Smith v Rowe
[2012] WASC 215
•14 JUNE 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SMITH -v- ROWE [2012] WASC 215
CORAM: HALL J
HEARD: 14 JUNE 2012
DELIVERED : 14 JUNE 2012
FILE NO/S: SJA 1005 of 2012
BETWEEN: BRADLEY WILLIAM SMITH
Appellant
AND
TODD COLIN ROWE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R B LAWRENCE
File No :FR 4526 of 2011
Catchwords:
Criminal law - Appeal against conviction and sentence - Impersonating a police officer - Where plea of guilty resulted in disqualification from holding a security licence - Whether failure to understand that consequence means plea of guilty not valid
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 4A, s 4B, s 67A(1)(b)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms G M Cleary
Amicus Curiae : Mr H Schokker
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Amicus Curiae : In person
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Liberti (1991) 55 A Crim R 120
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Murphy v The Queen [1965] VR 187
Samuels v The State of Western Australia [2005] WASCA 193
HALL J:
(These reasons were given orally and have been edited from the transcript)
Introduction
On 14 November 2011 the appellant appeared in the Magistrates Court and pleaded guilty to one count of impersonating a public officer contrary to s 87 of the Criminal Code (WA). He was fined $250 and a spent conviction order was made. He now seeks leave to appeal against his conviction.
In essence, his grounds are that the magistrate erred by failing to consider that the consequences of a finding of guilt, even where a spent conviction order is made, include disqualification from holding a licence under the Security and Related Activities (Control) Act 1996 (WA) for a period of five years. This meant that the appellant could no longer work as a transit guard for Wilson Security on contract to the Perth Transit Authority as he had previously done.
In written submissions the appellant states that he was not informed that pleading guilty would cost him his job. The implication from this is that his plea of guilty was not a properly informed one. This is not an assertion made directly in the grounds; however, I will consider it.
A further issue raised in the written submissions is the suggestion that the appellant did not commit the offence charged. It is said that the admitted facts do not establish that an act of impersonation occurred and thus the appellant could not in law have been guilty of the offence. Again, this is not the subject of a ground of appeal but I will deal with it.
Magistrates Court proceedings
The transcript of the proceedings in the Magistrates Court reveals that there had been discussions between the lawyer representing the appellant and the prosecutor and that this had resulted in a set of agreed facts. Prior to those facts being read, the charge had been put to the appellant and he had pleaded guilty to it. There was no suggestion of equivocation or that guilt of the offence was disputed.
The facts as read out by the prosecutor were as follows:
It was the afternoon of 11 February this year when the accused was at the Murdoch University tavern with an associate, with another. The tavern is a licensed premises and controlled pursuant to the Liquor Control Act. He was there, he had an alcoholic beverage with his colleague.
Now the accused is employed by the Public Transport Authority and has been issued a certificate of authorisation to issue infringement notices. This is a genuine certificate, it's with a particular serial number. On the back of it, signed by the CEO of the Public Transport Authority of Western Australia, it describes a certificate of authorisation to issue infringement notices:
This is to certify that the officer whose photograph and signature affixed to this certificate is an authorised person under the Public Transport Authority Act 2003. This includes the authority under section 44 of the Public Transport Authority Act 2003 and the Government Railways Act 1984 to give infringement notices.
Whilst there the accused approached a table of a group of gentlemen who were also enjoying the facilities there and also drinking alcoholic beverages and it's said that in the course of a discussion the accused produced a Transit authority badge and this is the actual badge that was seized. Now apparently this particular badge, a metal badge is not issued per se to public transit officers but it is one that many of them in the course of their employ have provided and pay for individually, and there is no issue as to that. But what he purported to do with the particular certificate that was associated with a wallet, the certificate to issue infringements, was he made out that he was a police officer flashing the badge, put it away very quickly, flashed it again and made out that he was in fact a police officer.
He is a person who is authorised only to issue infringements and the point of the charge is not so much that the issue that he was a public officer but that indeed it was a question whether he could exercise an act or power of such a public officer, and even if he was he is not empowered under the Liquor Licensing Act to carry out such a power. He required the particular persons to produce identification. The matter ultimately led to investigation upon complaint and him being charged with the present offence (ts 2 ‑ 3).
As I have noted, the appellant was represented in the Magistrates Court by a lawyer. His lawyer gave a plea in mitigation, noting at the start that the facts were admitted.
In her submissions, defence counsel said that the appellant had been motivated by concern that some of the party he approached were under age. His object was to ask them for proof of their age and then if necessary report them to the bar staff. It was accepted that in doing so he gave the impression that he had the power to require the people concerned to produce identity documents.
It was also put to the magistrate that the appellant was a man of otherwise good character. It was said that he had a low IQ and lived at home with his parents. He had spent many years on a disability pension before securing a job as a transit guard. By all accounts he had performed well in that job and it had given him a sense of pride.
Defence counsel advised the magistrate that if a fine of greater than $500 was imposed, the appellant would lose his job. This was said to have been something that the appellant had been told by his employer. The submission was that a small fine and a spent conviction should be imposed in the circumstances.
The prosecutor did not oppose a spent conviction nor did he suggest that this was a serious example of an offence of this type; indeed, he accepted that it was 'relatively low level and warranting a nominal monetary disposition'.
Magistrate's sentencing remarks
The magistrate made the following remarks in sentencing the appellant:
I have read the references, Mr Smith, and it is obvious that this type of behaviour is out of character for you. The circumstances surrounding the commission of the offence could be described as being unusual and that you have simply overstepped the mark. You have attempted to pass on the inference that you were a police officer when you're not thereby impersonating a public officer and albeit that you might be a public officer for other purposes, it wasn't for this purpose. That is the reason why you're guilty of the offence because you purported to exercise a duty of function which you were not entitled to do.
But having regard to the references, I accept there is little likelihood of you reoffending and I also accept that any conviction of this nature will cause you great detriment potentially in relation to your future employment within the industry in which you're employed and for that reason alone, albeit that the spent conviction application should only be granted sparingly, and in circumstances where you should be relieved immediately out of a conviction and exceptional circumstances. I believe that you fall within that category having regard for both your personal circumstances and those relating to the commission of the offence.
You will be fined $250, Mr Smith, to personally deter you from committing any such further offences and there will be costs of $324.50 but there will be a spent conviction because of those reasons (ts 5).
Merits of the appeal
Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122, (Kirby P, Grove and Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).
Before an appellate court will set aside a conviction based upon a plea of guilty, the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa, Steytler J referred to three well‑recognised circumstances in which a conviction based on a plea of guilty will be set aside:
(1)where the appellant did not understand the nature of the charge and did not admit guilt;
(2)if upon the admitted facts the appellant could not in law have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or the like.
Those are not the only circumstances in which a plea of guilty may be impugned and a miscarriage of justice can be shown to have been established in other ways: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.
As to the suggestion that the appellant could not have been convicted of the offence on the admitted facts or had a good defence the following points are clear:
•whilst the appellant was a public officer, namely, a transit guard, such officers do not have any right to compel a member of the public to provide personal particulars in licensed premises;
•in making a demand for such information and reinforcing that by showing his badge, the appellant was purporting to have powers he clearly did not have;
•it was part of the admitted facts that in doing so 'he made out that he was a police officer'; and
•on those facts the appellant could properly be convicted of an offence contrary to s 87 of the Criminal Code, because the admitted facts met the elements of the offence in that the appellant represented himself either by word or conduct to be a police officer and he purported to do an act or exercise the power of a police officer.
I should note that the appellant has filed an affidavit on this appeal in which he says that he only showed his badge because the group he approached asked to see his proof of identification. He denies ever saying that he was a police officer. Those claims were not made to the magistrate and indeed they are contrary to the facts that were admitted in the Magistrates Court insofar as it is denied that the appellant was implying that he was nor had the powers of a police officer.
There is nothing in the affidavit that explains why the appellant would have pleaded guilty and accepted the facts if he did not intend to do so. There is nothing to suggest that the appellant's will was overborne or that he did not understand the nature of the charge. Rather, what is suggested is that the appellant did not appreciate that a plea of guilty would lead to the loss of his job even if a spent conviction order was made. Indeed, he thought that if a fine of less than $500 was imposed, he would not lose his job. It would seem that the appellant was under a mistaken belief in that regard.
The appellant was wrong. His employment depended upon him being eligible to hold a licence under the Security and Related Activities (Control) Act 1996 (WA). Pursuant to s 67A(1)(b) of that Act, the Commissioner of Police can revoke such a licence if satisfied that the licensee is a prohibited person. A prohibited person is defined in s 4A as being a person who has been the subject of a finding of guilt of a 'disqualifying offence'. An offence under s 87 of the Criminal Code is a disqualifying offence; see sch 2 div 1 of the Security and Related Activities (Control) Regulations 1997 (WA).
A finding of guilt for the purposes of the Act includes a court accepting a plea of guilty and a reference to a conviction in the Act includes a spent conviction: see s 4B. Thus whilst a spent conviction may not count in many other respects, it does for the purposes of the Security and Related Activities (Control) Act. As a consequence of the appellant's plea of guilty to the s 87 offence on 14 November 2011, he became a prohibited person and thus liable to disqualification on the issuing of a notice by the Commissioner of Police under s 67 of the Security and Related Activities (Control) Act.
The period of disqualification was less because the appellant received a spent conviction, 5 years rather than 10 years: see reg 25(2)(a) of the Security and Related Activities (Control) Regulations. This consequence flowed as a matter of law from the plea.
In those circumstances it is impossible to see what error the magistrate can be said to have committed. Even if the magistrate thought that this consequence would not flow, it is hardly something that it fell within his power to prevent. The appellant having entered the plea of guilty, it can not be suggested that there was any possible outcome that was more favourable to the appellant than the one that occurred.
The suggestion that a plea of guilty is open to question because the appellant did not understand what would flow from it cannot be accepted. A valid plea of guilty requires an understanding of the offence alleged. In particular, it requires the offender to understand each element of the offence because a plea of guilty constitutes an admission that the offender committed each constituent element of the offence. Since the plea of guilty is an acceptance of all the elements of the offence, it is not open to later seek to withdraw that plea simply because the outcome was worse than expected. If that were permitted, then the criminal justice system would fall into complete disarray as disappointed offenders sought to withdraw their pleas and achieve a better outcome by pleading not guilty.
In Murphy v The Queen [1965] VR 187, Herring CJ and Adam J said:
Furthermore, there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied (189).
It is not open to the appellant to challenge his conviction on the grounds that he did not foresee its consequences or that the magistrate or his counsel did not alert him to them. This is true of the penalty imposed by the magistrate and it is even more true of the legal consequences that flowed from the plea. The magistrate was under no obligation to advise the appellant of that possible consequence prior to him entering the plea. There are many consequences that can flow from a plea of guilty, for example consequences to a person's ability to drive, seek a licence to fly a plane, obtain a visa to enter another country, to work with children or join the defence services. The entering of a plea of guilty depends on an acceptance of responsibility for what was done, not an understanding of all of the consequences that may flow from that acceptance.
Conclusion
Leave is required in respect of each ground of appeal; s 9(1) of the Criminal Appeals Act 2004 (WA). Leave can only be granted if there is a rational and logical prospect of the ground succeeding: Samuels v The State of Western Australia [2005] WASCA 193. There must be a clear arguable case that an error has occurred or that there has been a miscarriage of justice. If leave is not granted in respect of any proposed ground, the appeal must be dismissed.
In the circumstances of this case, I conclude that there is no merit in the grounds. They are not reasonably arguable. Leave in those circumstances must be refused and the appeal is dismissed.
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