Chikhalarad v Percy
[2019] WASC 22
•16 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CHIKHALARAD -v- PERCY [2019] WASC 22
CORAM: CURTHOYS J
HEARD: 16 JANUARY 2019
DELIVERED : 16 JANUARY 2019
FILE NO/S: SJA 1106 of 2018
BETWEEN: NOORAH CHIKHALARAD
Appellant
AND
HOPE PERCY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P MALONE
File Number : FR 6640/2018
FR 6641/2018
Catchwords:
Criminal law - Appeal against spent conviction - Whether magistrate erred in refusing to grant a spent conviction order
Legislation:
Sentencing Act 1995 (WA), s 39, s 45
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms K Kumar |
| Respondent | : | Ms K I Goddard-Borger |
Solicitors:
| Appellant | : | Ms Kaminni Kumar |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bessell v R (unreported CCA Supreme Court of WA; Library No 980199l 4 March 1998)
Brewer v Bayens [2002] WASCA 37
CR v Walker [2012] WASC 401
R v Tognini [2000] WASCA 31
Riggall v State of Western Australia [2008] WASCA 69
Van Der Feltz v Legal Practice Board of Western Australia [No 2] [2018] WASCA 110
CURTHOYS J:
(This judgment was delivered extemporaneously on 16 January 2019 and has been edited from the transcript).
I have taken my reasons in large part from the submissions of the parties, with some additional comments. The statement of the facts which is set out in pars 1 to 5 of the appellant's submissions is largely accepted by the respondent. There is a small issue as to precisely when the property was stolen; the important point is that there was a gap between the stealing and the attempt to defraud. Nothing in particular turns on that.
Reading from the appellant's submissions, on 7 November 2017 a delivery had been made to Taro Cash at Garden City, a retail outlet at which the appellant was employed. The delivery comprised a parcel containing six dresses actually intended for Cue Clothing, another retail outlet at Garden City. At some point the appellant took possession of the parcel. On 30 December 2017 the appellant attempted to exchange two of the dresses at David Jones. When challenged as to proof of ownership, she demanded to speak to the manager of the store. She was eventually permitted to exchange the dresses upon submitting her driver's license for the store to record.
Some four months later, on 1 May 2018, the appellant was arrested and charges preferred. On 20 July 2018, following pleas of guilty, the appellant was convicted of the charges. For the stealing, she was fined $1,200 and for the attempt to defraud $500.
Adding fines of $1,700, compensation of $1,348 and costs of just over $190 the total amount paid by the appellant was in the order of about $3,240.
The appellant made an application for a spent conviction order pursuant to s 39(2) and s 45(1) of the Sentencing Act 1995 (WA). In relation to both convictions, the application was refused. This appeal is against that decision. It is unnecessary to recite s 39(2). Section 45(1) says:
Under section 39(2) a court sentencing an offender is not to make a spent conviction order unless (a) it considers 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 leading authority on the effect of the Sentencing Act s 39 and s 45 is a decision of the Court of Appeal, R v Tognini [2000] WASCA 31. The decision is that of his Honour Murray J, the Chief Justice and Wallwork J agreeing. I think it is important to have regard to what was said by his Honour Murray J at par 24:
Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in section 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
And then, at par 27:
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
And then, at par 28:
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person’s rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach the conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.
The appellant's submissions set out the relevant authorities relating to appealing the exercise of sentencing discretion. First of all, House v The King [1936] HCA 40; (1936) 55 CLR 499. For an appellate court to interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him or her, mistook the facts or did not take into account some material consideration. This was by the magistrate an ex‑tempore reasons.
The submissions also note the decision of McLure J as she then was in Brewer v Bayens [2002] WASCA 37. Beneficial construction is to be given to ex‑tempore statement of reasons. Failure to mention a matter expressly does not mean that it was not considered. Further, there is a presumption that magistrates comply with the duties imposed by the legislation and take relevant matters into account: Bessell v R (Unreported, WASCA, Library No 980199l, 4 March 1998), applied by McLure J in Brewer v Bayens).
As the appellant notes, the appellant either has to demonstrate express or latent error, and ultimately that it would be a miscarriage of justice if the discretion is not exercised in favour of the appellant as it relates to the granting of a particular order or sentencing within a particular range. I have already referred to R v Tognini, which the appellant relies upon.
There is also reference to the decision of Wheeler J in Riggall v State of Western Australia [2008] WASCA 69 [74]. That was a rather strange case, really, relating to a mistake of fact. In that case, her Honour said:
The courts recognise that, particularly in relation to a young person who is, in practical terms, at the beginning of his or her working life and may well at some stage seek alternative in other fields, the mere fact of conviction of these offences would be likely to have a detrimental and long-lasting impact upon the appellant.
As I have said, those - one may generally accept that a conviction will have an effect on an appellant. The particular offences in that case Riggall might be seen in a different light. The appellant also refers to a decision of his Honour Heenan J CR v Walker [2012] WASC 401. I do not propose to read out what his Honour has said there. What is important in that decision at [16] and this is apparent from [5] to [7] of the transcript that his Honour was alert to the application of a spent conviction order from the outset and was addressing this in the context of all the circumstances which had by then already been outlined by the prosecution.
As counsel for the appellant acknowledges, there is no error in a magistrate indicating to counsel a preliminary view to the conclusion of a plea in mitigation. In most cases expression of such a view will assist counsel to focus on matters which are truly in issue. In that case, his Honour found that the preponderance of the evidence in this case discloses that the appellant was unlikely to commit this offence again. And so much appears to be acknowledged by the learned magistrate and conceded by counsel for the respondent, in that case the respondent being, effectively, the complainant, whereas in this case that is not the case that that finding is being made here.
Ground 1
Ground 1 states the learned magistrate erred in the exercise of his sentencing discretion, by acting upon a wrong principle when considering whether to make a spent conviction order pursuant to s 39(2) and s 45(1) of the Act.
Ground 1 relies on Van Der Feltz v Legal Practice Board of Western Australia [No 2] [2018] WASCA 110 where what is said there is the learned magistrate erred in the exercise of his sentencing discretion by exercising a wrong principle, which is said to be Van Der Feltz. I do not accept that the magistrate acted on a wrong principle, namely that he assumed that the person would offend again. In fact, what is said at page 7:
I was restored on appeal. I'm greatly relieved. But I made the (indistinct) assumption for a fellow who got caught under the Legal Practitioners Act that he wouldn't commit the same or a similar offence. I, effectively, got told off by his Honour at first instance by allowing the appeal, saying, 'How could I make the assumption?' Thankfully, the Court of Appeal said that I was right.
So the assumption was that he would not commit the same or similar offence. So I do not accept that there has been any error in the application of Van Der Feltz. There is no reason to interfere with that.
Ground 2
Ground 2 states the learned magistrate erred in the exercise of his sentencing discretion, by failing to take into account relevant factors when considering whether the appellant had established s 45(1)(a) of the Act.
Of course, s 45(1)(a), to repeat it, is if the court sentencing an offender considers the offender is likely to commit such an offence again. It is complained that the appellant focused on the appellant's conduct the subject of the offences and that it occurred over two instances with a degree of persistence.
As I think as is clear from R v Tognini at [27], the court should have regard to the seriousness of the offence before it in the circumstances of its commission. So, plainly, on the basis of Tognini, the circumstances of the offending are relevant to an assessment of whether the offender is unlikely to commit such an offence again. And, of course, s 45(1)(a) draws attention to such an offence. So it must be relevant. I do not accept the submission made that the appellant's conduct at the time of offending appears to have completely clouded the learned magistrate's thought process when he repeatedly opined that her conduct prevented him from accepting that she was someone unlikely to reoffend. Obviously, the circumstances of the case are relevant.
The matters submitted to the magistrate, said to be genuine remorse and embarrassment, well, certainly these were matters that were drawn to the attention of the magistrate. The magistrate, as is clear from the material statement of facts, would have been aware of the admission in the video record of interview. The material statement of facts was read to the court. His Honour did consider the remorse, although what he says at par 6 is:
I think, effectively, just because she is telling everybody that she is sorry and that she has discovered are blindly obvious, which is that it's against the law.
I think what he is, effectively, saying is that that is just one factor to be having regard to. It was also drawing attention to the fact that the appellant was punished by substantial fines and a compensation order far exceeding the value of her ill‑gotten gains in the first place. There is nothing unusual about that in a case of stealing. It then says in the submissions:
The penalties imposed were surely relevant and material to the magistrate's consideration of whether or not the appellant, a first time offender, was likely to reoffend. The learned magistrate appears not to have turned his mind to this at all.
In fact, the learned magistrate imposed the penalties and I do not believe that one can infer that he did not have regard to the actual penalties imposed. Of course, in this case there is nothing in the circumstances of the appellant or the evidence that has demonstrated any exceptional hardship. Ultimately, it is, I think, correct that his Honour declined the spent conviction, because of the degree of persistence with which the appellant offended. I do not accept that he did not consider the remorse, arrest experience and obvious embarrassment of having to front up in a public courtroom. I do not accept that the magistrate erred and that he has overlooked - he had regard to a proper factor, the circumstances of the commission of the offence. He did say that that was the only factor. He accepted that the appellant was of good character. Obviously, he had regard to that.
Ground 3
Ground 3 states the learned magistrate's refusal to grant a spent conviction order to the appellant for the offences in question, amounts to a miscarriage of justice.
Ground 3, as is noted in the submissions, essentially, relies on blatant error and the appellant repeats the particulars of ground 3, the appellant's grounds of appeal. I accept that it was an early plea of guilty. The fact that the fines and the compensation order exceeded the value of the dresses is, I think, neither here nor there. I think his Honour properly was aware of the plea of guilty. He took that into account.
In terms of the public interest, it seems there is a public interest in employers, particularly in retail, being aware of the honesty of their employees.
Conclusion
I find that none of the grounds of appeal are made out. And I accept the submissions of the respondent, that the degree of deceit inherit in these actions, occurring as they did over a period of time, left the magistrate, understandably, unconvinced the appellant would be unlikely to commit such an offence again. That was a conclusion reasonably open on the facts. In those circumstances, none of the grounds of appeal being made out show that there was an error which would lead to this court revisiting the discretion conferred upon the magistrate, there not being demonstrated that exceptional circumstance or that the appeal should be dismissed.
Leave to appeal on each proposed ground of appeal is refused. The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
THE HONOURABLE JUSTICE J Curthoys
5 FEBRUARY 2019
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