Confos v The Police - [2009] WASC 397

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CONFOS -v- THE POLICE [2009] WASC 397

CORAM: JENKINS J

HEARD: 20 NOVEMBER 2009

DELIVERED : 20 NOVEMBER 2009

FILE NO/S: SJA 1105 of 2009

BETWEEN: ANNELISE SYLVIA CONFOS
Appellant
AND
THE POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 36578 of 2009, PE 36579 of 2009

Catchwords:

Criminal law - Appeal against sentence - Failure of applicant to comply with statutory requirements and with directions of court - No reasonable prospects of success

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA), s 39(2), s 45

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: No appearance
Respondent: No appearance

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

Riggall v State of Western Australia [2008] 37 WAR 211
Robertson v Lawrence [2008] WASC 111

JENKINS J: Annelise Sylvia Confos has filed an appeal notice stating that she was convicted on 24 August 2009 in the Magistrates Court at Perth of disorderly conduct and assaulting a public officer. She says that she was fined $1,000 for the assault, and $500 for the offence of disorderly conduct.
The notice of appeal appeals from those fines on the following grounds:
1)the magistrate's decision to record a conviction was manifestly excessive;
2)the magistrate's decision to impose monetary penalties was manifestly excessive;
3)the magistrate failed to take into account the appellant's previous good conduct and character.
Ms Confos filed the appeal notice on her own behalf on 11 September 2009. On 15 September 2009, a letter was sent to her by the court telling her that, in order for the appeal to proceed, by 14 October 2009, she had to file a copy of the sentencing transcript and the prosecution notices. Ms Confos was also advised that she had to specify whether she was appealing against conviction or sentence.
The letter advised Ms Confos that if the above documents were not received by 14 October 2009, her appeal would be referred to a judge who may, at his or her discretion, dismiss the appeal.
On 12 October 2009, Ms Confos sent part of the transcript to the court under cover of a letter which said that she anticipated that she would be in a position to lodge all documents within 14 days. She asked for an extension of time to 28 October 2009. No further correspondence has been received from Ms Confos.
On 10 November 2009, my associate sent a letter to Ms Confos advising her that she still needed to file the balance of the transcript and the prosecution notices. The letter further advised her that the matter was listed today in this court, and that failure to attend may result in her matter being dismissed.
Ms Confos has not attended court today. She has had two months to provide the court with the full transcript of proceedings in the Magistrates Court, and the prosecution notices. She has not done so, and neither has she explained her failure to do so.
There are further deficiencies in respect to this appeal. One is that Ms Confos has not filed a certificate of service of the notice of appeal on the respondent. Another is that two of the grounds of appeal simply allege that the magistrate's sentence was manifestly excessive. This is, by statute, not an acceptable ground of appeal.
In the circumstances, it is appropriate that I decide today whether any of Ms Confos' proposed grounds of appeal have a reasonable prospect of success. If they do not, then the appeal ought to be dismissed.
Ground 1 asserts that the magistrate's decision to record a conviction was manifestly excessive. I have looked at the portion of the transcript that Ms Confos has provided to the court. I infer from that that Ms Confos pleaded guilty to the charges and that her appeal is against the sentence she received.
I interpret ground 1 in reference to Ms Confos' application before the magistrate for spent conviction orders. When making that application, Ms Confos' counsel conceded that the offences were serious. The basis of the application was that Ms Confos was of good character and not likely to re‑offend.
In declining to make a spent conviction order, the magistrate said:
In relation to your application for a spent conviction order, I note your age and the fact that you have no prior record, and your participation in the POP program. Although that got off to a shaky start, you have certainly turned things around, attended the sessions as required, and the counsellor, in fact, has provided a very positive report to the court in terms of your staying and being involved in the process and not shying away from the issue which was your first reaction.
I have also received references on your behalf that are from family members, and one from an employer. Certainly the family members who have known you obviously for a significant period of time indicate that ‑ well, their seeing of you is not as the court sees you, obviously. That is often the case.
Your position at the bakery is, it would seem, safe. As a result of the reference I have, there is nothing to indicate that you are likely to lose that position as a result of this.
It is my view that the assault public officer is a serious offence, and notwithstanding those matters personal to you, I don't think it is appropriate that a spent conviction order be made. It is a serious charge. There are, although you have undertaken four sessions, some underlying issues which led to your behaviour on this occasion. It was an event which was protracted. It continued on and it did involve a public officer for which they deserve the protection of the community and the courts.
The Sentencing Act 1995 (WA) s 39(2) provides that a court sentencing an offender may, with or without making a spent conviction order, fine an offender. Section 45 of that act states that 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.
The principles relating to the granting of spent conviction orders are well known, as they have been set out in a number of cases, including Riggall v State of Western Australia [2008] 37 WAR 211. Most recently I have referred to them in Robertson v Lawrence [2008] WASC 111 [38] ‑ [41]. I apply those principles to this case. I will not repeat them.
The magistrate was entitled to have regard to the seriousness of the offences and the matters personal to the applicant when declining to make the spent conviction orders. No specific error is alleged by the magistrate. In my opinion, no error is shown in that part of the transcript which is before me.
The prosecutor in opposing the application for the spent conviction orders said:
Assault public officer is a very serious offence and is quite topical at the moment, and can't be seen to be condoned by the courts, I would imagine. She has, whilst in custody, punched the custody officer to the left arm which caused redness and bruising which, as your Honour could imagine, must have been a significant punch.
She has also continued to struggle, your Honour, whilst in the custody area until she was placed in a holding cell which is the only thing that has ceased her behaviour.
The complaint appears to be that the magistrate exercised her discretion in a way that was contrary to the application. This does not constitute error on behalf of the magistrate. In my opinion, this ground of appeal does not have reasonable prospects of success.
The ground 2 asserts that the magistrate's decision to impose a monetary penalty was manifestly excessive. A fine would be a usual penalty for a first offender in respect to offences of this kind. The summary conviction penalty for assaulting a public officer is imprisonment for 3 years and a fine of $36,000. Thus $1,000 was a small percentage of the total fine which could have been imposed for that offence. The maximum penalty for disorderly behaviour is a fine of $6,000. A fine of $500 is again at the lower end of the range of penalties that could be imposed for that offence.
The magistrate gave no reason for imposing the fines she did when she did set them. However, there is nothing before me to indicate that the fines were in any way excessive. On the basis of the material before me, this ground has no reasonable prospects of success.
Ground 3 asserts that the magistrate failed to take into account the appellant's previous good conduct and character. As I have said, the magistrate did not give reasons for imposing the fines. However, she clearly had regard to the appellant's good character as she referred to it later in her reasons. On the basis of the material before me, this ground has no reasonable prospects of success.
In summary, the appellant has had ample time to comply with the provisions of the Criminal Appeals Act 2004 (WA) in relation to this appeal. The court has gone out of its way to provide her with such time. Despite this, the appellant has not done what she needed to do to commence and prosecute her appeal in a proper manner.
For example, Ms Confos has not filed a full transcript of the proceedings in the Magistrates Court; she has also not filed the prosecution notices; or a certificate of service. Additionally, her grounds of appeal do not comply with the Criminal Appeals Act. Neither has Ms Confos attended court today.
In those circumstances, it is appropriate that I determine the appeal on the basis of the material that is before me. I have considered each ground of appeal and determined that none of them have reasonable prospects of success.
That being the case, the appellant is denied leave to appeal on any of those grounds and the appeal is dismissed.