Markovic v Hodgson
[2023] WASC 251
•18 JULY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MARKOVIC -v- HODGSON [2023] WASC 251
CORAM: STRK J
HEARD: 26 AUGUST 2021
DELIVERED : 18 JULY 2023
FILE NO/S: SJA 1009 of 2021
BETWEEN: SLOBODAN MARKOVIC
Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R JOHNSTON
File Number : AL 1906 OF 2020
Catchwords:
Criminal law - Appeal against decision to refuse to make a spent conviction order
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Spent Conviction Act 1988 (WA)
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | AE Monisse |
| Respondent | : | M McIlwaine |
Solicitors:
| Appellant | : | Stephen McGrath Barrister And Solicitors |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Brewer v Bayens (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Harper v Page [2004] WASCA 267
Hull v Castledine [2005] WASC 252
Pickett v The State of Western Australia [2004] WASCA 291
R v Tognini (2000) 22 WAR 291
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Table of Contents
Introduction
Proceedings in the Magistrates Court
Facts
Submissions made on behalf of the appellant
Submissions made by the prosecution
Sentencing reasons
Grounds of appeal
Statutory framework and legal principles
The appeal
Spent convictions
Disposition
Ground 1
Ground 2
Orders
STRK J:
Introduction
On 7 January 2021, the appellant pleaded guilty in the Magistrates Court at Albany to an offence pursuant to s 61(1) of the Road Traffic Act 1974 (WA), namely that on 12 October 2020 he drove in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person.
A fine was imposed on the appellant in the sum of $1,700. The appellant's application for a spent conviction order was refused.
On 3 February 2021, the appellant appealed against the decision of the learned magistrate to refuse to make a spent conviction order. On 30 April 2021, it was ordered that the application for leave to appeal be heard together with the appeal.
For the reasons which follow the application for leave to appeal should be refused and the appeal dismissed.
Proceedings in the Magistrates Court
On 7 January 2021, the appellant appeared in the Magistrates Court at Albany and pleaded guilty to a charge that on 12 October 2020 he drove a motor vehicle, namely a Volvo Prime Mover, on a road, namely Albany Highway, Cranbrook, in a manner that was, in all the circumstances of the case, dangerous to the public or any person.[1]
Facts
[1] ts 3 (7 January 2021).
The facts recited by the prosecution were as follows.
At about 2.00 pm on 12 October 2020, the appellant drove a Volvo Prime Mover (Volvo) in a northerly direction on Albany Highway, Cranbrook. The Volvo was towing an empty fuel tanker. The appellant drove the Volvo in such a manner that it continuously drifted across the solid double white lines separating the north and south lanes of traffic travelling on Albany Highway. On two occasions, the appellant narrowly avoided colliding head on with vehicles travelling south.[2]
[2] ts 3 (7 January 2021).
At times the appellant also drove the Volvo in such a manner that it travelled onto the gravel verge on the western side of Albany Highway, which kicked up dust and stones into the path of following vehicles.[3]
[3] ts 3 (7 January 2021).
The appellant was interviewed on 16 October 2020 and admitted being the driver of the Volvo at the time of the offence. He admitted that he had continued driving knowing he was tired and fatigued.[4]
[4] ts 3 - 4 (7 January 2021).
Still images from CCTV footage were produced. Four images showed the Volvo partly or wholly over the solid white lines, and one image showed the appellant with his eyes closed, which the prosecution put, and the appellant's counsel accepted, was more than a momentary lapse.[5]
Submissions made on behalf of the appellant
[5] ts 8 (7 January 2021).
Submissions were made on behalf of the appellant to the learned magistrate to the following effect.
The appellant had been working night driving shifts for his employer for about two months prior to the date of the offence. On the date of the offence, the appellant was not meant to be working at 2.00 pm, but he had been asked by his employer to fill in for a colleague who was unwell in circumstances in which no one else was available. The appellant agreed to assist.[6]
[6] ts 3 - 4 (7 January 2021).
At the time of the offence, the appellant was a 38 year old man, with no criminal convictions. Despite having been driving as a bus and truck driver since 2004, he had no traffic record.[7]
[7] ts 4 (7 January 2021).
The appellant was remorseful, as was demonstrated by his cooperation with the police. He had learned his lesson and was 'tremendously' scared about what could have happened. He had put measures in place to prevent it happening again.[8]
[8] ts 4 - 5 (7 January 2021).
The application for a spent conviction was made on the basis that driving was his livelihood and the conviction was likely to impact on his future employment (although he was then still employed by the same employer). It was submitted that English was the appellant's second language and it was difficult for him to explain the circumstances of the offending.[9]
[9] ts 5 (7 January 2021).
The appellant was not fatigued for the entirety of his journey. At the time of the offending he was fatigued and was trying to find a place to pull over but had been unable to find a place to do so.[10]
Submissions made by the prosecution
[10] ts 7 (7 January 2021).
The prosecutor submitted that, having regard to the length of time the appellant had been a professional driver, he should have been aware of his responsibility to himself and other road users not to drive while fatigued.[11]
[11] ts 6 (7 January 2021).
The application for a spent conviction order was opposed on the basis that the community needed to be aware of this kind of behaviour and insurers were entitled to be aware of it.[12]
Sentencing reasons
[12] ts 6 (7 January 2021).
The learned magistrate treated the plea as having been made at an early stage (it having been a negotiated plea). The appellant's lack of prior criminal or traffic convictions was noted and the magistrate accepted that the appellant was of prior good character. The magistrate further accepted that the appellant drove on the day in question because he felt obliged to do so at the request of his employer and for other reasons, including loyalty.[13]
[13] ts 8 - 9 (7 January 2021).
The learned magistrate accepted that the appellant was remorseful for his conduct and had learned from it.[14]
[14] ts 9 (7 January 2021).
Her Honour observed that, as a person driving a heavy vehicle, the appellant had a duty to other road users to drive in a safe manner, which means driving when not fatigued. While the appellant may not have started out being fatigued, at some point he became so, resulting in him driving in a very dangerous manner. Her Honour noted that fatigue is felt well before a person actually starts 'dozing off'.[15]
[15] ts 9 (7 January 2021).
The learned magistrate considered the dangerous driving to be towards the higher end of the scale, having regard to the type of vehicle that the appellant was driving, and that there had been more than a momentary lapse of attention on his part.[16]
[16] ts 8 - 9 (7 January 2021).
Having announced the penalty to be imposed (being a fine in the amount of $1,700), the learned magistrate dealt with the application for a spent conviction and it is necessary to reproduce here her Honour's remarks in full:[17]
As far as the spent conviction application is concerned, it's opposed by the prosecution. I note you are of previous good character … I accept at face value that you're unlikely to commit such an offence again, given that you seem to have learnt from this grave error.
I accept that you're remorseful and that goes towards whether you're likely to commit such an offence again, and you seem to have learnt from this experience. I do need to take into account public interest factors and there's case law in relation to that. There does need to be an element of deterrence. It is important, in my view, for these sorts of matters to be recorded on people's convictions because driving - dangerous driving can very easily result in death, or at least injury, to people on the roads, or damage to property, and this type of driving, particularly in country areas, which is caused by fatigue is unfortunately all too common.
It is the cause of significant trauma and you haven't been charged with any of that, but it does mean that there needs to be a message of deterrence and part of that deterrence is by recording convictions against people. I appreciate that to have this conviction on your record may impact on your employment. That's a factor for me to consider, but it's not the only factor. You do have employment at the moment and you do otherwise have a good record in that industry. So, balancing all of those factors, on balance, I don't believe that a spent conviction order is appropriate.
[17] ts 9 - 10 (7 January 2021).
Grounds of appeal
At the commencement of the appeal, the ground of appeal was framed as follows:[18]
The Court erred in refusing to make a Spent Conviction Order.
[18] The appellant later filed an amended appeal notice dated 27 April 2021, which stated one ground of appeal in identical terms.
Shortly prior to the hearing of the appeal, the appellant's counsel filed a supplementary outline of submissions, which purported to substitute two grounds of appeal for that contained in the initial notice of appeal.[19] The respondent did not oppose leave to amend the notice of appeal,[20] and in the circumstances, the application to amend was granted.[21]
[19] Appellant's supplementary submissions filed 23 August 2021 pars 2 - 9.
[20] Respondent's supplementary submissions filed 25 August 2021 par 2.
[21] ts 2 (26 August 2021).
The grounds of appeal were not clearly formulated. However, it is apparent from the submissions that the appellant in effect contends that:
(1) the learned magistrate erred in determining that, for offences of dangerous driving, the public interest factor of deterrence does not allow a spent conviction order to be imposed;[22] and
(2)the learned magistrate erred in not making a spent conviction order in circumstances which required her to make such an order.[23]
[22] Appellant's supplementary submissions filed 23 August 2021 par 3.
[23] Appellant's supplementary submissions filed 23 August 2021 par 9.
Statutory framework and legal principles
The appeal
The application for leave to appeal is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA).
Section 7(1) of the Criminal Appeals Act allows an aggrieved party to appeal to this court in respect of a decision made by a court of summary jurisdiction. As the appeal was commenced within the prescribed period, the appellant does not require an extension of time to appeal.
This is an appeal under pt 2 of the Criminal Appeals Act and the appellant requires leave to appeal on each ground of appeal.[24] Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[25] This means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[26] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[27]
[24] Criminal Appeals Act s 9(1).
[25] Criminal Appeals Act s 9(2).
[26] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[27] Criminal Appeals Act s 9(3).
As noted above, it was ordered that the appellant's application for leave to appeal be heard together with the appeal, which was appropriate in the circumstances.
The Criminal Appeals Act s 8(1)(a) permits an appeal against conviction or sentence in the Magistrates Court to be made on grounds which include that the court of summary jurisdiction made an error of law or fact, or of both law and fact; acted without or in excess of jurisdiction; or imposed a sentence that was inadequate or excessive. Further, an appeal can be brought pursuant to s 8(1)(b) on the ground that there has been a miscarriage of justice.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[28]
[28] Criminal Appeals Act s 14(2).
A refusal to make an order that might be made as a result of a conviction is a decision which may be appealed.[29]
Spent convictions
[29] Criminal Appeals Act s 6(g) and s 7(1).
The power to make a spent conviction order is found in s 39(2)(a) to (d) of the Sentencing Act 1995 (WA). Preconditions for the making of such an order are set out in s 45 of the Sentencing Act, which reads:
(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.
The precondition in s 45(1)(b) cannot be satisfied unless either the offence is trivial or the offender is of previous good character.[30]
[30] GNR v The State of Western Australia [2015] WASCA 5 [45].
If the preconditions in s 45(1)(a) and (b) are satisfied, the court has a discretion, not a duty, to make a spent conviction order.[31]
[31] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11], [16].
The discretionary power should be regarded as being of an exceptional character. If the preconditions are established, consideration must be given to the seriousness of the offence, the offender's personal circumstances, and the public interest, which includes maintaining the community's confidence in the judicial system and giving effect to the ordinary rule that a conviction will be a matter of record, with all the consequences that may entail.[32]
[32] R v Tognini [27].
In the absence of a spent conviction order made at the time of sentence, an application can be made for a serious conviction to be declared spent after 10 years has elapsed since the applicant's latest conviction.[33]
[33] Spent Convictions Act 1988 (WA) s 11.
Disposition
Ground 1
The appellant submitted that, in determining whether to grant a spent conviction order the learned magistrate wrongly fettered her discretionary power to make a spent conviction order by first concluding that deterrence is required in cases of dangerous driving, and that deterrence is achieved by recording convictions.
It was submitted that, in doing so, her Honour erroneously focussed on the type of offence rather than the specific circumstances of the offence before the court, contrary to the approach set out by Le Miere J in Harper v Page [2004] WASCA 267 [26].
In oral submissions, counsel for the appellant submitted, in effect, that unless her Honour expressly referred to a factor relevant to the spent conviction order in the section of her remarks after she said the words 'As far as the spent conviction application is concerned', it should be taken that her Honour did not take that factor into account, even if she had already referred to the factor prior to announcing sentence.[34] Accordingly, it was argued, her Honour should be held to have erred in failing to consider the specific circumstances of the offending.[35]
[34] ts 5 - 6, 21 (26 August 2021).
[35] ts 5 - 6 (26 August 2021).
I do not accept that submission. A magistrate's failure to refer to relevant matters does not necessarily give rise to an inference that the matter was not considered. As was stated in Pickett v The State of Western Australia [2004] WASCA 291 at [10]:[36]
In the absence of credible evidence to the contrary, it is to be assumed that a magistrate has taken all relevant matters into account.
[36] See also Rundle v Innerd [2015] WASC 340 [117].
It is also neither practical nor reasonable to divide a magistrate's remarks in a sentencing exercise of this kind in the manner contended for by the appellant. As was pointed out by Martin CJ in Strahan v Brennan [2014] WASC 190, magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[37]
[i]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[37] Strahan v Brennan [89] - [90].
The learned magistrate had made findings as to the circumstances of the offence, and its seriousness only moments before turning to the application for a spent conviction order. There is no reasonable basis for finding that, simply because she did not mention those matters again at that point in her reasons, her Honour failed to take them into account in relation to the application.
Further, in dealing with the application for a spent conviction order, her Honour did make express, though brief, reference to the specific circumstances of the offending, by noting that 'this type of driving, particularly in country areas, which is caused by fatigue, is unfortunately all too common'.[38]
[38] ts 10 (7 January 2021).
Read as a whole, the learned magistrate's reasons cannot properly be characterised as stating that, in cases of dangerous driving generally, the factor of deterrence does not permit a spent conviction order to be imposed. Further, a fair reading of her Honour's reasons does not permit a conclusion that her Honour failed to take into account the specific circumstances of the offence in determining the application.
I would dismiss ground 1.
Ground 2
This ground of appeal does not allege that the learned magistrate made a particular error. Instead, its effect is to allege that the learned magistrate's refusal to make a spent conviction order has occasioned a miscarriage of justice, in that the material before her Honour required the making of a spent conviction order.
There was no issue with the manner in which the learned magistrate dealt with the preconditions of a spent conviction order;[39] the issue was whether the manner in which her Honour exercised the discretionary power which arose on satisfaction of those preconditions gave rise to a miscarriage of justice.
[39] ts 7 (26 August 2021).
In Hull v Castledine [2005] WASC 252 at [10], Le Miere J said:
The principles according to which an appellate court may interfere with a discretionary judgment by a sentencing Judge are well established. The question for the appeal court on an appeal seeking the making of a spent conviction order is whether the failure of the Magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing Magistrate or by implication from the failure to make a spent conviction order in circumstances which required the Magistrate to make such an order. The question is not whether the Magistrate had a sufficient reason not to make a spent conviction order. A court of 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 her discretion. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice.
It was argued on behalf of the appellant that there was no need for specific deterrence in the case of the appellant, having regard to his remorse, substantial rehabilitation (including steps taken to prevent such an incident occurring again), and his longstanding good character.
Further, the appellant submitted that the appellant was 'less of an appropriate vehicle' for general deterrence in this context, given:[40]
(1)his offending arose in 'the unique and difficult circumstances' of his employer's request to drive on the day in question, knowing the appellant's schedule;
(2)at the time of the offending the appellant was trying to pull over but could find nowhere to do so;
(3)his exceptional, unblemished long record of driving buses and trucks.
[40] Appellant's submissions filed 9 July 2021 par 10.
These circumstances, the appellant submitted, in combination required the making of a spent conviction order.
On behalf of the respondent it was submitted that, having balanced the factors in favour of granting the spent conviction order against the need for general deterrence, the learned magistrate was entitled to reach the conclusion that a spent conviction order was not appropriate in the circumstances of this case.[41]
[41] Respondent's supplementary submissions filed 25 August 2021 pars 14 - 19.
In R v Tognini at [27] to [28], Murray J (with whom Malcolm CJ and Wallwork J agreed) said:
[The court] 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.
In this case, the material before the learned magistrate in support of the application was to the effect that the appellant was a professional driver of many years' experience, with an unblemished record. He remained employed by the company which employed him at the time of the offence. Those factors were significantly in the appellant's favour.
It was submitted at first instance that a conviction might affect the appellant's future employment, and that his language issues might prevent him explaining the circumstances.[42] However, without more, the possibility of these issues arising was a very limited basis upon which to argue that the appellant should be relieved immediately of the consequences of his offending.
[42] ts 5 (7 January 2021).
As her Honour found, that offending was of a particularly serious nature. It involved dangerously driving a heavy vehicle, on a country road. There were other road users who were endangered. The appellant's fatigue caused more than a momentary lapse of attention. His driving put other road users in actual jeopardy and extended over a period of time, although its exact duration was uncertain.[43]
[43] ts 8 - 10 (7 January 2021).
In my view, the appellant's submission that his case was not an appropriate vehicle for general deterrence cannot be sustained. There was nothing in the material before her Honour which suggested that it was improper for the appellant's employer to ask him to drive, or that the appellant told his employer that he was fatigued or needed to rest. The appellant's decision to drive was ultimately his alone.
I also do not accept that the circumstances were unique. Unfortunately, it is not uncommon for drivers to drive in a state of fatigue for work or other reasons they see as being compelling at the time. As her Honour noted, that was one of the reasons why general deterrence was an important public interest factor in determining whether to make a spent conviction order.
As the learned magistrate pointed out, the appellant would have had time to identify his fatigue and the need to stop well before his fatigue led him to drive in the manner he did. The fact that he could not immediately find a place to stop when he actually started falling asleep is not a point which counts substantially in favour of granting the application.[44]
[44] ts 9 (7 January 2021).
Not only was the offence serious, there is a significant public interest in the appellant's future employers being able to access his driving history. It is, in my view, important for any company which is responsible for putting drivers in charge of heavy vehicles on country roads to be aware of the driving history of those it contracts or employs in this regard.
For these reasons, I am not satisfied that the decision not to make a spent conviction order was outside the sound exercise of her Honour's discretion in this case. No miscarriage of justice has been established.
I would dismiss ground 2.
Orders
For these reasons, the application for leave to appeal is refused on each of grounds 1 and 2, and the appeal is taken to be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
18 JULY 2023
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