Rule v Trudgill - [2015] WASC 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: RULE -v- TRUDGILL [2015] WASC 196

CORAM: ALLANSON J

HEARD: 21 MAY 2015

DELIVERED : 21 MAY 2015

FILE NO/S: SJA 1101 of 2014

BETWEEN: JASON PAUL RULE
Appellant
AND
STUART DAVID TRUDGILL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :FR 11558 of 2014

Catchwords:

Criminal law - Appeal against sentence - Whether failure to grant spent conviction order was a miscarriage of justice - Effect of conviction on employment - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(5), s 40(1)(e)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Sentencing Act 1995 (WA), s 9AA, s 39, s 45, s 45(1)(a), s 45(1)(b)
Spent Convictions Act 1988 (WA), s 27

Result:

Leave to appeal granted on ground 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Ms Y A Mah
Respondent: Ms G N Beggs

Solicitors:

Appellant: Go To Court Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Brewer v Bayens [2002] WASCA 271
Hull v Castledine [2005] WASC 252
Hussaini v Szolnoski [2013] WASC 64
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Malhi v Richards‑Scully [2014] WASC 410
McKenzie v Daly [2008] WASC 284
R v Tognini [2000] WASCA 31
Waldock v Taylor [2003] WASCA 43
Wright v McMurchy [2012] WASCA 257
ALLANSON J:
(These reasons were delivered extemporaneously and have been edited from the transcript)

The appellant pleaded guilty to an offence of assault occasioning bodily harm. He was fined. The sole issue on this appeal is whether he should have been granted a spent conviction order under s 39 and s 45 of the Sentencing Act 1995 (WA).
On 6 September 2014, the appellant and others were celebrating a buck's night for a mutual friend at a hotel bar in Fremantle. The appellant assaulted one of the other guests without provocation by twice punching him to the cheek. When arrested, the appellant told the police that he could not remember anything and his apparent explanation is that he was grossly intoxicated.
The appellant pleaded guilty before a magistrate at the first opportunity and a plea in mitigation was made on his behalf. His counsel told the court that over the course of the night the appellant had drunk beer, wine and vodka, and his last recollection of the night was arriving at the hotel where the assault occurred. The appellant next recalls being told by his partner that he had punched someone.
The appellant was previously in the army as a decorated infantry soldier. He currently works as a paramedic and is also a registered nurse. Counsel submitted to the magistrate that the appellant had been exposed to terrible situations which had left him with various mental health issues. He had been diagnosed with post‑traumatic stress order, anxiety and depression and had been seeing a general practitioner and a clinical psychologist on a regular basis.
At the time of the offence the appellant had been experiencing stress, anxiety and psychotic episodes which, coupled with the alcohol he had consumed, severely affected his judgment. It was submitted on behalf of the appellant that his conduct was completely out of character and he was ashamed of what he had done. Character references were presented as to his good character. Counsel referred to a letter from his psychologist but for some reason it was unreadable and counsel advised the court that it would not be handed up. It has still not been put before the court.
The appellant is 36. He has a partner and a 1‑year‑old son. He has a minor traffic record but no previous offences of this character. Counsel told the magistrate that the appellant had taken steps to ensure that his conduct did not happen again. He is maintaining sobriety, considering psychiatric therapy and anger management therapy, together with the treatment he was already receiving. There were several character references put forward on behalf of the appellant and they, undoubtedly, establish that he is someone of good character.
In relation to penalty, counsel submitted that the matter should be dealt with by way of a fine, and to that the magistrate agreed. Counsel also specifically asked for a spent conviction order based upon the following factors: that the appellant was unlikely to commit such an offence again; his previous good character; the matter was not trivial but no lasting injuries had been caused; and a criminal conviction may affect the appellant's future employability and his registration as a nurse.
No further information was provided for the sentencing court regarding the effect of the conviction on present or future employment. That information was not initially provided on this appeal either, and the matter was adjourned to enable the appellant to put before the court the information upon which he wished to rely.
The magistrate gave sentencing remarks in imposing a fine and in declining to make a spent conviction order. He said:
Unfortunately, you have to multiply yourself by literally hundreds every week. The degree of violence within the community, particularly within the social areas, is unnerving. And every week, just about, you read about someone who has been hit ‑ might only have been hit once ‑ and they go down. And you're not talking about an assault; you're talking of manslaughter, in the old terms.
I could have all the sympathy for you in the world, given the issues you have, but for the fact that you go out and get yourself smashed. There's no ‑ that's the cause. The other things may well be triggers for you going out and getting yourself smashed. But what caused you to behave like that was you drinking vodkas and beers and everything else to the extent ‑ nobody else poured it down your throat. You said to yourself, 'I'm going to get myself smashed'. Then somebody else cops a whack.
It's not the test, Mr Rule, but you could imagine you're on the receiving end. You're out there just having a good night and somebody whacks you in the head, knocks you off your seat. And you read ‑ get told that the guy got a spent conviction. You wouldn't be happy. And that's ‑ generally, the community view is, for this sort of behaviour, certainly, the issue of spent convictions should be a rarity (transcript, WA Police v Rule, Magistrates Court of WA, 5 December 2014, 5).
His Honour then referred to the authority of Wright v McMurchy [2012] WASCA 257, quoting from the reasons of Pullin JA [59], where his Honour said:
However, just because a court considers that an offender is unlikely to commit such an offence again and considers that the offender has previous good character, does not mean that it follows that the court is obliged to make a spent conviction order. In other words, s 45 does not require the making of an order once the matters referred to in s 45(1)(a) and (b) have been established. The decision remains one at the discretion of the court and which should be exercised sparingly. Consideration must be given to all the circumstances of the case, of the offender and of the public interest.
After quoting from Wright v McMurchy the sentencing magistrate continued:
Well, in this case, the need for deterrence to you and to others ‑ and deterrence comes in the form of having the stigma of a conviction ‑ is overwhelming. As I said, if you just went out at night ‑ you might have just had a couple of beers but you ‑ whatever reason, something triggered you and you behaved badly, then I can say, well, I could take that into account. But when you go out, get yourself tanked and then you whack somebody, in my view, those considerations fall into insignificance, comparatively.
In my view ‑ I've noted all the reports, but, in my view, it's a case where the seriousness of the behaviour ‑ the need for personal and general deterrence outweighs all of the factors. I'm not prepared to grant a spent conviction. I'm afraid you're going to have to live with the consequences of your behaviour (transcript, WA Police v Rule, Magistrates Court of WA, 5 December 2014, 5 ‑ 6).
Section 45 of the Sentencing Act deals with the making of a spent conviction order. The effect of an order is found in the Spent Convictions Act 1988 (WA). In particular, by s 18, it is unlawful for an employer to discriminate against a person on the ground of a spent conviction, including by dismissing the employee or subjecting him or her to any other detriment.
The principles relating to the decision whether to grant a spent conviction order were summarised by Beech J in Malhi v Richards‑Scully [2014] WASC 410 at [29] ‑ [32]. His Honour said:
[29]Among others, the following propositions emerge 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 a clear case; and
(c)in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstance of its commission and the circumstances personal to the offender.
[30]In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender, but also to the public interest.
[31]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.
[32]Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as it may be relevant to assessing the person's reliability or suitability for a particular type of work.
His Honour refers to many authorities for those propositions. I would only add that another aspect of the public interest may coincide with the interests of the offender, where relieving him or her from the consequences of a conviction would positively aid the offender's rehabilitation, and in that sense would also be in the best interests of the community: see R v Tognini [2000] WASCA 31 [27] ‑ [28] and Waldock v Taylor [2003] WASCA 43.
I am concerned not solely with the principles for the grant of a spent conviction order, but the proper way in which to approach a decision to grant or not grant an order on appeal. The decision whether to make a spent conviction order is discretionary. An appellate court may not substitute its own opinion for that of a sentencing court merely because the appellate court have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
The question on appeal is whether the failure of the magistrate to make a spent conviction order involves a material error of fact or of law. Such error may be revealed by the reasons of the sentencing court, or an error may be implied from the failure to make a spent conviction order in circumstances which required that the magistrate make such an order: Hull v Castledine [2005] WASC 252 [10] and McKenzie v Daly [2008] WASC 284 [23].
As a general proposition, a party who seeks the exercise of a discretion in his or her favour should put before the court the material upon which that party relies to justify the result. The appellant relies to a significant degree on the potential effect of a conviction on his employment. Although the material was not before the magistrate, I adjourned the appeal to enable the appellant to adduce evidence about that factor and, before considering the issues which arise from the grounds, I will summarise the effect of that material.
First, the appellant says that the conviction may lead to formal investigation and serious disciplinary action by his employer. Under his employer's misconduct management policy, serious misconduct which might lead to disciplinary action includes any criminal conviction which impacts on an employee carrying out his duties.
Indirectly, the appellant's employment may be affected by any finding made by the health practitioners' regulation authority relevant to him, the Nursing and Midwifery Board of Australia (the Board), because the appellant says he is required to maintain his registration with that body in order to maintain his present employment.
The effect of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) is that legislation relating to spent convictions does not apply to the requirement to disclose or report a criminal conviction for the purposes of that Act; that is, even if a spent conviction order were made, the appellant would be required to disclose that conviction to the Board. In his affidavit filed in support of the appeal, the appellant reveals that he has done so.
The affidavit also contains some detail about the policy which is applied by the Board in considering a disclosure, and I will deal with that in slightly more detail later on. For the moment I note that the Board's policy provides that a spent conviction order may be relevant to the implementation of that policy, and may be relevant to any decision that the Board makes.
The appellant also relies on his mental health, but did not adduce any evidence before the magistrate or before this court on appeal about the effect of those mental health issues, either generally, or specifically as a cause of the offence or perhaps as a cause of his excessive drinking.
Similarly, one of the grounds of appeal the appellant relies on is the magistrate's failure to have regard to the potential rehabilitative effect of a spent conviction order on the offender, and the way in which that may be in the public interest. But the contention is not supported by pointing to any material before either the sentencing court or before this court upon which the magistrate could act in making a finding that a spent conviction order would be relevant to the public interest by being relevant to the rehabilitation of the appellant.
There is some uncertainty regarding the grounds of appeal. The ground set out in the appellant's written submission, a single ground with three particulars, does not correspond to the three grounds in the notice of appeal. And the appellant applied and was permitted to add a fourth ground. But the issues which are raised in the various formulations can be identified and are roughly consistent across the various formulations. Counsel for the appellant agreed that the following six issues arise, and counsel for the respondent made no objection to the court considering all of them, despite the confusion in the grounds as they had been put forward.
The appellant alleges in the notice of appeal the following. First, that the magistrate erred in the exercise of the discretion under s 45, given the appellant's character; that he was unlikely to reoffend; his early plea; the circumstances of the offence; the likely adverse effect of a conviction; and his remorse. Second, the magistrate placed too much emphasis on the seriousness of the offence. Third, there would be a miscarriage of justice if the spent conviction were not granted. Fourth, the magistrate erred in law in deciding purely by reason of the nature of the offence and without having proper regard to s 45. That is not quite how that ground was argued.
Fifth, in the sole ground set out in the submissions, the appellant alleges that the magistrate failed to make the findings required by s 45(1)(a) and (b), and, sixth, that the magistrate failed to address the public interest in the rehabilitative effect of the immediate removal of the conviction.
I will deal with those issues in order. Issue 1 relies, in essence, on the contention that in all of the circumstances no other option was properly open other than to make a spent conviction order. That is, although no express error is identified, error may be implied from the failure of the magistrate to make an order. But there is no doubt that the appellant was of good character at the time of the conviction. On the evidence of his previous record, or lack of it, his Honour may properly have considered that the appellant is unlikely to commit such an offence again. In my opinion, it may be inferred that his Honour did make that finding, as he proceeded on the basis of discretionary considerations rather than finding the conditions for the making of a spent conviction order did not exist.
The two factors which might have exercised the greatest influence upon his Honour were the effect of the appellant's psychological health, and the effect of a conviction on his employment. The material that was put before the court, and on which it could act, was limited. There was nothing presented addressing the appellant's health problems, other than the recitation by counsel in the plea in mitigation that he suffered from post‑traumatic stress disorder, depression and anxiety and was receiving treatment.
There was a character reference ‑ or there is before me now ‑ from his general practitioner, but it does not add anything to the information regarding the effect of the appellant's health problems. There was, as I have earlier mentioned, reference to a letter from the psychologist which, for whatever reason, was unreadable and was not presented and has still not been presented to the court. Whether the appellant's health problems were a direct cause of his offending behaviour, or an indirect cause by leading to his excessive drinking on the night, there was simply nothing upon which the magistrate could act.
There was a submission that a conviction, given the appellant's line of work, may affect his future employability and registration, but nothing more. The factors to which his Honour referred as influencing his decision: the voluntary intoxication; the problem of violence in public entertainment precincts; the perceived community view of the nature and seriousness of the offence; and the need for general and personal deterrence, including by the stigma of a conviction ‑ were all relevant to the decision that he was to make.
The weight to be given to specific factors, including the seriousness of the offence and the need for deterrence, were matters for the sentencing court. There was so little put forward to support the submissions that were made regarding the countervailing factors. I am not satisfied it has been shown that it was not open to the magistrate to not make an order; ground 1 on the notice of appeal has not been established.
Ground 2 and issue 2 centres on the allegation that the magistrate placed too much emphasis on the seriousness of the offence. That ground must also fail. The magistrate clearly regarded the offence as serious, but he did not fail to consider whether a spent conviction order was available under s 45 because of his view of the seriousness of the offence. Rather, he regarded the seriousness and the circumstances of the offence, and the consequent need for deterrence, as outweighing the factors in favour of an order.
On the authorities, the factor of deterrence, including deterrence arising from the existence of a record, is clearly relevant: Brewer v Bayens [2002] WASCA 271. His Honour was entitled to have regard to it and, once he was entitled to have regard to it, the weight that he gave to it, providing that he acted reasonably, was entirely for the sentencing court.
Issue 3 arises under s 14(5) of the Criminal Appeals Act 2004 (WA):
On an appeal against sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.
It may also, in a proper case, admit other evidence under s 40(1)(e) of the Criminal Appeals Act.

Issue 3 and ground 3 raise generally the question of a miscarriage of justice. I have considered it from both aspects. An appellant may be able to establish a miscarriage of justice even where, on the evidence before the sentencing court, the decision to refuse to make a spent conviction order was open if, on the material before the appellate court, the court is satisfied that there would be a miscarriage of justice in failing to make a spent conviction order. There are many authorities where that has occurred, particularly in circumstances where spent conviction orders have not been considered or asked for on very trivial offences, sometimes in circumstances where the appellant did not even attend before the court.
But in this matter, the only additional material before me on appeal adds little to what was before the magistrate. The important material on appeal was about the operation of the National Law and the appellant's employer's disciplinary policy. The material regarding the disciplinary policy, although I am quite satisfied that the appellant has put before me everything that was available to him and relevant, does not really advance the matter to any great extent.
Under c1 10.3 of the employment agreement, the appellant's employment may be terminated by his employer without notice if the appellant is guilty of serious misconduct. The appellant's employer's misconduct management policy states its purpose as a policy which will be used by the employer 'to handle issues relating to misconduct'. It is a policy which, on its face, provides a measure of natural justice to an employee, in that it provides for an allegation to be made, and a procedure by which that allegation is to be addressed by the employer.
'Serious misconduct' is defined as:
Conduct of such a serious nature that it needs to be formally investigated and may lead to serious disciplinary action, including immediate termination of employment. Examples include, but are not limited to:
•any criminal conviction which impacts an Employee carrying out their duties;
…
•threats of violence, or acts of violence including physically threatening behaviour, or intimidation.
The other examples seem largely to be concerned with conduct at work, rather than conduct which might occur outside the workplace. In my view, the appellant has established that his employer may have regard to his conviction. If the employer regards it as a conviction which impacts his employment, the employer may regard it as serious misconduct.
The other material that has been put before me is from the Board, which has a criminal history registration standard. As I have already said, the National Law provides that a person's criminal history includes a conviction even when a spent conviction order has been granted.
It still remains relevant, as counsel for the respondent brought to my attention, whether a spent conviction has or has not been granted. Within the criminal history registration standard there is a section headed 'Summary' which states that:
In deciding whether a health practitioner's criminal history is relevant to the practise of their profession, the Board will consider the 10 factors set out in this standard. While every case will need to be decided on an individual basis, these 10 factors provide the basis for the Board's consideration.
Those 10 factors appear under the heading 'Requirements'. In deciding whether a health practitioner's criminal history is relevant to the practise of their profession, the Board will consider the following factors, relevantly:
1.The nature and gravity of the offence or alleged offence and its relevance to health practice.
The more serious the offence or alleged offence and the greater its relevance to health practice, the more weight that the board will assign to it.
…
3.Whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending.
In considering the relevance of the criminal history information, the Board is to have regard to the type of criminal history information provided. The following types of criminal history information are to be considered, in descending order of relevance:
(a)convictions;
(b)findings of guilt;
(c)pending charges;
(d)nonconviction charges: that is, charges that have been resolved otherwise than by a conviction or finding of guilt, taking into account the availability and source of contextual information that may explain why a nonconviction charge did not result in a conviction or finding of guilt.
4.The sentence imposed for the offence.
The weight the Board will place on the sentence will generally increase as the significance of the sentence increases, including any custodial period imposed. The Board will also consider any mitigating factors raised in sentencing, where available, including rehabilitation.
I am satisfied that material is clearly relevant. I am not satisfied, however, that that material shows that there is any miscarriage arising from the fact that perhaps the employer, and certainly the Board, will consider this as a matter in which a conviction was recorded.
What either of those entities makes of the conviction, and the circumstances which led to it, is really a matter for the judgment of the Board or the employer. There are some circumstances where the fact of a conviction and the circumstances of a conviction may well be regarded as a relevant factor. In those circumstances it is, in my view, appropriate to have regard to the fact that, by law, a spent conviction is still to be regarded as part of the criminal history of the appellant by the Board.
Sometimes it is speculation as to whether or not a conviction will affect a person's employability and whether it is, in a real sense, relevant to the nature of the employment they carry out. But that question does not truly arise in this case. By law the appellant is required to notify the Board of the conviction and it is, notwithstanding a spent conviction, something which is reportable as part of his criminal history.
In those circumstances I simply cannot see, having regard to the new material that has been put before me, that the existence of a conviction and the absence of a spent conviction order could lead to a miscarriage. To the contrary, I regard this as one of those circumstances where the existence of a conviction is something which might properly be considered by the Board, bearing in mind, of course, as I have said, that the Board's own policy is that it will take into account the contextual information regarding a conviction, and that it will decide every case on an individual basis. The 10 factors referred to simply provide the basis for the Board's consideration.
I can see no miscarriage in the Board, now, having regard to this matter as something that resulted in a conviction.
The alternative basis upon which the appellant could establish a miscarriage of justice is if there was a miscarriage before the magistrate. In all the circumstances, to establish that, the appellant would need to establish that no other option was properly open to the magistrate than to make a spent conviction order: Hussaini v Szolnoski [2013] WASC 64. For the reasons that I gave in relation to ground 1, the appellant has not established a miscarriage.
The fourth issue arises from the allegation that the magistrate had no proper regard to s 45 of the Sentencing Act, and it cannot be sustained. While his Honour's reasons were relatively brief, he expressly directed himself to the discretion that he was exercising in his reference to Wright v McMurchy.
There was a further argument put on appeal that the magistrate erred in the way in which he characterised the offence, and in particular in the manner in which he characterised the seriousness of the offence, because of the comments made by his Honour, which I have already referred to, that it was violence within the community, particularly within social areas, and his reference to somebody being hit. Counsel argued that showed an error with regard to characterising the seriousness of the offence, because his Honour failed to have regard to the fact that it was not an offence between strangers, but an offence that was committed by one member of a group against another member of the same social group.
But, with respect, I cannot see that the magistrate erred in his characterisation. It may be, as counsel has submitted, that an attack on a stranger may have follow on consequences, in that it may lead to an escalation of violence as others, such as the friends of each party, become involved. But that is not what his Honour was talking about. I do not read his remarks as based on characterising the conduct in that way. He referred quite simply to 'violent, alcohol fuelled conduct in a public area' and, frankly, that is what it was.
Issue 5 arises in this way. It is true that the magistrate did not expressly find all of the matters set out in s 45(1)(a) and (b) of the Sentencing Act, although his Honour did find the offence was serious, that is, that it was not trivial, and that was conceded in the plea in mitigation. In my opinion, it may be inferred from his reasons, and in particular from the passage he quoted from Wright v McMurchy, that his Honour regarded the appellant as of good character and unlikely to commit such an offence again.
Had the magistrate not made those findings, the discretion to make a spent conviction order did not arise. There is no doubt that his Honour regarded the question before him as one calling for the exercise of a discretion, and that, in itself, leads to the inference that he found the conditions precedent to the exercise of that discretion to have been satisfied. I am not satisfied that issue 5 has been established.
The last of the issues is the allegation that his Honour failed to have regard to the rehabilitative effect of a spent conviction order in the exercise of his discretion. It is true that his Honour said nothing about it in his short reasons, but looking at the submissions that were made and the material that was put before the sentencing court, there was simply nothing before him to enliven that as a consideration. I cannot, in the circumstances, find an error in the failure of the sentencing magistrate to refer to that factor, when it is not something which had been raised, either in the material or in the submissions before him.
And I go back to the comment that I made earlier in these reasons that, as for any exercise of judicial discretion, it is incumbent upon the party who seeks to have a discretion exercised in his or her favour to put before the relevant judicial officer the factual or other material upon which that party relies. If that is not done there is simply not the relevant material upon which a favourable exercise of discretion may be based.
Leave has been referred to the hearing of the appeal. In the circumstances it is difficult to attribute leave to any particular ground because of the confusion regarding the grounds. The issue on which leave would properly be granted is the issue relating to the material from the Board which seems to arise most clearly in ground 3 in the amended grounds of appeal. That is:
Further or in the alternate, there would be a miscarriage of justice in the circumstances if a spent conviction order was not granted.
I would grant leave with respect to ground 3. None of the other grounds, in my view, are suitable for the grant of leave. I would refuse leave for each of them and dismiss the appeal.