of the offence weigh heavily against the grant of a spent conviction order. It was not suggested by the appellant that the offence was trivial. The maximum penalty reflects the seriousness with which the conduct is viewed by Parliament. Further, the legislation was enacted in response to widespread community concern and with the intention of reducing the prevalence of the conduct. The size of the penalty reflects an intention to achieve specific and general deterrence. Further, to overcome the obvious difficulties in proving such offences, the
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- covert use of police officers was sanctioned. In the circumstances, it is appropriate to give significant weight to the need for general deterrence. These factors militate against the grant of a spent conviction order, which in any event and in the ordinary course, is exceptional.
40 Further, there is nothing in the particular circumstances of this case which justifies or excuses the commission of the offence or somehow lessens the appellant's guilt. There are no extenuating circumstances. To the contrary, there was a significant element of conscious risk-taking. The circumstance of the offence fall squarely within the opportunistic conduct which is the target of the legislation.
41 As to matters personal to the appellant, I do not regard his age and personal situation as in any way mitigatory. However, the actual and potential consequences of the fact of the conviction on the appellant's academic and professional prospects is a relevant factor. The evidence establishes (and I find) that the fact of the conviction will be brought to the attention of the relevant educational institutions and authorities, professional associations and future potential employers in the appellant's field of expertise.
42 The evidence also establishes (and I find) that Murdoch University and the Education Department have standing committees whose function it is to consider and review the nature and circumstances of any convictions in order to determine whether it should constitute an impediment (absolute or conditional) on the performance by the appellant of his research. I do not accept Associate Professor Leach's conclusions relating to the effect of the conviction on whether the appellant's research can proceed or the effect on his career and employment prospects. His assessment is speculative. However, I do accept that the conviction may have the potential to detrimentally affect the appellant's research and career prospects.
43 On the other hand, the effect of making a spent conviction order would be to deprive the relevant institutions (Murdoch University, the Education Department and others) of the opportunity to know of and make an assessment concerning the relevance of the conviction to what is proposed from time to time and for which approval is required. In my opinion, it is in the public interest in this case for the relevant institutions to have that knowledge and make that assessment having regard to all the relevant facts and circumstances. That process would be impeded if a spent conviction order was made. In making that assessment the decision makers should bear in mind that the Prostitution Act does not make it an
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- offence to obtain or seek to obtain sexual services from a prostitute. It simply prohibits the transaction being negotiated in public.
44 For these reasons I propose to order that the appeal be dismissed.
25