Plowright v Thomson - [2017] WASC 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PLOWRIGHT -v- THOMSON [2017] WASC 192

CORAM: JENKINS J

HEARD: 5 APRIL 2017

DELIVERED : 17 JULY 2017

FILE NO/S: SJA 1098 of 2016

BETWEEN: ROSS EDWARD PAUL PLOWRIGHT
Appellant
AND
LIAM WADE THOMSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E LANGDON
File No  :FR 3113 of 2015, FR 3114 of 2015

Catchwords:

Criminal law - Appeal - Unlawful assault - Inconsistencies between prosecution witnesses - Whether magistrate erred in accepting prosecution evidence - Whether open to magistrate to convict in light of inconsistencies

Criminal law - Appeal against sentence - Whether magistrate erred in refusing to grant a spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14
Sentencing Act 1995 (WA), s 39, s 45, s 56

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms R N Paljetak

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

AB v Lloyd [2011] WASC 97
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Robertson v Lawrence [2008] WASC 111

JENKINS J: This is an appeal from the decisions of a magistrate sitting in the Magistrates Court at Fremantle on 1 November 2016 to:
(1)convict the appellant of unlawful assault; and
(2)decline to grant the appellant a spent conviction order.

Grounds of appeal

The proposed amended grounds of appeal are:
(i)the learned magistrate erred in fact and in law in finding the appellant guilty of assault when the evidence of the witnesses did not support a finding that the appellant had assaulted the complainant.
(ii)the learned magistrate's refusal to make a spent conviction order for the offences of assault and damaging property resulted in a miscarriage of justice having regard to the facts of the offences and the appellant's history, character and absence of a prior record.

Leave to appeal

The appellant requires leave to appeal on each proposed ground. If a ground of appeal has reasonable prospects of succeeding, I ought grant leave to appeal on that ground. Therefore, I will consider the merits of each ground of appeal before I decide whether to grant leave to appeal on either ground.

Details of the charges and proceedings

The appellant was charged with two offences being:
(1)on 29 January 2015 at Mount Pleasant, he unlawfully assaulted one Elizabeth Anne Amann (FR 3113/2015); and
(2)on 29 January 2015 at Mount Pleasant, he unlawfully damaged the property of Elizabeth Anne Amann, being an iPhone mobile phone, causing approximately $100 in damage (FR 3114/2015).
Initially, the appellant endorsed a written plea of guilty to both offences. He was convicted and fined. The appellant then applied for leave to withdraw his pleas of guilty. The application was granted in respect to both charges.
On 8 April 2016, the appellant entered a guilty plea to FR 3114/2015. On 1 November 2016, a trial took place in relation to FR 3113/2015, at the conclusion of which the magistrate convicted and fined the appellant $1,000 on that charge. Her Honour ordered that pursuant to the Sentencing Act 1995 (WA) s 56 that the whole of the fine imposed be paid to the victim of the offence. The magistrate also fined the appellant $500 on FR 3114/2015. He was ordered to pay costs of $380.30. The magistrate declined to make a spent conviction order.
In relation to FR 3113/2015, the prosecutor opened the prosecution case by stating that it was alleged that on 29 January 2015, when the appellant's vehicle and the victim's vehicle came into contact at a set of traffic lights at the intersection of Sleat Road and Canning Highway in Mt Pleasant, the appellant got out of his vehicle and wrestled for the victim's mobile phone and in doing so, pushed the victim.
The first witness called was Ms Elizabeth Amann. Ms Amann gave evidence that at about 9.15 am on Thursday, 29 January 2015, she was driving to work. She stopped her olive grey Holden Cruze sedan at a set of traffic lights at the corner of Sleat Road and Canning Highway. The lights were red and there were cars in front of and beside her car. She felt a bump to the rear of her car. After 30 seconds - one minute she got out of the car and went towards an older model white Toyota Camry which was right up behind her car. She could not see its number plate. She said that she saw a man sitting in the car with his hands on the steering wheel staring straight ahead.
Ms Amann said that she said to the man 'what the hell are you doing? You've just run into me'. She said that the man quietly and calmly said to her 'No. Your foot slipped off your brake and you reversed into me'. She said that she then said 'I don't think so', quite sarcastically (ts 6).
Ms Amann said that they should exchange details and the man did not reply to her. She then went back to her car and got a pad and pen. She said that she walked back to the Camry and the man then started to abuse her. He did not get out of the car but he had the window down. Ms Amann said that the man said 'you effing c - fucking cunt' and 'bitch' (ts 6). She said that she thought that there was not much point in talking to the man and so she went behind his car and took down his number plate. As she was walking back, she said the man got out of his car. He was still shouting and he had his phone in his hand. She said that he commenced to photograph the cars and so she returned to her car to get her mobile phone, for the same purpose.
Ms Amann described the man as wearing 'quite pale coloured shorts and singlet'. She added that he 'looked as though he had come - my impression was he had come off a building site, and he had a dog in the passenger side - a small thing with the - it might have been a Chihuahua looking dog' (ts 7).
She then lent over the bonnet of the Camry to take a close shot of the area where the cars had come into contact. She said that the man 'just went berserk' (ts 7). She said that he was shouting in her face and swearing. Ms Amann said that the man grabbed her phone from her and threw it on the ground. She bent down to pick it up. She testified that she was 'shoved from behind' and she stumbled but did not fall. She said that she felt the contact to her lower back, but that it was not a violent push. When she picked up her phone she started to dial triple zero and the man grabbed her phone again. She said that he had hold of her hand, was shaking her and was trying to grab the phone. She said that he pulled her shirt and pushed and shoved her against the car as he did so.
Ms Amann believed that the lights had turned green as other cars started to move off. The man got her phone off her and threw it over the top of the Camry and the Cruze. She said that it landed on the verge on the left hand side of the road. Ms Amann said that the man then got back into his car, backed away from the Cruze, turned into the left‑hand turning lane and then turned left down Canning Highway.
Ms Amann said that she went to retrieve her phone. As she walked back to her car she saw another man running towards her from the other side of the road. He claimed to have witnessed the incident and gave her his name, Paul Dunsire, and his mobile phone number. She testified that Mr Dunsire was a stranger to her.
Whilst she was still at the scene, Ms Amann said that another car drove up to her and two young girls got out. They also told her that they had witnessed the incident.
Ms Amann testified that she had gone to the doctor the following day. She said that she felt that she had pulled muscles and the doctor prescribed anti‑inflammatory medication. She described her injuries as 'nothing serious' (ts 10).
The appellant, who was self‑represented, cross‑examined Ms Amann. She denied having called him an idiot, or that she had raised her voice, sworn or been very aggressive. The appellant put to her that she had reversed her car into his car, that she had been talking on her phone and had lost concentration. She denied these propositions. Ms Amann denied that she had put her phone through the window of the Camry and threatened to sue the appellant.
Ms Amann acknowledged that when she spoke to the witnesses at the scene she was upset. She denied that she had told them her side of the story. She acknowledged that she was surprised that no other drivers had stopped and spoken to her. She denied that she had 'coached' the witnesses who had spoken to her after the incident (ts 18).
It is apparent from the cross‑examination that the appellant did not dispute that he was the driver of the Camry.
Mr Dunsire also gave evidence for the prosecution. He testified that on 29 January 2015, he was setting up a concrete pump just off Canning Highway. He said that he heard a commotion and a woman screaming. He said that he looked up and saw someone pushing a lady and grabbing what looked like a phone or keys and throwing it across the other side of the road. He described the man as wearing blue shorts, white shirt and being about five foot eight inches tall. He said that he would not be able to recognise that man.
He said that the woman had a phone in her hand and the man grabbed her by the hand and 'ripped it off her, sort of pushed her to the ground and then - yes - threw the phone' (ts 20). He said that when the man pushed the woman she was 'facing the opposite way' (ts 20). He said that the man pushed her on the chest and pushed her to the ground. When he saw this happen he ran over to the woman.
Mr Dunsire says that the man got back into his car, reversed backwards, went forwards, reversed back again and then turned left onto Canning Highway.
Mr Dunsire was asked how he felt at the time of the incident and he said that he was pretty wild as his father had brought him up never to lay a finger on a lady. He denied knowing Ms Amann prior to this day or having spoken to her since. However, he agreed that he had told her that he would be a witness.
When cross‑examined by the appellant, Mr Dunsire said that the scream he heard was a 'fear scream', like the lady was scared. He confirmed that he had seen the man push the lady in the chest and onto the ground (ts 22).
He said after speaking to the lady he had stayed at the scene for about 20 minutes. He said that in that period another two females had pulled up in another vehicle.
The prosecution's third witness was Ms Christal D'Evelynes. Ms D'Evelynes said that on 29 January 2015, she was in the front passenger seat of a car driven by a work colleague, who now lives in Melbourne. She testified that they were waiting at the traffic lights on Sleat Road at the corner with Canning Highway. She said the incident occurred in the lane next to her.
Ms D'Evelynes said that there was a 'nice car' which she thinks was a white Holden in which there was a lady and a 'really, really, old' car that was not looked after and 'the paint was all scabby and stuff' (ts 25). She said that there was a man in that vehicle who looked like he did not care about his appearance, he was balding and he had a green t‑shirt on and black sunglasses.
Ms D'Evelynes said that from memory the man had driven up the back of the woman's car. The woman stopped and got out of her car and went towards the man's car. She said that the man got out. She recalled the man grabbing the woman's phone, throwing it and then pushing the woman. Ms D'Evelynes said that the woman fell backwards onto her bottom.
Ms D'Evelynes said that once the man had pushed the woman, he got into his car and sped off left down Canning Highway. Ms D'Evelynes said that she and her colleague continued onto their destination but on their return journey, about 5 ‑ 10 minutes later, they stopped and spoke to the woman who was still at the scene.
In cross‑examination, Ms D'Evelynes said that she had heard the noise of the impact of the two cars. She said that the woman was the first person out of the cars and that she had heard the man being abusive to her. She said that the man had pushed the woman around her chest or shoulder area and she fell backwards onto the bitumen.
Ms D'Evelynes said that she and her colleague had been 'really disgusted' by what they had seen.
The appellant asked Ms D'Evelynes how she would describe his appearance at the scene. She described his sunglasses as being 'like, what the Terminator wears', and that he was wearing an 'old looking green shirt', that was maybe stripey. She said that she could not remember his shoes or pants. Ms D'Evelynes agreed that she had used the term 'looked rough' to describe the male driver (ts 30).
Ms D'Evelynes said that she had not seen the woman being aggressive towards the male driver and that the woman was 'an older - really nicely dressed, lovely lady'. She said that she did not recall the woman swearing (ts 31).
The prosecution's last witness was a police officer, first class constable Liam Thomson, who interviewed the appellant about this matter on 21 February 2015. The electronically recorded interview was admitted into evidence.
In the interview, the appellant said that he had been involved in an incident with a woman at a set of traffic lights on Ullapool Road, near Canning Highway.[1]
[1] The appellant did not suggest to the prosecution witnesses that they were in error in saying that the incident occurred at the Sleat Road intersection.
The appellant said that he was driving a 1997 white Camry and the other driver was driving a beige station wagon but he did not know the make or year of manufacture of the other vehicle.
The appellant told the police that his car was stationary at a set of traffic lights. He said that he had looked away and as he looked back the car in front of him rolled backwards. He said the driver slammed on the brakes before the car hit his. He said that there had been no contact between the two vehicles.
The appellant said that the driver of the other car got out of her car and that she was not happy. She came towards him and called him 'an idiot' (ts 13). She accused him of not knowing how to drive and threatened to sue him. He said that he felt that the situation was unpredictable, her voice was raised and she was stressed. He dismissed her as 'someone having a crisis'.[2] He said that he was not 'game'[3] to get out of his car and have a look to see whether there was any damage to the cars.
[2] Exhibit 1, DVD record of interview, 1 November 2016, Plowright v Thomson, Fremantle Magistrates Court.
[3] Exhibit 1, DVD record of interview, 1 November 2016, Plowright v Thomson, Fremantle Magistrates Court.
The appellant said that he told the driver that she needed to calm down and that she did not seem to know what had happened. He said that she demanded that he get out of his car and he refused to do. He told her to go back to her car. The female driver got more and more angry because he would not get out of his car. She got out her phone and put it through his window to take his photograph. The appellant said he put his hands up in front of his face and told her not to take his photo. The woman tried to put her arms and phone between his hands and his face and in doing so she contacted his hands. He took the phone off her and threw it away. He said that the lights turned green and he drove off. He said that the phone landed on the grass on the other side of the road.
The appellant told the police that he never got out of his car during the incident. He said that he felt that the situation was volatile. The other driver had confronted him and that she was not backing down. He said that there was no one else around, but other drivers were tooting their horns.
He said that he was wearing shorts and a t‑shirt and had his dog in the car. He had been coming back from Bunnings.
He said that the female driver was 'heated'[4] from the beginning. He denied yelling abuse at her. He said that she looked like she was going to 'whack'[5] him.
[4] Exhibit 1, DVD record of interview, 1 November 2016, Plowright v Thomson, Fremantle Magistrates Court.
[5] Exhibit 1, DVD record of interview, 1 November 2016, Plowright v Thomson, Fremantle Magistrates Court.
The appellant told the police that he regretted the situation and wished he could have met the woman afterwards and apologised, even though she was very confrontational from the start.
The appellant elected not to give evidence in his own defence or to adduce evidence from any other witness.
Given that the appellant was self‑represented, the police prosecutor declined to address the court. It is not clear from the transcript whether the appellant made oral submissions.
In any event, later that day, the magistrate gave reasons for convicting the appellant of the charge of assault.
The appellant does not allege that the magistrate made any errors in identifying the elements of the offence or the legal principles applicable to the prosecution.
Relevantly, the magistrate found the following:
(1)Ms Amann was an honest and reliable witness;
(2)there were some inconsistencies between the evidence of the two independent witnesses, Mr Dunsire and Ms D'Evelynes, and the evidence of Ms Amann as to the actions of the appellant at the point when he pushed Ms Amann and as to Ms Amann's physical reaction to being pushed;
(3)the two independent witnesses were not standing immediately in front of Ms Amann and the appellant when the incident occurred, the incident had occurred some 20 months earlier and it happened very quickly;
(4)those matters accounted for the slightly different versions of events given by the witnesses; and
(5)Mr Dunsire and Ms D'Evelynes were credible and reliable witnesses.
The magistrate found that when Ms Amann had stopped at the set of lights, she felt a bump in her car's rear end. Shortly thereafter, Ms Amann got out of her vehicle and approached the driver of the white Toyota Camry directly behind her. It was not in dispute that that was the appellant. Ms Amann saw the appellant sitting in the Camry and it was touching her car.
Ms Amann said to him 'what the hell are you doing? You've just ran into me'. The appellant replied 'No. Your foot slipped off your brake and you reversed into me' (ts 6). Ms Amann then returned to her car and got a writing pad and pen and walked back to the appellant's car.
The appellant then verbally abused her. Ms Amann went behind the appellant's car to take down his number plate details. The appellant got out of his car with his mobile phone and started taking photographs of the cars. Ms Amann then returned to her car to retrieve her mobile phone and walked back to the appellant's car. At that point she started taking photographs of the cars and the appellant 'went beserk' (ts 7). He grappled with Ms Amann, grabbed her mobile phone and threw it to the ground. Ms Amann then bent down to pick it up and the appellant shoved her with a little push to her back and she stumbled backwards.
At that point Ms D'Evelynes was sitting in the front passenger seat of the car in the lane adjacent to Ms Amann's car. She saw the appellant grab Ms Amann's phone and push Ms Amann. Ms Amann went backwards, but she did not fall to the ground. The magistrate found that both Ms D'Evelynes and Mr Dunsire were honest but mistaken in their evidence when they each told the court that Ms Amann fell backwards onto the ground. Her Honour found that they saw Ms Amann stumbled backwards as she bent over to pick up her phone, at the same time that the appellant pushed her backwards. The magistrate said that it may have appeared to the two independent witnesses, from where they were each located, that Ms Amann had fallen onto the ground.

After Ms Amann picked up her phone and started to dial triple zero, the appellant 'grabbed her hands and wrestled her hands for the phone'. The lights turned green and at that point the other cars started to move away. The appellant threw Ms Amann's phone and it landed on the verge across the left‑hand turning lane. The appellant got into his car and drove away. Ms Amann retrieved her phone. Mr Dunsire then approached her.
The magistrate rejected the 'untested electronic record of interview evidence of the [appellant] wherein he simply denied stepping outside his vehicle and he denied assaulting Ms Amann by grappling with her to grab her phone off her and pushing her' (ts 38).
The magistrate found that the appellant was the initial aggressor, and had responded to Ms Amann in a verbally abusive manner and then alighted from his vehicle when she proceeded to take photographs of the vehicles and write down the appellant's registration details. The magistrate found that the appellant overreacted in an abusive manner towards Ms Amann and he pushed her after grappling with her for her mobile phone. She found that at no stage was Ms Amann aggressive towards the appellant.
The magistrate found that the defence of provocation was not open on the evidence.
After convicting the appellant, the magistrate asked him whether there was anything else that he wanted her to take into account in setting a penalty.
The appellant asked for a spent conviction order and said that a conviction 'would drastically affect [his] career' (ts 40). The magistrate asked how that would be so and the appellant advised her that he was hoping to be promoted. He said that he had been a school teacher for 10 years and that he was still registered with the Education Department, but he had been with St John's Ambulance for six years. He said that if he had a criminal conviction he would not be able to get a promotion. He advised the magistrate that he was a single parent and that a conviction would 'drastically affect [his] life' (ts 40).
The police prosecutor submitted that the offence was not trivial. He submitted that it was a road rage situation and the public had an interest in the courts being firm about what was a very prevalent offence.
Her Honour told the appellant that it was a road rage incident. She said that the evidence of Ms D'Evelynes was:
[Q]uite compelling in terms of her response and reaction to witnessing that incident where she herself said that she found it disgusting, your behaviour on that particular day.
...
It obviously did have an effect on a number of people, including not the least the complainant, who is the victim of this matter, ... whenever there is a collision of any type or description, all drivers on the road ought to feel that they're able to take down and exchange, where possible, the details with the other driver.
And now with the use of mobile phones as cameras, it's not an uncommon event for drivers to take photographs of the vehicles in incidents where there has been some sort of collision, which can and does often assist insurance companies to determine all manner of things, including who's at fault, who's not and also assessment of damage if there is any damage. So I've found that there was no evidence that Ms Amann's behaviour was in any way untoward, but that you were the aggressor in terms of your response and reactions to Ms Amann and that that was witnessed particularly by Ms D'Evelynes, who was seated next to the incident.
And I'm raising these matters or highlighting these matters because they go to the need for general deterrence as well as personal deterrence. These types of incidents are prevalent, and, really, the court does need to send a message of sorts not just to yourself, but other people in the community that this type of totally inappropriate response should not and is not tolerated (ts 40 - 41).
The magistrate noted that the appellant had three traffic convictions which were quite dated and otherwise did not have a criminal record. She acknowledged that he had told her that he was an ambulance officer and he had teaching qualifications.
In relation to the grant of a spent conviction order, the magistrate said that there were three criteria that she had to apply under the Sentencing Act s 45. The first criterion was whether or not she was persuaded that the appellant was not likely to commit an offence of this nature again. The second criterion was whether the matter was trivial and if it was not trivial, alternatively, whether the appellant was a person of previous good character. She said that if she was not satisfied as to those two criteria, the third criterion was whether 'the court ought on a very sparing basis exercise its discretion and relieve [the appellant] of the negative or detrimental impact that a conviction of an offence of this type may have upon [him]' (ts 41).
In considering the first criterion, the magistrate noted that the appellant had not exhibited any remorse. She noted that the witnesses had to give evidence and that the appellant had not accepted responsibility for his role in the offence. Consequently, her Honour was not persuaded that the appellant was not likely to commit an offence of this nature again.
As to the second criterion, the magistrate found that the offence was not trivial. She acknowledged that the appellant could be said to be a person of previous good character.
In relation to the third criterion, the magistrate said that for reasons of general deterrence, it was her view that it was not in the public interest that the appellant be granted a spent conviction order, in any event.
Her Honour declined to make a spent conviction order.

Determination of ground of appeal against conviction

The appellant's complaints are that the inconsistencies between what the prosecution witnesses said in evidence and what they said in their written statements, and the inconsistencies between the prosecution witnesses' evidence meant that it was not open to the magistrate to find that he had assaulted Ms Amann by shoving her with a little push to her back so that she stumbled backwards and that he had grabbed her hands. He says that the inconsistencies meant that it was not open to the magistrate to find that Mr Dunsire and Ms D'Evelynes had witnessed the incident.
Ms Amann gave evidence of an assault constituted by these acts, being a push to her back and the grabbing of her hands. Consequently, there was evidence which the magistrate was entitled to rely upon to come to her findings in these respects.
Ms Amann said that when she was first assaulted by the appellant she stumbled. She did not say she stumbled backwards. Ms D'Evelynes said that she had seen Ms Amann fall backwards. Mr Dunsire said she was pushed to the ground. Whether Ms Amann stumbled in a forward, backwards or some other direction and whether she landed on the ground does not affect whether she was assaulted by being pushed.
The magistrate rejected the evidence contained in the recorded interview between the appellant and the police. She was entitled to do so.
As the decider of fact, it was open to the magistrate to accept or reject what the appellant had said to the police. In respect to exculpatory statements made by the appellant in the interview, she was entitled to take into account that they were not made on oath or affirmation, were not the subject of cross‑examination and were not supported by any sworn testimony. Consequently, she was entitled to reject them or give them less weight.[6]
[6] Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573.
In light of the evidence given by the three lay prosecution witnesses, it is unsurprising that the magistrate rejected the appellant's account contained in the interview with the police. The three witnesses each said that a man, who was clearly the appellant, had been involved in a physical altercation with Ms Amann outside of his car. If, the magistrate found those three witnesses to be generally honest and reliable, as she did, it was inevitable that she would reject the appellant's account that he had stayed inside his vehicle at all times.
In relation to the alleged inconsistencies between what those three witnesses said in court as opposed to what they had said in their statements to the police, the appellant acknowledged to me during the hearing of the appeal that the differences between what the witnesses said in their statements and what they said in evidence were 'minor'.[7] The appellant did not press his application to have the written statements received as evidence on the appeal. He said that he was 'happy' to proceed on the basis of the evidence given before the magistrate.[8] This evidence did not include evidence of significant inconsistent statements made by the witnesses in their police statements.
[7] Transcript, Plowright v Thomson, Supreme Court of Western Australia, 5 April 2016, 15.
[8] Transcript, Plowright v Thomson, Supreme Court of Western Australia, 5 April 2016, 16.
In relation to inconsistencies between the evidence of each of the three prosecution lay witnesses, the magistrate found that Mr Dunsire and Ms D'Evelynes were honest but mistaken in their evidence that the complainant, Ms Amann, had fallen backwards onto the ground. Her Honour noted that neither witness was standing directly in front of the appellant and the complainant at the time of the incident, the incident happened very quickly and 20 months had elapsed between when the incident occurred and giving their evidence.
The magistrate was entitled to find that these matters explained the inconsistencies between the witnesses evidence. The magistrate rejected the appellant's allegation that the witnesses had been 'coached'.
Generally, an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.[9]
[9] Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 [479]; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21].
I consider that the magistrate's findings of fact were open to her and the evidence she relied upon justified her findings. Thus, I am not entitled to interfere with those findings.
At the appeal hearing the appellant complained that the witnesses had 'presented a derogatory and demeaning character profile'[10] of him. He submitted that this evidence 'was the key point that influenced the magistrate's decision'.[11]
[10] Transcript, Plowright v Thomson, Supreme Court of Western Australia, 5 April 2016, 22.
[11] Transcript, Plowright v Thomson, Supreme Court of Western Australia, 5 April 2016, 22.
Whilst the evidence of the lay witnesses did include some negative comments about the appellant's appearance and their reaction to his behaviour, the magistrate did not rely on these matters to convict the appellant.
For the above reasons, I find that the proposed ground of appeal against conviction does not have reasonable prospects of succeeding.

Determination of ground of appeal against sentence

The Sentencing Act s 39(2)(c) provides that with or without making a spent conviction order, a court sentencing an offender may impose a fine. The Sentencing Act s 45(1) provides:
(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.
I may not substitute my own opinion about the matters in s 45(1) for that of the magistrate merely because I would have exercised the discretion in a different manner.[12] Rather, I may only quash the magistrate's decision not to grant a spent conviction order and make such an order if I am satisfied that the failure of the magistrate to make an order is a miscarriage of justice.[13] Even if the grant of appeal might be decided in favour of the appellant, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred.[14]
[12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
[13] Criminal Appeals Act 2004 (WA) s 8.
[14] Criminal Appeals Act s 14(2).
I have previously discussed and summarised the principles relevant to the exercise of the discretion to grant a spent conviction order in a number of cases. These include AB v Lloyd[15] and Robertson v Lawrence.[16] I apply the principles which I have stated in those cases to the facts of this case.
[15] AB v Lloyd [2011] WASC 97.
[16] Robertson v Lawrence [2008] WASC 111 [38] ‑ [41].
Pursuant to the Sentencing Act s 45(1)(a), the magistrate could not grant a spent conviction order unless she considered that the appellant was unlikely to commit such an offence again. The reasons which the magistrate gave for deciding that she could not come to such a conclusion were valid. The justification was that the appellant had not acknowledged responsibility for the offence of assault. He had repeatedly told the police that he did not get out of his car and he did not assault Ms Amann. In light of the magistrate's findings of fact, these must have been deliberate lies. The appellant put this false allegation to each of the prosecution witnesses. He maintained that position on appeal.
Whilst it was, and remains, the appellant's right to plead not guilty to the assault charge and to appeal his conviction on it, the reality is that having taken the stance that he has taken, he has not acknowledged his responsibility for the offence, not shown any remorse for it, not provided any explanation for the offence and not given any indication that he has the insight necessary for the magistrate to conclude that he will not commit such an offence again. This is even though his record does not show a propensity to commit such offences. Therefore, it was open for the magistrate to determine that the first criterion for the grant of a spent conviction order had not been met, in that she could not conclude that the appellant was unlikely to commit such an offence again. The appellant has failed to show that that conclusion was an error of fact or law or a miscarriage of justice.
Consequently, the appellant's concerns about the adverse effect that the conviction might have on his chances of promotion and his family's financial situation could not be taken into account by the magistrate. The precondition for the grant of a spent conviction order had not been reached.
For these reasons, the appellant's proposed ground of appeal against sentence has no reasonable prospects of success.

Conclusion

Leave to appeal on each proposed ground of appeal is refused. The appeal is dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PLOWRIGHT -v- THOMSON [2017] WASC 192 (S)

CORAM: JENKINS J

HEARD: ON THE PAPERS

DELIVERED : 29 AUGUST 2017