Erok v Harding
[2013] WASC 378
•14 OCTOBER 2013
EROK -v- HARDING [2013] WASC 378
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 378 | |
| Case No: | SJA:1061/2013 | 8 OCTOBER 2013 | |
| Coram: | ALLANSON J | 14/10/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1 and 3 Appeal allowed on grounds 1 and 3 Spent conviction order made | ||
| B | |||
| PDF Version |
| Parties: | IBRAHIM METIN EROK ALEXANDER CRAIG DAVID HARDING |
Catchwords: | Appeal Criminal law Sentence Assault Accused suffering psychological disorder Whether magistrate erred in refusing to make a spent conviction order Turn on own facts |
Legislation: | Sentencing Act 1995 (WA), s 45 |
Case References: | Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ALEXANDER CRAIG DAVID HARDING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P M HEANEY
File No : PE 41634 of 2012
Catchwords:
Appeal - Criminal law - Sentence - Assault - Accused suffering psychological disorder - Whether magistrate erred in refusing to make a spent conviction order - Turn on own facts
Legislation:
Sentencing Act 1995 (WA), s 45
Result:
Leave to appeal granted on grounds 1 and 3
Appeal allowed on grounds 1 and 3
Spent conviction order made
Category: B
Representation:
Counsel:
Appellant : Mr K P Bates
Respondent : Ms G M Cleary
Solicitors:
Appellant : Bates Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
1 ALLANSON J: This appeal was heard on 8 October 2013. At the conclusion of the hearing I allowed the appeal, with my reasons to be published later. These are my reasons for that decision.
2 On 4 February 2013, Ibrahim Metin Erok pleaded guilty and was convicted of an offence of assault occasioning bodily harm. The charge arose out of an incident when Mr Erok, who had been riding a motor scooter, assaulted the driver of a car. The prosecution alleged that Mr Erok approached the complainant and assaulted her after she had overtaken him in the same lane, narrowly missing him. Both the prosecution and the magistrate referred to the incident as 'road rage'.
3 Mr Erok was sentenced on 19 April 2013, and was fined $600. He applied for a spent conviction order, and the magistrate refused to make one. He now appeals that decision on three grounds:
1. The learned Sentencing Magistrate erred in law in concluding that the offence alone was too serious for the exercise of the discretion to grant a spent conviction order without also taking into account and balancing the seriousness of the offence with the rehabilitative effect of the removal of a conviction both on the offender and the community and the public interest.
2. The failure of the learned Sentencing Magistrate to give sufficient reasons for his decision to decline to grant a spent conviction order resulted in a miscarriage of justice.
Particulars
(a) The learned Sentencing in Magistrate did not answer the first question by making a prediction as to the likelihood of the appellant committing such an offence again.
(b) The learned Sentencing Magistrate in exercising his discretion as to whether the appellant should be relieved immediately of the adverse effect of the conviction might have on the appellant took into account the nature and seriousness of the offence but did not address the other matters that should also be taken into account, namely the rehabilitative effect of the immediate removal of the conviction both on the offender and the community and the public interest.
3. The failure of the learned Sentencing Magistrate to make a spent conviction order resulted in a miscarriage of justice.
The offence
4 It is difficult to be precise about the facts of the offence because they were neither admitted nor established.
5 The matter had been set down on 19 April 2013 for either a trial of issues or for an application to set aside the guilty plea. The magistrate did not permit a change of plea. In the course of discussion between the magistrate and counsel about that application, counsel for Mr Erok stated clearly that the accused did not admit the facts alleged by the prosecution. The prosecution alleged that Mr Erok punched the complainant to the face, causing a cut to her chin. Mr Erok admitted that he had slapped the complainant on the arm, and that this caused either her hand, or the mobile phone she was holding, to cut her chin. He denied punching her. In effect, Mr Erok admitted that he had committed an assault and that it caused bodily harm. But the two versions of how the assault occurred were very different.
6 The prosecution wished to proceed to sentencing and submitted that the difference in facts was immaterial for the purpose of sentencing. The magistrate accepted that he could proceed to sentence. He said:
He hits - he slaps her hand and the hand hits the girl in the face and causes some injuries. That doesn't matter, does it? Obviously the injuries are a direct result of the slap or the punch or whatever it was.
7 Counsel for Mr Erok agreed that the matter could proceed to sentence if Mr Erok's version was accepted. The magistrate then asked for the prosecution to state the facts. Despite what had just been said, the prosecutor stated facts including that Mr Erok punched the complainant on the chin while she was sitting in the driver's seat of her car.
8 Counsel for Mr Erok advised the court that 'not all of those facts are accepted'. She repeated in very summary form the matters she had earlier referred to in her application to withdraw the plea of guilty. Those included that the complainant had been 'tailgating' Mr Erok's scooter for some time, and had caused him to become very distressed and fearful. He denied that he had sworn at the complainant, and said that she had sworn and gestured rudely at him. He denied that he punched her.
9 The magistrate did not say on which factual basis he was proceeding. Nor did he say whether the seriousness of Mr Erok's conduct was affected by which version was accepted as the basis for sentence.
10 In mitigation, defence counsel outlined significant personal factors:
1. Mr Erok was then 32 years old, and had no previous convictions.
2. He suffers from severe anxiety, and had been diagnosed with severe obsessive compulsive disorder when he was 19.
3. He takes medication for his condition. The medication he was on at the time of the incident was not 'fitting well with him', and he had since changed medication and was receiving regular treatment.
4. The present offence was the result of a momentary loss of control arising from Mr Erok's fear and anxiety. That submission was clearly made in the context of the submission regarding Mr Erok's illness.
5. Mr Erok's condition is so severe that he stays home most of the time.
6. Mr Erok was studying psychology. He was concerned about the effect of a conviction on his ability to work as a psychologist and help those who suffered from a similar disability.
11 Counsel specifically asked the court to defer sentencing if it required further evidence of Mr Erok's condition. The court did not defer sentencing. His Honour simply said, 'I am aware of his condition' and did not require any further evidence.
12 The prosecution did not dispute the anxiety disorder but said, in effect, that it was no excuse. It did not dispute that Mr Erok was of good character and did not seek to be heard on the spent conviction application. It submitted that the harm suffered by the complainant was at the lower end of the scale.
The application for a spent conviction order and ground 1
13 Section 45(1) of the Sentencing Act 1995 (WA) provides 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.
14 The first requirement is that the court considers that the offender is unlikely to commit such an offence again. The appellant submitted that the magistrate made no finding on that question. The respondent submitted that the magistrate found that the requirement in s 45(1)(a) was not satisfied. It relied on a passage in the transcript where the magistrate responded to a submission by counsel that it had been established that Mr Erok was unlikely to do this again by saying:
I don't know how anyone can establish that. Next time he is confronted with the same problem he might do it again.
15 I am not satisfied that the magistrate made a finding on the criterion in s 45(1)(a). First, he made the comment in the course of submissions, and before he had heard submissions regarding the relevance of changes in Mr Erok's medication and treatment. He declined to receive further material about Mr Erok's psychiatric condition, and he made no finding or other comment about the submission. Second, what the magistrate said was at such a level of generality that it reads as a comment made in argument, and not a finding. Were it intended as a finding, the statement, 'I don't know how anyone can establish that', would negate the intent of s 45. Third, the magistrate's later statements make it clear that he refused the application as an exercise of his discretion. That discretion does not arise if the requirement of s 45(1)(a) has not been met.
16 The offence is not trivial. But the alternative basis for an order, that Mr Erok is of good character, was not in dispute.
17 The magistrate did consider the exercise of his discretion. Although there are no clearly stated reasons for decision, a fair reading of the transcript shows that his Honour regarded the seriousness of the offence as decisive. He said:
Somewhere along the line the offence becomes too serious for there to be a spent conviction.
- And later:
I will exercise my discretion and I won't make a spent conviction order for the reasons that I said: that he has been convicted of unlawfully assaulting someone and doing them bodily harm, and when you step into that range of assault occasioning bodily harm … it was a road rage situation and the lady suffered the injuries that the photos reveal.
19 Counsel for the respondent submitted that the court should infer from the penalty imposed that the magistrate sentenced on the basis that Mr Erok had only slapped the complainant on the arm. If that is so, it is difficult to reconcile that finding with the statement that the offence is too serious for there to be a spent conviction order. Having regard to all that the magistrate said, and the sentence imposed, I am not satisfied that I can find the factual basis on which his Honour sentenced.
20 Second, assessing the seriousness of the offence requires consideration of the circumstances in which it was committed and the circumstances personal to the offender. This required consideration of Mr Erok's disability, the causal connection between that illness and the commission of the offence, and its effect on his moral culpability. The magistrate did not expressly refer to Mr Erok's illness and its relevance to the seriousness of the offence. I cannot infer from what he said, or the sentence imposed, that he did consider it.
21 Third, the discretion conferred by s 45 required the magistrate to balance competing considerations. These include the seriousness of the offence, but are not limited to that factor. The reason the magistrate stated for refusing the application was that Mr Erok had stepped into a range of offending where the court would not exercise the discretion under s 45 in his favour. That reasoning is wrong in law. The seriousness of the offence is not an automatic bar to a spent conviction order: see, for example, Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211.
22 In short, I am satisfied ground 1 has been established.
Ground 2
23 It is unnecessary to decide ground 2 in order to determine the appeal. I would not, in the circumstances of this appeal, grant leave on ground 2. The failure of the magistrate to give sufficient reasons is not the substance of the error in this case. Rather, the reasons he gave show error in the failure to consider the requirements specified in s 45 of the Sentencing Act.
Ground 3
24 The appellant has, without objection by the respondent, put before the court material that was not before the magistrate. I am satisfied that I should have regard to that material. The additional material is:
(a) a report by Dr Skerritt, psychiatrist, dated 28 July 2011;
(b) a report by Dr Skerritt dated 5 June 2013;
(c) a letter from Mr Erok's general practitioner regarding his current medication;
(d) material relating to the possible effect of the conviction, and a spent conviction order, should Mr Erok apply to be registered as a psychologist.
25 Based on that material, I am satisfied that Mr Erok had seen various psychiatrists since 2000. He saw Dr Skerritt for the first time in 2011. He has been diagnosed with a disorder close to the top of the range of severity, with panic attacks and depression. Following a traffic accident in 2009, Mr Erok suffered an increase in his symptoms which led him to resume medication for depression. His treatment regime at the time of the offence, on 29 June 2012, was 'relatively modest'. Dr Skerritt's opinion, which I accept, is that Mr Erok's conduct on the day was consistent with an excessive fear, in the pathological range. The effect of his illness is that he is likely to engage in avoidance behaviour that makes it unlikely that he will commit such an offence again. He has, for example, disposed of the scooter. His illness might also be better controlled as a result of advice given by Dr Skerritt to those managing Mr Erok's condition.
26 I consider that it is unlikely that he will commit such an offence again.
27 It also appears from the later report of Dr Skerritt that Mr Erok responded excessively to the idea that he may be convicted of an offence, and that he may not obtain a spent conviction.
28 I am to some extent hampered in considering the seriousness of the offence by the lack of findings made by the magistrate. There was no direct challenge to the version of facts put forward on behalf of Mr Erok. In my opinion, I should consider the application for a spent conviction order on appeal on the factual basis put forward on behalf of Mr Erok. But even were I to consider this matter on the facts alleged by the prosecution, I would reach the same result. The evidence satisfies me that Mr Erok's psychiatric condition was causally related to the way in which he behaved. Taking that into account, the seriousness of his conduct does not outweigh the factors which call for the making of an order.
29 Further, the causal influence of the psychiatric illness makes questions of deterrence, whether general or personal, less relevant.
30 The material regarding registration as a psychologist shows that the conviction, even if spent, may be taken into account by the relevant registration authority. But it will also take into account the sentence imposed and mitigating factors. I cannot positively say that a spent conviction order will assist Mr Erok in obtaining registration and employment. But that is only one part of the discretionary considerations. His rehabilitation and ability to participate in the community are also relevant.
31 This is an unusual case. The present circumstances, in my opinion, are best met by an order which will enable Mr Erok to continue his treatment and rehabilitation relieved from the anxiety, which in his case may be excessive, of a recorded conviction.
Conclusion
32 For these reasons I made the following orders:
1. Leave to appeal granted on grounds 1 and 3.
2. Appeal allowed on grounds 1 and 3.
3. Decision of Magistrate Heaney made on 19 April 2013 on charge PE 41634/12 is varied to the extent that a spent conviction order is made.
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