Pagnoni v Jones
[2023] WASC 356
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PAGNONI -v- JONES [2023] WASC 356
CORAM: HOWARD J
HEARD: 5 SEPTEMBER 2023 (AND FURTHER WRITTEN SUBMISSIONS ON 12 SEPTEMBER 2023)
DELIVERED : 22 SEPTEMBER 2023
FILE NO/S: SJA 1037 of 2023
BETWEEN: SONIA PAGNONI
Appellant
AND
NICHOLAS IAN JONES
Respondent
ON APPEAL FROM:
For File No: SJA 1037 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A. HILLS-WRIGHT
File Number : FR 7372 OF 2022
Catchwords:
Criminal law - Appeal against conviction - Contravention of local government law - Feeding birds in a non-rodent proof receptacle - Whether Magistrate failed to adjourn hearing - Whether Magistrate failed to grant a spent conviction order - Whether the failure to grant a spent conviction resulted in a miscarriage of justice - Whether the fine imposed was manifestly excessive - Whether combined costs and fine imposed were disproportionate to the offending - Appeal allowed - Appellant re‑sentenced - Granted a spent conviction order - Costs substituted
Legislation:
City of Cockburn Health Local Laws 2000
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr J Jackson |
| Respondent | : | Mr N P Sloan |
Solicitors:
| Appellant | : | James Jackson Criminal Defence |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Basham v City of Joondalup [No 2] [2016] WASC 120
Brewer v Bayens [2002] 26 WAR 510
Comptroller-General of Customs v C [2020] WASC 290
Delopez v Darry [2014] WASC 370
GNR vThe State of Western Australia [2015] WASCA 5
House v R (1936) 55 CLR 499.
Hull v Castledine [2005] WASC 252
JAD v McRae [2022] WASC 220
Naso v Danehill Nominees Pty Ltd [2006] WASC 265
Redding v Robinson (2009) WASC 403
Rendell v Douglas [2015] WASC 36
Saad v Baron [2012] WASC 507
Samuels v State of Western Australia (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
HOWARD J:
The appellant's conviction
On 3 March 2023, the appellant was convicted in the Magistrates Court at Fremantle of contravening s 56(b) of the City of Cockburn Health Local Laws 2000 by between 18 March 2022 and 28 October 2022 placing at an address in Hamilton Hill food intended for birds without the food being contained in a rodent-proof receptacle or compartment which was effectively protected against access by rodents.
The appellant was not present at Court on 3 March 2023. She had indicated by letter to the Magistrates Court dated 15 November 2022 that, effectively, she was pleading not guilty to the charge.
The learned Magistrate proceeded in the appellant's absence under s 55(2)(b) of the Criminal Procedure Act 2004 (WA).
After a hearing which, from the transcript, appears to have lasted 15 minutes, the learned Magistrate convicted the appellant, imposed a $650 fine and awarded $2,500 in costs in favour of the prosecutor.
Grounds of Appeal
The appellant's two grounds initially were:
1.the appellant suffered a miscarriage of justice due to the failure of the learned Magistrate to adjourn the trial of the charge pursuant to s 55(2)(a) of the Criminal Procedure Act; and
2.the learned Magistrate erred in law in failing to exercise his discretion to make a spent conviction order.
The appellant filed her Appeal Notice on 5 May 2023 when the last date for appealing was 31 March 2023. The appellant seeks leave to appeal out of time and that application is supported by an affidavit of her lawyer made 5 May 2023, which explains the delay.
At the hearing of the Appeal, the appellant sought leave to add the following grounds:
3.The appellant not being granted a spent conviction resulted in a miscarriage of justice.
4.The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive.
5.The learned sentencing Magistrate erred in awarding costs of $2,500 which was an error when considered with the fine imposed and disproportionate to the criminality.
The respondent was given leave to file further written submissions in response to the additional appeal grounds.
Relevant provisions for this appeal
The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) of the Criminal Appeals Act 2004 (WA).
By s 9(1) of the Criminal Appeals Act, the appellant requires leave. By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that it has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The appellant's conviction is a 'decision' which may be appealed: s 6(c) of the Criminal Appeals Act.
The learned Magistrate's not making a spent conviction order was a 'refusal to make an order that might be made as a result of a conviction' within s 6(g) of the Criminal Appeals Act: Sharpe v Vinning [2020] WASCA 79 [48].
The fine imposed was a decision within s 6(f) of the Criminal Appeals Act.
The learned Magistrate's awarding of costs was a 'decision' within s 6(h) of the Criminal Appeals Act.
Ground 1: Failure to adjourn
The appellant's particulars to Ground 1 are:
(i)The charge against the appellant was not serious, carrying a maximum penalty of a $1,000 fine;
(ii)Prior to the first hearing, the appellant entered an endorsed plea of not guilty to the charge, and provided a written explanation to the court denying the offence, which the Magistrate was aware of;
(iii)At the first hearing for the charge on 22 November 2022, the charge was listed for a trial commencing 3 April 2023;
(iv)The appellant failed to appear on the trial date due to a misunderstanding as to the nature of the hearing;
(v)The learned Magistrate failed to consider whether to adjourn the charge, rather than determining it in the appellant's absence;
(vi)The learned Magistrate failed to enquire of the prosecution as to whether any prejudice would be occasioned by an adjournment; &
(vii)The failure to adjourn the charge deprived the appellant of an opportunity to present her defence to the charge.
Ground 1 does not assert that the learned Magistrate did not have power under s 55(2)(b) of the Criminal Procedure Act to hear and determine the charge in the appellant's absence.
The challenge in this Ground is not to the Magistrate's power to do what he did, but rather the exercise of his discretion to do so.
The purpose and rationale of s 55 of the Criminal Procedure Act was explained by Beech J (as he then was) in Saad v Baron [2012] WASC 507 [58] - [61].
The exercise of the discretion presented by s 55(2)(a) (adjourn the charge) or s 55(2)(b) (hear and determine the charge in the accused's absence) is to be informed by the purpose and rationale of the provision.
The appellant would have to demonstrate a House v R[2] type error to succeed on this Ground; see Saad v Baron [23]; Delopez v Darry [2014] WASC 370 [25] - [27] (Pritchard J); Rendell v Douglas [2015] WASC 36 [23] (Jenkins J).
[2] House v R (1936) 55 CLR 499.
There is nothing in the transcript to suggest that the learned Magistrate applied a wrong principle in deciding to proceed in the appellant's absence.
Further, in my view, there is nothing in the result or outcome (ie, proceeding to hear the matter) from which I could infer an error had been made.
In all of the circumstances, in the absence of anything indicating that an error had been made by the learned Magistrate in the exercise of his discretion, I would refuse leave to appeal on Appeal Ground 1.
A further matter which, if it were necessary, militates against the grant of leave is that the appellant did make application to the Magistrates Court at Fremantle (heard on 3 April 2023) seeking to have the conviction set aside.
That application appears to have been made pursuant to s 71(2) [of the Criminal Procedure Act] and was supported by a letter written by the appellant dated 23 March 2023.
That application was refused by a different Magistrate on the basis (so it appears from the transcript) that the appellant had not disclosed a reasonable or viable defence to the charge.[3]
[3] 3 April 2023 ts 12 - 13.
In refusing that application, it may be taken that from the transcript, the Magistrate refused the application under s 72(5) [of the Criminal Procedure Act] as not being in the interests of justice to set aside the conviction.[4]
[4] 3 April 2023 ts 12 - 13.
At the Appeal, the appellant contended that the letter of 15 November 2022 showed that she had an arguable defence and was denied putting it by reason of the Magistrate not adjourning the trial below.[5]
[5] Appeal ts 8 - 9.
In my view, at least the matters in Particulars (iv) - (vii) were addressed by the appellant's application to have the conviction set aside. In my judgment, however, the letter of 15 November 2022 did not disclose a defence per se and, as said, I do not infer error in the failure to grant the adjournment.
Ground 2: Failure to grant a spent conviction order
As noted, this Ground asserts an error of law on the part of the learned Magistrate in failing to exercise his discretion to make a spent conviction order (under s 45 of the Sentencing Act 1995 (WA)).7
7
The particulars to Ground 2 are as follows:
(i)The offence was a minor regulatory offence;
(ii)The appellant was a first offender aged 52 and had lived a blameless life for a considerable period;
(iii)The appellant was on a carers pension earning only $22,000 a year;
(iv)The appellant had desisted from the behaviour since being charged;
(v)The appellant received a substantial deterrent penalty including a significant fine and a large costs order, which was two and a half times greater than the available maximum penalty;
(vi)The learned Magistrate did not give the appellant any opportunity to present any submissions concerning the making of a spent conviction order; &
(vii)The learned Magistrate did not give any consideration as to whether a spent conviction order should be made.
As the appellant developed her argument, the focus in this Ground was more on whether the learned Magistrate had erred in not considering whether to exercise his discretion to make a spent conviction order.[6]
[6] Appeal ts 10.
As noted, the learned Magistrate imposed a fine under Part 8 of the Sentencing Act.
The necessity for the appellant to show a House v R type error applies equally to Ground 2.
Le Miere J in Hull v Castledine [2005] WASC 252 [10] stated:
The principles according to which an appellate court may interfere with the 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 a 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 exercise its discretion in a manner different from the manner in which the sentencing Judge exercised her discretion.
This case is, in my judgment, different in the sense that I consider the Magistrate erred in not considering whether to grant a spent conviction order where the pre-conditions for that discretion were arguably met on the materials before him at the time of sentencing.
I consider that there was material before the learned Magistrate which indicated that the appellant was unlikely to commit the offence again and so the pre‑condition of s 45(1)(a) of the Sentencing Act 1995 (WA) was open to be found. Principally, that was from the appellant's letter dated 15 November 2022 from which it appeared that the appellant wished to comply with the legislation (now that she was aware of it) and that it appeared she had been looking for appropriate bird feeders in different stores so as to comply.
Quite properly, counsel for the respondent conceded at the hearing of the Appeal that it was at least arguable that the pre‑condition of s 45(1)(a) of the Sentencing Act was satisfied at the time the appellant was sentenced.[7] By the respondent's Supplementary Submissions the respondent sought, possibly, to change tack and submitted that the appellant's letter of 15 November 2022 was not reasonably arguably demonstrating the appellant was unlikely to commit the offence again.[8]
[7] Appeal ts 16.
[8] Respondent's Supplementary Submissions [3].
I do not agree. I think, with respect, the respondent's concession at the Appeal hearing was correct.
In my judgment, the appellant's letter dated 15 November 2022 provided material which may have satisfied s 45(1)(a) of the Sentencing Act.
Further, the offence was 'trivial' (in the sense the authorities establish below) and so s 45(1)(b)(i) of the Sentencing Act was also satisfied. Again, quite properly, counsel for the respondent conceded that the offence was trivial in the relevant sense at the time of the sentencing.[9]
[9] Appeal ts 15.
It appears that the learned Magistrate gave no consideration as to whether the pre-conditions in s 45(1) of the Sentencing Act had been satisfied and whether, if the pre-conditions were satisfied, a spent conviction ought to have been granted with or without any of the other sentencing options set out in s 39(2)(a), (b) or (c) of the Sentencing Act.
The respondent in his Supplementary Submissions contended that 'a failure to expressly mention the option of making a spent conviction order does not necessarily mean that it was not considered'.[10] The respondent then contended that it could not reasonably be concluded that a spent conviction order was not considered by the learned Magistrate in sentencing the appellant in this case.[11]
[10] Respondent's Supplementary Submissions [1].
[11] Respondent's Supplementary Submissions [1].
The first may be accepted in a general sense. I do not accept the second. It finds no support, in my view, in the transcript, nor in the way the respondent ran the matter before the Magistrate below.
From the transcript it is apparent that neither the relevant provisions of s 39 of the Sentencing Act including s 39(3) of that Act, nor s 45 were cited to the learned Magistrate by the prosecutor.
Counsel for the respondent informed this Court that it was not the 'practice' to refer a sentencing Magistrate to the Sentencing Act.[12]
[12] Appeal ts 17, 23.
It is unclear to me, with respect, exactly what was intended by that statement. It seems impossible to assess it for accuracy in any general sense.
Nonetheless, the respondent below expressly made sentencing submissions.[13]
[13] 3 March 2023 ts 5 - albeit prefaced as 'sentencing remarks'.
In my judgment, in appropriate cases, a Magistrate, like any other sentencing judicial officer, is entitled to assistance from a prosecutor -especially one acting ex parte - on the relevant statutory provisions. I consider this was such a case.
I consider in the circumstances of this case that it was incumbent on the prosecutor below to bring those provisions, at least, to the attention of the learned Magistrate. I think that obligation arose because of the material before the Magistrate appeared to enliven s 45 of the Sentencing Act - and the offence was obviously 'trivial'. The respondent was acting as a prosecutor. And, in any event, was proceeding ex parte and more generally came under the obligations expressed forcefully by Martin CJ in Naso v Danehill Nominees Pty Ltd [2006] WASC 265 [5] - [7], adjusted to take into account the relevant provisions of s 55 of the Criminal Procedure Act.
In short, the learned Magistrate was entitled to be assisted by the prosecutor in the way I have described. I would not accept, with respect, any 'practice' to the contrary.
In circumstances where the relevant provisions of the Sentencing Act were not brought to the attention of the learned Magistrate, I mean no criticism of the Magistrate in the following.
In my judgment, the learned Magistrate was obliged to consider under the Sentencing Act whether the pre‑conditions for a spent conviction order had been satisfied under s 45(1) and then consider, before imposing a fine by itself, whether a spent conviction ought to have been granted with or without one of the sentencing options provided for by s 39(2)(a) - (c) of the Sentencing Act.
That conclusion, in my view, flows from s 39(3) of the Sentencing Act. Before the learned Magistrate could impose a fine - with or without making a spent conviction order with the fine - he had to consider and be satisfied that it was not appropriate to use the options at s 39(2)(a) or (c). And in relation to those two prior sentencing options, he had to by s 39(3) consider whether his jurisdiction to grant a spent conviction order had been enlivened and if it was, whether to grant one.
There will, of course, be many cases where there is nothing before the Court which suggests the pre‑conditions in s 45(1) have been enlivened or where it is obvious at the time that the pre‑conditions in s 45(1) of the Sentencing Act have not been, and could not be, satisfied. And there will be cases where it is so obvious that one of the lesser sentencing options in s 39(2) of the Sentencing Act could not be appropriate that the earlier option need not be considered expressly.
The learned magistrate ought then to have considered whether the appellant should be relieved immediately of the adverse effect that the conviction might have on her and considered whether to grant a spent conviction order.
In my judgment, the learned Magistrate erred in not considering, in the circumstances, whether the pre-conditions of a spent conviction may have been satisfied and, if they were, whether one ought to be granted.
In this regard, this case is in a different category from Redding v Robinson (2009) WASC 403 [9], where Hall J (as he then was) held that the Chief Magistrate had not made an error in not considering a spent conviction order because there was no cogent evidence before the Chief Magistrate on which the discretion could operate.
With respect, it is an error which may well not have been made if the respondent had identified the relevant statutory provisions and brought the relevant matters to the attention of the learned Magistrate.
That error would have led to the upholding of Ground 2 but for s 14(2) of the Criminal Appeals Act. That is because I consider that if the learned Magistrate had considered whether to grant a spent conviction order on 3 March 2023, his Honour would not have done so in the absence of the appellant.
In those circumstances, I would grant the appellant leave to appeal out of time on Ground 2 as well as leave pursuant to s 9(1) of the Criminal Appeals Act. I would, however, dismiss the Appeal on Ground 2 as I consider that no substantial miscarriage of justice occurred by reason of that Ground.
The additional appeal grounds
At the hearing of the Appeal the appellant sought leave to advance three further Grounds. I gave the appellant leave to advance those grounds and she filed an Amended Appeal Notice at the end of the day of the hearing.
The respondent responded to those further Grounds in written submissions; which to some degree, supplemented submissions made at the Appeal hearing.
The respondent also made further written submissions, on Ground 2 without leave; which ought not to have been done. Notwithstanding that, I have taken them into consideration.
Ground 3: The failure to grant a spent conviction resulted in a miscarriage of justice
The particulars to Ground 3 are:
(i)The offence was trivial;
(ii)The appellant was a first offender aged 52;
(iii)The appellant was unlikely to commit the offence again;
(iv)The appellant was on a carers pension earning only $22,000 a year and received a substantial deterrent penalty including a significant fine and large costs order; &
(v)The conviction would have a substantial detriment effect on the appellant's ability to obtain employment and to travel in the future.
As Derrick J said in JAD v McRae [2022] WASC 220 [71]:
Where there is additional evidence before the court that was not before the magistrate and which goes to the issue of the appropriateness or otherwise of the making of a spent conviction order in respect of the appellant's conviction, the question whether the magistrate made an error by not making a spent conviction order on the material that was before her is not relevant. The finding of error n the part of a magistrate in not making a spent conviction order is not required for the conclusion a miscarriage of justice has occurred. Rather the question is whether taking account of the additional evidence admitted on the appeal, the magistrate's failure to make a spent conviction order has occasioned a miscarriage of justice. (citations omitted)
A similar ground in analogous circumstances was upheld in Redding v Robinson.
Taking into account the further evidence, Hall J considered whether the pre-conditions in s 45(1) of the Sentencing Act were satisfied; found they were; and granted the appellant a spent conviction.
His Honour did so taking into account the 'very specific circumstances' of the then appellant, namely that:
He was 18 with no record and was unrepresented. The proceedings were very brief and there is nothing to suggest that he appreciated the possible consequences of a conviction or that an application for a spent conviction was a possibility. [14]
In the personal circumstances of the appellant and the adverse consequences for him, Hall J found that the appellant would suffer a miscarriage of justice if he did not receive a spent conviction: [12].
By s 14(5) of the Criminal Appeals Act, this Court, on an Appeal against sentence, may have regard to any relevant matter that has occurred between when the offender was convicted and when the Appeal was heard.
In my view, s 14(5) adds to the material to which a court sitting on an appeal from a court of summary jurisdiction can have regard, notwithstanding the terms of s 39(1) of the Criminal Appeals Act. In any event, in my view, the further material here would seem to fall within s 40(1)(e) of the Criminal Appeals Act.
Taking into account the evidence in this Court, I consider that the pre‑conditions in s 45(1)(a) and (b)(ii) of the Sentencing Act are satisfied and I am further satisfied that the appellant should be relieved immediately of the adverse effect that the conviction might have on her.
I consider that the appellant would suffer a miscarriage of justice in not being granted a spent conviction order in all of the circumstances.
The respondent submits it is unclear whether the appellant is unlikely to commit such an offence again.[14]
[14] Respondent's Supplementary Submissions [10].
Further, the respondent submits that the appellant had not demonstrated an effect on her ability to obtain employment or necessary travel.[15]
[15] Supplementary Submissions [11].
The respondent further submits that as the appellant works full-time as her elderly father's carer, there was nothing to suggest that her conviction would adversely affect her career or future employment prospects.
While authorities have considered adverse effects on employment, necessary travel or career, I do not consider that 'adverse effect' in s 45(1) of the Sentencing Act is so limited. I will explain below why I consider the appellant should be relieved immediately of the adverse effect of the conviction.
I will grant the appellant leave to appeal out of time and leave generally on Ground 3. I would uphold Ground 3.
In my view, s 39(3) of the Sentencing Act is to the effect that whether or not a spent conviction is ordered is part of the sentencing process. Thus it is artificial to completely separate the question of what would otherwise be the appropriate sentencing disposition. I have set out below my reasons for granting a spent conviction order as part of the re-sentencing required by my upholding of Ground 4.
Ground 4: The fine was manifestly excessive
The particulars to Ground 4 are:
(i)The maximum penalty for the offence;
(ii)The trivial nature of the offence;
(iii)The appellant's lack of any prior record;
(iv)The appellant's indication to the court that she was unlikely to commit the offence again; &
(v)The appellant's personal circumstances including her very low level of annual income.
The following well established general principles are applicable to an appeal asserting that the sentence is manifestly excessive:[16]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or an implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account any relevant matter. Implied error arises where the end result is so unreasonable or unjust that the Court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed in respect to it, the place that the criminal conduct occupies in the scale of seriousness for crimes of that type, and the offender's personal circumstances.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yard stick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations and relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
[16] See for example State of Western Australia v Phillips [2023] WASCA 104 [101(1)(2)(4)].
With or without such a spent conviction order, in my view, the sentence imposed by the learned sentencing Magistrate was manifestly excessive. I have reached that judgment on the basis that I infer error in the imposition of the sentence as I consider that the end result is so unreasonable or unjust that a substantial wrong has occurred.
As I consider that the learned Magistrate erred, this Court may pursuant to s 14(1) of the Criminal Appeals Act:
…
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed;
(d)substitute a decision which should have been made by the court of summary jurisdiction;
…
(h)make an order as to costs of the appeal and the costs of the proceedings in the court of summary jurisdiction … .
In those circumstances, I would grant leave to the appellant on Ground 4 and I set aside the sentence imposed pursuant to s 14(1)(c) of the Criminal Appeals Act and re‑sentence the appellant pursuant to s 14(1)(d) of the Criminal Appeals Act. I consider below the relevant matters to that re‑sentencing. Further, I trust my reasons for inferring error will be apparent from my consideration of the factors in the re‑sentencing.
Maximum penalty and sentences imposed in similar cases
The maximum penalty for the offence is $1,000.
As I understand the respondent's position, an infringement notice could have been issued to the appellant[17] but there was no modified penalty provided for.[18]
[17] Appeal ts 18.
[18] Appeal ts 19.
As far as I am aware, and the parties were not able to identify one, there has not been a similar charge so there appears to be no comparable sentence to which I can have regard.
Gravity of criminal conduct
As said, the respondent properly conceded that the offence itself was trivial.
The respondent did not accept that the offending was at the lower end.[19] Indeed, by his Supplementary Submissions [17] the respondent submitted that the fine imposed reflected the fact that the learned Magistrate considered that the appellant's conduct fell more towards the middle of the scale of seriousness for this offence. It is unclear what that is based on and certainly it is not based on anything I can discern from what was said by the learned Magistrate.
[19] Appeal ts 24.
In any event, I consider that the appellant's offence was relatively minor in all of the circumstances and not at the mid‑point or more serious end of offending.
The prosecution below handed up photos of the backyard of the property where the offence occurred. They show a number of birds on a paved area at different times.
To my eye, the birds do not seem to be in any greater number or concentration than one might find in a large tree or on the ground in a particular part of a park.
From the transcript of the trial and sentencing on 3 March 2023, much was made by the prosecutor of the offending conduct attracting birds, including 'diseased' birds to the property:[20] and the birds being a nuisance.[21] The prosecutor made an attempt to reproduce such arguments in this Court on the hearing of the Appeal.[22] With respect to the respondent prosecutor, it is difficult to immediately understand the relevance of that when put as to the 'seriousness' of the charges given that self evidently, the offence provision is designed to discourage rodents; as the learned Magistrate observed.[23]
[20] 3 March 2023 ts 3, 4 - 5. At ts 5 there was a faintly Monty Python-esque exchange about the lack of any link between any feeding and the disease and death of birds and rodents.
[21] Eg, 3 March 2023 ts 6.
[22] Appeal ts 25.
[23] 3 March 2023 ts 7 - 8.
The prosecutor before the learned Magistrate referred to damage to property caused by birds.[24] Again, given that the feeding of birds is not proscribed, it is difficult to make too much of that submission. By his Supplementary Submissions [15] it was asserted that the 'wider prosecution case' was that the appellant's offending had caused a rodent infestation in the area: that is something of a 'wider' case than was put below where the prosecutor said that 'several dead rats' had been found in a seven month period.[25]
[24] 3 March 2023 ts 6.
[25] 3 March 2023 ts 4.
Although the prosecution sought to make much of the attracting of birds to the place of the offending, the learned Magistrate correctly, with respect, was puzzled as to the significance of that given the gravamen of the offence, and appears to have put those submissions largely to one side.
It is a notorious (if regrettable to many) fact that rodents occur in all suburbs and it would be difficult, in my view, to sensibly maintain a contention that there were rodents found at the property and neighbouring properties simply because of the appellant's offending.
In any event, it is difficult to imagine that such a proposition could travel higher than being an assertion or the product of anecdotal observation, rather than real evidence.
The respondent contended in this Court that the offending was not trivial because there had been, it was said, a number of communications from the City to the appellant.[26] In any event, the facts stated pursuant to s 55(5)(c) of the Criminal Procedure Act was that prior to the prosecution period there had been 'multiple complaints'[27] but the City had issued written warnings on 4 April and 5 September 2022[28] in the prosecution period. The appellant disputes that and it may be that any correspondence was addressed to the householder at the address which was her father and not her.
[26] Appeal ts 19.
[27] 3 March 2023 ts 3.
[28] 3 March 2023 ts 4.
The respondent submitted by his Supplementary Submissions[29] that the 'prosecution case was that the offending occurred repeatedly throughout this period' [of seven months].
[29] Respondent's Supplementary Submissions [15].
During the prosecution period, the Court below was told in the s 55(5)(c) of the Criminal Procedure Act facts that an officer from the City had attended on three occasions (once in March and twice in May) and observed 'wild birds feeding on food'.[30] The prosecutor, below, otherwise said in those 'facts' that 'the accused frequently scatters food … around the backyard …'.[31] It was not put that the officer had spoken with the appellant on those occasions.
[30] 3 March 2023 ts 3.
[31] 3 March 2023 ts 3.
Taking all of the above into account, I do not accept the respondent's submission that this was not relatively minor offending.
Personal circumstances of the offender
The appellant is a 52‑year‑old woman who has no history of prior offending. She is on a carer's pension and earns $22,000 per year.
The property at which the offence occurred is her father's property where she cares full‑time for him; he is 91 years old. Her father has vascular dementia, is frail and has balance issues.
The appellant only leaves the property to go grocery shopping and faces significant challenges in caring for her father.
It is apparent that her care for her father is all consuming and she has problems sleeping as she is over-alert to his condition.
While she does not deny feeding the birds, she has said that she sweeps up what is left over after feeding the birds in the backyard.
Disposition of Grounds 3 and 4
Pursuant to s 14(1)(c) of the Criminal Appeals Act, I would set aside the sentence of the $650 fine.
Having set aside the sentence, I would re‑sentence the appellant.
By s 14(5) of the Criminal Appeals Act, this Court, on an appeal against sentence, may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.
I have concluded, in all of the circumstances, that the offending was relatively minor.
In all of the circumstances, I would impose a fine of $200. Having regard to s 39(3) of the Sentencing Act, I consider that it would not be appropriate to make an order under either s 39(2)(a) or (b), with or without making a spent conviction order.
In arriving at that fine, I have taken into account the appellant's means and the extent to which payment of the fine will burden the appellant pursuant to s 53(1) of the Sentencing Act. I consider that to be the appropriate fine, notwithstanding the appellant's very modest income and that a sum of $200 is a very significant burden upon her.
As part of that process, I have considered whether the pre‑conditions for the grant of a spent conviction order had been satisfied and whether the appellant should be granted such an order with the fine I impose.
As the Full Court in Brewer v Bayens [2002] 26 WAR 510 [11] stated:
A spent conviction order made at the time of a sentencing an offender can only be made where the Court is satisfied on three questions. First, it must consider if the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider if the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied; see also Taylor v McLernon [2009] WASC 211 [15] (Beech J).
I adopt Beech J's summation of key propositions from a number of Full Court and Court of Appeal decisions in Taylor at [19] where his Honour said:
Among others, the following propositions emerged from these cases:
(a)the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;
(b)the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in the clear case; and
(c)in determining whether to exercise that power, the Court should consider the seriousness of the offence in the circumstances of its conviction and the circumstances personal to the offender.
In my judgment, the pre-conditions for a spent conviction order here are satisfied.
Firstly, I consider from both of the letters the appellant wrote to the Magistrates Court on 15 November 2022 and 23 March 2023 respectively, as well as what I have been told by the appellant's counsel that the appellant is unlikely to commit such an offence again. I find that pre-condition in s 45(1)(a) of the Sentencing Act is satisfied.
In my judgment, those letters speak to someone who appears anxious to comply with the law - now that she knows about it - and someone who does not wish to be in trouble again.
In my judgment, the offence of which the appellant was convicted is a trivial one within the meaning of s 45(1)(b)(i) of the Sentencing Act. As noted, the respondent in this Court conceded as much.
McLure P in GNR vThe State of Western Australia [2015] WASCA 5 (for the Court) observed that the term 'trivial' in s 45(1)(b)(i) of the Sentencing Act has its natural and ordinary usage: of little importance, trifling, insignificant and the focus is on the grade or level of seriousness of the offence: GNR [49]; further approved by the Court of Appeal in Sharpe v Vinning [2020] WASCA 79[59] - [66].
In the circumstances I have found, I do not have to consider whether the pre‑condition in s 45(1)(b)(ii) of the Sentencing Act was also satisfied. Having said that, there is nothing to suggest that the appellant was not, relevantly, of previous good character.
In a number of cases, the Court has been satisfied that an adverse effect on an accused's work prospects or necessary travel for education purposes were sufficient to 'relieve immediately' those from the accused.
Presently, as said, the appellant is a full-time carer for her father. Given his age and health conditions, it is only reasonable to consider that position may change in the near future. In those circumstances, the appellant, given her age, will no doubt be looking for employment and this conviction, if not spent, would impact negatively on her prospects.
Further, as set out, the appellant currently is subject to significant stressors as she cares full-time for her father. I consider that the granting of a spent conviction would relieve at least one stressor on the appellant which would relieve one adverse effect that the conviction may have on the appellant.
As I intimated above, I do not consider 'adverse effect' in s 45(1) to be limited simply to employment or career or necessary travel.
Ground 5: The respondent's costs below
The particulars to Ground 5 are:
(i)The offence was trivial;
(ii)The charge proceeded in the Magistrates Court and the evidence in support of it was brief;
(iii)The issues to be resolved at trial were not complex;
(iv)The costs award of $2,500 was two and a half times greater than the available maximum penalty for the offence; and
(vi)The Magistrate gave no reasons for why the combined costs award and fine were disproportionate to the nature of the proceedings and the burden imposed on the appellant.
Again, here, the appellant has to demonstrate a House v R type error to succeed on this Ground.
Before the learned Magistrate the respondent handed up a Schedule of Costs which leaving aside the filing fee, was in the amount of $11,011. The Schedule provided no itemisation.
That included for 'Trial Preparation, half day hearing $9,625' on 3 March 2023 and for 'Trial - second half day' on 3 March 2023, 'if required' $968'.
After conviction and being handed the Schedule, the learned Magistrate said:[32]
Look, the costs are sought in the sum of $2,500. Given the Schedule that I have had consideration to, and the preparation that was involved, and several witnesses were due to give evidence, in my view, that's fair and reasonable, and, of course, the prosecution are entitled to their costs, and in my discretion, not withstanding it exceeds the maximum penalty, is a fair and reasonable sum. I will award costs in the sum of $2,500.
[32] ts 9.
By s 67(2) of the Criminal Procedure Act, the Court below following the conviction could 'order the accused to pay all or a part of the prosecutor's costs'.
In Basham v City of Joondalup[No 2] [2016] WASC 120,[33] Fiannaca J comprehensively considered the authorities about the discretionary factors to be considered when exercising the power to make a costs order in criminal matters in the Magistrates Court and the principle of proportionality.
[33] See also Comptroller-General of Customs v C [2020] WASC 290 [160] (Smith J).
In particular, Fiannaca J observed that an issue to consider was:
[101]one of proportionality between the costs, or the total burden of fine and costs, on the one hand, and the offence, or the criminality of the offender's conduct, on the other.
Fiannaca J did not find any case that established the principle of costs, or the combination of a fine in costs could never exceed the maximum penalty for an offence. His Honour said:
[102]It is implicit in the authorities referred to above that the maximum penalty is relevant to the question of proportionality. However, in my opinion, they do not exclude the possibility of an award of costs in excess of the maximum penalty may be appropriate in a particular case.
I did not understand Fiannaca J's review of the authority to be to the effect that the maximum penalty was irrelevant in considering whether the discretion to order costs had miscarried. So, here, it is of relevance, in my view, that the total burden was more than three times the maximum penalty (for relative minor offending of a trivial offence).
At the hearing of this Appeal, counsel for the respondent, who was also counsel for the prosecutor below, told the Court he was aware of the Basham decision.[34] However, neither the decision in Basham, nor the principle of proportionality that it recognises, were brought to the attention of the learned Magistrate at the time that the fine and costs were sought.
[34] Appeal ts 22.
Even if I had dismissed all of the other Grounds, I would have upheld this Ground. Where the appellant was convicted in a short undefended hearing and given a very significant fine (compared to the maximum) for relative minor offending of a trivial offence, I consider it plainly disproportionate that the appellant be burdened by $3,150 of fine and costs.
The respondent by his Supplementary Submissions [21] accepted that the principle of proportionality was a relevant consideration to be taken into account in the making of a costs order with the fine.
The respondent submitted the learned Magistrate did take into account proportionality.[35] With respect, I am doubtful that the learned Magistrate did take the principle of proportionality (of the fine and costs together) into account.
[35] Respondent's Supplementary Submissions [22]; 3 March 2023 ts 9.
No doubt, the learned Magistrate would have been assisted by having the principle articulated and having the prosecutor (proceeding ex parte) explain its potential operation (on the combined sum) in this case.
In any event, the result or outcome is such that I infer an error was made as the combined result of the fine and costs was grossly disproportionate to the criminality.
Proportionality in minor matters (at the least) requires restraint; whether in the decision to prosecute, the penalty sought or the costs sought to be recovered. That one can use a sledge-hammer to crack a nut does not mean it is proportionate or appropriate to do so.
The respondent sought to justify the seeking of the $2,500 of costs as, again, being in line with the 'practice' of the Magistrates Court. Again, it is difficult to accept that proposition at that level of generality.
The interests of justice clearly require proportionality between the total burden of the fine and costs and the criminality on the other. Here, in my judgment, there is a gross disproportionality.
In any event, the question of the respondent's costs below does not lie unaffected by the result of the other Grounds. Rather, the question of the costs below arises in the changed circumstances where I have upheld Grounds 3 and 4 and would have upheld Ground 2.
In my view, the prosecution's costs below fall to be reconsidered in circumstances where:
(1)the offence is trivial;
(2)the offending is minor and not serious;
(3)a spent conviction order has been granted and ought, with respect, to have been considered by the learned Magistrate at sentencing;
(4)the relevant provisions of the Sentencing Act were not brought to the learned Magistrate's attention by the prosecution;
(6)the Schedule and the costs sought vastly exceeded the maximum penalty for the offence;
(7)the fine and costs below were grossly disproportionate to the criminality.
Those circumstances (of themselves) make it appropriate to revisit the costs granted to the respondent below pursuant to s 14(1)(h) of the Criminal Appeals Act.
I consider it unlikely the learned Magistrate in the circumstances I have found would have awarded that sum of costs.
I would allow the appellant leave to appeal on this Ground and uphold this Ground.
In all of the circumstances, pursuant to s 14(1)(h) of the Criminal Appeals Act, I would set aside the costs awarded below and substitute costs of $450 in favour of the respondent.
I am conscious that this still burdens the (very low income) appellant with a total sum of $650; which will be a difficult, burdensome amount for her.
I will hear the parties on the question of the costs of the Appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
26 SEPTEMBER 2023
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