Clouter v Wignall
[1999] WASCA 155
•10 AUGUST 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CLOUTER -v- WIGNALL [1999] WASCA 155
CORAM: McKECHNIE J
HEARD: 10 AUGUST 1999
DELIVERED : 10 AUGUST 1999
FILE NO/S: SJA 1022 of 1999
BETWEEN: EDWARD CLOUTER
Appellant
AND
HOWARD JOHN WIGNALL
Respondent
Catchwords:
Criminal law - Dismissal of complaint after plea of guilty - Whether allowable - Spent conviction - Prosecution not submitting record in full to Magistrate - Principle for imposing no penalty for trivial offence
Legislation:
Police Act1892 (WA) s 65
Sentencing Act 1995 (WA) s 45, s 46
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr R M Mitchell
Respondent: Mr B J Singleton QC & Mr W B Harris
Solicitors:
Appellant : State Crown Solicitor
Respondent: W B Harris
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 July 1998
Neale v Sloane, unreported; SCt of WA; Library No 970729; 6 August 1997
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stojkovski v Fitzgerald [1989] WAR 328
McKECHNIE J: On 26 October 1998 police had occasion to search the respondent's luggage at Broome Airport. Within they found a protective jacket of the type designed to resist the penetration of projectiles discharged from a firearm.
The matter came before the learned Stipendiary Magistrate at Broome on 5 February 1999. The respondent pleaded guilty. After hearing the mitigation the Magistrate said this:
"Having considered your previous convictions and it's clear that you have no previous convictions except traffic, we have one assault charge in 1982, this is over 17 years ago - having considered the offence, heard the submission made by counsel, as well as the submission made by the prosecutor, having carefully checked section 46 of the Sentencing Act and also section 45, I think this is a matter which clearly comes under that section.
I have no problem calling it a trivial offence It is not that you have brought anyone's life in danger in any way. Therefore, I have no problem dismissing the charge under section 46 and granting a spent conviction. Thank you."
Grounds of appeal
Ground A
"The learned Magistrate erred in law in purporting to dismiss the complaint pursuant to section 46 of the Sentencing Act 1995 when that section does not confer any power on the court to dismiss a complaint."
This ground must succeed.
The scheme of the Sentencing Act1995 (WA) does not allow for dismissal of complaints. Once there is a finding of guilt or a plea of guilty, a conviction must be recorded as the next step in the judicial process. A person may, if appropriate, be released without sentence under the Sentencing Act s 46.
Furthermore, a spent conviction order may, if appropriate, be made if the court considers that the offender should be relieved immediately of the adverse affect that the conviction might have on the offender.
By its very title, a spent conviction order presupposes that there has first been a conviction.
Although this ground therefore is bound to succeed however, this does not dispose of the appeal because attention must still focus on the question whether the Magistrate nevertheless was correct in releasing the respondent without sentence and imposing a spent conviction order in the circumstances.
Ground B
"The learned Magistrate erred in fact in sentencing the Respondent on the basis that he had no previous convictions other than traffic convictions and one assault conviction in 1982, when the Respondent in fact also had convictions for disorderly conduct, wilfully misleading a police officer, using a false driver's licence, possession of cannabis, amphetamines and LSD, possession of cannabis with intent to sell or supply and attempting to pervert the course of justice."
This raises the question as to the respondent's previous convictions.
It is a fact that the respondent had a number of serious recent convictions not referred to by the Magistrate. On 8 April 1992, he appeared in the District Court on one count of attempting to defeat the course of justice, one count of possession of a quantity of cannabis with intent to sell or supply and one count of possession of LSD.
For these combined offences he received a total of 4 years' imprisonment.
If these convictions were brought to the Magistrate's attention, then he has clearly erred in fact in sentencing the respondent.
I am not sure whether the record was however brought to his attention in its entirety.
The prosecutor's only reference to the record was to advise the Magistrate: "… there's a prior record". Defence counsel said: "That record is admitted" and then went on to describe it thus:
"You will see from that record, sir, that they are traffic offences dating for over some period of time. He has lost his licence for 3 months for accumulation of points … any other than traffic offence goes back to 1980/81, and then of not a serious nature …"
Significantly, the prosecutor was given the opportunity to reply to defence counsel's submissions and did not seek to draw the Magistrate's attention to the serious convictions.
In the manner in which this hearing was conducted, I am not satisfied that the Magistrate erred in fact. It is the duty of the prosecution to put before a sentencing tribunal relevant material which will bear on sentence such as a prior record. If the prosecution fails to do so, it cannot be subsequently heard to complain if the sentencing tribunal proceeds in accordance with the case presented to it. I propose to determine this appeal on the basis that the full record was not before the Magistrate.
Ground C
"To the extent that the learned Magistrate decided to impose no sentence pursuant to section 46 of the Sentencing Act 1995 the learned Magistrate erred in fact and law in that:
(i)the learned Magistrate failed to have regard to, or alternatively failed to adequately have regard to, the Respondent's character and antecedents;
(ii)the learned Magistrate failed to find that, having regard to the matters referred to in section 46(b) of the Sentencing Act 1995, it would not be just to impose any other sentencing option; and
(iii)it was not open to the learned Magistrate on the material before him to conclude that it was not just to impose any other sentencing option."
The construction of the Sentencing Act s 46
The Sentencing Act s 46 requires a court sentencing an offender to take into consideration a number of facts and circumstances.
The court must first be affirmatively satisfied that the circumstances of the offence are trivial or technical.
Unless the circumstances can be adjectively described as trivial or technical then the section cannot operate. This finding triggers consideration of the further matters within the section.
If the circumstances can be so described then the court must have regard to:
(i)the offender's character, antecedents, age, health and mental condition and
(ii)any other matter that the court thinks is proper to consider.
Clearly the intent of the section is that a person may have a good character or antecedents or by reason of extremity of age or poor health or mental condition there are factors which would render it appropriate to consider releasing the offender without sentence.
These matters are to be taken into consideration before a court determines that in all the circumstances it is not just to impose any other sentencing option.
The prosecution concedes that the offence was trivial. Although triviality is the trigger to the section its relevance is not exhausted once the section is triggered. The nature of the circumstances of the particular offence must necessarily be weighed in determining the ultimate question under the section, namely that it is not just to impose any other sentencing option.
The appellant argues that the Magistrate failed to have regard to the separate and distinct requirements made under s 46(b), namely character, antecedents, age, health and mental condition. They may be separate but in the context of sentencing it does not make sense to read each one distinctly, so that an affirmative view as to every one of them must be established before a court can proceed to consider the justice of the imposition of a sentencing option of release without sentence.
Rather, they are to be read disjunctively so that either any one, or all in combination, may be decisive in a particular case. A disjunctive reading is given force by 46(b)(ii) which provides that a Court may take into account "any other matter that the Court thinks it proper to consider".
This construction of s 46 accords with normal principles of sentencing which require a court to consider the factors set out in the section, together with other factors, ascribing to them such weight as is appropriate in order to achieve a disposition which best fits the offender and the offence.
The application of the principles to the present case
This case was in truth not a complex matter. There was a plea of guilty to possession of a jacket, a statement of the circumstances in which it was found, tender of what was probably not the entire record, a plea in mitigation. The Magistrate signalled that he was considering a spent conviction and invited and received comments by the prosecution directed to that issue.
The Magistrate's reasons were very brief. The Court should not overlook the fact that sufficient reasons should be expressed to enable a reasonable person interested in the proceedings to understand why a particular result was reached.
In the present case I consider that the reasons expressed were barely adequate but nonetheless referred in short form to the law and the facts, namely the record and/or antecedents. In the circumstances I do not consider that appellable error has been shown in the Magistrate's exercise of judgment that release without sentence was appropriate for a trivial offence committed by a mature man with an indifferent record.
A spent conviction order
The Sentencing Act s 45 provides:
"45. Spent conviction order: making and effect of
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless ¾
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to ¾
(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."
Whereas s 46 speaks only of character, s 45 speaks of good character. The record of traffic and other convictions precludes that description of the respondent as having good character. However, again unlike s 45, the finding of triviality is not a trigger to the operation of the section. A finding that the offender is unlikely to commit such an offence again is the triggering provision of s 45.
Application of the principle to the present case
Although the Magistrate did not, as he ought to have done, make such a finding, I consider the circumstances to be such that I am affirmatively satisfied that the respondent is unlikely to commit this sort of offence again. The offence is conceded to be trivial.
Although the Magistrate failed to properly express his reasons for the making of a spent conviction order, and to that extent the appellant has established a miscarriage of justice, it is not in my opinion a substantial miscarriage. If the Magistrate had exposed his reasoning more clearly then, having regard to the release without penalty, a spent conviction order would have been the likely result. Where the offence is trivial and is unlikely to reoccur and no penalty is recorded, a spent conviction order is highly likely.
For these reasons, I am of the opinion that although grounds A and F are made out, nevertheless the appeal should be dismissed.
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