Smith v Baker - [2015] WASC 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SMITH -v- BAKER [2015] WASC 465

CORAM: PRITCHARD J

HEARD: 4 SEPTEMBER 2015 & 5 NOVEMBER 2015

DELIVERED : 5 NOVEMBER 2015

FILE NO/S: SJA 1046 of 2014

BETWEEN: WAYNE VINCENT SMITH
Appellant
AND
JEVON IAN BAKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B LANE
File No  :PE 64337 of 2014

Catchwords:

Application for leave to appeal against conviction - Whether any grounds of appeal have reasonable prospects of success - Where applicant entered plea of guilty - Whether plea entered under duress or undue influence - Whether applicant had defence of emergency - Whether Magistrate erred in refusing spent conviction order - Whether Magistrate imposed sentence twice

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14(1)(h)
Criminal Code (WA), s 25
Criminal Procedure Act 2004 (WA), s 51(5), s 68, s 129
Road Traffic Act 1974 (WA), s 64, s 71C, s 71D, s 71H
Sentencing Act 1995 (WA), s 45

Result:

Leave refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms B M Allen & Mr C M Beetham

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Cases referred to in judgment:

Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hull v Castledine [2005] WASC 252
Johnson v The State of Western Australia [2008] WASCA 71; (2009) 40 WAR 116
Lovell v Lovell (1950) 81 CLR 513
McGregor v The State of Western Australia [2011] WASCA 88
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
NLJ v Martin [2010] WASC 310
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rule v Trudgill [2015] WASC 196
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Vella v The State of Western Australia [2006] WASCA 129
Wilhelm v The State of Western Australia [2013] WASCA 188
Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80
Wilson v The State of Western Australia [2010] WASCA 82
PRITCHARD J:
(This judgment was delivered extemporaneously on 5 November 2015 and has been edited from the transcript).

In May 2014, Mr Smith was convicted of one charge of an offence under s 64(1) of the Road Traffic Act 1974 (WA) (RTA). The prosecution notice in respect of that charge alleged that, on 23 January 2014, Mr Smith drove a motor vehicle with a blood alcohol content exceeding 0.08 g of alcohol per 100 ml of blood. Mr Smith's blood alcohol content was calculated to be 0.95 g of alcohol per 100 ml of blood. He was convicted following a plea of guilty by him to the charge, which was made on his behalf by duty counsel on 23 May 2014.
The learned Magistrate sentenced Mr Smith to a fine in the amount of $550, together with costs, and disqualified him from holding or obtaining a driver's licence for 7 months, reduced by any period during which he was disqualified by a disqualification notice given to him under s 71C of the RTA in relation to the same offence. At the time of his sentencing, Mr Smith made an application for a spent conviction order which was refused by the learned Magistrate. Mr Smith now seeks leave to appeal against his conviction and sentence, as well as the decision by the learned Magistrate to refuse to grant a spent conviction order. The requirement for leave to appeal derives from s 9 of the Criminal Appeals Act 2004 (WA) (CA Act) which provides that the Court must not give leave unless it is satisfied that each ground of appeal has a reasonable prospect of succeeding.[1]
[1] See Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
For the reasons which follow, I am not persuaded that leave to appeal should be granted in respect of any of the grounds of appeal advanced by Mr Smith.

The facts

The charge in respect of which Mr Smith was convicted first came before the Magistrates Court on 28 February 2014. The matter was adjourned and came back before the Court on 23 May 2014. On that occasion, the Court had been advised prior to the hearing that Mr Smith wished to plead not guilty to the charge.
It would seem that a number of other matters were listed in the Court on that day and the learned Magistrate invited the various accused, including Mr Smith, to discuss their cases with the prosecutor, apparently for the purposes of determining which matters should proceed to trial before the learned Magistrate and which should be referred to other Magistrates.
It appears from the transcript of 23 May 2014 that Mr Smith then spoke to the prosecutor and, in due course, a duty counsel. As a result of those discussions duty counsel appeared on Mr Smith's behalf when his matter was again called on before the Court. The charge was put to Mr Smith and he indicated that he wished to plead guilty. Duty counsel then sought an adjournment of the sentencing process for the purpose of enabling Mr Smith to obtain some information in support of an application he wished to make for a spent conviction order.
After some discussion of whether an adjournment should be granted and the purpose for which that information was to be obtained, a suggestion was made by the prosecutor that the sentencing of Mr Smith should be partially completed on that day so that the mandatory period of disqualification from driving could commence on that day. (I refer below in more detail to what happened and what was said by the learned Magistrate after that suggestion was made).
After hearing a plea in mitigation from the duty counsel on Mr Smith's behalf, the learned Magistrate made reference to imposing a period of 7 months' disqualification on Mr Smith, reduced by any period during which he had been disqualified by a roadside disqualification notice which had been given to him pursuant to s 71C of the RTA. The Magistrate then adjourned the spent conviction order application for hearing on a later date.
The matter next came before the learned Magistrate on 29 May 2014 at which time Mr Smith made a submission in relation to his spent conviction order application. He submitted that a spent conviction order should be granted because a conviction for an offence of the kind in question would have an adverse impact on an application for a liquor licence that he wished to make. After hearing a submission from the prosecutor, the learned Magistrate concluded that she would not grant the spent conviction order. (I will refer to her Honour's reasons and the submissions made to her in more detail below).
After concluding her decision to refuse the spent conviction order, the learned Magistrate then said that she proposed to sentence Mr Smith in respect of the offence, to treat him as a first offender for the offence, and to give him the minimum fine and the minimum disqualification of 7 months. Her Honour also noted that she would take into account the roadside disqualification that he had received. It was not in dispute that that roadside disqualification was for a period of 2 months.
One other matter that had been mentioned before the learned Magistrate and which is a matter which has troubled Mr Smith in respect of these proceedings is that after the period of the roadside disqualification had expired in March 2014, he sought a renewal of his driver's licence (which by then had expired) and that the Department of Transport had refused to renew his driver's licence because of the suspension which had been applied in respect of it (but which had now expired). The concern raised by Mr Smith was that the effect of the refusal by the Department of Transport to renew his driver's licence was that he was, in effect, precluded from driving a motor vehicle for a further 2 months over and above the roadside disqualification period and the period of disqualification in respect of the offence imposed by the learned Magistrate.

The grounds of appeal

The grounds of appeal were set out in the Notice of Appeal filed on 10 June 2014. They are:
(1)The self-represented appellant pleaded guilty to an offence while denying an essential element of the particulars of the charge.[2] On the first mention date, under duress and with undue influence from the presiding Magistrate and the prosecutor, such pleading on the face of the facts was unreasonable and amounted to a substantial miscarriage of justice;
(2)The Magistrate did not exercise her discretion to adjourn the proceeding and was wrong in fact and in law not to afford the self‑represented litigant an adjournment to seek proper legal representation before entering a plea which was unfairly prejudicial to the appellant;
(3)The learned Magistrate was wrong in fact and in law to presume that the appellant did not have a defence such that it did amount to a miscarriage of justice;
(4)The learned Magistrate erred in fact and in law in not granting the appellant's application for a spent conviction;
(5)There would be a miscarriage of justice for the appellant to be convicted and receive such a crushing sentence on public policy grounds; and
(6)Conviction and the sentence in the circumstances are so unreasonable that no reasonable tribunal would make such orders.
[2] Referring to the Criminal Procedure Act 2004 (WA) s 51(5).
Ground 2 was abandoned by Mr Smith in the course of his submissions.
The material before the Court to which I have had regard has included written submissions made by Mr Smith, which were contained in an email from him dated 1 September 2015. The content of those submissions, insofar as they pertain to factual matters in particular, were repeated or confirmed in the course of exchanges between the Court and Mr Smith during his oral submissions. In addition, Mr Smith was given leave to file an affidavit setting out details of why he decided to plead guilty before the learned Magistrate and the basis on which he decided to do so. That was done by an affidavit sworn by Mr Smith on 25 September 2015.
In addition, I have had regard to submissions filed by the respondent on 24 August 2015, 9 October 2015 and further submissions that have been filed today, 5 November 2015, in relation to questions that had been raised by the Court in the course of oral submissions. I have had the benefit also of the oral submissions of the parties and I have taken all of these matters into account.

Grounds 1 and 3

Mr Smith referred to the Criminal Procedure Act 2004 (WA) s 51(5). He says that on the first mention date, he pleaded guilty under duress and with undue influence from the presiding Magistrate and the prosecutor. He submits that his plea of guilty was, on the face of the facts, unreasonable and amounted to a substantial miscarriage of justice.
The gravamen of these grounds of appeal was clarified in the course of oral submissions. Mr Smith said that his conviction following his plea of guilty should be set aside, effectively for three reasons.
First, he says he has a good defence to the charge in that he claims that, at the time of the offence, he was driving in circumstances amounting to an emergency. Secondly, he says that he had a good defence in that he was not in fact driving over the prescribed maximum blood alcohol limit. Thirdly, he says that he was effectively induced to plead guilty as a result of advice given to him by a person he now understands was the duty counsel, that he felt pressured to change his plea to guilty, that he did not realise that the duty counsel was in fact acting on his behalf, and that he did not feel that he could tell the Magistrate that he did not want to plead guilty when the duty counsel had told the Magistrate that he wished to do so.
The principles in relation to the circumstances in which a conviction following a plea of guilty will be able to be set aside are well established. On an appeal, the onus lies on the applicant to satisfy the Court that the plea of guilty was not a proper one, on the balance of probabilities.[3] The question for present purposes, on an application for leave to appeal, is whether Mr Smith has reasonable prospects of success in being able to establish on an appeal that his plea of guilty was not a proper plea and that it should be set aside for that reason.
[3] See Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496, 308 (Robert-Smith J).
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant persuades the court that a miscarriage of justice has occurred. The leading decision which is often referred to in this respect is that of Meissner v The Queen.[4] At page 157, Dawson J said:
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
[4] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).
Convincing the Court to set aside an apparently voluntary plea of guilty is not easy, particularly in circumstances where an appellant was legally represented. That is because there is a strong public interest in the finality of proceedings.[5]
[5] See, for example, Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104] (Hall J, Buss & Mazza JJ agreeing) and Wilhelm v The State of Western Australia [2013] WASCA 188 [51] - [53] (Mazza J, McLure P & Buss J agreeing).
The categories of case in which convictions arising from a plea of guilty have been overturned are not closed, but the cases typically fall into one of three categories. First, that the appellant did not understand the nature of the charge or did not intend to admit his or her guilt. Secondly, that the admitted facts did not support a finding of guilt. Or, thirdly, that the guilty plea was obtained by improper inducement, fraud, intimidation or the like.[6]
[6] See Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P, Wheeler & Buss JJ agreeing).
I am not persuaded that Mr Smith has a reasonable prospect of success of establishing that he did not understand the charge or intend to admit his guilt, or that the admitted facts did not support a finding of guilt, for the following reasons.
First, the transcript of the hearing on 23 May 2014 contains nothing to suggest that Mr Smith did not understand the nature of the charge. On the contrary, what was said suggests that Mr Smith did in fact understand the nature of the charge. His reluctance to enter a plea of guilty to the charge appears to have stemmed from his view that he had a defence and because he did not wish the Magistrates Court to form the impression that he was a person who would ordinarily drink and drive.
In his submissions dated 1 September 2014, Mr Smith said he decided to plead guilty after speaking with duty counsel. The transcript of the hearing on 23 May 2014 indicates that after the initial adjournment to which I have referred, duty counsel appeared on Mr Smith's behalf. The charge was then put to Mr Smith himself and he indicated to the learned Magistrate that he wished to plead guilty.
At no stage during the hearing that followed, in the course of submissions from duty counsel, or in the course of Mr Smith's own exchange with the learned Magistrate when he asked questions of the learned Magistrate about what information he needed to provide in respect of his spent conviction order application, did Mr Smith indicate that he did not in fact wish to plead guilty. I am not persuaded that there is any reasonable prospect that he would be able to establish that he did not intend to admit his guilt on that occasion.
Secondly, I am not persuaded that there is any reasonable prospect that Mr Smith would be able to establish that the facts did not support a finding of guilt. I noted at the outset that in the ground of appeal Mr Smith makes reference to s 51(5) of the Criminal Procedure Act 2004 (WA). That subsection pertains to situations where the Court is dealing with a written plea of guilty and where the accused does not attend the hearing at which he or she is convicted following that written plea to the charge. Section 51(5) sets out circumstances in which the Court is not to accept the plea, including where it appears that the accused may have a defence to the charge. The present case did not involve a written plea of guilty so s 51(5) does not apply.
I digress to observe that the procedure in s 129(3) of the Criminal Procedure Act was not followed in this case, in that the statement of material facts was not read aloud by the prosecutor prior to the hearing proceeding. It appears, however, that the learned Magistrate sentenced Mr Smith on the basis of the bare facts contained in the prosecution notice itself, and on the basis of the facts referred to in the plea of mitigation made by duty counsel. That course of action appears to have been open to the learned Magistrate,[7] was not objected to by the prosecutor, and could not have been to Mr Smith's disadvantage given the content of the plea in mitigation.
[7] See Criminal Procedure Act 2004 (WA) s 129(5).
I am not persuaded that the facts, on which Mr Smith was convicted and sentenced, including those facts which were put to the learned Magistrate by duty counsel on his behalf in the course of the plea in mitigation, could be characterised as not supporting a plea of guilty.
I turn next to the argument that Mr Smith advances in his third ground of appeal, that he has a good defence to the charge, namely that he committed the offence in circumstances of an emergency.
The facts in relation to that matter were disclosed in the course of the plea in mitigation by duty counsel:[8]
The circumstances are such that Mr Smith - his friend had suffered a head injury ... He drove his friend to another person's house and an ambulance came and picked his friend up from that house. He has then driven from that person's house.
Mr Smith has had great difficulty in entering a plea of guilty for the reason that he felt that entering a plea of guilty would mean that he knowingly drink-drove.
He is saying that he thought he was okay. He doesn't make a habit of drink-driving. He considers himself to be a law-abiding citizen and he normally knows how much he can drink. We've discussed the fact that there are always a number of variables in terms of how much you've eaten, how much you've slept, all those sorts of things, where you can never really be sure as to what your blood alcohol reading might be.
And certainly given the traumatic incident or accident that had occurred, Mr Smith perhaps felt quite sobered by that experience or that incident, and felt that he was okay to drive. So that has been his reservation, your Honour, that he didn't want the court to think that he thought it was okay to drink-drive, and by pleading guilty he's saying, "Yes, I intentionally did so." But he nonetheless accepts the reading of the machine and that's the basis of his plea.
[8] ts 8 (23 May 2014).

Nothing in the material disclosed to the learned Magistrate, or referred to in this Court, suggests that Mr Smith has a reasonable prospect of establishing that he could not be convicted in the circumstances of this case.[9]
[9] See generally the discussion of s 25 of the Criminal Code (WA) in Johnson v The State of Western Australia [2008] WASCA 71; (2009) 40 WAR 116, 133 ff.
Section 25(2) of the Criminal Code (WA) provides that:
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
Section 25(3) sets out the requirements for that excuse to arise:
(3)A person does an act or makes an omission in an emergency if ‑
(a)the person believes ‑
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency;
and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
In the course of submissions to this Court, Mr Smith acknowledged that, by the time he was pulled over by the police and found to be driving in excess of the maximum blood alcohol limit, the emergency, if it can properly be described as that, had passed.[10] His friend had been taken to hospital in an ambulance and Mr Smith was driving home. Assuming that he believed that driving his own car home in that circumstance constituted a necessary response to the emergency, I am not persuaded that Mr Smith has any reasonable prospect of establishing reasonable grounds for that belief. In those circumstances, it cannot be said that the facts on which Mr Smith was convicted would not give rise to an offence.
[10] ts 12 (4 September 2015).
During the course of oral submissions, Mr Smith indicated that he also wished to claim that the blood alcohol analysis equipment may not have been working correctly. He does not suggest that he has any evidence to support that assertion. He accepted in his submissions that he does not know 'if the machine was a problem'.[11]
[11] ts 13 (4 September 2015).
Moreover, Mr Smith acknowledged that he had been drinking on the evening in question, though he did not think he would be over the limit. Duty counsel on his behalf submitted to the learned Magistrate that, although Mr Smith felt that he was 'okay' to drive, he nonetheless accepted the reading of the machine and that was the basis for his plea.[12] In my view, there is no reasonable prospect that Mr Smith would be able to demonstrate that the facts on which he was convicted would not support his plea of guilty.
[12] ts 8 (23 May 2014).
Lastly, Mr Smith says that his guilty plea was obtained in circumstances involving inducement or duress. This claim directs attention to the question whether Mr Smith has reasonable prospects of success in demonstrating that he did not exercise a free choice in deciding upon his plea. I am not satisfied that Mr Smith has reasonable prospects of success in establishing that he entered his plea of guilty under duress as a result of feeling pressured to do so.
The charge, it appears, had been listed for a trial before the Magistrates Court as a result of an original plea of not guilty by Mr Smith. The transcript reveals that the learned Magistrate had invited Mr Smith to discuss his case with the prosecutor so that the parties and the Court could determine which matters could proceed to trial before the learned Magistrate, and which would need to be referred to other Magistrates. As I have already noted, the charge was put to Mr Smith. He pleaded to it and at no stage in the course of the hearing did he indicate that he did not in fact wish to plead guilty.
Mr Smith also claimed in oral submissions to this Court that he did not appreciate that the duty counsel was acting on his behalf. I do not think that there is any reasonable prospect of that claim being accepted in circumstances where the duty counsel made a plea in mitigation on his behalf without any protest from Mr Smith, and in reliance on information which Mr Smith had clearly provided to her.
Mr Smith stated that:
The only reason I pleaded guilty is because I was led to believe by the prosecutor and his friend, who I now know to have been a duty counsel, that if I pleaded guilty then I would get a spent conviction and would get the extra two months taken into account that I had lost my licence.[13]
[13] ts 10 - 11 (4 September 2015).
It is well established that the use of improper means to persuade an accused person to plead guilty hinders or prevents the exercise of a free choice by the accused in deciding upon the plea. But the authorities establish that reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the person's ability to make a voluntary choice as to whether to plead guilty.
The courts are wary of the possibility that a person who pleads guilty may later regret it and wish to attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.[14] Furthermore, even if Mr Smith entered his guilty plea for a reason other than his own belief as to his guilt - for example, because he wanted to get the minimum sentence and wanted to ensure that he got his driver's licence back as quickly as possible - that of itself does not invalidate his plea or give rise to a miscarriage of justice.[15] Finally, the fact that Mr Smith's sentence differed from that which he anticipated on the basis of the advice he claims he received from the duty counsel, also does not of itself amount to a miscarriage of justice.[16]
[14] See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 - 158 (Dawson J); Snook v The State of Western Australia [No 2] [2015] WASCA 29 [105] (Hall J).
[15] See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; Wilhelm v The State of Western Australia [2013] WASCA 188 [51]; Snook v The State of Western Australia [No 2] [2015] WASCA 29 [106].
[16] See Vella v The State of Western Australia [2006] WASCA 129 [28] (Steytler P, Wheeler & Buss JJ agreeing).
For these reasons, leave to appeal should be refused in respect of grounds 1 and 3.

Ground 4: The learned Magistrate erred in fact and in law in not granting Mr Smith's application for a spent conviction

When the matter was listed for hearing on 29 May 2014, Mr Smith pursued his application for a spent conviction order. The basis of his application was that he thought that his conviction for the offence would adversely impact on his prospects of getting a liquor licence in the future.
Mr Smith had previously held a liquor licence some years before. In support of his application, Mr Smith handed up to the learned Magistrate a copy of the application form for a liquor licence and some guidelines which apparently pertained to that application process. It appears that the learned Magistrate handed back those documents to Mr Smith at the end of the hearing and Mr Smith did not provide a copy of those documents in support of his application for leave to appeal. However, the learned Magistrate made reference to the content of those documents, as did Mr Smith in the course of his submissions, and it is possible to see the basis for his submission from that exchange.
According to the transcript, the learned Magistrate observed that an application for a liquor licence form was before her and it contained requirements requiring the applicant to indicate whether he or she was a bankrupt, had any company offences as a director, had had a disqualification from holding a liquor licence or being involved in holding a liquor licence, had licencing experience, or had had liquor infringements.[17] The learned Magistrate asked Mr Smith how the requirement to answer those questions and his drink-driving offence would affect that application. Mr Smith's submission was that:[18]
I would have to put it on the application, and on the guidelines it says that they take into account that I had to put any liquor-related offences, and also that if I had a spent conviction I wouldn't have to put it there, so clearly it would affect my application…
[17] ts 5 (29 May 2014).
[18] ts 5 (29 May 2014).
Earlier in the hearing, the learned Magistrate had made inquiries of the prosecutor as to his knowledge of the position in respect of liquor licensing applications. The prosecutor indicated that he had made inquiries of Liquor Enforcement and had been advised that behavioural antecedents that would affect the obtaining of a licence would be relevant. He told the learned Magistrate that drug offences were certainly relevant matters, criminal associates were relevant matters, and an extensive record may deem it inappropriate to approve a liquor licence application, but that this particular charge would not impact on any application for a liquor licence that Mr Smith may wish to make in the future.
The application for a spent conviction order was made pursuant to s 45 of the Sentencing Act 1995 (WA), which contains the matters which give rise to the Court's discretion to make a spent conviction order. Section 45(1) provides that:
(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.
For completeness, I note that the learned Magistrate initially appeared to suggest[19] that she understood there was authority from this Court that a person could not obtain the benefit of a spent conviction order on more than one occasion. Mr Smith had previously had the benefit of a spent conviction order in respect of a separate offence. The learned Magistrate's understanding in that respect was not correct.[20] In each case in which a spent conviction order is sought, the requirements of s 45 need to be considered and applied. In this case, the learned Magistrate appears to have done so, notwithstanding her erroneous observation.
[19] ts 4 (29 May 2015).
[20] See, for example, in NLJ v Martin [2010] WASC 310 [35] (Murray J) ff.
Regrettably, the learned Magistrate did not give any detailed reasons for her decision to refuse a spent conviction order, but nevertheless her reasoning can be discerned from what she said. It can be inferred that the learned Magistrate accepted that the pre-requisites for the exercise of discretion under s 45(1) of the Sentencing Act were made out in this case because her focus appears to have been on whether she could be satisfied that Mr Smith should be relieved immediately of the adverse effect that the conviction might have on him.
Mr Smith has submitted that the fact that the application form for a liquor licence asked about liquor infringements, and that the guidelines require that he disclose any liquor-related offences, meant that the fact of the present conviction would affect his application, notwithstanding that he had had a perfect record otherwise prior to then. The contention that Mr Smith makes in ground 4 thus appears to be that the learned Magistrate reached the wrong conclusion or failed to give adequate weight to what he had submitted in this respect.
It is necessary to bear in mind the circumstances in which an appeal court may set aside a decision involving an exercise of discretion. It is well established that an appeal court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently.[21] The discretion given to the sentencing judge or magistrate is of vital importance to the system of criminal justice.[22]
[21] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].
[22] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
A sentence will involve an appealable error if the Magistrate fails to exercise his or her discretion by acting upon a wrong principle, mistaking facts, or allowing irrelevant matters to affect the decision.[23] The question in an appeal of the present kind is whether the learned Magistrate's decision involved a material error of fact or law revealed by the reasons given, or by implication from the failure to make a spent conviction order.[24]
[23] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
[24] Hull v Castledine [2005] WASC 252 [10].
If on the facts the exercise of discretion is unreasonable or plainly unjust, an appeal court may infer that in some way there has been a failure to properly exercise the discretion which the law responses in the court at first instance.[25] If a grant of appeal contends that the decision under appeal resulted in a miscarriage of justice, that may be able to be satisfied if, on the material before the appeal court, the court is satisfied that there would be a miscarriage of justice in failing to grant a spent conviction order.[26]
[25] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [1].
[26] Rule v Trudgill [2015] WASC 196 [35].
In this case, a ground of appeal alleging a miscarriage of justice in respect of the refusal of the spent conviction order is not advanced. A grant of appeal alleging that sufficient regard was not paid to the facts will not generally be successful. It will only be successful if the facts referred to amount to a failure to, in fact, exercise the court's discretion.[27]
[27] Lovell v Lovell (1950) 81 CLR 513, 519; McGregor v The State of Western Australia [2011] WASCA 88 [14].
It is apparent that the learned Magistrate concluded that she was not satisfied that Mr Smith's conviction would result in an adverse outcome for a liquor licence application. Her Honour clearly reached that view having had regard to the submission made by the prosecutor to which I have referred, and to the submissions made by Mr Smith and to the documents that he provided to her.
I am not satisfied that Mr Smith has demonstrated that he has reasonable prospects of success in respect of ground 4, for two reasons.
First, it is clear that the learned Magistrate was aware of and took into account the matters raised by Mr Smith and on which he now relies, namely, his contention that the present conviction would have an adverse impact on any application he might make for a liquor licence application.
Secondly, the facts, in my view, are not such as to establish that it is unreasonable or plainly unjust that Mr Smith be denied a spent conviction order so as to permit this Court to infer that in some way there was a failure to properly exercise the discretion which the law reposed in the learned Magistrate at first instance.
For those reasons, leave to appeal should be refused in respect of ground 4.

Ground 5: There would be a miscarriage of justice for the appellant to be convicted and receive such a crushing sentence on public policy grounds

The gravamen of this ground was clarified in the course of oral submissions. Mr Smith's concern pertained solely to the period of his disqualification. His complaint appears to be twofold. First, by virtue of the refusal of the Department of Transport to renew his licence, Mr Smith says he was effectively disqualified from driving for another 2 months on top of the 7 months for which he was sentenced. Secondly, Mr Smith says that the learned Magistrate effectively sentenced him twice for the disqualification with the result that he received an extra week of disqualification over and above the 7 months imposed by the learned Magistrate.
As to the first of these contentions, I am not satisfied that this aspect of the ground has a reasonable prospect of success. The substance of this complaint is that the Department of Transport refused to renew Mr Smith's licence by virtue of the existence of the suspension, with the result that Mr Smith was not able to drive for a further 2-month period between the date of the offence and the date when his charge came before the Magistrates Court on 23 May 2014, despite the fact that his roadside disqualification period had expired.
I digress to observe that it appears that the charge was first listed before the Court on 28 February 2014, within a 2-month period of the roadside disqualification, but that the matter was adjourned on that date for a trial at a later date. I infer from those circumstances that Mr Smith entered an endorsed plea of not guilty and the matter was listed for trial on the next available date.
In sentencing Mr Smith, the learned Magistrate was bound by the very clear terms of the RTA in the sentence that she was required to impose in the exercise of her discretion. The offence of which Mr Smith was convicted was an offence under s 64 of the RTA. Section 64(2) of the RTA provides that:
(2)If a court convicts a person of an offence against this section ‑
(a)the person is liable to the relevant penalty in the Table to this subsection; and
(b)the court shall order that the person be disqualified from holding or obtaining a driver's licence for not less than the relevant minimum period of disqualification in the Table to this subsection.
The minimum period of disqualification is 7 months for a first offence, 10 months for a second offence, and 13 months for a subsequent offence. As Mr Smith was a first offender, the minimum period of disqualification was 7 months.
In addition, s 71H of the RTA requires a court to take into account any period of disqualification imposed under s 71D(1) (that is, the roadside disqualification provision in respect of the s 71C disqualification notice) when making an order disqualifying a person from holding or obtaining a driver's licence.
In order to appeal against the decision of the learned Magistrate, some error, express or implied, on the part of the learned Magistrate needs to be identified. In this case, no reasonable prospect exists of showing that the learned Magistrate made an error in respect of the disqualification imposed. The learned Magistrate was not entitled to impose a disqualification of less than the minimum 7‑month period, save that she was required to take into account the period of roadside disqualification under s 71D(1), which in this case was 2 months.
It was not open to the learned Magistrate under the provisions of the RTA to reduce the period of disqualification imposed by reference to the period for which Mr Smith had been without a driver's licence as a result of the alleged refusal by the Department of Transport to renew his driver's licence.
As to the second basis for this ground of appeal, I am not satisfied that Mr Smith has demonstrated that he has reasonable prospects of success for two reasons.
First, it appears that the period of disqualification imposed by the learned Magistrate commenced on 29 May 2014. In making that observation, it cannot be denied that there is some ambiguity about precisely what occurred. The transcript of the proceedings before the Magistrates Court on 23 May 2014 indicates, as I have already observed, that the duty counsel sought an adjournment to enable Mr Smith to obtain information in support of his application for a spent conviction order. After Mr Smith explained to the learned Magistrate the position in respect of the refusal by the Department of Transport to renew his driver's licence, the prosecutor suggested that if the learned Magistrate were to start the period of disqualification on that day, that is 23 May 2014, rather than on the next occasion when the matter was next before the Court, that would save Mr Smith an extra week or so at the end of his period of suspension because he could start serving the period of disqualification immediately.

At pages 7 to 8 of the transcript of 23 May 2014, the learned Magistrate appeared to be amenable to that suggestion. The plea in mitigation was then given. The learned Magistrate then told Mr Smith to stand up, and she said:
As a period of seven months disqualification, reduced by any period during which you were disqualified by the disqualification notice ‑ the roadside disqualification notice. Now, I will put it off, the spent conviction application and the final sentencing, until Thursday 29 May.
The first sentence in that passage suggests that the learned Magistrate intended to sentence Mr Smith on that date, that is, on 23 May 2014. The last sentence, however, and the reference to the ‘final sentencing' being put off until 29 May 2014 suggest that the learned Magistrate was not intending to actually sentence Mr Smith, but only indicating what suspension she would impose. That is because apart from the spent conviction application, there was no other aspect of the sentencing that would remain to be dealt with on 29 May 2014, unless the learned Magistrate intended to formally impose all of the sentence on that date.
Turning to the transcript of 29 May 2014, the hearing commenced with discussion of the application for the spent conviction order. The learned Magistrate made that decision and then said:[28]
And now I'm going to sentence you as a first offender for a 0.95 and give you the minimum ... .
I can't go below the minimum ... a $550 fine ... . And the minimum disqualification I can give you by law is seven months. I can't go below that but that's less than the roadside disqualification that you received, so you've already served your roadside disqualification which lasts for two months.
[28] ts 7 (29 May 2014).
There was then the discussion of the issue about the Department of Transport's refusal to renew Mr Smith's licence and, finally, the learned Magistrate said:[29]
I've given you the minimum. I've taken off the road disqualification because I have to by law because you've received it ... . But certainly, in my opinion, you only have five months to run. That's it. But that's from today.
[29] ts 9 - 10 (29 May 2014).
That suggests that the learned Magistrate intended to impose the disqualification on and from 29 May 2014. Some further light is shed on the matter by the prosecution notice itself, the original of which was before this Court. That document bears handwritten notations made by the learned Magistrate of what occurred and, more significantly, when it occurred. Relevantly, one of those notations indicates that a plea of guilty was made on 23 May 2014. There is a notation that, on that date, Mr Smith was represented by counsel and that 'R to 29.5.14, police to look into liquor licensing before the learned Magistrate' ('R' appears to be 'Remanded'). There is then a stamp which indicates that Mr Smith was disqualified from holding or obtaining a driver's licence for a period of 7 months, reduced by any period during which he had been disqualified under s 71D of the RTA, together with a note of the fine. The learned Magistrate signed and dated the notation 29 May 2014.
Despite the ambiguity in the transcript, in my view, the date of the learned Magistrate's notation on the prosecution notice is determinative of the date on which the licence disqualification she imposed in fact started to run. That that is so is confirmed by s 68 of the Criminal Procedure Act, which provides that:
If a court determines a charge, or dismisses a charge for want of prosecution, it must record on the prosecution notice the determination or dismissal and any order it makes as a result of the determination or dismissal.
Consequently, the order made by the learned Magistrate to determine the charge and the date on which it was made is that which is recorded on the prosecution notice. The transcript of the hearing assists in understanding what went on, but it is the record of the order made on the prosecution notice which constitutes the formal order determining the charge. That order was made on 29 May 2014.
Consequently, despite having discussed the disqualification at the hearing on 23 May 2014, the better view is that the learned Magistrate did not in fact impose the sentence formally until 29 May 2014. Even if that conclusion is wrong, however, and if it were the case that the effect of what happened was that Mr Smith was disqualified from holding a driver's licence for 7 months, plus one further week from 23 May 2014 until 29 May 2014, Mr Smith has no reasonable prospect of success in establishing that that sentence constituted or gave rise to a miscarriage of justice.
In Nudd v The Queen, Gleeson CJ considered what was involved in the concept of a miscarriage of justice. His Honour observed that:
[T]he concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related.[30]
[30] Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [3] ff.
Gleeson CJ went on to discuss observations made by Barwick CJ in Ratten v The Queen, including that an instance of a miscarriage of justice 'is where the appellant has not had a fair trial'.[31] His Honour also observed, however, that as Barwick CJ noted '[E]ven where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury ... properly instructed ... would fail on the evidence to convict an accused person.'[32]
[31] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 [5].
[32] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 [5].
Gleeson CJ went on to say:
Some irregularities "may" involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur.[33]
...
The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose.[34]
[33] Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [6].
[34] Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [7].
In my view, Mr Smith has no reasonable prospect of success in establishing that the disqualification period of 7 months plus one further week lay outside the period of disqualification which could properly be applied by the Court in exercising the sentencing discretion given to it under the RTA. There is nothing in s 64(2) of the RTA which suggests that the statutory minimum is a mandatory fixed minimum ‑ it can, of course, be exceeded in the exercise of discretion by the sentencing court.
In the absence of any express error, any challenge to the exercise of the sentencing discretion would need to be on the basis that the end result was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[35] In my view, Mr Smith would have no prospect of success in establishing that the addition of one week above the statutory minimum period of disqualification, if that is in fact what occurred, was a sentence which was so unreasonable or unjust that the appeal court must conclude that a substantial wrong has occurred.
[35] See House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].
Leave to appeal should therefore be refused in respect of ground 5.

Ground 6: The conviction and sentence in the circumstances is so unreasonable that no reasonable tribunal would make such orders

Mr Smith accepted that this ground was effectively a summary of all of the other grounds and it does not add anything further to those other grounds.
Accordingly, leave to appeal should be refused in respect of ground 6.

Costs

The respondent seeks an order for costs in the sum of $2046 in recognition of the fact that he has been successful in resisting the grant of leave to appeal in respect of all of the grounds of appeal.
Counsel for the respondent helpfully directed my attention to the decision of the Court of Appeal in Wilson v McDonald,[36] particularly to the decision of the Chief Justice with whom other members of the Court largely agreed.
[36] Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80.
The discretion of the Court to grant costs in an appeal of the kind under the CA Act comes from s 14(1)(h), which gives the Court a very wide discretion to make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction. In Wilson v McDonald, the Chief Justice noted that:
The analogy between civil proceedings and appeals to the court in respect of criminal proceedings before magistrates was far from perfect.[37]
[37] Wilson v McDonald [2009] WASCA 39 (S); (2009) 193 A Crim R 80 [9] - [10] (Martin CJ).
And, accordingly, he concluded that:
The provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. But, rather, that outside the specific topics covered by section 20 of that Act [which does not apply in this case] the Act should be construed as conferring a general and unconstrained discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.
In this case, I take into account the fact that Mr Smith has been unsuccessful in obtaining the grant of leave to appeal in respect of any grounds of appeal, but that very observation gives rise to a contrary and, in my view, compelling consideration which is that this was an application for leave to appeal. It was the threshold stage at which the Court is to decide whether a matter is to be permitted to proceed to an appeal itself.
This hearing has been somewhat more involved than leave to appeal application hearings ordinarily would be. That was, in part, due to the number of issues raised by the grounds of appeal, but also due to the fact that it was necessary to have two hearings. In many applications of leave to appeal, a respondent is not required nor expected to attend at a hearing of the application for leave to appeal, precisely so that the respondent is not put to the cost of attending and making submissions when, if leave is not granted, it may not be otherwise necessary for the respondent to turn its mind to the issues involved in the appeal. In this case, counsel for the respondent attended, and I say that without any criticism whatsoever of the decision to do so. Indeed, it was helpful for the Court to have submissions from counsel for the respondent to ensure that relevant legal principles and authorities were drawn to the Court's attention, particularly as this case involved an unrepresented applicant.
However, the application for costs in the present case raises three concerns. First, the costs sought include costs for the hearing on 4 September 2015, which according to the transcript took approximately one hour. That hearing was unable to be completed partly as a result of the fact that counsel for the respondent was unwell. Again, I make no criticism whatsoever of counsel in those circumstances, but the need to attend on another occasion today was at least in part attributable to the fact that counsel was unable to complete the hearing. It seems to me that the cost of that hearing should not fully be reflected in any costs order made against Mr Smith. Secondly, I bear in mind the proportionality between the amount of costs sought and the charge which is the subject of the application, having regard to the fine and the costs which were imposed at first instance. I note that the total of the costs sought now vastly exceeds the costs which were awarded on that occasion. Finally, I note that an amount is sought in respect of the filing of the notice of the respondent's intention which is of itself of a significant quantum by comparison with the fine and costs already imposed in this matter.
Having regard to all of those considerations, I have formed the view that an order for costs should be made in the present case to reflect the fact that the respondent has incurred some costs in attending, but that only a modest amount should be able to be recovered having regard to what would be reasonable in all of the circumstances.
In my view, the appropriate quantum of an order for costs would be an order in the sum of $500 to reflect a little more than a modest amount for a hearing time and the filing of the various documents that have been prepared.