Erkens v Grono
[2002] WASCA 184
•28 JUNE 2002
ERKENS -v- GRONO [2002] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 184 | |
| Case No: | SJA:1124/2001 | 18 JUNE 2002 | |
| Coram: | MILLER J | 28/06/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDUARD ERKENS ANDREW STEFEN GRONO |
Catchwords: | Criminal law Sentencing Wilful exposure Offender 76 years of age with no prior convictions Whether spent conviction order should have been made Turns on own facts |
Legislation: | Sentencing Act 1995, s 45(1) Spent Convictions Act 1988, s 11 |
Case References: | Lloyd v Faraone [1989] WAR 154 Lowndes v The Queen (1999) 195 CLR 665 Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997 R v Tognini (2000) 22 WAR 291 Brewer v Bayens [2002] WASCA 37 Dinsdale v The Queen (2000) 202 CLR 321 Furtak v Timmers [2001] WASCA 65 R v Rowe (1991) 52 A Crim R 196 The Queen v Tait (1979) 46 FLR 386 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ANDREW STEFEN GRONO
Respondent
Catchwords:
Criminal law - Sentencing - Wilful exposure - Offender 76 years of age with no prior convictions - Whether spent conviction order should have been made - Turns on own facts
Legislation:
Sentencing Act 1995, s 45(1)
Spent Convictions Act 1988, s 11
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr J J Scudds
Respondent : Ms C J Thatcher
Solicitors:
Appellant : J J Scudds & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997
R v Tognini (2000) 22 WAR 291
Case(s) also cited:
Brewer v Bayens [2002] WASCA 37
Dinsdale v The Queen (2000) 202 CLR 321
Furtak v Timmers [2001] WASCA 65
R v Rowe (1991) 52 A Crim R 196
The Queen v Tait (1979) 46 FLR 386
(Page 3)
1 MILLER J: The appellant was charged in the Court of Petty Sessions, Fremantle that on 10 December 2000 at North Fremantle he wilfully and obscenely exposed his penis in a public place, namely Port Beach Road carpark, contrary to the provisions of s 66(11) of the Police Act 1892. The offence created by the section is that of wilfully and obscenely exposing one's person in any street or public place or in the view thereof, or in any place of public resort. It is an offence punishable by a fine not exceeding $1000 or to imprisonment not exceeding 12 months.
2 The appellant pleaded not guilty to the offence and he was tried before Mr Michael Wheeler SM in the Court of Petty Sessions at Fremantle on 23 July 2001. He was convicted of the offence and fined $250 with costs of $87.20. His counsel asked the learned Magistrate to consider a spent conviction, but that request was rejected. The submission and the learned Magistrate's response to it were as follows:
"MR SCUDDS: Sir, if I may make the observation; you've got a man who's got to 76. He hasn't -- he's contributed to the community by working. He's worked his whole life. He's brought up children. And he's got a situation where he's got no previous offences. And then he's suffered the humiliation of being charged with this offence. And surely in terms of scale, it's at the lower end of the scale. He's made a mistake. It was a stupid thing he did. But surely the man shouldn't have to go to his grave with a conviction, when he hasn't had one for 76 years. And I'd ask you to reconsider a spent conviction.
HIS WORSHIP: No, I think you can put that to the Supreme Court, Mr Scudds. I don't think it's at the lower end of the scale, and I don't think it's appropriate to have a spent conviction. Thank you."
3 On 10 December 2001 McKechnie J granted leave to appeal from the sentence imposed on the appellant. The ground of appeal was that the learned Magistrate had erred in refusing to grant a spent conviction order, having regard to the circumstances of the offence and the antecedents and personal circumstances of the appellant.
4 The facts of the case can be briefly stated. The offence occurred at about 3.30 pm on a Sunday afternoon in the carpark at Port Beach. Adrian Nathan Heaney gave evidence that he had arrived at Port Beach at that time and parked his vehicle near a van. He observed something unusual about the van in that a towel extended between the front and the
(Page 4)
- rear seats. He observed the appellant standing outside the van wearing nothing but a shirt. By the time Mr Heaney had got out of his vehicle the man had got into the van. Mr Heaney walked past the van and observed inside the van what he thought was the appellant fondling his penis. Police were called and they arrived within 15-20 minutes. Detective Senior Constable Andrew Stefen Grono, who was then stationed with Fremantle Detectives Office, arrived at the carpark and went to the van. He saw the appellant sitting in the rear section of the van with the rear sliding door open. Constable Grono observed that the appellant was seated in the van and wearing nothing other than a shirt.
5 The learned Magistrate concluded that he was satisfied beyond reasonable doubt that the appellant had wilfully exposed his genitals in the public carpark and had been seated in his van in circumstances of wilful exposure. The appellant had denied that he had stepped outside his van with his genitals exposed, but his contention in that regard was rejected. The learned Magistrate accepted that the appellant may have had a skin problem which required cream to be rubbed onto his body, including his genitals, but made no conclusion about exactly what the appellant had been doing in his van other than that he had been in the position described by the investigating detective.
6 There is no doubt that the appellant was a man of good antecedents. He had reached the age of 76 years and had no prior convictions. He gave evidence that he had been in Australia for 50 years, was married and had four adult children. He testified that he had been a government chauffeur in Holland and had never been in any trouble. He said that he had been swimming for something like 40 years in Australia without it ever been suggested that he had done anything wrong. He called Leslie Egan Jones, a maintenance officer at Port Beach, who confirmed that he had seen the appellant many times at Port Beach and that there had never been any complaint made in relation to him. In an affidavit filed in the appeal proceedings, the appellant expanded a little on his personal circumstances. He swore that he had come from Holland with his wife and eldest child in 1952, had been married for 50 years and had been employed throughout his life until his retirement at the age of 56 years due to a heart condition. He said that he sometimes travels overseas with his wife and (by inference) a conviction recorded against him for wilful exposure would cause him difficulties in that regard. He swore also that he felt embarrassed and humiliated in consequence of the conviction recorded against him.
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7 At the hearing of the appeal, counsel for the appeal challenged the learned Magistrate's finding that the offence was not at "the lower end of the scale". It is easy to imagine more serious cases of wilful exposure than this (eg exposure to women and/or children), but the wilful exposure by a male person of his genitals in a carpark at a popular beach is a serious matter. Members of the public are entitled to expect that they can attend such locations on a Sunday afternoon without encountering cases of such exposure. To the extent that the learned Magistrate considered the offence to be otherwise than at the lower end of the scale was arguably correct.
8 It was also argued that the learned Magistrate failed to give any or any adequate detail in his reasons in refusing to make the spent conviction order. Reliance was placed upon Lloyd v Faraone [1989] WAR 154. To some extent the appellant was correct in this submission, as the reasons given by the learned Magistrate were brief in the extreme. However, when read with the submission made by counsel on behalf of the appellant at the hearing it is apparent that the learned Magistrate gave consideration to the age and antecedents of the offender.
9 The key submission made by counsel for the appellant was that the appellant, at 76 years of age, having worked and contributed to the community throughout his life and been a family man with adult children, was a proper candidate for a spent conviction. It was pointed out that although under s 11 of the Spent Convictions Act 1988 the appellant could, after a minimum period of 10 years, make application to the Commissioner of Police for a certificate that the conviction be spent, the appellant would, by then, be 86 years of age.
10 It was conceded by counsel for the appellant that the circumstances in which a spent conviction order might be made will generally include circumstances in which there would otherwise be an impediment to a person's career, or where there is a need to positively aid a person's rehabilitation. It was argued, however, that a spent conviction should be granted due to exceptional hardship caused by a conviction to an elderly person with an unblemished record, because this would accord with the interests of the community in recognising that the reaching of old age without conviction is worthy of acknowledgement.
11 In R v Tognini (2000) 22 WAR 291, Murray J (at [27] - [28]) set out the following criteria as relevant to the exercise of the discretion to make a spent conviction order:
(Page 6)
- "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 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.
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 that 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."
12 In this case, the preconditions for the making of an order were met in the sense that the learned Magistrate could properly have considered that the appellant was unlikely to commit such an offence again and that he was a person of previous good character (see Sentencing Act 1995, s 45(1)). The question is whether the learned Magistrate erred in his discretion in declining to order the spent conviction. In this respect, counsel for the respondent relies upon the oft-cited passage in Lowndes v The Queen (1999) 195 CLR 665 at [15]:
"The principles according to which an appellant court may interfere with such a discretionary judgment by a sentencing
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- judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
13 Counsel for the respondent also argued that the only basis upon which the appellant was suggesting that a spent conviction order should have been made was because the effect of the conviction upon him was one of embarrassment. It was argued that the recording of the conviction would have no effect on his prospects of employment and although he had sworn in an affidavit that he sometimes travelled overseas, there was no evidence to suggest that he had definite plans to travel overseas or that a recorded conviction would in any way impeded his future travel plans. In short, counsel for the respondent contended that the material before the court failed to establish that there was anything exceptional about the appellant's circumstances, such as to compel the making of a spent conviction order.
14 In Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997, Wheeler J (at 4) pointed out that even if the criteria contained within s 45 of the Sentencing Act are made out, a spent conviction order is not required to be made. Her Honour said:
"Section 45 of the Sentencing Act provides that a court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied, and consideration must be given to all of the circumstances of the case and of the offender - and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in s 45 are not thereby rendered irrelevant."
15 Her Honour added that many persons convicted of simple offences (in the case with which she was dealing a charge of driving with a blood alcohol level in excess of .08) have unblemished records:
(Page 8)
- "… although it was to the appellant's credit that he had reached mature years without a previous conviction, and his Worship accepted that he was of good character, the aim of reformation to which s 45 appears to be in part directed does not, in those circumstances, indicate the need for an order.
His Worship further adverted to the adverse consequences to the appellant which would flow from the making of an order, and that appears particularly in his discussion of the stigma which might attach to the recording of a conviction. Views may differ as to the adverse consequences in any particular case, but I think it is fair to say that his Worship took the view that, whatever the subjective views of the appellant, objectively no very great stigma or adverse consequences would flow.
Clearly, it would have been open to his Worship to make a spent conviction order in these circumstances. However, it is a different proposition to say that his Worship erred in failing to do so."
16 It seems to me that the observations of Wheeler J are particularly relevant to this case. The appellant was a person of unblemished character and had reached advanced age in years. However, there was no need for reformation and there was no particular impediment to the appellant caused by the conviction recorded against him. He had retired from work and in essence, could only say that he was left with humiliation and embarrassment by having the conviction recorded against him. That, in my view, was not enough to require the learned Magistrate to make a spent conviction order.
17 The decision of the learned Magistrate was entirely discretionary, and the discretion committed to him was of vital importance in the administration of the system of criminal justice (Lowndes v The Queen (supra) at [15]). In the circumstances, although the criteria contained within s 45 of the Sentencing Act were met, a spent conviction order was not required. It cannot, in my view, be demonstrated that simply because of the appellant's age, antecedents, humiliation and embarrassment, a spent conviction order was required in the circumstances of the case. It would have been open to the learned Magistrate to have made the order, but it cannot be said that his Worship erred in failing to do so. For these reasons I would dismiss the appeal.
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