Wang v Duncan
[2018] WASC 342
•7 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WANG -v- DUNCAN [2018] WASC 342
CORAM: SMITH J
HEARD: 25 OCTOBER 2018
DELIVERED : 7 NOVEMBER 2018
FILE NO/S: SJA 1081 of 2018
MATTER: Criminal Appeals Act 2004 Part 2
Prosecution Notice Number PE 70780/16 in the Magistrates Court of Western Australia at Perth
BETWEEN: HE TAO WANG
Appellant
AND
DIANNE FAY DUNCAN
Respondent
ON APPEAL FROM:
For File No: SJA 1081 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B A AYLING
File Number : PE 70780 of 2016
Catchwords:
Criminal law - Appeal against decision not to make a spent conviction order - Whether magistrate erred by relying on the nature of the offence and circumstances of the offence - Express error disclosed in magistrate taking into account conviction after not guilty plea - Whether spent conviction order should be made - Spent conviction order made
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 14
Criminal Code Act Compilation Act 1913 (WA), s 323
Sentencing Act 1995 (WA), s 6(1), s 7(2)(a), s 39(2), s 41(1)(a), s 45, s 45(1)(b)(i)
Spent Convictions Act 1988 (WA)
Result:
Leave to appeal granted
Appeal allowed
Spent conviction order made
Category: B
Representation:
Counsel:
| Appellant | : | Mr O J Paxman |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Paxman & Paxman |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271; (2002) WAR 510
Brewer v Bayens [2002] WASCA 37
Frewen v Dalgreen [2014] WASC 407
Hussaini v Szolnoski [2013] WASC 64
M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17
R v Tait and Bartley (1979) 24 ALR 473
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TJH v Osborne [2018] WASC 87
Wong v Barker [2017] WASC 311
Wright v McMurchy [2012] WASCA 257
SMITH J:
The appeal
This is an application by the appellant, to appeal the decision of a magistrate to dismiss his application for a spent conviction order, following his conviction for indecent assault.
Leave of the court is required before the appellant may appeal on the ground of appeal.[1] Leave must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.[2] Before leave may be granted, the court must assess the ground as having a rational and logical prospect of succeeding, so that in effect it has a real prospect of success.[3] The court may dismiss or allow the appeal, or may set aside or vary the decision made, or substitute a decision that should have been made.[4]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[4] Criminal Appeals Act 2004 (WA) s 14.
For the reasons which I set out below I am of the opinion that leave to appeal should be granted, the appeal should be allowed and a spent conviction order be made in respect of the conviction for indecent assault.
Background
On 20 December 2016, the appellant was charged with one offence of unlawful and indecent assault. It was alleged that on 5 October 2016, at Riverton, the appellant unlawfully and indecently assaulted the complainant contrary to s 323 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).
The appellant entered a plea of not guilty to the charge. On 8 May 2018, the appellant was convicted of the offence following a two‑day trial in the Perth Magistrates Court.
At the time of sentencing, counsel for the appellant made an application pursuant to s 45 of the Sentencing Act 1995 (WA) for a spent conviction order, as defined in the Spent Convictions Act 1988 (WA). The appellant's application for a spent conviction order was opposed by the prosecution. The magistrate declined the appellant's application. The appellant was fined $4,000.00, ordered to pay costs of $588.50, and a compensation order was made in favour of the complainant. There is no appeal against the decision to impose a fine or make a compensation order.
The factual findings relevant to the sentence imposed by the sentencing magistrate
It is common ground that at the date of the offence, the appellant was 49 years old, and the complainant was 18 years old. It was also not in dispute that the appellant and the complainant were both patrons of a gymnasium, and both were in the changing room facility of the gymnasium at the time of the offence.
The magistrate made the following relevant findings of fact:
(a)the appellant was of previous good character;[5]
(b)prior to the offence, the appellant and the complainant had exchanged text messages which were innocent and innocuous in nature;
(c) the offence was a very brief encounter;[6]
(d)the appellant assaulted the complainant as alleged. That is that the appellant kissed the complainant by forcing his tongue into the mouth of the complainant; that he touched his bottom on the outside of the complainant's shorts; and that he touched the complainant's penis on the outside of his shorts which occurred whilst going in a second time (that is, her Honour appeared to have accepted the complainant's evidence that this occurred after he pushed the appellant away);[7]
(e)there was an element of persistence;[8]
(f)the indecent assault was a serious offence;[9]
(g)whilst the appellant's counsel described the incident as a bold sexual advance that occurred as a result of the appellant misinterpreting the complainant's conduct prior to the incident, it was not necessary to find the motivation for why the offence occurred;[10] and
(h)as the appellant was a person of prior good character it could be accepted that the offence was an uncharacteristic aberration.[11]
[5] ts 35.
[6] ts 36.
[7] ts 35.
[8] ts 35.
[9] ts 36.
[10] ts 35 ‑ 36.
[11] ts 36.
The magistrate accepted that the appellant:
(a)had tertiary qualifications (including a Graduate Diploma in Mandarin);
(b)had been in Western Australia since 2008;
(c)had a young child who was three and a half; and
(d)worked at the post office and was at risk of losing his job if a conviction is recorded.
The magistrate observed that the prosecution conceded the appellant was a person of good character, but because of the seriousness of the offence and general deterrence the prosecution submitted the appellant ought not be relieved of a conviction for this offence.
The magistrate stated that a financial penalty for the offence was an appropriate sentencing disposition when regard was had to the following matters:[12]
(a)the offence was serious and that the complainant would have some ill feeling about being touched in the way he was touched by the appellant;
(b)the need for general and specific deterrence which requires a message to be sent that a person cannot touch others indecently and unlawfully in these circumstances;
(c)the appellant could not receive the benefit of a discount for a plea of guilty; and
(d)the appellant's personal circumstances and the concession by the prosecution as to the (otherwise good) character of the appellant.
[12] ts 35 ‑ 36.
The magistrate then directed herself to each of the pre‑conditions for making a spent conviction order as provided for in s 45 of the Sentencing Act. In doing so, her Honour stated: [13]
First of all, I need to be satisfied that (a) you're a first offender, which I'm satisfied of, and then I need to be satisfied that you're unlikely to commit such an offence again, and that, due to your previous good character, you ought to be relieved immediately of the adverse effect of a conviction.
Mr Paxman, on your behalf, has said that I can be satisfied that you would be unlikely to commit such an offence, and I am satisfied that this was an uncharacteristic aberration on your behalf, and take into account your prior good character. In that regard I have ‑ I note the written references that have been put before me. However, the final factor, and that relied upon by the prosecution, is that, taking into account the circumstances of the offence, it would not be appropriate for you to be relieved immediately of the adverse effects of a conviction.
I am satisfied that due to the nature of the offence, and issues of general deterrence, that you ought not be relieved immediately of the effects of the conviction. I consider that due to the circumstances and the fact that this is a conviction after trial, that there are issues that need to be addressed by way of recognition of a conviction for this matter, and I decline to order the spent conviction order.
[13] ts 36 ‑ 37.
The Ground of Appeal
The sole ground of appeal is as follows:
The learned Magistrate erred in law in concluding that it would not be appropriate to relieve the Appellant of the adverse effect of conviction pursuant to s 45 (1) [of the Sentencing Act 1995 (WA)].
The appellant argues that the error by the learned magistrate can be characterised into three categories as follows:[14]
(a)the learned magistrate relied upon the 'nature of the offence' and general deterrence as a basis for concluding that the making of a spent conviction would be inappropriate;
(b)the learned magistrate relied upon the 'circumstances of the offence' without making a determination as to the appellant's motive for committing the offence; and
(c)the learned magistrate took into account the appellant's plea of not guilty and found that 'there are issues that need to be addressed by way of recognition of a conviction for this matter'.
[14] Appellant's outline of submissions dated 26 September 2018 [30].
The appellant submits that a spent conviction order should have been made by the magistrate when regard is had to the following circumstances:
(a)the unusual circumstances of the offence;
(b)the impact that a conviction is likely to have on the appellant's employment; and
(c)the facts of the offence do not give rise to an overriding public interest requiring potential employers to know about this conviction.
The principles governing spent conviction orders
Section 39(2) of the Sentencing Act empowers a court sentencing an offender to impose a fine with or without making a spent conviction order. The pre‑conditions to making a spent conviction order are set out in s 45(1) of the Sentencing Act. Section 45(1) provides:
45. Spent conviction order, making and effect of
(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.
Where the pre‑conditions in s 45(1) are met, the court has a discretion, not a duty, to make, or not make, a spent conviction order. In R v Tognini, Murray J said:[15]
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 pre-conditions 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, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that 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.
[15] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] ‑ [28] (Malcolm CJ & Wallwork J agreeing).
Thus, the question of whether to grant or refuse a spent conviction order is an exercise of discretionary judgment.[16] In an appeal raising an error going to the exercise of the discretion to refuse to make a spent conviction order if it was reasonably open for the magistrate to conclude that a spent conviction order was not appropriate, the appeal must fail.[17]
[16] Hussaini v Szolnoski [2013] WASC 64 [38].
[17] Hussaini v Szolnoski [2013] WASC 64 [38].
The discretionary power to make a spent conviction order has been regarded as being of 'an exceptional character'[18] and one which should 'only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable'.[19]
[18] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] (Murray J, Malcolm CJ & Wallwork J agreeing).
[19] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24] (Murray J, Malcolm CJ & Wallwork J agreeing).
An appeal court cannot simply intervene on the basis that it might have exercised the discretion differently.[20]
[20] House v King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
The exercise of the discretionary power to make a spent conviction order involves considerations of the interests of the offender and the public interest.[21]
[21] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] ‑ [28]; Wright v McMurchy [2012] WASCA 257 [59]; Frewen v Dalgreen [2014] WASC 407 [18], [20] ‑ [21]; Wong v Barker [2017] WASC 311 [39].
For an appeal against the exercise of a discretionary power to succeed, it is generally necessary to establish that the judicial officer at first instance failed to properly exercise her or his discretion for example, by acting upon a wrong principle, misstating the facts or allowing irrelevant matters to affect the decision.[22] If the result is unreasonable or unjust, error may be inferred.[23]
[22] Wright v McMurchy [2012] WASCA 257 [60] (Pullin JA, Buss & Mazza JJA agreeing) citing Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
[23] Brewer v Bayens [2002] WASCA 37 [28].
The only aspect of the criteria for making a spent conviction order that is relevant in this appeal is whether the sentencing magistrate goes not to any of pre‑conditions but whether the sentencing magistrate should have found that when regard was had to relevant matters the appellant should be relieved immediately of the adverse effect that the conviction might have on him.
Disposition - Why leave to appeal should be allowed
The magistrate directed herself (correctly) to the pre‑conditions of s 45 of the Sentencing Act. The magistrate directed herself to s 45(1)(a) and found that the appellant was a first time offender who was of previous good character, and who was unlikely to commit an offence again.[24] In making this finding, the magistrate had regard to written references which were provided to her by counsel for the appellant.[25]
[24] ts 36 ‑ 37. The magistrate also considered the written references regarding the appellant's good character.
[25] ts 37.
However, it is clear that when it came to consideration of s 45(1)(b)(i), despite the fact that her Honour described the offence as being 'a quick encounter, and a quick unlawful encounter …' and an 'uncharacteristic aberration',[26] the magistrate was nevertheless of the view that it was a serious offence,[27] and not one which could be considered to be trivial for the purposes of s 45(1)(b)(i).
[26] ts 36.
[27] ts 36.
The magistrate stated because of the nature of the offence, the penalty needed to have a general deterrent effect, which would send a message to both the appellant, and the community in general, that offending of this nature is unacceptable.[28] The magistrate declined to make the spent conviction order on the basis that due to the circumstances and the fact of a conviction after a trial (which followed a plea of not guilty) there needed to be recognition of a conviction.[29]
[28] ts 36.
[29] ts 36.
With regard to the appellant's submission that the magistrate erred by placing reliance upon 'the nature of the offence' and 'general deterrence' as a basis for concluding that the making of a spent conviction would be inappropriate, this submission must be rejected.
The nature of the offence is relevant when considering an application pursuant to s 45, as such a consideration not only goes to a finding of whether the offence was trivial for the purposes of s 45(1)(b)(i) of the Sentencing Act. It is also relevant in that, as Murray J said in R v Tognini, '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'.[30]
[30] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] (Malcolm CJ & Wallwork J agreeing).
When considering the seriousness of the offence, such a determination depends in part upon the nature of the offence. Whilst a spent conviction order can be given for an offence of a serious nature, the seriousness of the offence is a relevant factor in the exercise of any discretion and may in appropriate circumstances be a very weighty factor.[31] However, it is not a disqualifying factor.[32]
[31] Brewer v Bayens [2002] WASCA 37 [32].
[32] Brewer v Bayens [2002] WASCA 37 [32].
I therefore do not find that the magistrate erred by having regard to the nature of the offence when considering the spent conviction application.
Although the appellant makes a submission that the circumstances of the offence were unusual, the appellant is unable to point to any circumstance that could characterise the offence as unusual.
With regard to the appellant's submission that the magistrate relied upon the circumstances of the offence without making a determination as to the appellant's motive for committing the offence, in other matters there may be some force to such a submission. The appellant says that the offence was 'precipitated by an erroneous interpretation by [him], of the [complainant's] conduct prior to and leading up to the commission of the offence'.[33] In oral submissions at the time of sentencing, counsel for the appellant described the appellant's action as being a 'bold sexual advance'. On this point, the magistrate found that she 'really [did not] need to find the motivations for why it occurred'.[34]
[33] Appellant's written submissions at [31].
[34] ts 36.
The motivation of an accused person may be relevant when considering an application for a spent conviction order. This is because an accused's motivation is one of various factors which can be considered when assessing the seriousness of the offending. I note, however, that although the appellant claims that he misinterpreted the complainant's conduct prior to the offence being committed, this is different to the position adopted by him both before and during the trial. When interviewed by the police, the appellant gave an account, which was, in effect, that '[the complainant] was the assaulter and made up this account to deflect attention from himself'.[35] For this reason, no weight could have been placed on a submission from the bar table as to the appellant's alleged motivation or alleged misinterpretation by the appellant of the complainant's conduct to him prior to the offence.
[35] ts 26.
Finally, I turn to the appellant's submission that the magistrate erred when exercising the discretion not to make a spent conviction order by taking into account the appellant's plea of not guilty and finding that 'there are issues that need to be addressed by way of recognition of a conviction for this matter'.
The statement by the magistrate that 'I consider that due to the circumstances and the fact that this is a conviction after trial, that there are issues that need to be addressed by way of recognition of a conviction' must be read in the context of the statement that proceeded it which was, 'I am satisfied that due to the nature of the offence, and issues of general deterrence, that you ought not be relieved immediately of the effect of the conviction'.[36]
[36] ts 37.
By referring to the conviction after trial and the issues to be addressed by way of recognition of a conviction, in this context, the respondent argues the magistrate's observations must be interpreted as a finding that the nature and circumstances of the offence weighed heavily against the grant of a spent conviction order which required the recording of a conviction to reflect general and specific deterrence.
I agree that when the magistrate found that it was not appropriate that the appellant be relieved immediately from the effects of the conviction 'due to the circumstances and the fact that this is a conviction after trial', her Honour was referring to the circumstances of the offence and not to the circumstances of the fact of conviction after trial.
Yet it is not clear what the magistrate was referring to when her Honour referred to the fact of conviction after trial and stated that 'there are issues that need to be addressed by way of recognition of a conviction' (being recorded).
Her Honour may have been referring to a lack of remorse that would otherwise have been indicated by a plea of guilty. Yet this is not clear. However, there is little doubt that her Honour took into account that the conviction was entered after a plea of not guilty and following a trial. In doing so, an express error is disclosed.
Firstly, a plea of not guilty requiring the prosecution to put its case to proof does not preclude the granting of a spent conviction. To the contrary, by s 6(1) of the Sentencing Act a sentence imposed on an offender must be commensurate with the seriousness of the offence and by s 7(2)(a) an offence is not aggravated by the fact that an offender pleaded not guilty to it.
Secondly, an error is disclosed in that it is apparent when the reasoning of the magistrate is reviewed it emerges that after considering that the circumstances of the offence were serious, her Honour did not engage in assessing the factors which militated for and against the granting of a spent conviction. In particular, her Honour did not engage in balancing the interests of the offender (including an assessment of his character and adverse consequences to the appellant) and the public interest in the fact of a conviction being recorded.
It follows, therefore, there being a reviewable error, that it is for this court to re‑exercise the discretion in substitution for the decision made by the magistrate.
Should a spent conviction order be made by the court?
There is no issue that the necessary pre‑conditions which enliven the discretion have been satisfied.
An assessment of the public interest is an exercise in weighing of relevant matters going to the public interest.
General deterrence is a relevant consideration and is concerned with the public interest. The public interest, and the point of view of the community, are clearly relevant considerations when determining spent conviction applications.[37] As the authorities establish, one of the aspects of the public interest is the effect of an order on general deterrence.[38] Those authorities establish that if a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. Deterrence requires publicity as does 'the preservation of confidence in the judicial system'.[39] As Brennan, Deane and Gallop JJ stated in R v Tait and Bartley,[40] '[t]o deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction'.[41]
[37] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] (Murray J, Malcolm CJ & Wallwork J agreeing).
[38] Brewer v Bayens [2002] WASCA 271; (2002) WAR 510 [17] ‑ [18] (Burchett AUJ, Wallwork & Wheeler JJ agreeing) and the cases cited therein.
[39] R v Tait and Bartley (1979) 24 ALR 473, 487.
[40] R v Tait and Bartley (1979) 24 ALR 473, 487.
[41] Applied in Brewer v Bayens [2002] WASCA 271; (2002) WAR 510 [18] (Burchett AUJ, Wallwork & Wheeler JJ agreeing).
A second aspect of the public interest relates to the interest of the community in aiding a person's rehabilitation in an appropriate case. In TJH v Osborne, I said:[42]
In R v Tognini Murray J observed that if a conviction is not declared to be spent it might result in a particular impediment to a person's career, ability to practice a particular profession or undertake particular employment. In such a case, it may be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community.
In R v Riggall, it was found that the mere fact of a conviction of indecency offences would likely have a detrimental and long‑lasting impact on a young person at the beginning of their working life was a circumstance that made it appropriate to grant a spent conviction order.
[42] TJH v Osborne [2018] WASC 87 [55] ‑ [56].
The nature and circumstances of the offence in this matter weigh heavily against the grant of a spent conviction order. However, once a conviction has to be disclosed in an employment context, it is not possible to exclude the possibility that it may be taken into account by an employer and acted upon adversely to an appellant.[43]
[43] M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 [66]; applied by Beech J in B v Murphy [2016] WASC 78 [29].
Against the public interest in disclosing a conviction, whilst the appellant is not a young person it is appropriate to have regard to the fact that if the appellant's conviction for the offence is not declared spent the appellant will be required to disclose the fact of the conviction to his employer. The disclosure of the conviction may lead to the termination of his employment. This factor weighs in favour of the making of a spent conviction order.
Whilst I agree that there is a real public interest in the appellant's conviction being recorded and exposed to public scrutiny, because the nature and circumstances of the offence are serious, in my opinion the following factors persuade me that this aspect of the public interest is outweighed by the following matters:
(a)in considering the appellant's employment with Australia Post the offence for which the appellant has been convicted do not go to any matter of trust and confidence that is required by an Australia Post officer;
(b)the appellant's character references speak highly of the appellant; and
(c)since the offence was committed in December 2016, there was no evidence, before the magistrate in May 2018 or before this court, that the appellant has been convicted of any other offence.
In circumstances where a refusal to make a spent conviction order may impact adversely on the appellant's employment when I weigh all relevant factors against the factors that I have identified that militate against the granting of a spent conviction order:
(a)I am persuaded that it is appropriate to exercise the discretion to grant a spent conviction order; and
(b)I am satisfied this is an exceptional case, within the principles enunciated in R v Tognini, that the appellant should be relieved from the normal consequences of his conviction.
Conclusion
Leave to appeal should be granted and the appeal allowed.
The decision of the magistrate should be varied by granting a spent conviction order in respect of the offence in prosecution notice no PE 70780/16 in the Magistrates Court of Western Australia at Perth.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH7 NOVEMBER 2018
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