Rawle v Collins - [2022] WASC 452

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RAWLE -v- COLLINS [2022] WASC 452
CORAM:   FORRESTER J
HEARD:   13 DECEMBER 2022
DELIVERED          :   13 DECEMBER 2022
PUBLISHED           :   19 DECEMBER 2022
FILE NO/S:   SJA 1068 of 2022
BETWEEN:   ANDREW CHRISTIAN RAWLE
Appellant
AND
JARRAD COLLINS
Respondent

ON APPEAL FROM:
For File No:   SJA 1068 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MACLEAN
File Number            :   PE 2751 OF 2021

Catchwords:

Criminal Law - Single judge appeal - Breach of family violence restraining order - Appeal against failure to make a spent conviction order - Turns on own facts

Legislation:

Crimes Act 1914 (Cth)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)

Result:

Application for extension of time is granted
Leave to appeal refused on grounds 1 and 2
Leave to appeal is granted on ground 3

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K A Gorski
Respondent	:	Z R Clifford

Solicitors:

Appellant	:	Legal Aid
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Brewer v Bayens (2002) 26 WAR 510
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Gardner v Caporn [2005] WASCA 153
GNR v The State of Western Australia [2015] WASCA 5
Hussaini v Szolnoski [2013] WASC 64
JAD v McRae [2022] WASC 220
Lancaster v The Queen [1989] WAR 83
LAW v The State of Western Australia [2009] WASCA 193
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v Seidner [2013] WASC 395
Pickett v The State of Western Australia [2004] WASCA 291
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
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
Vagh v The State of Western Australia [2007] WASCA 17
Wimbridge v The State of Western Australia [2009] WASCA 196

FORRESTER J:

(This judgment was delivered extemporaneously on 13 December 2022 and has been edited from the transcript).

Introduction

The appellant was charged that on 15 January 2021 at South Hedland he breached a Family Violence Restraining Order (FVRO).
On 16 May 2022, the appellant pleaded guilty to the charge before a magistrate and, given he had spent 22 days in custody, was fined $100. An application for a spent conviction order was refused.
By a notice dated 2 September 2022, the appellant appealed against the decision not to make the spent conviction order. He seeks leave to adduce evidence on the appeal additional to that which was before the magistrate.
The appellant's application assumes a greater degree of background knowledge on the part of the court than it actually has. It appears that the appellant was charged with indictable offences arising out of the same incident, for which he faced trial in the District Court but was acquitted, prior to his sentencing. Limited information has been provided as to the charges or the facts which were alleged, but it appears the appellant was charged with aggravated burglary and strangulation.

Magistrate's decision

The facts of the offence as alleged were that the appellant was served with the FVRO on 15 January 2021 at 1.10 pm. The appellant's former partner was the protected person. On the same day, nine hours later, the appellant went to the protected person's house and went inside. A verbal and physical altercation was alleged to have occurred. As he left, the appellant told the protected person not to contact police and threatened him. The appellant was later apprehended by police. He claimed in an interview that he saw the protected person on the balcony of the address and believed that the protected person waved at the appellant to attend the premises. The appellant denied there was a physical altercation.
There was a brief factual dispute which I will deal with when considering the merits of ground 1.
Given the appellant had spent 22 days in custody, as I say the magistrate determined that the appropriate penalty was a fine.
In relation to the application for a spent conviction order, the appellant's counsel submitted that 'during this period when all of this was going on, every job that he had he lost,' but then said that the appellant was working for the Ashburton Aboriginal Corporation.[1] It was put to the magistrate that the appellant was unsuccessful in his application as a hospitality manager 'due to disclosure of the three pending charges.'[2] The magistrate acknowledged receiving references on behalf of the appellant.
[1] Transcript, WA Police v Andrew Christian Rawle, Magistrates Court of Western Australia, 16 May 2022, 5 (Transcript of Proceedings 16 May 2022).
[2] Transcript of Proceedings 16 May 2022, 6.
The magistrate said:
You know, if you're going to get over the line for the spent conviction, you've got to be able to show how a recording of this conviction would have some consequence upon him disproportionate really to the gravity of the wrongdoing. In my view, it's a breach. All breaches of restraining orders are, by their nature, or most of them anyway, is (sic) serious. This is made more serious, in my view, by the fact that he has gone to that person's home and it's nine hours after he was served. I don't know how more clear that legal restraint has to be communicated to somebody. So I've got some reluctance, I've got to say, in respect to a spent conviction. I will deal with the matter by way of a nominal fine, $100 (indistinct) court costs. That's not because it's not serious, but because you've spent quite a bit of time in custody in relation to this and other charges that you were acquitted for. But I'm not prepared to make an order for a spent conviction.[3]
[3] Transcript of Proceedings 16 May 2022, 6.

Grounds of Appeal

The grounds of appeal are that:
(1) the learned magistrate erred in law by taking into account disputed facts when deciding not to make a spent conviction order;
(2)the learned magistrate erred in law by not applying the appropriate test upon which a spent conviction order can be made;
(3) the learned magistrate erred in their discretion in deciding not to make a spent conviction order when a spent conviction order was appropriate, having regard to the whole circumstances of the offence and of the offender and this has given rise to a miscarriage of justice.

Statutory framework

The appeal

The application for leave to appeal is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).
A refusal to make an order that might be made as a result of a conviction is a decision which may be appealed.[4]
[4] CA Act s 6(g) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[5] meaning that the ground is required to have a rational and logical prospect of succeeding.[6] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[7]
[5] CA Act s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] CA Act s 9(3).
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.[8]
[8] CA Act s 14(2).
An extension of time is required.[9]

Admission of additional evidence

[9] CA Act s 11(3).

An appeal court must decide an appeal on the evidence and material that were before the court below.[10] However, the court has broad powers to admit other evidence, pursuant to s 40(1)(e) of the CA Act.
[10] CA Act 39(1).
In determining whether to admit additional evidence, the general test to be applied is whether, had the evidence been before the sentencing court, a different order should have been imposed. Evidence of facts since the sentence was imposed may be received to show facts relevant to the sentencing process, which were in existence at the time of a sentence but either not known to the sentencing judge or not properly appreciated at the time.[11]
[11] M v Seidner [2013] WASC 395 [26] - [27]; Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [30].
In determining whether failure to make a spent conviction order constituted a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal which shows the appellant's good character and the likely consequences of a conviction.[12]

Spent convictions

[12] M v Seidner [2013] WASC 395 [28].

The power to make a spent conviction order is found in s 39(2)(a) to (d) of the Sentencing Act 1995 (WA) (Sentencing Act). Preconditions for the making of such an order are set out in s 45 of the 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.[13]
[13] 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.[14]
[14] R v Tognini (2000) 22 WAR 291 [24]; Brewer v Bayens (2002) 26 WAR 510 [11], [16].
In the absence of a spent conviction order made at the time of sentence, an application can be made for a conviction to be declared spent after 10 years has elapsed since the applicant's latest conviction.[15]
[15] Spent Convictions Act 1988 (WA) s 11.

Application for an extension of time

Where there has been a lengthy delay, a court should only grant an extension of time within which to appeal if exceptional circumstances are shown unless it can be shown, that failure to grant an extension would result in a miscarriage of justice.[16]
[16] Lancaster v The Queen [1989] WAR 83, 85; Wimbridge v The State of Western Australia [2009] WASCA 196 [19].
The delay is explained in the affidavit of Kerry Ann Gorski affirmed on '2 September' as being the result of issues with obtaining legal advice and not due to any fault on the part of the appellant.
While the delay is not fully explained, it is not particularly lengthy. The respondent does not oppose the extension of time, other than on the basis that the appeal lacks merit and there would be no miscarriage of justice if it were not granted.

Additional evidence

The additional evidence is an affidavit sworn by the appellant which is undated (although I am told it was sworn on 11 November 2022) and the annexures.
In the affidavit, the appellant states that references which appear as annexures ACR1 and ACR2 were submitted to the magistrate at the hearing.
The appellant states that prior to the charges against him, he had to resign a position driving for an on-demand transport company in Port Hedland and South Hedland. He subsequently obtained work with Ashburton Aboriginal Corporation in March 2022. He has since been able to return to work with the transport company despite the conviction.
The appellant is setting up an organisation, called the Doer Group Pty Ltd (Doer Group), to help people in remote and regional communities. It is a non-profit charity registered with the Australian Charities and Not-for Profits Commission. The appellant is a director of the Doer Group, which was registered on 26 July 2022.
Funding for the organisation is to be by way of State and Commonwealth grants, donors and corporate partnerships. The appellant has annexed the template Head Agreement for the Community Development Program 2019-2022. Clause 13 provides that a provider of services under the agreement must not, in effect, have any person in a role in management or financial administration, or conducting the services, if they have been convicted of an offence within the meaning of s 85ZM(1) of the Crimes Act 1914 (Cth) unless the conviction is regarded as spent under s 85ZM(2).
The appellant claims that his conviction therefore impacts on his ability to help disadvantaged juveniles and Aboriginal people through the organisation, and his ability to go back to previous employment such as bar management.
The respondent does not oppose the admission of the additional evidence.
In my view, the evidence is of substantial relevance to the exercise of the discretion to make a spent conviction order and accordingly, leave to adduce the additional evidence should be granted.

Disposition

Ground 1

The appellant contends that the magistrate erred by taking into account disputed facts when determining whether to make the spent conviction order. However, it was not entirely clear what 'disputed facts' it is asserted the magistrate took into account.
On appeal, it was submitted on behalf of the appellant that he believed he was invited into the protected person's premises and the magistrate refused to accept the 'clear submissions' to that effect. It was argued that, as the circumstances and seriousness of the offence and the likelihood of the appellant committing further offences are factors relevant to the making of a spent conviction order, the magistrate should have held a trial of the issues.
The respondent submitted that the magistrate accorded procedural fairness to the appellant by putting his counsel on notice that he did not accept the submission. The appellant's counsel did not seek a trial of the issues, and, in those circumstances, the respondent submits the magistrate was entitled to proceed as he did.
It is somewhat generous to describe the submissions made as to the factual dispute on the plea as being 'clear'. The appellant's counsel appeared to equate the appellant's acquittal on the indictable charges with a positive finding that the protected person 'beckoned' the appellant into his house and that no altercation ensued. The magistrate rightly rejected that submission and said:
HIS HONOUR: But the jury decision isn't such that I now have to accept…
[COUNSEL]: No.
HIS HONOUR: - - -he's just waltzing down the road, beckoned in and in he goes. It's just nonsense. Because it's not the same thing as what the - - what I'm stuck with in terms of the jury description. But I'm not going to sentence him on some fanciful nonsense that he might be spinning to you and you relaying it to me by way of instructions, because it's nonsense. I don't accept it for a second. So - -
[COUNSEL]: What can I - -
HIS HONOUR: - - he got a restraining order. He wasn't supposed to go near him. He did.
[COUNSEL]: Yes.
HIS HONOUR: So there he is.
[COUNSEL]: Yes sir.
HIS HONOUR: The idea that he has been beckoned in his [sic] nonsense. The idea that he's expecting me to believe that is, well, it's just fanciful. But I can't sentence him on the basis that he has assaulted the chap when he was in there. I mean, physical altercation encompasses all types of different physical altercations. Not all of them are technically assaults.[17]
[17] Transcript of Proceedings 16 May 2022, 4 - 5.
If an offender seeks to have the sentencing tribunal take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the tribunal's attention and, if necessary, call evidence about it. It will only be necessary to do so if the asserted matter is controverted by the other party or the sentencing tribunal is not prepared to act on the assertion, even though it is not controverted by the other party.[18]
[18] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25].
It necessarily follows that the sentencing judge or magistrate is obliged to give notice to the offender if they are not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution. This enables the offender to adduce evidence to establish the mitigating circumstance.[19]
[19] LAW v The State of Western Australia [2009] WASCA 193 [32].
An offender is required to prove a mitigating factor on the balance of probabilities.[20]
[20] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27].
The magistrate clearly placed the appellant on notice that he was not going to proceed on the basis of counsel's submissions from the bar table. The appellant's counsel did not seek a trial of issues.[21] While the magistrate's remarks did not encourage further debate, the appellant's counsel is an experienced advocate and he was well able to seek to establish the fact in issue had that been the desired course.
[21] Transcript of Proceedings 16 May 2022, 5.
The appellant has not sought to adduce any additional evidence relating to this issue on the appeal.
In my view, the magistrate was not obliged to conduct a trial of the issues in the circumstances and was entitled to proceed on the basis that the mitigating fact had not been sufficiently established.
If a sentencing judge or magistrate is not persuaded of the existence of a particular fact, the absence of that fact does not prove the converse. That fact simply does not exist for the purposes of sentencing.[22]
[22] LAW v The State of Western Australia [2009] WASCA 193 [34].
In this case, having failed to accept the mitigating fact as asserted by the appellant, the magistrate did not take any alternative proposition into account in determining the seriousness of the offence. Accordingly, the submission that the magistrate took a disputed fact into account cannot be sustained.

Ground 2

This ground asserts that the magistrate erred by not applying the appropriate test upon which a spent conviction order can be made.
The appellant submitted that the magistrate failed to consider whether the preconditions set out in s 45 of the Sentencing Act were made out, and that the magistrate considered the circumstances of the commission of the offence but failed to give proper consideration to the personal circumstances of the appellant.
The respondent submitted that the appellant has not identified any error on the part of the magistrate in dealing with the preconditions of s 45 of the Sentencing Act and the appellant's complaint is in fact that the magistrate failed to give sufficient weight to the appellant's personal circumstances in exercising the discretion not to grant a spent conviction order.
Given the volume and pace of the workload of a magistrate, an appeal court should not be overly critical of the reasons given by a magistrate, or to infer from infelicity of language that error is thereby demonstrated.[23]
[23] Gardner v Caporn [2005] WASCA 153 [59]; See also Rundle v Innerd [2015] WASC 340 [117].
Further, 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:
In the absence of credible evidence to the contrary, it is to be assumed that the decision maker has complied with all relevant duties and taken all relevant matters into account.[24]
[24] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].
It is plain from the magistrate's statement that the appellant needed to be able to show how a recording of the conviction would have a consequence disproportionate to the gravity of the wrongdoing that he refused to grant the spent conviction order on the basis that it was inappropriate to exercise the discretion to do so.
The discretion to grant a spent conviction order may only be exercised if the preconditions in s 45 of the Sentencing Act have been established. Accordingly, while the magistrate made no express findings in this regard, that does not mean he had not found the necessary preconditions had been established before considering the exercise of the discretion.

His Honour clearly did not regard the offence as trivial, and he appears to have considered the matter in light of the appellant's previous good character, to which he had referred earlier in the hearing.[25]
[25] Transcript of Proceedings 16 May 2022, 6.
A failure to give adequate weight to a relevant sentencing consideration only gives rise to an (express) appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court.[26]
[26] Vagh v The State of Western Australia [2007] WASCA 17 [76].
I am not satisfied that the magistrate erred in the test to be applied in this case.
However, even if he did err, his Honour would not have exercised the discretion to make the order in any event and accordingly, I am not satisfied that it had any material impact on his Honour's decision. There is therefore no substantial miscarriage of justice.

Ground 3

The appellant submitted that the additional evidence demonstrates that a miscarriage of justice has occurred in the exercise of the magistrate's discretion, in that the impact of the conviction on the appellant's current employment and his continued good character, and the interests of the community mean that a spent conviction order should have been granted.
The respondent submitted that the offence of breaching an FVRO is an inherently serious one, and this case was a serious instance of such offending. General deterrence should be given great weight in cases relating to the breach of court orders. Further, the additional evidence does not demonstrate any particular impact on the appellant's employment or that the recording of the conviction will lead to exceptional hardship, and no miscarriage of justice has been established.
In determining this ground, it is not necessary to find an error on the part of the magistrate in refusing to make the spent conviction order; the question is whether the failure to make the order has occasioned a miscarriage of justice.[27] 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 the discretion in a different manner to that.[28]
[27] JAD v McRae [2022] WASC 220 [71].
[28] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
It is not in dispute that it was open to the magistrate to find that the preconditions of s 45 of the Sentencing Act were satisfied; that is that the appellant was unlikely to commit such an offence again, and that the appellant was of previous good character. I will proceed on that basis.
In JAD v McRae, Derrick J outlined the propositions to which regard is to be had when exercising the discretion whether to make a spent conviction order as follows:
1.The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;
2.In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;
3.The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future;
4.The court should look to see if 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 set aside;
5.The exercise of the discretion involves the consideration of the interest of the offender and the public interest;
6.One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect; and
7.Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the offender's reliability or suitability for a particular type of work.[29]
[29] JAD v McRae [2022] WASC 220 [70].
The potential adverse effect of the conviction should be identified, rather than merely speculated upon.[30]
[30] Hussaini v Szolnoski [2013] WASC 64 [45].
At the sentencing, the evidence placed before the magistrate as to the potential impact of the conviction on the appellant's employment prospects failed to establish that it was the conviction for breaching the FVRO which was the impediment in any of the instances he cited.
The appellant has now placed additional evidence before the court, regarding the establishment of the Doer Group. It is evidence which was not available at the time of the sentencing, as the Doer Group was not established until 26 July 2022, more than two months after the appellant's sentencing.
The appellant suggests that, if a spent conviction order is not made, one potential source of funding for the Doer Group would be cut off due to his role as a director of the organisation. However, a close examination of the clause in question[31] and the legislation referred to therein[32] reveals that if the appellant was not sentenced to imprisonment, his conviction is already regarded as 'spent' for the purposes of the clause. Even if that were not the case, a spent conviction order made by this court would not assist to prevent the application of the clause to the appellant.
[31] Annexure ACR5, clause 13.1.
[32] Crimes Act 1914 (Cth) pt VIIC s 85ZM.
As the respondent points out, were this not the case, the appellant would have been able to seek the prior written consent of the Department to relieve him of the consequences of the conviction.
On the basis of the evidence available to me, I am unable to accept the appellant's submission that his ability to raise funds for the Doer Group is in any way impeded by the recording of the conviction.
The appellant also submits that his ability to engage in bar management is impeded, and this is a relevant consideration. However, he has produced no evidence other than his assertion that that is the case, and there is no evidence that the particular conviction in this case would have any impact on the ability of the appellant to undertake such employment. Further, and in any event, he has given no indication that he intends to return to such employment.
The appellant is of prior good character, and it is in the public interest that he be able to carry on employment and be a productive member of the community. His aims in assisting vulnerable juvenile people and Aboriginal people are admirable.
However, as his Honour found, the circumstances of the offence were objectively serious. Within nine hours of having been served with a FVRO, the appellant went to the protected person's address, at least engaged in a verbal altercation with him, and then told him not to report the matter to police and threatened him. That order was a final order and there had been a full hearing in respect of it. The conduct of the appellant can only be described as a wilful and brazen violation of a protective court order in relation to a person with whom the appellant was in a family relationship.
It is essential in cases of protective court orders that those on whom they are imposed are deterred from breaching them not only by the immediate criminal sanction such a breach would attract, but also by the knowledge that they will not easily be relieved of the longer-term consequences of doing so.
In circumstances in which the appellant's employment involves interaction with, and provision of services to, disadvantaged and vulnerable members of remote and regional communities, it is of particular importance that employers be able to obtain information as to the appellant's criminal history if they consider it necessary to do so.
In my view, the appellant has not established that the circumstances favouring the making of a spent conviction order are sufficiently strong that the failure to have made that order is a miscarriage of justice.
The orders I will make are as follows:
(1)     Leave for an extension of time is granted.
(2)     Leave to appeal is refused on grounds 1 and 2.
(3)     Leave to appeal is granted on ground 3.
(4)     The appeal is dismissed.
(5)     I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
19 DECEMBER 2022