Van Rijn v Wellinger
[2013] WASC 152
•15 APRIL 2013
VAN RIJN -v- WELLINGER [2013] WASC 152
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 152 | |
| Case No: | SJA:1119/2012 | 15 APRIL 2013 | |
| Coram: | PRITCHARD J | 15/04/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Restitution order set aside Spent conviction order made | ||
| B | |||
| PDF Version |
| Parties: | JASON ADRIAN VAN RIJN MARC WELLINGER |
Catchwords: | Spent conviction order Application for an extension of time in which to appeal Purpose of compensation order Sentencing Act 1995 (WA), s 117, s 45 Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code Sentencing Act 1995 (WA) |
Case References: | Brewer v Bayens (2002) 26 WAR 510 Cooper v Sinnathanby [2007] WASCA 32 Mohamed v Wellinger [2012] WASC 470 R v Tognini (2000) 22 WAR 291 Rigall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 Samuels v State of Western Australia (2005) 30 WAR 473 Waharven v Higgs [2012] WASC 356 Wimbridge v State of Western Australia [2009] WASCA 196 Wright v MacMurchie [2012] WASCA 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MARC WELLINGER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P M HEANEY
File No : PE 29622 of 2012
Catchwords:
Spent conviction order - Application for an extension of time in which to appeal - Purpose of compensation order - Sentencing Act 1995 (WA), s 117, s 45 - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Restitution order set aside
Spent conviction order made
Category: B
Representation:
Counsel:
Appellant : Ms K A Dowling
Respondent : Ms D Van Nellestijn
Solicitors:
Appellant : Chelmsford Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brewer v Bayens (2002) 26 WAR 510
Cooper v Sinnathanby [2007] WASCA 32
Mohamed v Wellinger [2012] WASC 470
R v Tognini (2000) 22 WAR 291
Rigall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Samuels v State of Western Australia (2005) 30 WAR 473
Waharven v Higgs [2012] WASC 356
Wimbridge v State of Western Australia [2009] WASCA 196
Wright v MacMurchie [2012] WASCA 257
- PRITCHARD J:
(This judgment was delivered extemporaneously on 15 April 2013 and has been edited from the transcript.)
1 Late in the evening of 18 February 2012 Mr Van Rijn, who was then 25 years old, left the Ocean Beach Hotel in Cottesloe with some friends. He wanted to catch a taxi. He decided to stand in the north-bound lane of Marine Parade next to the median strip in an attempt to flag down an oncoming taxi. The taxi, which was carrying a passenger, did not stop. As the taxi went past Mr Van Rijn, he kicked the rear panel of the taxi on the driver's side, causing $500 worth of damage.
2 On 31 May 2012 Mr Van Rijn was charged with wilful damage contrary to s 445 of the Criminal Code. Mr Van Rijn sent an endorsed plea of guilty and an accompanying letter with enclosures (the mitigation letter) to the Perth Magistrates Court and did not attend on the day the matter was listed. In the mitigation letter Mr Van Rijn asked for a spent conviction order.
3 On 17 July 2012 the charge was heard in the Perth Magistrates Court. The learned Magistrate convicted Mr Van Rijn, imposed a fine of $400, ordered that Mr Van Rijn pay costs of $125.70 and ordered Mr Van Rijn to make restitution in the amount of $500 (the restitution order). The learned Magistrate did not make a spent conviction order.
4 Mr Van Rijn now appeals against his sentence. He wants the restitution order set aside and seeks that a spent conviction order be made. For the reasons which follow the appeal will be upheld. The decision of the learned Magistrate to impose a restitution order will be set aside and I will make a spent conviction order.
5 These reasons for decision deal with the following matters.
(1) The background to the appeal, the grounds of appeal and the application for leave to add a further ground of appeal;
(2) The application for leave to file a further affidavit in support of the appeal;
(3) The application for an extension of time in which to appeal;
(4) The application for leave to appeal;
(5) Why the learned Magistrate erred in making the restitution order;
(6) Whether the learned Magistrate erred in failing to take into account the application for a spent conviction order or in failing to give reasons for his implicit decision to refuse to give such an order;
(7) Why Mr Van Rijn should be granted a spent conviction order; and
(8) The orders which should be made.
Background to the appeal, the ground of appeal and the application for leave to add a further ground of appeal
6 The endorsed plea of guilty entered by Mr Van Rijn stated that he
[M]ade a foolish mistake of damaging [the taxi] in the process. I am apologetic for causing the taxi driver any stress and inconvenience as a result of this incident. I am sincere that this was an isolated foolish mistake which I am wholly remorseful for. I have already settled the damage bill with the driver.
7 The mitigation letter which accompanied the endorsed plea of guilty was headed 'Plea in mitigation'. In that letter Mr Van Rijn applied for a spent conviction order and addressed the following criteria:
• This was his first offence or dealing with the police;
• This was an isolated incident;
• The damage bill had been settled with the taxi driver on 15 June 2012;
• Mr Van Rijn was deeply remorseful about his behaviour;
• Mr Van Rijn was early in his career and a criminal record would affect his future employment opportunities.
8 The mitigation letter appears to have had some attachments or enclosures, namely a copy of some email correspondence between Mr Van Rijn and the taxi driver on 11 and 12 June 2012 in which Mr Van Rijn apologised and requested information so that he could pay the taxi driver for the cost of repairing the damage he had caused and a copy of a receipt from an electronic funds transfer to the taxi driver's bank account.
9 The learned Magistrate did not refer to the contents of the mitigation letter when he sentenced Mr Van Rijn on 17 July 2012. After the facts were read out he simply said,
Let's have a look at the photo. Right. On this matter you're fined $400, costs of $125.70.
10 When the prosecutor then sought restitution of $500 the learned Magistrate made an order for restitution in the amount of $500 without further comment.
11 The grounds on which Mr Van Rijn appeals against the failure of the learned Magistrate to make an order for a spent conviction are
(1) The learned Magistrate erred in law by failing to take into account Mr Van Rijn's application for a spent conviction order;
(2) The learned Magistrate erred in failing to give reasons for his decision.
- I understand that ground 2 is effectively in the alternative to ground 1 and proceeds on the assumption that the learned Magistrate did take into account Mr Van Rijn's application for a spent conviction order but determined that no such order should be made.
12 Mr Van Rijn also seeks leave to add a third ground of appeal, namely;
(3) There was a miscarriage of justice by reason of the order requiring Mr Van Rijn to pay restitution of $500.
- The basis for the third ground of appeal, as disclosed on the material before the learned Magistrate and deposed to in a further affidavit sworn by Mr Van Rijn dated 11 April 2013, is that by the time Mr Van Rijn was sentenced he had already paid the taxi driver for the cost of repairing the damage to the taxi.
13 Having regard to the nature and obvious merit of the proposed third ground of appeal, and to the fact that the respondent consents to the grant of leave to add this additional third ground of appeal, that leave should be given.
The application for leave to file a further affidavit in support of the appeal
14 Mr Van Rijn seeks leave to file a further affidavit sworn by him and dated 11 April 2013 in support of his appeal.
15 The Court has power under s 40(3) of the Criminal Appeals Act2004 (WA) to permit an appellant to adduce further evidence. The affidavit on which Mr Van Rijn seeks to rely sets out his personal history, his work history, additional details in relation to the circumstances of the offence, his remorse, the fact that he made early arrangements to pay the taxi driver for the cost of repairing the damage to the taxi, his prior good character and the detrimental effect which a criminal record is likely to have on his career.
16 Having regard to the clear relevance of these matters to the exercise of my discretion whether to grant a spent conviction order in circumstances where (as I explain below) that discretion has been enlivened, to the fact that Mr Van Rijn was not legally represented prior to the charge being dealt with in the Magistrates Court and to the fact that the respondent consents to the grant of leave to rely on this additional evidence, this is an appropriate case for the grant of leave to rely on Mr Van Rijn's affidavit dated 11 April 2013 in support of his appeal.
The application for an extension of time in which to appeal
17 Unfortunately, Mr Van Rijn did not file his appeal notice until 4 October 2012. That was more than seven weeks beyond the 28-day time limit for filing an appeal pursuant to s 10(3) of the Criminal Appeals Act. Accordingly Mr Van Rijn also seeks an extension of time in which to commence his appeal. Mr Van Rijn's application was referred to this Court by order of Hall J on 22 November 2012.
18 Where there has been a lengthy delay the Court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Wimbridge v State of Western Australia.1
19 The explanation for the delay is set out in the affidavit of Mr Van Rijn which was sworn on 2 October 2012. In that affidavit he deposes that on 23 July 2012 he telephoned a solicitor regarding his views as to the likelihood of success of an appeal against the sentence imposed by the Magistrates Court. The solicitor advised him that he would need to obtain the transcript of the proceedings before the learned Magistrate.
20 The following day Mr Van Rijn was required to travel overseas for his job. He did not return to Australia until 4 August 2012 and on 6 August 2012 he ordered a copy of the transcript.
21 On 14 September 2012 Mr Van Rijn's lawyers appear to have received the transcript. On the same day his lawyers provided him with written advice which included the fact that the time in which to commence an appeal had expired. On 17 September 2012 Mr Van Rijn instructed his lawyers to commence an appeal.
22 For reasons which are not entirely clear it was another 18 days before the application for leave to appeal was actually filed, although perhaps that was in part a result of a delay in obtaining documentation which had been before the Magistrates Court when Mr Van Rijn was convicted and sentenced.
23 In addition, it is clear that there are very strong grounds for the grant of leave to appeal in this case. I note that the respondent consents to the grant of an extension of time in which Mr Van Rijn may appeal. Clearly this is not a case in which there could be any prejudice to the prosecution arising from an extension of time in which to appeal.
24 Having regard to all of these factors I am satisfied that a miscarriage of justice would occur if an extension of time were not granted in which to apply for leave to appeal.
The application for leave to appeal
25 Mr Van Rijn requires leave to appeal. His application for leave to appeal was referred to this Court by order of Hall J on 22 November 2012. The grant of leave requires the applicant to demonstrate that the ground of appeal has a rational and logical prospect of success or, in other words, a real prospect of success: Samuels v State of Western Australia.2
26 The respondent consents to the grant of leave to appeal in respect of all three grounds of appeal. Given the circumstances, this is clearly a case where leave to appeal should be granted. I turn to consider the grounds of appeal.
Why the Magistrate erred in imposing a restitution order
27 It is convenient to commence by considering the third ground of appeal. This ground is that there was a miscarriage of justice by reason of the order requiring Mr Van Rijn to pay restitution of $500.
28 An appeal can be brought from a decision of a Magistrate on the ground that there has been a miscarriage of justice: Criminal Appeals Act, s 8. When the learned Magistrate made what he described as a restitution order, it is my understanding that he in fact intended that to be a reference to a compensation order under s 117 of the Sentencing Act 1995 (WA).
29 An order of that kind is an order that the offender must pay an amount of money, set by the Court, to the victim as compensation for the loss of, or damage to, the victim's property and any expense reasonably incurred by the victim as a direct or indirect result of the commission of the offence: Sentencing Act, s 117(2).
30 The respondent's counsel has advised the Court that the respondent concedes the third ground of appeal. That concession was properly made. The mitigation letter clearly indicated that Mr Van Rijn had already paid for the damage to the taxi, and a copy of the electronic funds transfer from Mr Van Rijn to the taxi driver was attached. No reference was made to this material by the learned Magistrate. It is not apparent that this material was drawn to the Magistrate's attention or that he otherwise appreciated that the mitigation letter was before the Court. In any event, however, the endorsed plea of guilty also indicated that the damage had already 'been settled' and the fact that there was an 'explanation' along with the plea of guilty was specifically drawn to the attention of the learned Magistrate by the prosecutor.3
31 In Cooper v Sinnathanby4 McLure JA, as her Honour then was, observed:
The clear purpose of the provisions of the Sentencing Act relating to the making of a compensation order is to benefit the victim rather than to provide additional punishment for the offender. Part 16 of the Sentencing Act provides a victim of crime with a summary procedure in the nature of civil proceedings for the recovery of compensation for their loss without being put to the additional trouble and expense of independent proceedings.
32 Given that Mr Van Rijn had already compensated the taxi driver for the damage to the taxi, the making of the restitution order (or, properly put, a compensation order) for the same amount of money, would clearly go beyond compensating the victim for the damage to the taxi which was incurred as a result of the offence and would therefore give rise to a miscarriage of justice.
33 Ground 3 of the appeal should be upheld and the restitution order (that is, the compensation order) made by the learned Magistrate should be set aside.
Whether the learned Magistrate erred in failing to take into account the application for a spent conviction order
34 Although ground 1 of the grounds of appeal is expressed in terms of an error involving a failure to take into account Mr Van Rijn's application for a spent conviction order, counsel for Mr Van Rijn confirmed that that ground was intended to involve the consequential contention that the failure to do so gave rise to a miscarriage of justice.
35 The application for a spent conviction order was clearly before the learned Magistrate but was not referred to at all. The failure by the learned Magistrate to address whether a spent conviction order should be granted in the circumstances suggests that the learned Magistrate failed to take that application into account. It is well established that the failure to mention consideration of a spent conviction will not necessarily constitute an error or give rise to a miscarriage of justice. The relevant authorities in relation to that principle were discussed by Edelman J in Mohamed v Wellinger.5 However, this is not a situation in which it can be inferred that the learned Magistrate did take the application into account but simply did not expressly refer to that application in his reasons. In my view, the learned Magistrate's failure to consider the application for a spent conviction order in the circumstances where one had been applied for, when the information before the learned Magistrate was sufficient to enliven the discretion to make that order, and when Mr Van Rijn was not present in Court or represented by a lawyer, constituted an error of law and in the circumstances gave rise to a miscarriage of justice. Ground 1 should be upheld.
36 In view of my conclusion that ground 1 of the appeal should be upheld, it is not necessary to deal with ground 2 of the appeal which also pertains to the learned Magistrate's failure to grant a spent conviction order.
Why Mr Van Rijn should be granted a spent conviction order
37 In view of my conclusion in relation to ground 1, the Court is now asked to exercise the discretion under s 45 of the Sentencing Act to grant a spent conviction order.
38 The criteria for a grant of a spent conviction order are set out in s 45(1) of the Sentencing Act. The principles in relation to s 45 are well settled.6
39 I turn to consider whether the criteria for the exercise of the discretion to make a spent conviction order are met in this case. A court sentencing an offender is not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again and, having regard either to the fact that the offence is trivial or to the previous good character of the offender, it considers that the offender should be released immediately from the adverse effect that the conviction might have on the offender.
40 In my view, it cannot be said that the offence in this case was trivial so as to satisfy the criterion in s 45(1)(b)(i) of the Sentencing Act. However, in this case there is no dispute that Mr Van Rijn had no convictions prior to his conviction for the present offence. I am satisfied as to his previous good character: s 45(1)(b)(ii) of the Sentencing Act.
41 I turn to consider whether it can be said that Mr Van Rijn is unlikely to commit an offence of this kind again for the purpose of the criterion in s 45(1)(a) of the Sentencing Act.
42 Mr Van Rijn's affidavit of 11 April 2013 attached a reference from his general manager at work (the employer), who has known him for the two years since Mr Van Rijn commenced work with the firm and a reference from Mr Van Rijn's partner of over six years.
43 In his reference, the employer attests to Mr Van Rijn's good character and his view that the offence in this case was 'totally out of character'.
44 Given the personal relationship between them, I do not place great weight on the reference from Mr Van Rijn's partner other than to note that, consistently with Mr Van Rijn's employer's observations, Mr Van Rijn's partner says that his behaviour in damaging the taxi was out of character and something she had never witnessed before.
45 Mr Van Rijn is well educated, has a stable job and appears to have good prospects in his employment. He is in a long-term relationship and has the support of his partner. Against his background of no previous convictions, in my view the present offence can be characterised as an instance of a hasty over-reaction resulting in a very foolish mistake. Mr Van Rijn is old enough to know better, and I am persuaded that he has learnt from this experience. Taking all of these considerations into account, I am satisfied that it can be said that Mr Van Rijn is unlikely to commit such an offence again.
46 The satisfaction of these preconditions then enlivens my discretion to grant a spent conviction order. Even if the criteria for doing so under s 45(1)(a) and (1)(b) of the Sentencing Act are met, that does not require the making of a spent conviction order: Wright v MacMurchie.7 The decision remains one at the discretion of the Court and one which should be exercised sparingly. Consideration must be given to all of the circumstances of the case, of the offender and of the public interest: see Rigall v State of Western Australia and R v Tognini.8
47 In this case I am persuaded that Mr Van Rijn should be released immediately from the adverse effect of the conviction upon him for the reasons which follow.
48 First, in his reference, the employer speaks very favourably of Mr Van Rijn's performance at work. More particularly, he notes that a criminal record may affect Mr Van Rijn's ability to travel and to promote his employer's interests and may thus be detrimental to his future career. Mr Van Rijn's own affidavit attests to the fact that he is required to frequently travel overseas in his employment and that in the past 24 months he has travelled to several countries. He thinks it likely that he could travel to the United States and Canada in the near future. Mr Van Rijn has deposed to the fact that a criminal conviction may make it difficult for him to travel to these countries.
49 Secondly, Mr Van Rijn was 25 years old at the time of the offence and thus still relatively young. There is some suggestion in his affidavit that the offence may have been committed at a time when he was affected by alcohol.
50 Thirdly, Mr Van Rijn has shown genuine remorse in quickly reimbursing the taxi driver for the cost of the repairs to the taxi. He did this of his own volition and before he was convicted. For completeness, I note that he did so only once he was charged, but his counsel has advised that her instructions are that because he was under the influence of alcohol at the time of the offence he was unaware of the damage he had done to the taxi and he was unaware of the identity of the taxi driver. Once Mr Van Rijn was spoken to by the police and the damage raised with him, he took steps to immediately make arrangements to reimburse the driver for the cost of repairing the damage.
51 Fourthly and finally, although the offence is not a trivial one, I note that McKechnie J has recently given a spent conviction order in a case involving wilful damage committed in very similar circumstances to the offence in this case: Waharven v Higgs.9
52 Taking all these considerations into account it is appropriate, in my view, to make a spent conviction order in this case.
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1Wimbridge v State of Western Australia [2009] WASCA 196 [19] (Wheeler J), [42] (Buss JA).
2Samuels v State of Western Australia (2005) 30 WAR 473, 487 [56].
3 Transcript, Perth Magistrate's Court, 17 July 2012, 2.
4Cooper v Sinnathanby [2007] WASCA 32 [24].
5Mohamed v Wellinger [2012] WASC 470 [35] - [37].
6Brewer v Bayens (2002) 26 WAR 510; R v Tognini (2000) 22 WAR 291; and Rigall v State of Western Australia (2008) 37 WAR 211.
7Wright v MacMurchie [2012] WASCA 257 [59] (Pullin J).
8Rigall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211; and R v Tognini (2008) WAR 291 [24] - [28].
9Waharven v Higgs [2012] WASC 356.
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