Curby v Richards-Scully - [2002] WASCA 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CURBY -v- RICHARDS-SCULLY [2002] WASCA 166

CORAM: WHITE AUJ

HEARD: 13 JUNE 2002

DELIVERED : 20 JUNE 2002

FILE NO/S: SJA 1024 of 2002

BETWEEN: MARK ASHLEY CURBY
Appellant
AND
BRADLEY GLENN RICHARDS-SCULLY
Respondent

Catchwords:

Appeal - Whether a spent conviction should have been ordered - Whether a breach of a Violence Restraint Order was a trivial offence - Turns on own facts

Legislation:

Justices Act, s 196(1)(b)

Restraining Orders Act 1997, s 61(1)(B)

Sentencing Act 1995, s 45(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr R G W Bayly
Respondent: Mr T C Russell

Solicitors:

Appellant: Bayly & O'Brien
Respondent: State Crown Solicitor

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

Chan v The Queen (1989) 38 A Crim R 337
House v The Queen (1936) 55 CLR 499
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997
Thompson v The Queen (1992) 8 WAR 387
Tognini v McGuire (2000) 109 A Crim R 411

Case(s) also cited:

Mercer v Scantlebury, unreported; SCt of WA; Library No 980414 (Murray J); 23 July 1998
Neale v Sloan (1997) 27 MVR 246
Pillage v Coyne [2000] WASCA 135

WHITE AUJ: The appellant appeals against the decision of Mr P Heaney SM in the Court of Petty Sessions at Esperance on 29 January 2002 when the learned Magistrate found the appellant guilty of the breach of a violence restraining order, contrary to s 61(1)(B) of the Restraining Orders Act 1997, and fined the appellant $200.00 and ordered that he pay costs of $98.00.
The sole ground of appeal is that the learned Magistrate erred in not ordering that the appellant's conviction be Spent.
The particulars of that ground are:
i)the learned Magistrate in determining not to make a Spent Conviction Order failed to take into account the previous good character of the appellant and the effect which a conviction would have upon his ability to obtain employment;
ii)the learned Magistrate in determining not to make a Spent Conviction Order failed to take into account the trivial nature of the offence for which the appellant had been convicted;
iii)the learned Magistrate failed to properly consider the provisions of s 45 of the Sentencing Act 1995.
That section 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 –
(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.
(2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4)A spent conviction order is to be taken as part of the sentence imposed.
(5)A spent conviction order in respect of a conviction does not affect –
(a)the right or the duty of a court to –
(i)disqualify the offender from holding or obtaining a driver's licence under the Road Traffic Act 1974;
(ii)make any order under this Act or any other written law on convicting the offender;
(b)the operation of any provision of the Road Traffic Act 1974, or Part 15, relating to the cancellation of, or disqualification from holding or obtaining, a driver's licence under that Act;
(c)the duty of the offender to comply with the sentence imposed and with any order of the court in addition to the sentence;
(d)the revesting or restitution of any property as a result of the conviction;
(e)any cancellation or disqualification that occurs by operation of any written law;
(f)any right of appeal against the conviction or the sentence imposed.
(6)A spent conviction order in respect of a conviction does not prevent –
(a)proceedings to enforce, or for a variation or contravention of, the sentence;
(b)subsequent proceedings against the offender for the same offence."
The appellant was charged with the breach of a Violence Restraining Order by acting in an intimidatory and offensive manner towards Lea Jane Curby, contrary to s 61(1)(B) of the Restraining Orders Act 1997. He pleaded not guilty and the matter proceeded to trial accordingly.
The learned Magistrate found that the complainant consented to the appellant communicating with her and entering the premises where she was. Her evidence included the following testimony (AB16):
"PROSECUTOR: Can you relate to the court what occurred on that day?---On that day was the day that I was to have the children at 9 am. I went to his home that morning and spent the majority of the morning and a little bit of the afternoon with the kids and him; and - -
HIS WORSHIP: Rightio. Just slow down a sec. So on that day you were to have access to the children?---Yes.
You went to his house - - ?---Yes, sir. And I spent most of the morning and a few hours in the afternoon with him and the children at home – at his home; and 3 o'clock we went back to the caravan park where we were actually met by the owner, John.
Who went back at 3.00 pm?---I did. With my children, and Mark accompanied me.
And that's where you were living?---Yes, sir.
You went there with the children?---Yes, sir.
And Mark?---Yes, sir.
Yeah. All right?---The owner, John came up and - - and met us up front and said there was a party that we were - - that we were more than welcome around. They had a pig on a spit, and - - at 5 o'clock. So Mark stayed, and at 5 o'clock we went to a party at the caravan park.
PROSECUTOR: Okay. Who is John?---John is the owner.
Of - ?---Of the Bushlands Caravan Park.
Okay. Okay. So you went to the party. What happened then?---Went to the party. We were there for an hour or so. I went and got Mark a six‑pack of VB, and a couple of bags of chips for the kids, because they were a bit hungry and the food wasn't ready yet. After a short while Mark was getting a bit upset; the food wasn't ready yet, so we decided to go back to the van where I cooked tea."
His Worship held, however, that she had not consented to the appellant acting in an intimidatory or offensive manner towards her. His Worship expressed his conclusion (AB103) as follows:
"It is intimidatory; it is offensive to a lady – to his wife - to be saying to her that he was going to take the car back off her. It's intimidatory and offensive to her to be telling her that - - to say, 'Well, this is my van and I can make you go if I want to', when that's the place that she's living at. That's intimidatory, and to be calling her a liar, for whatever reason, is offensive. So I am satisfied on the evidence, beyond any doubt, that this charge has been proven."
There is no challenge to that finding.
At the time of the offence, the complainant and the appellant were married to each other but had separated. They had two children, aged 5 and 6 years respectively.
Following the conviction, the appellant's counsel addressed the court as follows:
"Sir, there's no record. My client has led an exemplary life prior to this matter, and there are two sides to the story. Whichever one the court has accepted, it's that he committed the offence, but if he did commit the offence, there were certainly mitigating circumstances. So sir, I would ask, in particular, that in considering the penalty here, that you take into consideration - -
HIS WORSHIP: Well, one factor I will take into consideration, Mr Israel, is what - - it's clearly got to be seen as Mrs Curby's blasé attitude to restraint orders. I mean, we see too often people coming to court, getting restraint orders, and then just ignoring them, which she appeared to be doing. If she doesn't want the restraint order, come and get rid of it, it's there, and people have got to respond to it - and on this occasion Mr Curby didn't respond to that particular term about his behaving in an intimidatory and offensive manner. So it's not the most serious breach of the restraint order - -
MR ISRAEL: Sir, I - -
HIS WORSHIP: - - and I - -
MR ISRAEL: - - would in the circumstances, therefore ask if the matter could be considered under section – I think it's 46 of the - -
HIS WORSHIP: Well - -
MR ISRAEL: Sentencing Act.
HIS WORSHIP: Yeah. No Well, I won't do that. But it'll - - I was indicating I think that it can be dealt with by way of a fine towards the bottom of the scale, rather than a prison sentence, which is always open for these breaches of restraint order. Okay.
MR ISRAEL: Sir, a - - conviction, in itself, is quite a serious matter for a man like Mr Curby.
HIS WORSHIP: Well? That's right.
MR ISRAEL: I would ask that in dealing with it, it's not a question of he can't pay the fine; it's a question whether he should carry this conviction for ever and ever against his name, and it is for this reason that I ask that you exercise your discretion under s 46 of the Sentencing Act.
HIS WORSHIP: Well, what's that; the spent conviction one, is it?
MR ISRAEL: A spent conviction; or, alternatively, a ... (indistinct) ... probation, and if the - - that there be no conviction if he doesn't offend again.
HIS WORSHIP: Well, Mr Israel, I think I should deal with it by way of a fine and costs, rather than a spent conviction. If Mark had have to come along here today and said, 'All right. I plead guilty to the charge. I accept what's happened. I'm sorry about it', then there may be some prospect for a spent conviction. But when we had to spend the hours we did here with Mr Curby pleading not guilty right to the bitter end, I'm not sure that fully appreciates the significance of these breaches of restraint orders. So for that reason I think we'll deal with it by way of a fine of $200.00; costs of $98.00."
The restraint order, the subject of the complaint, was in fact withdrawn prior to the hearing on 29 January 2002 when the appellant was convicted and it appears from a supplementary affidavit sworn by the appellant on 11 June 2002 and admitted without objection, that he and the complainant resumed cohabitation as husband and wife on or about 15 April 2002.
The question whether or not to order a spent conviction was one for the discretion of the learned Magistrate. The court may not make a spent conviction order, unless it considers that the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial or the previous good character of the offender, it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
In Tognini v McGuire (2000) 109 A Crim R 411 at 416, Murray J, with whom Malcolm CJ and Wallwork J agreed, said:
"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 s 45(1) are merely preconditions 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 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."
In considering an appeal against a discretionary sentence, an appellate court must be satisfied that the sentencing discretion has miscarried by reason that the sentencing court has acted on a wrong principle or on a misunderstanding or in wrongly assessing some salient fact. A sentence may be so excessive or so inadequate as to satisfy the appellate court that there was an error, although the specific error may not be identifiable: House v The Queen (1936) 55 CLR 499 at 504 ‑ 505; Chan v The Queen (1989) 38 A Crim R 337 at 342; Thompson v The Queen (1992) 8 WAR 387 at 391.
In approaching this appeal, it is necessary to determine, at the outset, whether the circumstances fell within the limits of s 45(1) of the Sentencing Act.
It seems clear that the evidence before the learned Magistrate to the effect that the restraint order had been withdrawn by the complainant would readily lead to the conclusion that the appellant was unlikely to commit the offence in question again. The evidence that the appellant was of previous good character seems not to have been disputed. That leaves, in my opinion, the two questions, namely, whether the offence was trivial and, if so, whether the appellant should have been relieved immediately of the adverse effect that the conviction might have on him.
In Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997, Parker J said, at 5:
"At 661 to 662 of the decision in Bailey v Laczko (1978) 20 ALR 658 there is a reference to inadvertence and unintended conduct. In fact there is quite a discussion of that notion. No doubt this brought those matters so directly to the mind of the learned Magistrate, but there they are merely treated as examples of what may make an offence trivial.
I do not read the reasons in that decision as in any way suggesting that inadvertence and unintended conduct are necessary tests for triviality. The case to which I have referred, as well as Walden v Hensley, indicate that what is intended is a trivial example of the forbidden act, and I would refer particularly to 662 of Bailey v Laczko. Trivial, in this context, means of little importance, petty, frivolous, trifling. While it is true that inadvertence or lack of intention may render an act trifling, those qualities are not necessary prerequisites before an offence may be considered trivial."
In the present case, the learned Magistrate found that the offence which had been committed was "not the most serious breach of the restraint order". His Worship did not find the offence to be trivial. His Worship found that the words spoken to the complainant, implicitly threatening her eviction from the place in which she was living, were intimidatory. A restraint order is an order of the court that must be obeyed, under penalty. In my opinion, while I agree that it was at the lower end of the scale for such an offence, the offence could not properly have been characterised as of little importance, petty, frivolous or trifling. The offence could not be regarded as trivial and, accordingly, I am of the opinion that the making of a spent conviction order was not available to the learned Magistrate.
In relation to the second question which I indicated, while it is unnecessary to determine it in view of my conclusion that the offence was not trivial, I should, I think, point out that the submissions to the learned Magistrate did not go into any such detail as the appellant now seeks to make out, in relation to the effect upon him of a conviction. In his affidavit, the appellant lists the following matters under that heading:
"16.As I now have an assault related conviction against my name, I am now going to be restricted in ways which I previously was not so restricted, such as: -
16.1Should I wish to work on a mine site, I can no longer do so.
16.2Should I for any reason require a firearm, which considering my working as a contractor on farms and may require me, I cannot now obtain one.
16.3There are a number of government agencies and jobs such as a security guard for which I am no longer eligible.
16.4Should I ever wish to return to the U.S.A., I will not be able to obtain a licensed firearm.
16.5In the event I returned to the U.S.A. and I wished to obtain work and in some cases even visit some of the Caribbean Islands, I probably would not be granted a working visa. Two such places for example, are the Cayman Islands and Bermuda. All in all there are other countries to which I may not be able to travel even on a visitor's visa.
16.6Even in Western Australia, where I now reside, my obtaining work could always be made difficult due to a conviction for 'violence'."
The submission to the learned Magistrate in relation to this aspect was that
" ... the conviction, in itself, is quite a serious matter for a man like Mr Curby."
The court has an unfettered discretion under s 196(1)(b) of the Justices Act to receive further evidence. The appellant has in his affidavit and supplementary affidavit adduced further evidence that was not placed before the learned Magistrate. I have recorded above the relevant portions of such evidence.
It is relevant to the exercise of the discretion that a conviction might be a particular impediment to an offender following a particular career, practising a particular profession or undertaking particular employment: R v Tognini (supra) per Murray J at 417. However, the matters raised in the appellant's affidavit speak rather of potential than of actual impediments.
In any event, as I have indicated, I do not accept that the offence is properly to be characterised as trivial. That is fatal to the success of the appeal which I dismiss.