Canale v Bayens
[2001] WASCA 383
•3 DECEMBER 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CANALE -v- BAYENS [2001] WASCA 383
CORAM: PULLIN J
HEARD: 19 NOVEMBER 2001
DELIVERED : 3 DECEMBER 2001
FILE NO/S: SJA 1150 of 2001
BETWEEN: GIOVANNI MIRKO CANALE
Appellant
AND
CORNELIUS BAYENS
Respondent
Catchwords:
Appeal - Justices Act 1902, s 194 - Nature of appeal - Application to admit evidence under s 196(1)(b) - Principles relating to exercise of discretion - Sentencing Act 1995, s 45
Legislation:
Justices Act 1902, s 184 & s196(1)
Prostitution Act 2001, s 5(1)
Sentencing Act 1995, s 39 & s 45
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Ms B Lonsdale
Respondent: Mr B King
Solicitors:
Appellant: Dwyer Durack
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Allesch v Maunz (2000) 74 ALJR 1206
CDJ v VAJ (1998) 197 CLR 172
Dinsdale v The Queen (2000) 202 CLR 321
Gyurka v The Queen [2001] WASCA 113
Jackson v The Queen, unreported; CCA SCt of WA; Library No 8752; 8 March 1991
Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloane (1997) 27 MVR 246
Nisbet v Fullarton, unreported; SCt of WA (Scott J); Library No 930265; 14 May 1993
Orr v Holmes (1948) 76 CLR 632
R v Tognini (2000) 22 WAR 291
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267
Rowlands v Caporn [2001] WASCA 66
Unity UPA Ltd v Humes Ltd (No 2) [1987] VR 474
Voges v King [2001] WASCA 201
Westpac Banking Corporation v Totterdell (1998) 20 WAR 150
Case(s) also cited:
Allen v Powell [2000] WASCA 65
Docker v Faulkner (2000) 116 A Crim R 389
House v The King (1936) 55 CLR 499
Koenig v Ryan [2001] WASCA 339
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997
PULLIN J: This is an appeal against sentence by the appellant under s 184 of the Justices Act 1902. Leave to appeal has been granted.
The appellant was charged that on 22 August 2001, in a public place, he sought another person to act as a prostitute, contrary to s 5(1) of the Prostitution Act 2000.
The charge came before Mr Heath CSM in the Court of Petty Sessions on 28 August 2001. The appellant pleaded guilty. He was fined $1,000, and the Chief Stipendiary Magistrate declined to make a spent conviction order, which was one of the sentencing options under s 39 of the Sentencing Act 1995. The appellant's only complaint is about the Magistrate's refusal to make a spent conviction order.
Before sentence was imposed, the Magistrate was informed by the prosecutor that at 11.30 pm on Wednesday, 22 August 2001, the appellant drove to Pier Street, Highgate, where he observed a female standing on the corner of Pier and Brewer Streets. The appellant stopped to park his vehicle, and he engaged the woman in conversation during which he discussed various sexual services. The appellant agreed during this conversation to pay the woman $50 if she performed a sexual service on him. The woman was an undercover policewoman. The conversation between the woman and the appellant was recorded. The police then moved in and arrested the appellant. The prosecutor also stated that the undercover police officer was "acting within the provisions of the Prostitution Act, with that authority", that "the (appellant) (gave) an explanation that he had recently separated and was curious", and that the appellant had no record. This reference to the provisions of the Prostitution Act 2000 was a reference to sections which empower the Commissioner of Police to authorise a police officer to act as an undercover officer, and permit an undercover officer to conceal his or her identity, for the purpose of detecting the commission of an offence.
Counsel appearing for the appellant informed the Magistrate that the facts were admitted; that the appellant pleaded guilty at the first opportunity; that he was recently separated from his wife and acted out of "curiosity"; that he was married when he was 19 years of age; that he was 39 years old at the date of his appearance before the Magistrate; and that he was a licensed security officer. The appellant's counsel asked for a spent conviction order.
The learned Magistrate, in refusing to make a spent conviction order, gave these reasons:
"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."
The appellant appeals on the following grounds:
(a)"The learned Magistrate failed to adequately consider the provisions of s 45 of the Sentencing Act."
(b)"The learned Magistrate failed to give adequate weight to:
i.The circumstances leading to the commission of the offence, namely the fact that the police used an undercover officer.
ii.The applicant's personal antecedents and good character.
iiiThe effect that a conviction would have on the applicants future employment prospects.
ivThe fact that there is no public interest in a conviction being recorded against the applicant in the present case."
(c)"The learned Magistrate failed to give adequate weight to the intention of parliament in the enactment of the Prostitution Act WA 2000 (WA) in not granting the applicant a Spent Conviction."
If the appeal is to succeed, it must be shown that there was some error made in the exercise of the Magistrate's discretion: see Lowndes v The Queen (1999) 195 CLR 665; Dinsdale v The Queen (2000) 202 CLR 321 at [3].
Section 45 of the Sentencing Act confers a discretion on the Court to grant a spent conviction order. The section 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."
Before a spent conviction order can be made, s 45(1) provides that the Court must be satisfied of two matters. The first is that the offender is unlikely to commit the offence again. The second is that the Court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, having regard to the triviality of the offence or the previous good character of the offender.
Section 45 of the Sentencing Act has been discussed in R v Tognini (2000) 22 WAR 291. That case makes it clear that the discretionary power is of an exceptional character and requires the Court to determine whether there is some particular circumstance to show why it would be desirable that the adverse effect of the conviction should be immediately set aside. That may often be found in the fact that a conviction might be an impediment to the offender undertaking particular employment, or would lead to exceptional hardship. The power should be sparingly exercised.
A spent conviction order will not necessarily be made simply because the criteria specified in s 45 of the Sentencing Act are satisfied. Consideration must be given to all of the circumstances of the case and of the offender, including the wider interests of the public: Neale v Sloane (1997) 27 MVR 246.
I now turn to the particular circumstances of this case.
Although he did not expressly say so, the Magistrate clearly had in mind s 45. He chose to first consider the factors referred to in s 45(1)(b) of the Sentencing Act. There are two factors listed which required the Magistrate to decide either whether the offence was trivial or not, or whether the offender was of good character or not. These two factors are separated by the disjunctive "or". In my view, the word "or" is merely expressive of the category of factors which can be taken into account: see Unity UPA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481 - 482. In any event, it was not argued by either party to this appeal that the Magistrate could not at least refer to both factors. Having referred to the appellant's good character, the Magistrate then settled upon, and decided, that he would have regard to s 45(1)(b)(i) in considering whether the criteria were satisfied so as to allow him to decide whether or not he should grant a spent conviction order. Once he decided that the offence was not trivial, there was no need for him to consider the other matter referred to in s 45(1)(a), ie, the issue about whether the appellant was likely or unlikely to offend again.
The first point made by the appellant was that the learned Magistrate erred in his conclusion that the "seriousness of the offence" meant that it was not appropriate to grant a spent conviction order. The Magistrate, by making such statement, was necessarily concluding that the offence was not "trivial".
In my view, the learned Magistrate cannot be said to have fallen into error in concluding that the offence was not trivial. Parliament has seen fit to declare that a person who seeks another person to act as a prostitute, in view or within hearing of a public place, commits a serious offence. A 2‑year prison term is specified as the penalty. This offence is regarded more seriously than the action of a prostitute seeking "another person to be a prostitute's client". In that circumstance, Parliament has specified a penalty of 1 year's imprisonment.
In the second reading speech to the Prostitution Bill 1999, the Minister in the Legislative Assembly on Tuesday, 23 November 1999 said:
"The Government is introducing legislation that it considers will give police increased powers better to control … street prostitution (and) kerb crawlers …
… any person who in a public place seeks another to act as a prostitute … will commit an offence. It is intended that the effect of this provision will be to 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."
Towards the end of the second reading speech the Minister also said:
"(The legislation) provides an assurance to the community that the Government is listening to community concerns relating to prostitution and is prepared to act to curb the incidence of street soliciting and kerb crawling …".
The penalty provision for an offence under s 5 and the comments of the Minister, indicate that Parliament regards the offence to be a serious one. The appellant's conduct was exactly the conduct which the Prostitution Act seeks to prevent.
The appellant wished to refer to a statement made in committee by the then Attorney‑General, who said that he thought that a person convicted for the first time of an offence under s 5 would be granted a spent conviction order. See Hansard 8 December 1999, page 4020. In my view, the comment of the Attorney‑General in committee, which was by way of retort to the comment of another member, provides no guidance at all as to the intention of Parliament.
It is next suggested that the fact that the police used an undercover officer, was a matter to which the Magistrate failed to give weight when concluding that the offence was serious, and therefore not trivial. There is no doubt that the Magistrate knew that the woman propositioned was an undercover officer. He was informed of that fact by the prosecutor. Police entrapment may in certain circumstances be a matter of mitigation to reduce the seriousness of an offence. However, as has been said in Jackson v The Queen, unreported; CCA SCt of WA; Library No 8752; 8 March 1991 and in Gyurka v The Queen [2001] WASCA 113 at par 27:
"There is no room for mitigation of a sentence where the effect of the police trap was merely to detect and obtain evidence against an offender who was prepared to commit the offence."
It was further stated:
"A police trap will give rise to a case for mitigation where there is a real likelihood that the offender was encouraged or incited by police, or by a police informer acting on their behalf, to commit an offence he or she would not otherwise have committed."
See Gyurka (supra) at par 26.
In my opinion, the involvement of the undercover police officer does not lessen the seriousness of the offence, particularly when Parliament has specifically authorised the use of approved undercover police operations.
I can also deal quickly with the ground of appeal which suggests that the Magistrate failed to give adequate weight to the "applicant's personal antecedents and good character". This ground must fail. The learned Magistrate noted the applicant's personal antecedents and character. He concluded that the appellant was of good character. As I have mentioned, however, the factor to which the Magistrate chose to have regard when considering s 45(1)(b), was the seriousness of the offence.
Another ground of appeal concerned a complaint that the Magistrate failed to give adequate weight to the effect the conviction would have on the applicant's future employment prospects. The appellant has a licence under the Security and Related Activities (Control) Act 1996. It was submitted that he is concerned that his licence may be revoked as a result of this conviction. No material was put before the Magistrate to suggest that his licence was at any risk of revocation because of the conviction. As a result, it is my view that the appellant's complaint about the Magistrate failing to give weight to "the effect that a conviction would have on the applicant's future employment prospects", is without substance.
Finally, I must deal with the additional evidence which the appellant sought to put before the Court on the hearing of this appeal, seeking leave to do so under s 196(1)(b) of the Justices Act 1902.
Two pieces of information were revealed in the affidavits which were not before the Magistrate. The first was that the appellant was suffering from depression at the time he committed the offence, and had been receiving treatment and counselling from Dr Kessell for this since 2 July 2001 (which was when he separated from his wife). The second was that the offence was "opportunistic" in the sense that he had had a friend to dinner, drove him home and on the way home happened to see a girl who "appeared to be a prostitute" talking to a man in Pier Street in a truck. He says:
"I was curious to find out how much it would cost to engage a prostitute but I never had any intention of engaging one. I did a U‑turn and pulled up on Pier Street. She came across the road and spoke to me through the window of my car."
He says in the affidavit that, "The offence was committed on the spur of the moment without any real intention to follow matters to a conclusion."
This application for leave raises a question about the nature of the appeal and what governs the exercise of the Court's discretion to receive further evidence under s 196(1)(b).
An "appeal" may be an appeal in the "strict" sense or an appeal by way of rehearing. In the case of an appeal in the "strict" sense, the jurisdiction of the Court is to determine whether the order of the Court below was correct on the evidence before it and in accordance with the law then applicable. CDJ v VAJ (1998) 197 CLR 172 at [111] and Allesch v Maunz (2000) 74 ALJR 1206 at [22].
An appeal will be an appeal by way of rehearing if there are certain powers in the Court conferred by statute, which I discuss below. Unless the legislation provides otherwise, on an appeal by way of rehearing, the appellant must still demonstrate some legal, factual or discretionary error in the decision of the Court under appeal: Allesch v Maunz (supra) at [23], CDJ v VAJ (supra) at [111] and Westpac Banking Corporation v Totterdell (1998) 20 WAR 150 at 154.
The aspects of the Justices Act which lead me to the conclusion that an appeal under s 184 of the Justices Act is an appeal by way of rehearing and not an appeal in the strict sense, are as follows. First, s 196(1)(b) authorises the Court to receive further evidence. Secondly, s 199(1) authorises the Court, on the hearing of an appeal, to vary the decision of the Court below and to make other orders as it thinks fit. These provisions are, in my opinion, the indicators that the appeal is an appeal by way of rehearing rather than an appeal in the strict sense. See Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 272; Allesch v Maunz (supra) [22].
Having decided that the appeal under s 184 of the Justices Act is an appeal by way of rehearing, does not answer the question about whether additional evidence should be admitted or not.
The discretion to admit further evidence is not limited in any way in s 196(1)(b). The section contains no requirement that leave be given to admit further evidence only if "special grounds" exist or "special leave" is granted. However, the discretion is not unfettered: CDJ v VAJ (supra) [108]. Whether evidence should be admitted, is a matter of discretion to be exercised judicially: CDJ v VAJ (supra) [115].
Additional evidence may be received to demonstrate that the order under appeal is erroneous, and to buttress the findings already made. Evidence might readily be admitted which is not in dispute. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion.
I should mention in passing that s 196(1)(b) was discussed in Rowlands v Caporn [2001] WASCA 66 and in Nisbet v Fullarton, unreported; SCt of WA (Scott J); Library No 930265; 14 May 1993. A distinction was made in those cases between evidence relating to "personal antecedent material" and evidence going to "guilt or innocence". The cases suggest that "personal antecedent material" might be more readily admitted on appeal than evidence going to guilt or innocence. I do not comment on those cases, save to note their existence and to repeat that in deciding whether to admit further evidence under s 196(1)(b), the discretion must be exercised judicially.
It was submitted that the pressure of proceedings in the Court of Petty Sessions can result in inadequate information being put before the Court, and that this was so in this case. In my view, it would be wrong to decide that additional evidence should be allowed in on appeals under the Justices Act for that reason alone. If such a reason were sufficient, it would mean that any additional information that an appellant wished to lead on appeal would have to be admitted under s 196(1)(b), merely because it was not advanced in the Court below. If that were so, "there are few cases that would not be tried a second time". See Orr v Holmes (1948) 76 CLR 632 at 641. Clearly, all of the information which the appellant now seeks to put before this Court in relation to the circumstances of the offence, is information which could have been put before the learned Magistrate. It is not suggested that counsel did not properly take instructions from the appellant when appearing in the Court of Petty Sessions. There is no evidence that the circumstances did not permit detailed instructions to be given. No adjournment was requested so that further material could be put before the Magistrate. For those reasons, in the exercise of my discretion under s 196(1)(b), I am not prepared to receive the additional evidence. I should add, however, that even if the new information about the events on the evening of the offence were taken into account, it would not lead to any different result. In this case, the appellant stopped his car and propositioned a woman. Whether the offence was committed on the spur of the moment or not, the appellant made a deliberate decision to stop his vehicle to proposition the person who he thought was a prostitute.
The material in the affidavits also included a number of character references. Justice does not require the admission of the character references because the Magistrate accepted that the appellant was of good character.
In addition, the appellant, in an affidavit sworn 17 September 2001, sought to provide further information about his background, schooling and community service. Again, this all goes to his character and, in my opinion, justice does not require that material to be received in the circumstances of this case.
The final ground of appeal was the appellant's contention that there was no public interest in a conviction being recorded against the appellant in the present case. Certainly issues of public interest may become relevant in relation to the exercise of the Court's discretion about whether it should or should not make a spent conviction order. See R v Tognini (supra) at [28], Neale v Sloane (supra) at 247 and Voges v King [2001] WASCA 201 at [15]. In view of the comments made by the Minister in the second reading speech in introducing the prostitution bill and the substantial penalty provided for in relation to the offence of kerb crawling, I am of the view that it was open to the Chief Stipendiary Magistrate to conclude that the seriousness of the offence was sufficient reason to decline an order. This is not to say that, in other cases, a spent conviction order might not be appropriate.
I dismiss the appeal.
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