UK v Taylor
[2021] WASC 141
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: UK -v- TAYLOR [2021] WASC 141
CORAM: ALLANSON J
HEARD: 3 MAY 2021
DELIVERED : 7 MAY 2021
FILE NO/S: SJA 1097 of 2020
BETWEEN: UK
Appellant
AND
BENJAMIN TAYLOR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E O'DONNELL
File Number : KA3453 of 2020
Catchwords:
Criminal law - Appeal against sentence - Whether miscarriage of justice in not granting spent conviction order
Legislation:
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Young Offenders Act 1994 (WA)
Result:
Leave to appeal allowed
Appeal allowed
Spent conviction order made
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Ms R J Eaton |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | State Solicitor for Western Australia |
Cases referred to in decision:
JJA v Yow [2008] WASC 69
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Sharpe v Vinning [2020] WASCA 79
ALLANSON J:
Introduction
The appellant was convicted on 27 October 2020 of breach of bail in Kalgoorlie Magistrates Court. She was fined $100 and ordered to pay costs.
On 7 December 2020, the appellant filed a notice of appeal containing the sole ground that there was a miscarriage of justice in the failure to grant the appellant a spent conviction.
Extension of time
The appellant requires an extension of time in which to appeal. The application for extension of time and for leave to appeal were ordered to be heard together with the appeal.
The application to extend time was not opposed.
The solicitor for the appellant filed an affidavit on 7 December 2020 explaining the delay in commencing the appeal.
I am satisfied that the delay is excusable, and would extend time.
The hearing before the magistrate
The appellant was charged that, on 13 October 2020, she breached a requirement of a bail undertaking entered into on 23 August 2020 by failing to appear in the Kalgoorlie Magistrate Court.
The magistrate confirmed that the appellant understood the charge being put to her. The appellant plead guilty.
Duty counsel who appeared for the appellant stated that she had no criminal record. Counsel advised the court that the appellant had been in Perth and had tried to buy a ticket back to Kalgoorlie, but was short of funds. She then was given money by her aunt and was able to catch a train to Kalgoorlie.[1] Due to the delay, the appellant did not make it back in time for the court hearing.
[1] ts 4.
The magistrate imposed a $100 fine and costs of $130.50.[2]
[2] ts 5.
The appellant did not apply for a spent conviction order, and it appears no consideration was given to whether an order should be made.
Application to admit evidence in the appeal
On 6 April 2021, the appellant filed an application that her affidavit dated the same date be admitted as evidence in the appeal.
There is a discretion to admit further evidence that bears upon the question of whether there has been a miscarriage of justice in the case.[3]
[3] Criminal Appeals Act 2004 (WA) s 40(1)(e); JJA v Yow[2008] WASC 69 [5].
The appellant's affidavit gives a further explanation as to why she was in Perth before the Kalgoorlie court hearing, and why she was initially unable to return. The affidavit also sets out the appellant's personal circumstances which were not raised before the magistrate.
The respondent did not oppose the application, and I will admit the evidence.
Consideration and legal principles
By s 8 of the Criminal Appeals Act 2004 (WA), an appeal may be brought on the ground that there has been a miscarriage of justice.
A spent conviction order is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA). Part 3 of that Act provides for the effect of a conviction becoming spent.
Section 45 of the Sentencing Act 1995 (WA) provides for when a spent conviction order may be made. By s 45(1)
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.
In R v Tognini, Murray J stated the considerations that guide the exercise of the discretion under s 45. Relevantly, his Honour said that the court should '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'.[4]
[4] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] - [28] (Malcolm CJ & Wallwork J agreeing).
The principles stated by Murray J are well established and have been referred to many times in this Court.[5]
Unlikely to commit such an offence again
[5] See eg recently, Sharpe v Vinning [2020] WASCA 79.
The appellant was in Perth at the time she was due to appear at Kalgoorlie Magistrates Court. Her counsel submitted to the magistrate that the appellant lacked the funds to buy a return ticket to Kalgoorlie, and requested the money from her aunt.[6] In her affidavit in the appeal, the appellant said that she had attempted to book a ticket on the train but it was full. She could not recall exactly when she returned to Kalgoorlie, but had turned herself in and appeared in court that same day.
[6] ts 4.
The respondent submitted, and the appellant acknowledged, that the appellant did not notify the court, or report to the police in Perth. It was 14 days between when she was required to answer her bail and when she turned herself in.
Notwithstanding that delay, I find that her actions demonstrate that the appellant was aware of the seriousness of not answering to bail, and was willing to take responsibility for her actions.
I find that it is unlikely that the appellant will commit such an offence again.
The offence is trivial or the previous good character of the offender
The appellant was convicted of an offence of under s 51(1) of the Bail Act 1982 (WA), which carries a penalty of a fine up to $10,000 or imprisonment for a term not exceeding 3 years, or both.
While this offence does not fall within the serious range of breach of bail offences, it is not a trivial offence. The appellant did not submit that it was.
However, and it was not disputed, I consider that the appellant is of prior good character.[7] At the time of sentencing, the appellant had no criminal history as a juvenile or an adult.[8] She was on bail for two offences that she allegedly committed as a juvenile. The appellant had not been convicted of these offences and so came before the court as a person of good character.
Relieving the offender of the adverse consequences of conviction
[7] Respondent's submissions [35].
[8] ts 4.
The discretion to make a spent conviction order should be regarded as of an exceptional character. The court must consider, not only from the point of view of the offender, but also from the point of view of the community, why an offender should immediately be relieved of the adverse consequences of a conviction. This may be because the conviction will affect the offender's prospects of employment, would result in exceptional hardship to the offender, or because a spent conviction order will assist in the offender's rehabilitation in a way that accords with the interests of the community.[9]
[9] R v Tognini [27] - [28].
The appellant is 18 years of age. She has been accepted into university and plans to begin studying in second semester. While currently unemployed, the appellant has stated she is looking for a job prior to beginning her studies. She has expressed an interest in working in the mining industry during her studies. For a young person, at the beginning of their working life, a conviction may have a detrimental and long lasting impact.[10]
[10] See, for example, Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [74] (Wheeler JA); JJA v Yow [37].
The appellant submitted that, if not spent, the conviction for breach of bail might impede her in that goal, while the nature of the offence is not such that a prospective employer needs to be aware of it.
I also take into account, as submitted by counsel for the appellant, that the appellant was on bail for offences allegedly committed when she was a young person for the purposes of the Young Offenders Act 1994 (WA).[11] The failure to grant a spent conviction order might deny the appellant the full benefit of s 189 and s 190 of the Young Offenders Act, in circumstances where future employers may infer from the breach of bail conviction that the appellant had committed further offences.
[11] Young Offenders Act s 4.
The respondent submitted that it is speculative whether the presence of the conviction would result in hardship in future employment. The court is required, however, to assess the likely effect of a conviction, and the possible need to disclose it if an order is not made.
Finally, the respondent submitted that the appellant can apply for a spent conviction order under the Spent Convictions Act after 10 years. The legislature has, however, provided for the grant of a spent conviction order at the time of sentencing where the court considers the offender should be immediately relieved of the adverse consequences of a conviction. For an 18 year old, at the beginning of her studying and working life, both her interests and those of the community are better served by that order not being deferred for 10 years.
The circumstances of this case are unusual. The appellant is only 18 years old, she attempted to return to Kalgoorlie, and then handed herself into the police station upon her return. She had no criminal record at the time of sentencing, and the alleged offending for which she was on bail was as a young offender. The failure to grant a spent conviction order in these circumstances was a miscarriage of justice.
The respondent submitted that even if the appeal ground was upheld, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.[12] For the reasons I have given, however, I am satisfied this is an exceptional case. Having regard to the material that was before the magistrate, and the additional material now before this Court, I am satisfied that a spent conviction order should necessarily be made.
[12] Criminal Appeals Act s 14(2).
Conclusion
I would grant leave, allow the appeal, and make a spent conviction order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
7 MAY 2021
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