GD v Allen
[2014] WASC 501
•10 DECEMBER 2014
GD -v- ALLEN [2014] WASC 501
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 501 | |
| Case No: | SJA:1069/2014 | 10 DECEMBER 2014 | |
| Coram: | ALLANSON J | 10/12/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Spent conviction order granted | ||
| B | |||
| PDF Version |
| Parties: | GD KATHRYN JAYNE ALLEN |
Catchwords: | Criminal law and procedure Sentencing Whether miscarriage of justice where spent conviction order not sought or considered by magistrate Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 8, s 40 Equal Opportunity Act 1984 (WA) Sentencing Act 1995 (WA), s 39, s 45, s 45(1)(a), s 45(1)(b) Spent Conviction Act 1988 (WA), pt 3, div 3, div 4, s 27 |
Case References: | De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 M v Seidner [2013] WASC 395 R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291 Wood v Marsh [2003] WASCA 95 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
KATHRYN JAYNE ALLEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G CICCHINI
File No : PE 98760 of 2014
Catchwords:
Criminal law and procedure - Sentencing - Whether miscarriage of justice where spent conviction order not sought or considered by magistrate - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 40
Equal Opportunity Act 1984 (WA)
Sentencing Act 1995 (WA), s 39, s 45, s 45(1)(a), s 45(1)(b)
Spent Conviction Act 1988 (WA), pt 3, div 3, div 4, s 27
Result:
Leave to appeal granted
Appeal allowed
Spent conviction order granted
Category: B
Representation:
Counsel:
Appellant : Ms F R Veltman
Respondent : Ms T J Mcarthur
Solicitors:
Appellant : Whitehead & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
M v Seidner [2013] WASC 395
R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291
Wood v Marsh [2003] WASCA 95
- ALLANSON J:
(This decision was delivered orally and has been edited from the transcript)
1 I am satisfied that, in the circumstances of this case, leave should be granted, and I would allow the appeal. These are my reasons for decision. In these reasons, following the practice in other decisions in this court where spent conviction orders have been made, I have not used the names of either the appellant or the victim of his assault.
2 On 22 August 2014, the appellant pleaded to a charge that on 21 August, that is, the day before, he had unlawfully assaulted the victim, and, thereby, did him bodily harm. The prosecutor read these facts to the court on the plea of guilty:
[A]t 9.40 pm, 21 August this year, the accused was staying at what's described as the Bel Eyre Comfort Inn, 285 Great Eastern Highway, Belmont …
The accused walked over to the victim's room, which was number 100, and knocked on the door. The victim opened the door, and the accused grabbed him by the throat, pushing him backwards onto the bed. The accused held the victim down by the throat on the bed. With his right hand, the accused punched the victim to the left side of the face several times. Apparently then for no particular reason the accused stood up, got off the bed and left the room.
The police attended and located the accused sitting outside room number 45 of the same address.
3 The prosecution also advised the court that the accused and the victim were of approximately the same height and build. The prosecution advanced no reason for why the assault had occurred.
4 After the appellant had pleaded guilty, the magistrate asked him why he did it. He said, in effect, that there was a slight history between himself and the victim. He said that years before, when they had been working together, the victim, 'would verbally threaten to physically slap me around'.
5 The current occasion was the first time the two of them had worked together in a long time.
6 The appellant said that while he was sitting in the plane after they had arrived in Perth he received a punch to the head and slight concussion. He did not see who hit him, as he did not know anybody else on the flight, and due to his past history with the victim he assumed that it was the victim who had punched him.
7 The magistrate asked if the assault was retaliation, and the appellant answered yes. But he also said that he did not go to the victim's room intentionally (I assume he meant with the intention to attack him). He said:
I just wanted to talk to him when I knocked on the door but as I explained to the police officer at the station, the next thing I remember I was on top of him on the bed. I don't recall - it was maybe adrenaline. I'm not sure what it was but I don't have a great grasp of what actually led to - sort of like a time lapse.
8 The appellant said that he was sober at the time.
9 The prosecutor informed the magistrate that the appellant has a record that is confined to traffic matters.
10 The magistrate imposed a fine of $3,000 with costs. The appellant did not ask for a spent conviction order, and one was not granted. On the face of the transcript, it was not considered.
11 Originally, the appellant sought leave to appeal against both his conviction and the sentence. He subsequently withdrew the ground of appeal against conviction, so only one ground remains. It is particularised in this way:
There has been a miscarriage of justice as a spent conviction was not granted and:
(a) The appellant had suffered a head injury immediately prior to the incident and Court shortly thereafter.
12 It can be stated immediately that there was no evidence before the learned magistrate on which he could have found that the appellant suffered a head injury that affected his behaviour at the time of the assault. On the evidence, his behaviour appears to have been not just out of character, but, in some sense, unusual. But there was no medical evidence. And the appellant's statement to the court was that he could not remember what had happened: it was 'maybe adrenaline', but he was not sure what had caused him to attack the victim.
13 Section 8 of the Criminal Appeals Act 2004 (WA) sets out the grounds on which an appeal may be brought. They include an error of law or fact, the imposing of a sentence that was inadequate or excessive, and also where there has been a miscarriage of justice. On the transcript, it appears that the magistrate did not consider a spent conviction order as a sentencing option. He did not advise the appellant, who was unrepresented and who was pleading guilty at the first hearing the day after the offence was committed, that he could apply for a spent conviction. He did not elicit from him any information that might have been relevant to the court considering that option. It is worth bearing in mind what the Full Court said in the case of Wood v Marsh [2003] WASCA 95 regarding the obligation of magistrates with unrepresented persons pleading guilty.
14 There is also a series of cases in which, in appeals of this nature, this court has been prepared to correct a miscarriage of justice even though that miscarriage is established only by evidence about matters which were not before the magistrate. The most recent in this series is a decision of Pritchard J in M v Seidner [2013] WASC 395, where her Honour refers to a number of earlier decisions.
15 I am satisfied that in the circumstances of this case the option of a spent conviction should have been considered. The real question is whether it is a miscarriage of justice that an order was not made or whether an order is required in order to correct what otherwise would be a miscarriage. This court has power to receive evidence on the appeal under s 40 of the Criminal Appeals Act. The principles relating to the discretion to receive new or fresh evidence on appeal are conveniently summarised by Pullin J in De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291.
16 Having regard to those principles, I take into account that the appellant was not represented in the primary court. He was out of his home state. And he was pleading guilty and having the matter disposed of at the first opportunity, that is the day after the incident. It now appears that he lost his job as a result of the offence before he had appeared in court.
17 In those circumstances I think it is appropriate that I should have regard to relevant material which has been received subsequently. There is no question of these matters not being put before the sentencing magistrate for the purposes of obtaining some forensic or strategic advantage. It was rather the ignorance of somebody not in his own jurisdiction, unrepresented and, it appears, having been in custody the night before.
18 On an appeal against sentence the court may also have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.
19 Overall I am satisfied I ought have regard to the new material to the extent that it is relevant to the factors arising under s 45 of the Sentencing Act 1995 (WA), and also that material which relates to matters which have occurred since the appellant was convicted, including the effect the conviction has had on his employment. Without having regard to that material, this court could not determine whether there has been a miscarriage of justice.
20 I am also satisfied that I should have regard to the evidence that is now sought to be adduced regarding the medical treatment that the appellant received when he returned to Queensland.
21 The practical effect of a spent conviction order is found in the Spent Convictions Act 1988 (WA). Part 3 of the Act is titled 'Effect of a conviction becoming spent'. Division 3 of pt 3 contains extensive provisions preventing the discrimination against persons on the basis of a spent conviction including, relevantly in this case, discrimination in employment. The Spent Convictions Act provides for the lodging of a complaint under the Equal Opportunity Act 1984 (WA) should such discrimination occur.
22 Other effects, which are set out in div 4 of pt 3 include, in s 27, an effect on the requirement to disclose or acknowledge a spent conviction when asked. It is because of these effects that the power to order a conviction as spent has been described 'as being of an exceptional character': R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291 [27].
23 The court may make a spent conviction order even when imposing a fine: Sentencing Act s 39. Section 45 provides the criteria to which the court must have regard in determining whether to make an order:
(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 Sentencing Act 1995 Part 5 Sentencing options s 45
(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.
25 The offence cannot be described as trivial, and counsel for the appellant on the appeal quite correctly did not suggest otherwise. It involved an assault on the victim in the victim's room in a motel. The apparent trigger, retaliation for an earlier assault, even if the appellant generally believed the victim was responsible, would not lessen the seriousness of the conduct. The offence was in all ways serious.
26 The effect of the earlier blow to the appellant as a contributing factor to the assault is, on the evidence, somewhat speculative. But I do take it into account in the context of what the appellant said to the magistrate about not knowing what had happened or why he acted as he did.
27 Although the offence is not trivial, the alternative question in s 45(1)(b) should be answered in the appellant's favour. A traffic record may be sufficiently serious to lead to a finding that a person is not of good character, but that is not an inevitable finding. The appellant's record shows three convictions which appear to have arisen out of the same incident, and which were recorded on the same day in 1987 when he was 22. They involved speeding and contravening conditions of his driver's licence. Otherwise there is a disqualification for demerit points in 1992. And while I do not downplay the importance of traffic laws and compliance with them in the context of s 45, I do not regard these particular offences as denying the appellant credit for previous good character.
28 As in many like cases, the crucial factor is whether the court considers that, having regard to those matters, and to all of the circumstances of the offending behaviour, the offender should be relieved immediately of the adverse effect that the conviction might have on him. This confers discretion on the sentencing court. The court of appeal has given guidance to inferior courts and single judges on the exercise of that discretion in a guideline decision in R v Tognini & McGuire [27] - [28]:
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 an 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.
29 The court in R v Tognini & McGuire did not attempt to state exhaustively the factors that could lead to a finding that the offender should be relieved immediately of the adverse effects of a conviction. In all cases where a party seeks the favourable exercise of the court's discretion, it is necessary to put forward material that supports the order sought. And this is where the new evidence that has been adduced on this appeal is particularly pertinent.
30 The appellant relies, in particular, on the following matters. First, he may have been suffering from a concussion at the time of the offence. The evidence on this point, even accepting the medical reports, is almost entirely a record of what the appellant reported to the doctors who treated him. It would be, in my opinion, insufficient for me to find that he suffered an injury that caused his conduct. It is, however, a circumstance or part of the circumstances that I must consider, particularly when his conduct on the night was so out of character, and when his behaviour when he returned to Queensland is consistent with his concern about the blow that he received in the plane.
31 Second, I take into account the evidence of the appellant's history. He has a history of 10 years in the defence service. Since leaving the army he has worked as a professional diver in the deep sea petroleum industry. He says that the disclosure of criminal history is part of applying for work assignments in that industry. A conviction may prevent him obtaining a visa or immigration clearance for work in other countries. And so, in relation to both working in Australia and working overseas, the operation of the Spent Convictions Act could be significant.
32 Third, the appellant is 49 years old. At that age he has the limited ability to retrain or to obtain alternative employment. The conviction may expose the appellant and his family to considerable hardship, including potentially the loss of his home. And this is in the circumstance, as I have said, of somebody who has reached the age of 49 with a good character, a good work record and, it appears, a strong work ethic and family ethic.
33 One of the difficulties in weighing the competing considerations is that the court does not have evidence about why disclosure of criminal history is required in the particular industry in which the appellant works, and to what extent the public interest would be served by that practice. On the evidence that I do have, there is no pressing public interest in a prospective employer or others being able to continue to have access to the fact of the conviction as part of the process of securing the protection of the public. The court must, of course, have regard to the need for general deterrence, but that has been met in this case by the imposition of a substantial fine. Personal deterrence has also been met by the fine and by the immediate consequences for the appellant, including the loss of the job that he then had.
34 The evidence also shows that he has reacted quite strongly to what has happened. His remorse was immediate. It was manifest not only in admissions made to the police on the day of his arrest, but also in an immediate plea of guilty, even though he had not had the opportunity to obtain any legal advice.
35 It is, of course, not simply a question of the benefit to the appellant or his family which would support an order being made. I need to consider whether justice would miscarry if the consequences of this isolated act, in quite unusual circumstances, were not in some way alleviated. The unusual circumstances include the blow to his head, but also - and I note from the facts that were read to the court by the prosecutor - that he stopped the assault himself for no apparent reason, and also how he was found by the police sitting outside either his room or another room in the motel.
36 The appellant, right from the beginning, referred to the fact that he had no clear memory of what had happened and no idea of why it had happened. There was no question of drugs or alcohol or, apparently, even anger being a motivating factor. I am satisfied that a spent conviction order should have been considered at the time. But, in any event, exercising the discretion afresh, I am satisfied that a miscarriage would be occasioned were the appellant not to be immediately relieved of the consequence of this, as I said, isolated and out of character act.
37 The orders that I would make are that: leave is granted on the sole ground of appeal which now stands; the appeal is allowed; a spent conviction order is made in relation to the appellant's conviction on prosecution notice no PE 98760 of 2014.
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