Wahab v Higgs

[2012] WASC 356

WAHAB -v- HIGGS [2012] WASC 356

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 356
Case No:	SJA:1018/2012	Heard:	18 SEPTEMBER 2012
Coram:	McKECHNIE J	Delivered:	18/09/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order made
Category:	B
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Parties:	AWANGKU MOHAMMED HANIF BIN PENGIRAN ABD WAHAB KAREN ALICE HIGGS
Catchwords:	Criminal law Spent conviction for unlawful damage No application to magistrate Whether miscarriage of justice
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 R v Tognini [2008] WASCA 31; (2000) 22 WAR 291 Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : WAHAB -v- HIGGS [2012] WASC 356 CORAM : McKECHNIE J HEARD : 18 SEPTEMBER 2012 DELIVERED : 18 SEPTEMBER 2012 FILE NO/S : SJA 1018 of 2012 BETWEEN : AWANGKU MOHAMMED HANIF BIN PENGIRAN ABD WAHAB

Appellant

AND

KAREN ALICE HIGGS
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 38097 of 2011

Catchwords:

Criminal law - Spent conviction for unlawful damage - No application to magistrate - Whether miscarriage of justice

Legislation:

Sentencing Act 1995 (WA), s 45

(Page 2)

Result:

Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Ms G M Cleary

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
R v Tognini [2008] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211


(Page 3)

McKECHNIE J:

How this appeal arises

1 On 12 July 2011 the appellant allowed his anger to get the better of him. The appellant's cousin had caught a taxi from Northbridge to Subiaco. The appellant had an argument with the taxi driver and the taxi driver got back into the taxi and locked the doors.

2 The appellant went upstairs to his unit, put some shopping down, changed his shirt, and went back downstairs to get his cousin who was in the taxi paying for the fare. The appellant kicked the left rear passenger door once causing about $600 worth of damage.

The court proceedings

3 The appellant was charged with unlawful damage and appeared in court on 7 September 2011 with counsel. The matter was adjourned to allow negotiations over restitution. He appeared with counsel and pleaded guilty on 5 October 2011. The plea was recorded and a judgment of conviction was entered.

4 The matter was further adjourned to 6 January 2012 for a victim mediation report. On that day the matter came before the magistrate. Neither counsel nor the appellant were there. Information given to the magistrate disclosed that the appellant had returned to Brunei: 'He sought another visa that was refused and he is appealing that decision.'

5 Although the prosecutor sought to proceed under the Criminal Procedure Act 2004 (WA) s 55, this being an indictable offence, that procedure was inapplicable. However, as the appellant had already pleaded guilty, the magistrate had power to deal with the matter by way of a fine under the Sentencing Act 1995 (WA) s 14(2) and that is what he did. He fined the appellant $400 and ordered that he pay restitution of $598.50. The magistrate did not give attention to a spent conviction order which is hardly surprising as he was not asked to.

6 The ground of appeal is not in proper form and reads:

I was unable to attend Court on 6 January as I was experiencing visa complications at the time. If present I would have liked to opt for a spent conviction.

7 Ms Cleary, on behalf of the respondent, has filed very helpful and detailed submissions and has accepted and responded to the case as if the
(Page 4)

ground of appeal was that there was a miscarriage of justice. I will treat the ground as asserting there has been a miscarriage of justice under the Criminal Appeals Act 2004 (WA) s 8(1)(b).

8 In saying that, I should emphasise that I do not consider there was any error made by the magistrate as there was nothing before the magistrate to raise the issue or to exercise the discretion. Nevertheless this court, under the Criminal Appeals Act, has a power to intervene if there has been a miscarriage of justice for any reason.

Should a spent conviction order be made?

9 A spent conviction order cannot be made unless the court considers the offender is unlikely to commit such an offence again and, having regard to the previous good character of the offender he should be relieved immediately of the adverse effects that a conviction might have on the offender: Sentencing Act s 45.

10 I have not taken into account s 45(b)(i) because I do not consider that the offence is trivial. Indeed, as Ms Cleary points out, there has been a prevalence of attacks on taxi drivers and while this is not the most serious offence, nevertheless it is a serious offence.

11 The principles for the application of the Sentencing Act s 45 are well settled: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510; R v Tognini [2008] WASCA 31; (2000) 22 WAR 291; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211. To this may be added a host of single judge decisions but it is not necessary to refer to them.

Evidence of good character

12 Because nothing was put before the magistrate, or indeed before me, as to the appellant's character, I invited the appellant to outline such matters as he wished to raise in that regard. He has tendered a series of references, some of which are a little bit old, and one is from his parents. Ms Cleary, very properly, does not suggest he is other than of good character. I note his parents say:

We believe it was a freak act which we pray would not tarnish his reputation at such an early age and that he will have a bright future ahead.

(Page 5)

13 A report of 20 February 2012 from his school says:

In summary, Hanif is motivated and determined to do well. He has the natural intelligence to understand concepts quicker than most. His conduct and maturity are of good standard.

14 The University of Western Australia, where the appellant is presently enrolled in a Bachelor of Commerce degree, confirms that he has had no disciplinary or misconduct matters during his time at the university. That note is dated last week. As I say, it is accepted that the appellant is of good character.

Conclusion - An order is appropriate

15 The appellant gave sworn evidence that he has in fact paid the fine and the reparation. He was 22 at the time of the offence. Section 45 of course is in a sense predictive in nature in that a court has to decide whether the offender is unlikely to commit an offence again, not that he will never commit an offence again. The Sentencing Act s 45 is in part to acknowledge the fact that people, particularly young people of otherwise good character, will sometimes get carried away and do really silly things as the appellant has done here.

16 I take account Ms Cleary's submissions, including the fact that it appears the conviction has not affected his re-entry into Australia, he has been able to travel and the fact that it should be public knowledge in view of, amongst other things, the prevalence of attacks on taxi drivers. The appellant responds that he has taken over 200 taxi journeys without trouble.

17 In all the circumstances, having regard to the prior good character of the appellant, his young age, the fact that he has paid the fine and reparation, I consider that this is a case where there has been a miscarriage of justice in failing to make a spent conviction order.

18 Leave to appeal is granted. Appeal allowed to the extent that I make a spent conviction order.