Scott v McGILLIVRAY
[2013] WASC 341
•9 SEPTEMBER 2013
SCOTT -v- McGILLIVRAY [2013] WASC 341
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 341 | |
| 09/09/2013 | |||
| Case No: | SJA:1051/2013 | 6 SEPTEMBER 2013 | |
| Coram: | BEECH J | 6/09/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| D | |||
| PDF Version |
| Parties: | SARAH ELIZABETH SCOTT GAVIN McGILLIVRAY |
Catchwords: | Criminal law and sentencing Application for spent conviction Application refused Whether any ground to interfere with exercise of discretion Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 45 |
Case References: | Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Taylor v McLernon [2009] WASC 211 The State of Western Australia v Gibbs [2009] WASCA 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GAVIN McGILLIVRAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G W BAYLY
File No : JO 11795 of 2012
Catchwords:
Criminal law and sentencing - Application for spent conviction - Application refused - Whether any ground to interfere with exercise of discretion - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 45
Result:
Application for extension of time dismissed
Category: D
Representation:
Counsel:
Appellant : Ms N Sinton
Respondent : Mr C S Bydder
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Taylor v McLernon [2009] WASC 211
The State of Western Australia v Gibbs [2009] WASCA 7
- BEECH J:
Introduction
1 The appellant was convicted, on her plea of guilty, of carrying a knife with the intention of using it to cause a person to fear that someone would be injured or disabled by its use. The appellant sought a spent conviction order. The learned magistrate declined to make a spent conviction order.
2 The appellant appealed against the refusal to grant a spent conviction order and seeks an extension of time to appeal. At the hearing of the appeal, I refused the extension of time, giving oral reasons and saying fuller written reasons would be published later. These are my reasons for finding that the appellant did not establish a ground to interfere with the magistrate's discretionary decision not to make a spent conviction order.
The charge
3 The appellant was charged that, on 5 September 2012, she carried an article, namely a knife, with the intention of using it to cause a person to fear that someone would be injured or disabled by its use, contrary to s 8(1)(b) of the Weapons Act 1999 (WA). The maximum penalty for the offence at that time was 2 years' imprisonment and a fine of $24,000.
Statement of facts and submissions before the magistrate
4 The prosecution stated the facts of the offending behaviour, in summary, as follows:
(a) the appellant was driving her car on Ocean Reef Road in Edgewater;
(b) the appellant was driving in front of the victim who was driving in the same direction on Ocean Reef Road;
(c) while driving in front of the victim, the appellant made hand gestures at the victim;
(d) the appellant braked sharply, causing the victim to also brake sharply;
(e) the victim stopped at traffic lights at the intersection of Ocean Reef Road and Wanneroo Road;
(f) the appellant pulled up next to the victim's vehicle, on the left, and shouted at the victim, accusing him of tailgating her, which the victim denied;
(g) the appellant got out of her car and approached the driver's side of the victim's vehicle. She abused the victim and produced a yellow-handled knife which had a blade of about 7 cm; and
(h) a few seconds later, the appellant went back to her car, the lights turned green and the victim drove away.1
5 Counsel for the appellant said that the facts were 'largely accepted'.2
6 Counsel said there was a difference as to the facts leading up to the offence, including as to who made hand gestures, and the exchanges before that. I do not consider that difference to be material to the proper disposition of the matter.
7 Counsel for the appellant said that when the cars pulled up at the lights, there was an exchange of words and then the appellant got out of the car because she wanted the other occupants to apologise to her. She accepts that she abused them, although not in the terms that had been stated by the prosecution. She said that she had a knife in her hand 'which she accepts that she had for protection because of the conduct of the males of the other vehicle. So she was fearful for her safety...'.3
8 At this point the magistrate intervened, stating that it did not make sense that a person who was fearful for her safety would have got out of the car at the lights and gone over and tackled the people in the other car.4
9 Counsel emphasised that the knife did not belong to her, but to her boyfriend, and just happened to be in the car. Thus, the offence was not premeditated.5
10 Counsel submitted that the letters from the appellant's treating psychiatrist might provide an insight into why she behaved in that way.
11 The magistrate observed that the explanation could be her bipolar condition, referred to in the report. His Honour also said that another interpretation was that she was just angry with them and had trouble controlling her temper, saying that that was also referred to in the treating psychiatrist's report.6
12 The court had before it two letters from the appellant's treating psychiatrist. The letters:
(a) disclosed that the appellant had been a patient for treatment of depression and mood swings since 2010 and that she had made substantial progress in controlling her moods;
(b) stated that the appellant suffers from a bipolar mood disorder which makes her prone to mood swings and impulsive emotional outbursts, especially when provoked, and that the incident was triggered by provocation; and
(c) stated that the appellant has matured greatly in her handling of social interactions over the preceding three years of treatment.
13 I would interpolate that there is nothing in the psychiatrist's letters to support the contention that the appellant got out of the car because she was intimidated. Rather, the psychiatrist's letters support what would anyway be the inference based on ordinary experience from the known facts. The appellant overreacted and lost control, in response to the interactions she had had with the occupants of the other car.
14 Moreover, it should not be overlooked that, by her plea, the appellant admitted that she wielded the knife with the intention of causing one or more of the occupants of the other car to fear that someone would be injured or disabled by its use.
15 Counsel applied for a spent conviction order. Counsel submitted as follows:
(a) rehabilitation is an extremely important aspect of s 45 of the Sentencing Act 1995 (WA);
(b) the appellant has obstacles in front of her because of her medical condition which might affect her in the future and it would be appropriate to make a spent conviction order so she is not stuck with an additional obstacle;
(c) it can fairly be said that this was a one-off matter and she has not been in trouble with the court before, and otherwise her prospects are quite good;
(d) she is undergoing treatment; and
(e) counsel also referred to the two reports and a reference from the employer.7
16 The prosecutor opposed the application for a spent conviction order. The prosecutor submitted that:
(a) road rage incidents appear to be on the increase in the community;
(b) the potential for serious harm was significant given the knife being involved;
(c) there needs to be a clear message to the general community, as well as to the appellant, that this type of incident will not be tolerated; and
(d) there is no evidence that the appellant would suffer a detriment if she is not relieved of the burden of the conviction.8
The magistrate's reasons
17 The learned magistrate gave the following reasons in imposing sentence and in declining to make a spent conviction order:
Yes, stand up please, Ms Scott. The getting out of the car at the lights with a knife, in my view, is a very serious matter. The potential may be unintended by you but the potential for somebody to be stabbed with the knife in a public place is great.
You have pleaded guilty at the first opportunity.
But it also generally leads in society to a belief that the streets are not safe. People driving along, see somebody hop out of their car with a knife will think what's society doing? What are the courts doing about this?
And with justification they want to know that the courts are doing something about these sorts of incidents.
So I do take into account your early plea of guilty and the lack of record, but the fine needs to reflect the degree of seriousness; but taking into account what has been said on your behalf by your counsel who said everything that possibly could be said in relation to the matter and put your actions in the best light, but nevertheless it seems to me the appropriate penalty is a fine of a thousand dollars, costs of $125.70. There will be an order for destruction of the knife.
In respect to the spent conviction order application, it's certainly not a trivial matter. In my view, it is a most serious matter indeed and I think in order to - for the court to give a spent conviction in relation to this matter would indeed in my view not recognise the seriousness of the offence itself and the potential harm which can be caused by such an event. In my view it will be inappropriate, having regard to the circumstances, to grant a spent conviction order.9
Legal principles
18 Section 45(1) of the Sentencing Act provides as follows:
(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.
It is evident from the language of the section that the power to make a spent conviction order arises only if three conditions are satisfied. Firstly, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. See Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].
It is well established that once these preconditions to the exercise of the power are satisfied the court has a discretion, not a duty, to make (or not make) a spent conviction order: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [11], [16].
The proper exercise of the discretionary power to grant a spent conviction order has been authoritatively explained in decisions of the Court of Criminal Appeal and Full Court in this State.
In R v Tognini [24], [27] - [28] Murray J (Malcolm CJ & Wallwork J agreeing), said as follows:
'Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
…
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.'
These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State: see, for example, Brewer v Bayens [14] - [16]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [72].
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.
In the magistrate's sentencing remarks she referred to the following passages of the decision of Jenkins J in Robertson v Lawrence [2008] WASC 111 [48], [50]:
'The exercise of the discretion to make spent conviction orders requires the relevant judicial officer to consider the seriousness of the offences in the circumstances of their commission, and to consider the matters personal to the offender. It is also necessary for the judicial officer to decide whether there is anything special or exceptional about the particular case that would warrant the grant of spent conviction orders.
…
In my view I am bound by cases such as Brewer v Bayens and Tognini to find that there is something special or exceptional in a matter before making a spent conviction order. I am reinforced in this view by the approach of the Court of Appeal in Riggall [51], [63] and [79] in which it was implicitly assumed that the case had to be exceptional in order to justify the making of a spent conviction order.'
The appellant does not contend that there is any error in what was said by Jenkins J in these passages. As will be apparent, I agree with Jenkins J about the effect of the decisions of the appeal courts in this State.
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: Tognini [27] - [28]; Brewer v Bayens [16] - [18].
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: Brewer v Bayens [18].
Because the decision whether to make a spent conviction order is discretionary, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. The question on an appeal is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing court, or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order: Hull v Castledine [2005] WASC 252 [10]; McKenzie v Daly [2008] WASC 284 [23].
Ground of appeal
20 There was one ground of appeal. It is that the learned sentencing magistrate erred in refusing to grant the appellant a spent conviction, such refusal resulting in a miscarriage of justice.
21 The ground of appeal does not identify the character of the alleged error. On one reading, it alleges that the decision to refuse a spent conviction order reveals implied error in that the circumstances required the magistrate to make such an order. A finding of implied error is a conclusion that the sentence imposed was so unreasonable or unjust that some substantial error occurred, although it is not possible to discern what specifically the error was. Manifest excess is not established merely because, in sentencing the offender, the appellate court would have imposed a different sentence.
22 Questions of the weight to be attributed to particular circumstances are an integral part of the sentencing discretion. Failure to give sufficient weight to a relevant sentencing consideration, or the giving of excessive weight to a consideration, only gives rise to an express error if it amounts to a failure to exercise the discretion actually entrusted to the court.11
23 Counsel for the appellant did not assert implied error. In other words, counsel did not contend that the result - the refusal of a spent conviction order - in the circumstances of this case was so unreasonable and unjust that it revealed that an error had occurred, although it was not possible to discern specifically what the error was. In my respectful opinion, that was a concession properly made. In my view, the decision not to grant a spent conviction was, in the circumstances of the case, well and truly open on a proper exercise of discretion.
24 The appellant's written submissions did not identify the character of the error said to have been made by the magistrate. In oral submissions, counsel for the appellant alleged express error on the part of the magistrate. The appellant submitted that:
(a) the magistrate focused solely on characterising the seriousness of the appellant's offence: was it trivial or was it serious?;
(b) once the magistrate answered that question, by determining that the offence was serious, the magistrate concluded the inquiry; and
(c) the magistrate thereby failed to go on to consider other relevant questions namely whether the appellant was of good character, was unlikely to commit such an offence again and should be relieved immediately of the adverse effect that the conviction might have on her.
25 It can be said at once that if that were what the magistrate had done, it would reveal express error. However, I am not satisfied that that is the way the magistrate approached the question. To the contrary, reading his Honour's reasons as a whole, and in light of the exchanges during sentencing submissions, I take it that the learned magistrate moved, in effect, immediately to the final stage of determining whether in all the circumstances a spent conviction was appropriate.
26 A number of aspects of what occurred seem to me to support that view. In the course of his reasons, his Honour expressly referred to having taken into account everything that had been said by the appellant's counsel. His Honour expressed his conclusion in terms that the grant of a spent conviction order was 'inappropriate having regard to the circumstances'. The reference to the circumstances should be taken as a reference to the circumstances of the offence and of the appellant as the offender. The attention to the question of appropriateness plainly indicates that the magistrate did not approach the question in the way suggested by the appellant's submissions. If the magistrate had approached his task in the way suggested by the appellant, questions of appropriateness would never have arisen.
Conclusion
27 For these reasons, in my opinion, the appellant's proposed ground of appeal is without merit. If the question of leave to appeal arose, I would refuse leave on the basis that I do not consider the ground has reasonable prospects of success.
28 However, the question of leave does not arise. The appellant seeks an extension of time. Given the absence of merit in the appeal, I refused the extension.
29 For these reasons, I ordered that the extension of time be refused and the appellant pay the respondent's costs.
1 ts 27/02/2013, pages 2 - 3.
2 ts 27/02/2013, page 4.
3 ts 27/02/2013, page 4.
4 ts 27/02/2013, page 4.
5 ts 27/02/2013, pages 4 - 5.
6 ts 27/02/2013, pages 5 - 6.
7 ts 27/02/2013, page 7.
8 ts 27/02/2013, page 7.
9 ts 27/02/2013, pages 8 - 9.
10Taylor v McLernon [2009] WASC 211 [15] - [23].
11Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6]; The State of Western Australia v Gibbs [2009] WASCA 7 [52].
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