Burns v Urban - [2010] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BURNS -v- URBAN [2010] WASC 289

CORAM: JENKINS J

HEARD: 12 OCTOBER 2010

DELIVERED : 12 OCTOBER 2010

FILE NO/S: SJA 1053 of 2010

BETWEEN: DALE FRANCIS BURNS
Appellant
AND
BARRY URBAN
ANDREI RAZVAN ALBU
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B C GLUESTEIN
File No  :AR 1323 of 2009, AR 1324 of 2009, AR 2092 of 2009

Catchwords:

Criminal law - Appeal against conviction - Unrepresented accused with an intellectual disability - Fair trial

Criminal law - Appeal against conviction - Trespass - Honest claim of right

Criminal law - Appeal against sentence - Capacity to pay fines - Spent conviction

Legislation:

Criminal Code (WA), s 22
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9
Criminal Procedure Rules 2005 (WA), r 61(2)
Sentencing Act 1995 (WA), s 53(1)

Result:

Leave to appeal on each ground refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondents : Mr P D Spragg

Solicitors:

Appellant: No appearance
Respondents : State Solicitor for Western Australia

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

Cameron v The Queen [2004] WASCA 16
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

JENKINS J: (These reasons were delivered orally and have been edited from transcript.) This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Armadale on 18 February 2010. The appellant appeals against the decision to convict him of one count of stealing, one count of obstructing a police officer and one count of trespass. He also appeals against the sentences imposed on him for those offences. He was fined $200 for obstructing a police officer, fined $50 for stealing and fined $200 for the trespass offence. He was also ordered to pay some $283 in court costs.
I say that the appellant appeals against those decisions although the appeal notices themselves only refer to the appeal being against the conviction and sentence for stealing. However, having regard to an attachment to the appeal notices which refers to the other convictions and fines and the breadth of the grounds of appeal, I accept that the appeals are against all three convictions and sentences.
There is one appeal notice against conviction which includes two proposed grounds of appeal. They are:
(1)There was a miscarriage of justice because the appellant was unrepresented at the hearing and the appellant has an intellectual disability which limited his capacity to conduct the hearing; and
(2)The Court made an error of law in finding the appellant guilty of trespass in that the Court failed to consider adequately the defence of honest claim of right, a defence which was raised on the evidence.
The notice of appeal against sentence also includes two proposed grounds of appeal. They are:
(1)The Court erred in law by failing to consider an order that adequately considered the financial situation of the appellant when setting the levels of fines; and
(2)The Court erred in law in failing to make a spent conviction order for the appellant by failing to consider each of the relevant criteria for the making of such an order.
The appellant was advised of today's hearing of the application for leave to appeal. He failed to appear. I determined, in accordance with the Criminal Procedure Rules 2005 (WA) r 61(2), that I should proceed to hear the application in the appellant's absence.
The appeal notices were not filed until 14 June 2010; thus they were filed nearly three months out of time. The appellant requires an extension of time within which to appeal as well as leave to appeal on each ground. Except in exceptional circumstances, an extension of time will not be granted where there is a long and unexplained delay unless it can be demonstrated that there will be a miscarriage of justice if an extension is not granted: Cameron v The Queen [2004] WASCA 16 [28]. Where there is not an exceptional reason why there was a delay in the filing of the appeal, an assessment of the strength of the grounds of appeal is required.
The appellant filed very brief affidavits with both notices of appeal which stated that he was unrepresented at the time of the conviction and sentence. He said that he applied for Legal Aid but was refused. He said he has an intellectual disability. He said he wishes to appeal and to seek an extension of time. I am not satisfied that the affidavit provides any exceptional reasons for the delay of nearly three months beyond the time limit for filing an appeal. I will consider the merits of the grounds of appeal.
The prosecution notices alleged that on 8 January 2009 at Armadale, the appellant stole a boneless mini leg of lamb to the value of $17.90 the property of Progressive Supa IGA Armadale. It was also alleged that on the same date and at the same place he obstructed Senior Constable Urban (Acting Sergeant Urban at the time of trial) in the performance of the officer's functions. Finally, it was alleged that on 28 January 2009 at Armadale, without lawful excuse, the appellant trespassed on Armadale Shopping City.
The appellant was self‑represented. He entered a plea of not guilty and his trial took place before a magistrate on 18 February 2010. Prior to that date, a different magistrate had ordered a report as to whether the appellant was fit to plead. After receiving the report of Dr S D Febbo dated 10 June 2009, that other magistrate determined that the appellant was fit to plead. I will mark that report as to the appellant's fitness to plead as exhibit 1 on the hearing of the application for leave to appeal.
Dr Febbo's conclusion was that he had formed an opinion in relation to the appellant's fitness to stand trial according to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 9. Dr Febbo said that the appellant understood the nature of the charges; he understood the effect of a plea; he understood the purpose of a trial; and he understood the exercise of the right to challenge jurors. In Dr Febbo's opinion the appellant would be able to follow the course of a trial and understand the substantial effect of evidence presented by the prosecution in the trial. It was Dr Febbo's view that the appellant would be able to properly defend the charge and that the appellant was fit to stand trial.
That report was not read by the trial magistrate prior to the trial. The magistrate noted to the appellant that he would not read that report unless the appellant was convicted. The magistrate relied on the other magistrate's determination that the appellant was fit to stand trial.
In relation to the stealing charge, the evidence put before the magistrate by the prosecution was to the effect that a security officer at the Progressive Supa IGA store in Armadale observed the appellant in the store placing a piece of boneless lamb leg in his right shorts pocket. The officer gave evidence that prior to doing so, the appellant had walked up and down a number of aisles, had looked around to ascertain whether anybody was watching him and had only concealed the meat in his shorts when he was in an aisle in which no‑one was watching or in which he thought no‑one was watching him.
The security officer gave evidence that she then saw the appellant proceed to the check‑out area where he purchased two bottles or two containers of cool drink. He paid for those drinks but he did not pay for the meat. He then left the store. The appellant admitted he had taken the lamb from the store without paying for it. However, he denied he had done so intentionally. He gave evidence in his own defence.
In relation to the charge of obstructing a police officer, Acting Sergeant Barry Urban and Constable Andrei Albu gave evidence that the appellant was placed under arrest at the Armadale shopping centre upon being advised that he was suspected of stealing. The appellant admitted that he was so placed under arrest.
The security officer, the store manager and the police officers and a second security officer gave evidence that the appellant laid on the floor and refused to get up on being requested to do so by the police. This required the police to physically drag him from the shopping centre. The appellant's evidence was to the effect that unnecessary force was used by the security officers and the police officers and that this was why he went to the floor and did not get up in order to facilitate his arrest.
In relation to the charge of trespass, evidence was given by Acting Sergeant Urban that on 8 January 2009 the appellant was served with a banning notice from the shopping centre. The appellant refused to sign the notice. A copy of the notice was tendered as an exhibit, although I do not have a copy of it before me.
There was evidence from Acting Sergeant Urban and a security officer that the appellant was on the premises of the shopping centre, contrary to the banning notice, on 28 January 2010. The appellant admitted that he was on the premises on that date but claimed he had a right to be there to attend the post office. He did not give details as to exactly why he had to attend the post office.
The magistrate accepted the evidence of the prosecution witnesses. In respect to the stealing charge, he accepted the evidence of the security officer that the appellant had been acting in a furtive manner prior to placing the meat in his pocket and then concealing it with his top.
In respect to the charge of obstructing a police officer, the magistrate also accepted the evidence of the prosecution witnesses. In respect to the charge of trespass, it was not disputed that the appellant was on the premises on 28 January 2010 and neither did it appear to be disputed that the appellant had been banned from attending the premises on that date. The question there was whether the appellant had a lawful right to be on the premises on that date. That is an issue which I will come to in due course. The magistrate found that the appellant's evidence that he was there to attend the post office did not provide him with a lawful excuse to be on the premises.
I now turn to ground 1 of the appeal against conviction. There is no dispute that the appellant was unrepresented at the hearing. As to whether the appellant has an intellectual disability, the only evidence before the magistrate in that respect was the appellant's assertion from the bar table that he had a limited ability to defend himself due to his personal circumstances. I have the appellant's affidavit, which states baldly that he has an intellectual disability. I also have before me the psychiatric report of Dr Febbo.
Dr Febbo's report is very comprehensive. Whilst it indicates that the appellant may have what in colloquial terms would be called an intellectual disability, it does not indicate that that disability prevented a fair trial, even if the appellant was unrepresented at that trial. Indeed, Dr Febbo's report indicates that the appellant had an adequate, if not good, understanding of the criminal justice process that he was then involved in.
The transcript of the proceedings before the magistrate on 18 February 2010 indicates to me that the appellant was able to adequately represent himself at the hearing. He appeared to be able to follow the evidence and to understand what was going on in the court. He was able to cross‑examine the prosecution witnesses and present his own evidence to the magistrate. The magistrate provided some assistance to the appellant in terms of clarifying questions which were relevant to the appellant's defence. The magistrate put some questions to the prosecution witnesses after the appellant had made comments from the bar table which were relevant to his defence.
It is wrong to say that simply because an accused is unrepresented, there is a miscarriage of justice. The same can be said of the presence of an accused having a mild level of intellectual disability. The proper inquiry is whether the absence of legal representation, given the accused's intellectual capacities, gave rise to a miscarriage of justice: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 311, 343 and 356.
In this case the appellant has not pointed to any particular occurrence or factors during the course of the trial that gave rise to a miscarriage of justice. I have examined the transcript. I cannot see that there were any particular factors or occurrences during the trial which gave rise to a miscarriage of justice. I am satisfied that not only was the appellant fit to plead but that he was able to adequately represent himself during the course of the trial. In my view this ground has no reasonable prospects of success.
I now turn to ground 2. The appellant gave evidence that he had a reason to be at the shopping centre. He said in cross‑examination, in answer to the question:
[Y]ou knew you were banned from there but you wanted to go to the shopping centre anyway?‑‑‑No. That's not right at all. I had justified cause there. If you've got to go to the post office, you go to the post office. (ts 59)
There was also evidence in the prosecution case as to the appellant's attitude towards the banning notice. Acting Senior Sergeant Barry Urban, was asked whether the appellant had said anything in relation to the banning notice and prior to saying he wanted to use the post office. Officer Urban said:
He said all sorts of things. He just said he didn't agree with it and ‑ he just didn't agree with it and he was going to keep going back there.
Officer Urban was then asked:
When he said he didn't agree with it, what was that in relation to the question you did ask?
Officer Urban responded:
To say that he was banned from the centre, from the complex. (ts 30 ‑ 31)
The respondent concedes that the defence of honest claim of right under s 22 of the Criminal Code (WA) probably applies to an offence involving unauthorised entry onto real property. I will assume that it does for the purposes of this appeal.
Section 22 of the Criminal Code provides that ignorance of the law does not afford an excuse for an act or omission which would otherwise constitute an offence unless knowledge of the law by an offender is expressly declared to be an element of the offence. Section 22 goes on to say:
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
The magistrate found that the appellant did not have a lawful excuse to be on the property. During Acting Sergeant Urban's evidence the magistrate tried to ascertain from the appellant the questions which he wished to ask. During the course of the exchange with the magistrate the appellant told the magistrate that he had a legal right to go to the shopping centre. He said that he had to go and get something that was sent to him. He said he had to go and pick it up. What the appellant said at that point was:
Well, if I had to go and get something that was sent to me, or anything certified, I had to go and pick it up.
He then said:
But what they're saying is each time I was to go there I had to ring up somebody or should go and see a police officer and let the police officer go with me. (ts 39)
The appellant did not actually say that he had any particular item that he had to pick up on this particular occasion. I am prepared to accept that on the date he was said to have committed this offence, that is 28 January 2009, he did have something which he wanted to pick up from the post office.
That does not mean that he had an honest claim of right. An honest belief of a special entitlement to do an act with respect to property will only constitute a defence under s 22 if that entitlement would if well‑founded preclude what was done from constituting a breach of the relevant criminal law which an accused is assumed to know: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 580 ‑ 581.
The appellant's evidence and explanation to the magistrate of his alleged right indicates that it was no more than a claim that it was impractical for him to adhere to the terms of the banning notice if he felt he needed to attend the post office. In my view the magistrate was correct to hold that there was no evidence before him which constituted a lawful excuse for the appellant to be at the shopping centre. I am also satisfied that there was no evidence before the magistrate which required him to consider the operation of s 22 of the Criminal Code.
The appellant did not have an honest claim of right in respect to him attending the shopping centre simply because he thought he should be able to go there to pick up a piece of mail or some other item. In my view ground 2 has no prospects of success.
I now turn to ground 1 of the appeal against sentence. This ground relates to the financial situation of the appellant. The magistrate gave the appellant an opportunity to address him on the imposition of the fines. The appellant indicated to the magistrate that he may have trouble finding employment. He also said that he had a credit card debt of $50,000. The magistrate was also of the view that he already owed $1,000 in fines.
The maximum penalty for the offence of stealing was a fine of $6,000. The maximum penalty for the offence of obstructing police was imprisonment for 18 months and a fine of $18,000. The maximum penalty for the offence of trespass was a maximum penalty of 12 months' imprisonment and a fine of $12,000.
In imposing a fine the court must consider the means of the offender and the extent to which payment of the fine will burden the offender: Sentencing Act 1995 (WA) s 53(1). I acknowledge that the magistrate did not expressly refer to the appellant's financial position when he imposed the fines. However, the magistrate had only just heard from the appellant in respect to his ability to pay a fine. He had also questioned the appellant only a few moments earlier about the amount of fines which he may have then owed. It is clear to me that the magistrate was well aware of the information that the appellant had just given him about his ability to pay a fine. The fines themselves were very modest, particularly having regard to the maximum penalties. The appellant was not before the magistrate as a first offender. He had a record, although it may be acknowledged that it was not an extensive one. The magistrate referred to the appellant having convictions for disorderly behaviour in 2007, trespass in 2006, being unlawfully on premises in 2002, disorderly conduct in 2002, hindering police in 2001 and resisting arrest in 2000.
Given the nature of the offences, the appellant's antecedents and his financial circumstances to the extent that they were known to the magistrate, it is my view that there is no merit in this ground of appeal and it has no reasonable prospects of success. The fines imposed on the appellant were within the magistrate's exercise of a sound sentencing discretion.
In respect to ground 2 of the appeal against sentence the magistrate found that, given the appellant's antecedents, he could not be satisfied that the appellant was unlikely to commit such offences again. It is a requirement of the provisions relating to spent convictions that the court is not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again.
I can see no error in the magistrate's finding in this regard. This ground of appeal has no reasonable prospects of success. I would not grant leave in respect to it. That determination applies to each of the proposed grounds of appeal. As I would not grant leave to appeal in respect to any of the proposed grounds of appeal, the appeal is dismissed.