Van Der Feltz v Legal Practice Board of Western Australia [No 2]
[2018] WASCA 110
•3 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VAN DER FELTZ -v- LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [No 2] [2018] WASCA 110
CORAM: BUSS P
MAZZA JA
CHANEY J
HEARD: 14 NOVEMBER 2017
DELIVERED : 3 JULY 2018
FILE NO/S: CACR 10 of 2017
BETWEEN: RIC VAN DER FELTZ
Appellant
AND
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HALL J
Citation: VAN DER FELTZ -v- LEGAL PRACTICE BOARD [2017] WASC 2
File Number : SJA 1059 of 2016
Catchwords:
Criminal law - Appeal against sentence - Offence of representing and advertising entitlement to engage in legal practice while not being an Australian legal practitioner - Spent conviction order - Whether primary judge erred in law or fact in allowing respondent's cross-appeal to set aside the spent conviction order
Legislation:
Legal Profession Act 2008 (WA), s 13(1)
Sentencing Act 1995 (WA), s 39, s 45
Result:
Appeal allowed
Order made by the primary judge allowing the respondent's cross-appeal set aside
The respondent's cross-appeal before the primary judge dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr R J Nash |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Legal Practice Board of Western Australia |
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
van der Feltz v Legal Practice Board of Western Australia [2017] WASC 2
van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
JUDGMENT OF THE COURT:
The background to this appeal is set out in the reasons of the court in van der Feltz v Legal Practice Board of Western Australia[1] (van der Feltz No 1). What follows should be read in conjunction with those reasons. We observe, at the outset, that at all stages in the proceedings the appellant has represented himself.
[1] van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113.
The issue to be decided in this appeal
On 25 July 2016, the appellant was convicted in the Magistrates Court of an offence against s 13(1) of the Legal Profession Act 2008 (WA) (the Act), which reads:
(1)A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.
…
(4)A reference in this section to a person -
(a)representing or advertising that the person is entitled to engage in legal practice; or
(b)representing or advertising that a body corporate is entitled to engage in legal practice,
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.
The charge was that on 23 February 2015, at Mount Hawthorn, the appellant, being a person who was not an Australian legal practitioner, represented and advertised that he was entitled to engage in legal practice. The case concerned an advertisement the appellant had placed on the Gumtree website in which he offered to do legal work for reward. Magistrate Malone was satisfied that the advertisement impliedly represented that the appellant was entitled to do that work. The magistrate convicted the appellant, fined him $2,500, ordered that he pay the Board's costs in the sum of $8,372.95 and made a spent conviction order.
The appellant appealed against his conviction and sentence to a single judge of the General Division of this court. The respondent cross‑appealed against the making of the spent conviction order. The notice of cross‑appeal was filed three days out of time. Hall J concluded that none of the appellant's grounds of appeal had a reasonable prospect of succeeding and refused leave to appeal in respect of all of them, with the effect that the appeals against conviction and sentence were dismissed. However, in respect of the cross‑appeal, his Honour granted the extension of time, gave leave to appeal, allowed the cross‑appeal and set aside the spent conviction order.[2]
[2] van der Feltz v Legal Practice Board of Western Australia [2017] WASC 2 [112].
In van der Feltz No 1, the appellant applied for leave to appeal against the dismissal of his appeals against conviction and sentence by Hall J and his decision to allow the cross‑appeal. This court refused leave to appeal in respect of all of the appellant's grounds of appeal, save for ground 3. The court granted leave to appeal on this ground.[3] Ground 3 contends that Hall J erred in granting the respondent an extension of time to appeal against the spent conviction order and in setting aside that order. The issue now to be decided is whether ground 3 has been made out.
[3] van der Feltz No 1 [46].
Relevant features of the proceedings in the Magistrates Court
The prosecution case was that the appellant had placed an advertisement on the Gumtree website. This website enables members of the public to advertise goods and services for sale. It is unnecessary to set out the full terms of the advertisement. It is headed:[4]
No lawyer no problem
REPRESENT YOURSELF IN COURT
[4] Blue green AB 198.
The advertisement goes on to state:[5]
Do you really need a Lawyer? Can you afford a Lawyer? Representing yourself may be ideal for you. If you can talk and think you are halfway there. Yes, you may loose [sic] and be liable for costs but so can a Lawyer and you'd still be liable for the costs.
I can help you prepare to represent yourself in Court and with filling out Court applications and other Court documents and the drafting of affidavits.
I am not a Lawyer and do not give legal advice. I do have an overseas Law Degree and extensive experience representing myself in the Magistrate, District and Supreme Court and the State Administrative Tribunal (SAT) in commercial and administrative matters and helped others do the same.
You might just need some help to guide you through the Court system and that's where I come in at a fraction of the cost of a Lawyer.
A first meeting is free and obligation free. If you decide to proceed I will charge a one off fee depending on the matter and the Court.
[5] Blue green AB 198 ‑ 199.
The advertisement then gives examples of the 'one off fee' to be charged by the appellant and makes an invitation to contact the appellant for further information.
This advertisement was seen by a legal practitioner, Mr Nicholas van Hattem, who alerted Ms Elizabeth Fulham, the Executive Director of the Legal Practice Board. She downloaded a version of the advertisement on 23 February 2015.[6]
[6] ts 106.
It was admitted by the appellant that he was not an Australian legal practitioner.[7]
[7] ts 107 ‑ 108.
In the magistrate's extempore reasons for decision, he found that the advertisement contained an offer to do legal work for reward and that it impliedly represented that the appellant was entitled to engage in legal practice.[8]
[8] ts 115.
Having convicted the appellant of the charge, the magistrate heard from the parties on the questions of penalty and costs. The appellant sought a spent conviction order.[9]
[9] ts 121, 122.
The magistrate explained to the appellant that the making of a spent conviction order was exceptional and that he had to 'make out the grounds for it'.[10] The magistrate told the appellant that he was prepared to assume that he was a person of previous good character and that he was unlikely to commit the same offence in the future. The magistrate also indicated that the proceedings were 'a huge learning curve'[11] for the appellant and that he (the magistrate) was not 'completely convinced'[12] that the appellant understood 'the ins and outs' of what he had done.[13]
[10] ts 122.
[11] ts 122.
[12] ts 122.
[13] ts 122.
The magistrate told the appellant that he had to be satisfied that the recording of a conviction would have a disproportionately adverse effect on his future.[14] The appellant said that the recording of a conviction would make the granting of a visa to visit his brother in the United States of America problematic. The magistrate said that he understood that, while the appellant would have to disclose the fact of any conviction to the relevant authorities in the United States of America, a conviction was not an automatic bar to entry to that country. The appellant responded to the effect that he believed the recording of a conviction would be 'very detrimental'[15] to his prospects of entering the United States of America.[16]
[14] ts 122.
[15] ts 124.
[16] ts 124.
Counsel for the respondent opposed the making of a spent conviction order.[17] While counsel said that he was unable to identify 'a particular public interest … as to why the conviction should be recorded',[18] he submitted that the appellant had not accepted that he had done anything wrong and, accordingly, it was 'very hard to feel comfortable that … he [the appellant] has insight and won't do it again'.[19] Counsel for the respondent did not challenge the magistrate's assumption that the appellant was a person of previous good character, or put before the magistrate evidence of prior bad character. Nor did he take issue with what was said in the exchange between the appellant and his Honour about the potential effect a conviction would have on the appellant's ability to travel to the United States of America.
[17] ts 123. Statement opposing order mistakenly attributed in the transcript to the appellant.
[18] ts 126.
[19] ts 126.
In granting the spent conviction order, the magistrate said: [20]
When it comes to a spent conviction order, you are a person of good character. I think you have learnt your lesson. I would be surprised if you haven't, but I'm dealing, of course, with this application. Understand, of course, your need for travel and disclosing a conviction. It's an area where, it seems to me, just by its nature, you have to have some sophistication to hold yourself out to be capable of giving advice.
You definitely didn't say you were a lawyer, and you said you were not giving legal advice, but you held yourself out as being a person who's effectively going to act as a lawyer. And I don't see this is something that a refusal of a spent conviction order is very important for the efficacy of prosecutions. I think it needs to be dealt with on a case‑by‑case basis.
As far as the public interests [sic], similar comments are made, that the board is appropriately there to make sure that if there are any contraventions they're followed up. You were given a chance to explain things and you didn't really avail yourself very well of that, it seemed to me.
But, on balance, I can see that with your travel considerations particularly, that having a conviction could have an adverse effect on your future, so on balance I am prepared to grant you a spent conviction order.
[20] ts 127 ‑ 128.
Single judge appeal
As we have said, the respondent cross‑appealed against the making of the spent conviction order on the grounds that the magistrate erred in law in making the order because:[21]
1.The magistrate did not have regard to, or adequate regard to, the likelihood of the appellant offending again.
2.By maintaining his plea of not guilty 'to the last', and even on appeal, the appellant has shown no insight into his own offending behaviour nor acknowledged his offending conduct.
3.The offence cannot be characterised as trivial.
4.There was no evidence led as to the appellant's previous good character.
5.There was no evidence, or adequate evidence, led upon which the court could reasonably be satisfied that the appellant should be immediately relieved of the effect of the conviction.
[21] van der Feltz v Legal Practice Board of Western Australia [2017] WASC 2 [31].
Hall J's reasons for upholding this ground are relatively brief and can be quoted in full:[22]
It is difficult to see how the Magistrate reached the conclusions that he did. Whilst the appellant said that he had learnt his lesson and would not advertise in the same way again, the conduct of his defence at the trial (and indeed on this appeal) did not support any conclusion that he accepted his wrongdoing. The appellant also sought to justify his conduct on the basis that he was offering a public service, which displayed a failure to appreciate the protective nature of the provisions of the Act. As to good character, this was merely assumed, there was nothing put before the Magistrate in this regard. The absence of a criminal record is only one aspect of good character. But what weighed against the claims of good character were that the appellant had placed an advertisement on a public website that was carefully crafted and 'sophisticated'. It showed some appreciation for the need to avoid the prohibitions in question. The conduct was not a momentary aberration because the appellant's own evidence was that the advertisement had been current for some period of time.
As regards the need for the appellant to be relieved of the adverse effect of a conviction, the Magistrate placed most emphasis on 'travel considerations'. However the only information in this regard was that the appellant had a brother in the United States and that if he had a conviction he would have to disclose it in an application for a visa. There was no evidence, however, that a conviction of this nature would result in the refusal of a visa. Any inconvenience in having to make an application for a visa is a matter of very little weight.
On the other hand, there were strong reasons why the recording of a conviction was necessary in this case. A conviction would act as a deterrent to the appellant to commit any such offence in the future. There is also the importance of protecting the public from any repetition of this type of conduct. There may be circumstances in which there is value in members of the public being able to determine whether a person has been convicted of an offence of this nature. A conviction would also enhance general deterrence.
The prohibition on representing or advertising that a person is entitled to engage in legal practice when they are not, is part of a framework to ensure that only those with appropriate qualifications can perform legal work. These provisions serve the purpose of protecting members of the public from those who, due to their lack of qualifications, could expose them to financial risks and risks to their liberty. These prohibitions do not exist to give lawyers a commercial advantage but to recognise that the public interest is best served by ensuring that only appropriately qualified people can do legal work. Advertising will, generally, be less serious than actually doing legal work when not qualified to do so. However, the prohibition on advertising ensures that pre-emptive action can be taken to avoid risks to the public. The important role that the Board plays in this regard is one that is undertaken in the public interest. These are also considerations that should be weighed in considering whether a spent conviction order should be granted.
The advertisement in this case encouraged unsuspecting litigants to think that, with the assistance of the appellant, they could safely represent themselves and avoid the expense of a lawyer. The danger of this was illustrated by these proceedings. The appellant did not show any particular skill or ability in defending himself. By his own admission he was at a disadvantage as compared to the experienced counsel representing the respondent. Litigants who believed the representations in the advertisement could well have acted to their prejudice by engaging the appellant in preference to a lawyer.
In my view, the grounds for exercising the discretion to make a spent conviction order were not established. There was no proper basis for concluding that the appellant was unlikely to commit such an offence again. The offence was not trivial and the available information did not enable a conclusion to be drawn as to the appellant's good character. Far from being an exceptional case there was no substantial reason why the appellant should be relieved from the normal consequences of his conviction. In the circumstances, I would allow the cross-appeal and set aside the spent conviction order.
[22] van der Feltzv Legal Practice Board of Western Australia [2017] WASC 2 [104] ‑ [109].
Appeal to this court - ground 3
Ground 3 in the appeal to this court could scarcely be cast in more general terms. It states:
3.His Honour erred in fact and law in allowing the cross appeal, granting the extension of time and setting aside the spent conviction because his Honour did not have proper regard for Applicant's arguments, evidence and exhibits, mistook facts and did not or not properly address Applicant's submissions and arguments while his Honour's decision is biased and was against Authorities, the Law, Natural Law and a miscarriage of justice. Decision [2017] WASC 2 s 30, 90, 91, 95 ‑ 110.
Appellant's submissions
The appellant's written and oral submissions were to the same effect.[23] In substance, it is said that his Honour erred in not dismissing the respondent's cross‑appeal against the making of the spent conviction order. The appellant submitted that he was an honest person who had lived his 'whole life without a criminal offence'.[24] The appellant essentially submitted that, because the respondent had not put his good character into issue before the magistrate, the magistrate was entitled to find that the appellant was a person of previous good character, and that Hall J erred in finding that there was no evidence to this effect.[25]
[23] Appeal ts 27 ‑ 28.
[24] Appeal ts 28.
[25] Appellant's case, pages 11 ‑ 12.
Although the appellant did not submit that the case was trivial, he asserted, in substance, that his criminality was low. In support of this submission, he:
(a)pointed to the fact that he stated in the advertisement that he was not a legal practitioner;[26]
(b)placed the advertisement on Gumtree only once;[27]
(c)by placing the advertisement, only wanted to help people;[28] and
(d)was ignorant of the relevant provisions of the Act, he did not intend to breach the Act and he, in fact, 'struggle[d] to accept wrongdoing'.[29]
[26] Appeal ts 29.
[27] Appeal ts 29; appellant's case, pages 11 ‑ 12.
[28] Appeal ts 30.
[29] Appeal ts 29.
He pointed to matters personal to him which he submitted contributed to the 'exceptional'[30] nature of his case, including:
(a)while he currently did not require a visa to enter the United States of America, as a result of his conviction he would have to apply for a visa, a process which would be inconvenient to him and which may result in the application being refused;[31]
(b)he has a number of health conditions which are unnecessary to describe in detail in these reasons, which 'disadvantage' him;[32]
(c)he and his family had suffered a degree of public opprobrium as a result of the conviction;[33] and
(d)no public interest would be adversely affected if a spent conviction order was made.[34]
[30] Appeal ts 28.
[31] Appeal ts 31; appellant's case, page 12.
[32] Appeal ts 31 - 32; appellant's case, page 12.
[33] Appeal ts 28 ‑ 29.
[34] Appeal ts 32.
The appellant also alleged that his Honour was biased against him.[35]
Respondent's submissions
[35] Appellant's case, pages 11 ‑ 13.
The gravamen of the respondent's submissions was that Hall J's decision was correct for the reasons he gave in his judgment.
Counsel for the respondent submitted that there was no reasonable basis for the magistrate's finding that the appellant was unlikely to reoffend.[36] In oral argument, counsel reiterated his written submissions on this point, which asserted:[37]
(a)the lack of any demonstrated remorse, contrition, acceptance of wrongdoing or insight into the offending conduct;
(b)the initial attitude of the appellant to the prosecution, namely that he considered it was a waste of time;
(c)the degree of pre‑planning, sophistication and know‑how required to draft the structure and terms of the Gumtree advertisement and the extent and nature of the services being offered; and
(d)the multiple layers of defence advanced by the appellant.
[36] Respondent's answer [35] ‑ [36]; appeal ts 34 ‑ 36.
[37] Respondent's answer [36].
The respondent also submitted that there was no basis upon which the learned magistrate could have assumed, without evidence being adduced, that the appellant was a person of previous good character.[38] In support of this submission, counsel for the respondent pointed to evidence that the appellant initially responded to inquiries from the respondent about the advertisement to the effect that he did not advertise or engage in legal practice, but later accepted that he did advertise, but the advertisement had been altered by someone else.[39]
[38] Respondent's answer [37] ‑ [38].
[39] Appeal ts 38 ‑ 39.
The respondent further submitted that, even if it was found that the appellant was a person of previous good character who was unlikely to reoffend, it was not open to the magistrate to grant a spent conviction order. This was said to be because there was no reason to relieve the appellant of the adverse effects of the conviction immediately, and that the making of a spent conviction order would not protect the interests of justice by ensuring that legal work was carried out only by those who are properly qualified to do so and to protect consumers by ensuring that persons carrying out legal work are entitled to do so.[40]
[40] Section 11 of the Act; appeal ts 33 ‑ 34, 42, 45.
The legislative framework
The relevant legislative framework was explained by McLure J in Brewer v Bayens[41] in these terms:[42]
[41] Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189.
[42] Brewer [18] ‑ [24].
The law relating to spent convictions is contained in the Spent Convictions Act 1988. Part 2 of that Act deals with the requirements for convictions to become spent. It divides convictions which may be spent into two categories, one for 'serious convictions' (s 6) and the other for 'lesser convictions' (s 7). The offence for which the appellant was convicted is a lesser conviction. In such a case, after a minimum period of 10 years an application may be made to the Commissioner of Police under s 7 for a certificate that the conviction is spent. The Commissioner is obliged to issue such a certificate (s 7(3)). In the case of a serious conviction, a spent conviction order is the discretion of a District Court Judge after a minimum period of 10 years. The Spent Convictions Act prohibits discrimination against a person on the basis of a spent conviction (s 17 to s 23). The anti‑discrimination provisions are very broad. Further, a convicted person is not required to disclose or acknowledge a spent conviction (s 27).
The purpose of the Spent Convictions Act was considered by the Full Court in its guideline judgment in R v Tognini (2000) 22 WAR 291. Murray J (with whom Malcolm CJ and Wallwork J agreed) said at 296:
'Ordinarily of course, a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Conviction Act … are clearly based on the proposition that after the conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the way it is described in the Act so that the offender may put the offence behind them and function in the future without the need to disclose the conviction.'
The term 'spent conviction' is defined in the Spent Convictions Act to include a spent conviction order made under s 39 of the Sentencing Act 1995. Section 39(2) of the Sentencing Act gives a court sentencing an offender the power 'with or without making a spent conviction order' to impose no sentence, a CRO, a fine, or a CBO.
Section 45 of the Sentencing Act deals with the making and effect of a spent conviction order. It materially provides:
'(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.
(2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4)A spent conviction order is to be taken as part of the sentence imposed.'
In R v Tognini at (297) Murray J said of s 45 of the Sentencing Act:
'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 preconditions 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, practicing a particular profession or undertaking particular employment.'
Murray J noted that the Court may be aided in the exercise of the discretion if it thinks 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.
The necessary pre‑conditions to the exercise of the discretion referred to by Murray J are the factors set out in sub paragraphs (a) and (b)(i) or (ii) of s 45(1). However, satisfaction of those criteria does not require the making of a spent conviction order. They enliven the discretion.
Appeals against sentence - general principles
The cross‑appeal before Hall J was an appeal against the magistrate's discretionary decision to make the spent conviction order. According to well established principle, his Honour was only entitled to intervene if the magistrate acted upon a wrong principle, or took into account extraneous or irrelevant matters, or mistook the facts, or did not take into account relevant matters. If the result is unreasonable or plainly unjust, error may be inferred. It is only when an express or implied error is established that an appellate court may re‑exercise the discretion. Of course, any error must be material so as to require the making of a different decision.[43]
[43] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672; Brewer [28] ‑ [29].
It follows from this that if the magistrate made no material error, Hall J was not entitled to allow the cross‑appeal.
Disposition
The magistrate's discretion to make a spent conviction order could only be enlivened, but not necessarily exercised in the appellant's favour, if the preconditions in s 45(1)(a) and (b)(i) or (ii) of the Sentencing Act were satisfied.
It is clear from the magistrate's reasons that he found that the appellant was unlikely to commit such an offence again (s 45(1)(a)) and that the appellant was of previous good character (s 45(1)(b)(ii)).[44] He did not make a finding that the offence was trivial. These findings satisfied the necessary preconditions for the exercise of the discretion conferred by s 39(2) read with s 45(1) of the Sentencing Act.
[44] ts 127.
Hall J found that there was no proper basis for the magistrate's conclusions that the appellant was unlikely to commit such an offence again and that the appellant was of previous good character.[45]
[45] van der Feltzv Legal Practice Board of Western Australia [2017] WASC 2 [109].
The first question to be answered is whether his Honour erred in concluding that it was not reasonably open to the magistrate to be satisfied of the two preconditions. In our opinion, it was reasonably open to the magistrate to be so satisfied, and his Honour erred in deciding to the contrary.
With respect to the magistrate's conclusion that the offender was unlikely to commit such an offence again, that conclusion was open, having regard to these factors:
(a)The advertisement was uploaded onto the Gumtree website once.
(b)While the advertisement was seen by Ms Fulham on 23 February 2015, there was no evidence to the effect that the advertisement remained on the website after that date or that the appellant attempted subsequently to advertise in the same or a similar way.
(c)Not only was the appellant fined $2,500, but he was ordered to pay costs in the sum of $8,372.95. In other words, the placement of the advertisement had the effect of imposing a substantial financial penalty of close to $11,000.
(d)The magistrate expressed the view that, in his opinion, the appellant had learnt a lesson by contravening s 13(1) of the Act. It may properly be inferred that the magistrate's reference to learning a lesson is an observation he made to the effect that the court process and the financial cost imposed upon the appellant was sufficient to dissuade him from committing further offences against the Act.
We are of the opinion that the conclusion that the appellant was of previous good character was, in the circumstances of this case, open to the magistrate.
The usual practice in sentencing proceedings in this State is for the prosecution to put before the sentencing judge any information known to it which shows that an offender has prior convictions. The respondent did not put before the magistrate any evidence that the appellant had any prior convictions. The absence of prior convictions does not necessarily equate with previous good character, but it is relevant to an assessment of character that the respondent did not allege that the appellant had any prior convictions.
Before he made his decision to grant the appellant a spent conviction order, the magistrate said that he assumed the appellant was of previous good character. The respondent, who was represented by counsel at trial and in the sentencing proceedings, did not seek to challenge the assumption or put the appellant to proof of the matter.
Had the magistrate's assumption been challenged, it would have been open to the appellant to adduce evidence of his previous good character. In this regard, we note that when the issue was raised before Hall J, the appellant asserted that he was a person of good character. We also note that the respondent has not put before this court, or indeed the courts below, anything that shows that the appellant was not of previous good character.
A point now put against the appellant by the respondent is that the magistrate's finding that the appellant's evidence was 'nonsensical',[46] in effect precluded the making of a finding that the appellant was of previous good character. We do not accept this submission for three reasons.
[46] Appeal ts 39.
First, as we have already said, the respondent did not challenge the magistrate's expressed assumption that the appellant was of previous good character, or seek to put the appellant to proof on the issue.
Secondly, this was not a point made by the respondent to the magistrate. Nor was it a ground of appeal to Hall J. Nor was it a matter which was the subject of a notice of contention in this court.
Thirdly, the finding that the appellant's evidence was 'nonsensical' is not synonymous with a finding that the appellant was not a person who could be regarded as of previous good character. In this regard, it must be remembered that the magistrate, who had just delivered his extempore judgment convicting the appellant, did not appear to think that this finding, which must have been very fresh in his mind, precluded him from deciding that the appellant was of previous good character.
A further question to be answered is whether it was open to the magistrate to find that, once the criteria in s 45 of the Sentencing Act had been established, it was appropriate to exercise the discretion to grant a spent conviction order in favour of the appellant.
In our opinion, it was open to the magistrate to exercise the discretion for the following combination of reasons:
1.The offence involved the publication on Gumtree of a single advertisement.
2.There is no evidence that, once the appellant became aware that the respondent regarded the publication of the advertisement as being contrary to the Act, the appellant attempted to publish any further advertising material.
3.There was no evidence that any member of the public answered the advertisement and retained the appellant to perform any work.
4.Having decided that the appellant was unlikely to offend in such a manner again, the need for personal deterrence was not a significant sentencing factor.
5.There was no pressing public interest for the recording of a conviction, and no public interest asserted by the prosecution at the time of sentencing.
6.The extent of the fine and the award of costs was, in this instance, sufficient for the purposes of general deterrence.
7.The evidence before the magistrate was that the appellant was unemployed. The fact of a conviction may impede his prospects of future employment.
The respondent made the point that, based on the magistrate's reasons, the magistrate appeared to be influenced in his decision to grant a spent conviction order by the claim that the appellant would otherwise have to apply for a visa to enter the United States of America to visit his brother, and that there was a prospect that such an application would be refused. We agree with the respondent that there was, in fact, no evidence before the magistrate to support this finding. However, that does not mean that there was no other basis properly to make the spent conviction order.
In our opinion, the magistrate did not make a material error in deciding to grant a spent conviction order. It was open to him to do so. In our opinion, Hall J erred in finding to the contrary. The respondent's cross‑appeal should have been dismissed.
It is unnecessary to deal with the appellant's allegation of bias. The appellant does not specify whether he alleges that Hall J was actually biased against him, or that there was a reasonable apprehension of bias. It does not matter because, in our opinion, there is no basis for the allegation, whether it be an allegation of actual or apprehended bias.
Conclusion and orders
Ground 3 has been made out. We would make the following orders:
1.The appeal is allowed.
2.The order made by Hall J allowing the respondent's cross‑appeal is set aside.
3.The respondent's cross-appeal before his Honour is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS3 JULY 2018
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