Ward v The State of Western Australia - [2010] WASC 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: JLW -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 179

CORAM: EM HEENAN J

HEARD: 29 JUNE 2010

DELIVERED : 29 JUNE 2010

PUBLISHED : 23 JULY 2010

FILE NO/S: SJA 1012 of 2010

BETWEEN: JLW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :AR 10998 of 2009

Catchwords:

Application for leave to appeal and appeal - First offender - Refusal to provide information to police - Criminal Property Confiscation Act - Relative of alleged offender - Reliance on erroneous legal advice - Plea of guilty at earliest opportunity - Prior good character - No concealment of proceeds of crime - Allegation that appellant had proceeds of crime later withdrawn - Refusal of spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 9(2)
Criminal Property Confiscation Act 2000 (WA), s 76
Sentencing Act 1995 (WA), s 39(2), s 39(3), s 45
Spent Convictions Act 1988 (WA)

Result:

Extension of time and leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Ms F R Veltman
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: Leonard Cohen Legal
Respondent: State Solicitor for Western Australia

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

A v Staples [2007] WASC 36
Caseley v Zampogna [2006] WASC 259
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Hull v Castledine [2005] WASC 252
Koenig v Ryan [2001] WASCA 339
Neale v Sloan (1997) 27 MVR 246
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
R v Tognini [2000] WASCA 31; (2000) 22 WAR 219
Riley v Gill (Unreported, WASC Library No 970731, 8 December 1997)
Rowlands v Caporn [2001] WASCA 66
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

EM HEENAN J: On 15 December 2009 JLW was convicted, after her plea of guilty, of an offence contrary to s 76(2) of the Criminal Property Confiscation Act 2000 (WA). The charge was that on 7 September 2009 at Huntingdale, without lawful excuse, she contravened a requirement made by First‑Class Constable MP, an officer of the West Australian Police Service, to give the officer any information within her knowledge or control that was relevant to determining whether or not property was confiscable. In circumstances which will be more fully described below, she was represented by the duty counsel, entered a plea of guilty and had the matter adjourned for sentencing. She came up for sentence before her Honour, Magistrate Langdon, on 15 December 2009, in the Magistrates Court at Armadale, and was fined $1,000 and ordered to pay costs of $114.20. An application by her counsel for a spent conviction order was refused.
The appellant was born on 2 December 1977, was employed at the State Education Department and has no prior record. As subsequent events have since revealed, the investigations by the police have demonstrated that the property in respect of which she was to be questioned was not, in fact, the proceeds of crime and proceedings under the Criminal Property Confiscation Act against her have been withdrawn. As the appellant explained to the learned magistrate, she had sought advice from a duly qualified legal practitioner before declining to provide information to the investigating police and was told, wrongly, that she was under no obligation to answer such questions. The appellant is a person of Aboriginal descent who has a responsible position in the community, is employed and leads a successful independent life.
After experiencing some difficulty and delay in obtaining further legal advice and becoming aware of the nature and avenues of appeal, the appellant, by new legal representation, lodged an appeal notice in this court on 8 February 2010 seeking an extension of time for leave to appeal and leave to appeal against the conviction and sentence. The proposed appeal against sentence was in respect of the refusal by the learned magistrate to grant a spent conviction order. By order dated 13 April 2010 Jenkins J directed that the application for the extension of time and for leave to appeal against conviction and sentence were to be heard together and simultaneously with any appeal against conviction or sentence.

Proposed grounds of appeal

The proposed grounds of appeal against conviction and sentence as set out in the initiating notice of 8 February 2010 are:
1.The Appellant was not aware that there was a defence to the charge given her particular circumstances at the time of the alleged offending when the appellant pleaded guilty, and that this has caused a miscarriage of justice.
Particulars:
a)The appellant was informed by a lawyer (whom she telephoned) after an initial visit by police that she did not have to provide a video record of interview. The appellant upon the advice of the lawyer felt compelled not to give a video record of interview, when the police returned seeking the interview.
2.The Learned Magistrate erred in failing to grant a spent conviction.
Particulars:
a)The learned Magistrate failed to give enough weight to the very unusual circumstances which greatly influenced the appellant in the commission of the offence.
b)The learned Magistrate failed to give enough weight to the fact that the Appellant (especially in light of the circumstances) would be unlikely to reoffend.
c)The learned Magistrate failed to give enough weight to the prior good character of the Appellant.
d)The learned Magistrate placed too much emphasis on the seriousness of the offence to which the Appellant pleaded guilty.
e)If the leaned Magistrate felt that there was no sufficient evidence or prior good character, the learned Magistrate failed to provide the Appellant with an opportunity to provide such evidence.

Application for extension of time

The legal practitioner whom the appellant had contacted when the police first spoke to her about their investigation and before any charge was laid against her, later told her that there was a conflict in him acting 'and he would no longer represent me'. This meant that on the date of her court appearances the appellant did not have any legal representation until she spoke to the Duty Lawyer Service lawyers who, after very brief discussions, agreed to represent her. On the day of her pleas, as set out in her affidavit, the appellant explained that she was represented by a lawyer from the Duty Lawyer Service, that this lawyer did not tell her that she had a potential defence and she, the appellant, did not understand that she could seek an adjournment to get references to assist in her application for a spent conviction order. Also, in her affidavit, the appellant says that she was not told of any avenue of appeal against the decision not to grant a spent conviction order. She also mentioned that she had been very nervous on the occasions of her appearances before the Magistrates Court.
After the conviction, the appellant was obliged to find a new lawyer to assist her with the criminal confiscation matter from which the charge had stemmed. She was referred to another solicitor at the suggestion of a friend. She contacted this new solicitor on 11 January 2010, the intervening delay being due to difficulties in obtaining an appointment during the Christmas and New Year vacation period. She attended an appointment at this new solicitor's office on 27 January 2010 but found that the solicitor was unavailable, having suddenly been called to court. After speaking to a receptionist, she left a message about the purpose of her visit. The next day, the solicitor's receptionist telephoned her and referred her to another solicitor, her present legal representative, whom she first contacted on 28 January 2010 and whom she first attended on 29 January 2010. It was at this appointment on 29 January 2010 that she first learned of the availability of an avenue of appeal against her conviction and sentence. She then attempted to engage the Aboriginal Legal Service to assist her with the appeal but they were unable to take the matter on. She returned to her present solicitor, obtained the information and documents from the Armadale Magistrates Court, and filed the present appeal notice as soon as possible after obtaining this advice.
Having regard to the Christmas‑New Year vacation period and the difficulties which she has described, the delay in instituting this application for leave to appeal is only comparatively short. The reasons advanced for the delay have been fully explained and are entirely credible. There has been no suggestion of any prejudice to the respondent or other interests by reason of this delay.
The appellant accepts that when considering an application for an extension of time in which to lodge an appeal, it is appropriate for the court to consider the likelihood of the appeal succeeding: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J) and Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J). It is necessary that the court be satisfied that a proposed ground of appeal has a reasonable or rational and logical prospect of success if leave to appeal is to be granted ‑ Criminal Appeals Act 2004 (WA) s 9(2) and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Since the institution of the application for leave to appeal the appellant has notified the respondent and court that she would only pursue the application for leave to appeal against sentence, that is, the refusal of the spent conviction order, and the preparation for the hearing of these applications has proceeded on that basis. It follows that the application for an extension of time and for leave to appeal should be considered on that footing.

Background

The police investigation arose from a group of people being charged with the unlawful possession and sale of cannabis. One of these other persons was a brother of the appellant. An investigation of his affairs revealed that he had, previously, paid certain money into the appellant's bank account. Suspecting that this money may have come from or been associated with the proceeds of criminal offences committed by her brother, the police sought to interview the appellant about the nature and source of the moneys in her bank accounts. As subsequent inquiries later revealed, there was an innocent explanation for the payments, they being repayment from legitimate sources by the brother of loans which he had obtained from the appellant, but this had not been established at the time of the police inquiries. The appellant was contacted by the police to advise that they would visit her and demand that she provide information about their inquiries. It was then that she telephoned her first lawyer, seeking advice as to her position and rights, only to be told, wrongly, that she was not obliged to speak to the police other than give her name and address. That advice overlooked the effect of s 76 of the Criminal Property Confiscation Act which obliges a person contacted by the police to provide all information sought in connection with the subject matter of the inquiry. Accordingly, when the police called at the appellant's home on 7 September 2009 and asked for information about her bank accounts, the appellant explained that, as a result of legal advice, she was declining to answer the questions. The police officers there and then read out the material passages of s 76 of the Criminal Property Confiscation Act to her but, still relying on her legal advice, she maintained her refusal. She was then charged with this offence.
The appellant was also subject to two freezing orders made pursuant to the Criminal Property Confiscation Act in relation to her two bank accounts. These orders were made because of the background described. In other proceedings the appellant objected to the freezing orders and, ultimately, on 16 June 2010, that is, six months after her conviction and sentence in the Armadale Court, The State of Western Australia discontinued those proceedings to confiscate her property. The appellant suffered considerable practical inconvenience because her two bank accounts had been frozen from shortly after her charge of 7 September 2009 until the discontinuation of the confiscation proceedings.
The appellant has no previous record of any kind and, at the time of her conviction and sentence, was working as an education assistant with the State Education Department and had done so for a period of 10 years. She was, and is, active in the community and held in high regard by members of her community, being a role model for others.

Proceeding in Magistrates Court

The proceedings in the Magistrates Court at Armadale on 15 December 2009 when the appellant was sentenced were quite brief. They occurred on the afternoon in what was, no doubt, a very busy list and took only nine minutes. The facts as read out by the prosecutor were as follows:
There's no record. On Wednesday, 15 July 09, Carnarvon detectives received information about the sale of cannabis from an address in Carnarvon. Inquiries were conducted and surveillance of that address and that resulted in a search warrant where three people at that address, [A, B and C] were there in a vehicle at that address. There was a pair of tracksuit trousers that contained $2300 in case, scales believed to be used in preparation and distribution of cannabis. On the verandah located a plastic rubbish bin, 22 bags of cannabis each weighing one gram and a pair of scissors to use cutting the cannabis.
In a wallet belonging to [C], police found two Bankwest deposit slips for transactions that occurred on 13th and 15th July 09. The deposits were for $4290 and $5980 and proceeds of the crime established that the accused was the account holder in which those deposits were made to and police believe the funds were the proceeds of the sale of cannabis, deposited by [C]. At 4 pm, 7 September 09, police attended the accused's home in _____.
She was advised that she was going to be detained and placed, a requirement to answer questions about the deposited money into a bank account and she advised police that she had sought advice from a lawyer to make no comment and she wouldn't be participating in any interview. She was shown a copy of the Criminal Property Confiscation Act 2000. Sections 73 to 76 were read out to her and she was advised that she was being detained under section 73 of that act and be interviewed under the powers of 76, also from that act and that empowers officers under that act to require a person to give information within the person's knowledge that is relevant to determining whether or not the property is unlawful and the accused again advised police that she had been advised by her lawyer not to make any comment. She was specifically advised she must answer the questions in relation to determine whether the money deposited into the account were from crime and she was also informed that if she failed to answer, that she would be subject to a possible penalty of five years' imprisonment or $1000 fine or both and the accused was advised any information that she provided could not be used against her for criminally any action except where she refused to answer the questions or providing misleading answers.
She again advised she had been told not to say anything and she was asked to explain the money deposited in July to which she told police it was her money which she gave her brother [C] to buy a boat in Carnarvon and when asked by the police where the money came from, she said, 'It's my money, I don't have to tell you that.' The accused was reminded again that if she didn't tell them, that she would be charged if she refused to answer that question. She shook her head and said, 'No, I'm not going to tell you that.' She was given several opportunities later and later summonsed.
Brief submissions in mitigation were made by counsel appearing for the appellant, stressing that she had no record, that she had received legal advice that she did not need to make any statement, that she was working as an education assistant and had been earning about $500 a week. She was said to be a single mother of three children, aged fourteen, nine and three, and also in receipt of a supplementary Centrelink benefit. She had pleaded guilty at an early stage. A submission was made that a fine would be the appropriate penalty and an application was made for a spent conviction order on the basis that she was not aware of her obligations at the time, and that the circumstances were unusual. Her Honour then inquired what detriment the conviction would have on her work and counsel acknowledged that there was no evidence on this point. The police prosecutor then replied, submitting that there was no evidence to establish a detrimental effect on her employment opportunities and that he considered that the Education Department was one of those sectors exempt from the application of spent convictions, and that it made its own inquiries as to a person's background and suitability for work.
The learned magistrate then proceeded to give brief reasons for her sentencing decision and these were:
Stand up, Ms [W], please. You have entered a plea of guilty. It was initially an endorsed plea of guilty at an early stage but I determined that the matter was far too serious to have it dealt with in your absence. It is a serious matter. There does need to be both specific and general [deterrence] deterrents and a message needs to be sent to the public that this sort of requirement to provide this kind of information to the police is very important because the police are investigating whether or not a sum of money is obtained as a result of - whether it's proceeds of crime or not.
That's important for them and then they make a particular application to the court. Now, I've heard what [counsel] said on your behalf in relation to certain legal advice that you obtained. Obviously, from the statement of material facts it sounds like the police were informing you that really, you were required to give them that information and an explanation which you refused to comply with and that's obviously why you're here today. Now, I do have regard to the fact that you don't have any previous convictions. You are a person of previous good character, but in relation to the matter, it's my view, there's no evidence before me that this is going to have a detrimental affect on your employment and I'm not persuaded that it is appropriate to grant a spent conviction order. It's my view on the contrary that it's in the public interest that a conviction of this type be known to your employer given the type of offence that is here. So that in relation to the matter, you will be fined $1000 and you are ordered to pay costs of $114.20. Yes, thank you.
As earlier noted, one of the proposed grounds of appeal is that the appellant was denied an opportunity to adjourn the proceedings to obtain evidence of her good character. However, no actual application for an adjournment was made and the learned magistrate has treated the appellant as being a person with no previous record, and that is accepted by the respondent at this hearing.
Indeed, there has been no express finding made adversely to the appellant in regard to her past conduct yet the conclusion is inescapable that underlying the decision of the learned magistrate was a tacit assumption that she was in some way engaged, knowingly or unknowingly, in the receipt of moneys which were the proceeds of crime. This inference emerges from the observations of the learned magistrate that this was a serious offence and that present or future employers should have the means of being aware of the appellant's record for this offence. It also emerges from the learned magistrate's reference to the need for personal deterrence and the imposition of the maximum fine of $1,000. A penalty of imprisonment was also possible but was not imposed and that can readily be explained by the appellant's age, prior good character and stable employment. Yet the penalty that was imposed and the tenor of the observations by the learned magistrate plainly indicated that this was a severe offence for which the appellant needed to be punished.

At that time the authorities were about to embark upon obtaining freezing orders against the appellant's bank accounts and it was not until a little over six months later that those confiscation proceedings were discontinued. It is very difficult to avoid the conclusion that if it had been made clear to the learned magistrate that no claim for the confiscation of moneys in the appellant's bank accounts would be pursued, or could be sustained, and that her explanations of how her brother came to pay her money were satisfactory, a somewhat different approach would have been evident in the sentencing observations.
Another factor which emerged is that, to a very large degree, the disposition of the issue over whether or not there should be a spent conviction order turned largely on the question of whether or not there was evidence to show that, otherwise, the appellant would suffer some identifiable form of prejudice in her employment, and that it failed because of the absence of any such evidence. With respect, I consider that this was an unjustifiably demanding approach. Most convictions of criminal offences are likely to reflect adversely against the offender and to have potential prejudicial effects upon them and their reputation in most walks of life. A conviction for an offence of unlawfully refusing to answer questions from police in relation to an inquiry concerning the identify of the proceeds of crime has a number of discreditable implications, among them of knowing assistance or concealment in relation to criminal activity. Indeed, the significance of the particular conviction was one reason mentioned by the learned magistrate for refusing a spent conviction order, plainly because it was thought necessary that the public and any employer should be aware of the adverse reflections that such a conviction cast over this individual. That line of reasoning carries a strong implication of knowing involvement in criminal activity which, in some cases, may be justified and, in others, not. This case falls into the latter category.
No reference was made by the prosecutor or counsel in the Magistrates Court, nor by her Honour when sentencing, to the statutory criteria for the grant or withholding of a spent conviction order. This is surprising because Parliament has expressly identified the factors which are relevant in determining any such application and it is those factors in the particular case which need to be identified and considered.
The possibility of a spent conviction order being made, either alone or in conjunction with a fine or other penalty, is expressly contemplated by s 39(2) of the Sentencing Act and all courts are required, by s 39(3), to avoid using the sentencing option identified in s 39(2) unless satisfied that a less serious sentencing option is not appropriate so that there needs to be positive attention given to whether or not a spent conviction order, without other penalties, or in conjunction with a fine, should be imposed in any particular case.
But this is qualified by s 45 which 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.
The statute, therefore, identifies three factors, at least two of which must be present before a spent conviction order may be made: A v Staples [2007] WASC 36 [14] (Hasluck J) The first factor is essential and is indispensable, namely, that the offender is unlikely to commit such an offence again. Of the remaining two factors one needs to be present to enable the court to make a spent conviction order. They are, first, that the offence is trivial or, second, the previous good character of the offender.
In this present case, it was acknowledged before the learned magistrate and again at the hearing of these applications that the first factor was present because it was most unlikely that this offender would commit such an offence again. This is because it was an offence committed under a mistaken belief as to the state of the law which, while not a defence, is a factor which may be taken into account as pointing towards leniency of treatment in relation to sentence or other penalty: Ostrowski v Palmer [2004] HCA 30, 85; (2004) 218 CLR 493 (Callinan & Heydon JJ). As soon as the appellant obtained proper legal advice and became aware of her position, she entered a plea which she now accepts. Her previous good character and antecedents and this experience itself all suggest that she is unlikely to commit any such offence again. There is no suggestion that the offence was committed for her own advantage.
By contrast, it certainly could not be said that this offence, in its generic sense, was trivial. The learned magistrate was undoubtedly correct to stress the importance of this legislation in the pursuit and deterrence of crime and in the need for the public to be informed of the obligation to provide information to the police when they conduct inquiries in search of the proceeds of crime. The particular offence, as committed by this offender, has a number of mitigating factors which have been identified and which, in her case, significantly diminish her level of culpability, but I see no basis for contending that the learned magistrate was in error in not treating the offence as trivial.
Nevertheless, the third statutory criterion was present, namely the previous good character of the offender. Accordingly, the first indispensable factor under s 45(1) was present and one of the two remaining factors under s 45(1) was also present. Accordingly, the statutory power to make a spent conviction order was present and full attention needed to be given to that possibility.
Yet, as previously observed, on this occasion the application turned and failed on the question of whether or not there was any positive evidence to show that the conviction would have a prejudicial effect upon the appellant's employment. As acknowledged by counsel for the respondent, it could not be expected to have had a positive effect upon her employment or other prospects and it would be very optimistic to conclude that it would have a neutral effect. Section 45 itself recognises that a conviction has the likelihood to have an adverse effect upon an offender. I cannot see how it would be possible to avoid the conclusion that, in one way or another, there was a distinct possibility that the conviction would have adverse consequences upon the respondent generally, including, potentially, her employment prospects either immediately or in the long term. To conclude otherwise is to ignore the purpose in marking the offence with the public record of conviction which would stay with the appellant.
However, the presence of two or more of the factors identified by s 45(1) of the Sentencing Act does not mean that a spent conviction order must be made. It is still necessary for the court to consider whether or not the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
In helpful written and oral submissions counsel for the respondent pointed to the authorities which establish that a failure to make a spent conviction order may involve a material error of fact or law apparent either in the reasons of the sentencing judicial officer or simply by the failure to make such a spent conviction order in the circumstances: Hull v Castledine [2005] WASC 252 [10] (Le Miere J) and s 8(1)(a) and (b) of the Criminal Appeals Act 2004 (WA). It is well‑established that, ordinarily, a conviction will remain a matter of record with all the consequences that that may entail. The power to make such an order is discretionary and has been referred to in some authorities as being of 'exceptional character' and requiring consideration of whether or not there is a particular circumstance as to why the adverse effect of the conviction should be immediately set aside: R v Tognini [2000] WASCA 31; (2000) 22 WAR 219, 297 (Murray J); and Koenig v Ryan [2001] WASCA 339 [23] (Hasluck J). When determining whether an offender should be relieved of the adverse consequences of a conviction the wider interests of the public, including the public interest of an employer or potential employer being aware of the conviction, should be considered: Neale v Sloan (1997) 27 MVR 246; and Riley v Gill (Unreported, WASC Library No 970731, 8 December 1997) 6 ‑ 7, 13 (Parker J). The respondent pointed out that as an employee of the Department of Education the appellant is obliged to disclose all convictions to the employer, even if spent ‑ Spent Convictions Act 1988 (WA) sch 3.
Counsel for the respondent also properly acknowledges that, for the purposes of determining whether or not there has been any miscarriage of justice, the court may consider new information gathered for the appeal showing the appellant's past good character and the likely consequences of a conviction: Caseley v Zampogna [2006] WASC 259 [19] (Blaxell J); and Rowlands v Caporn [2001] WASCA 66 [27] ‑ [32] (Roberts‑Smith J). In this case, the learned magistrate was not aware of the outcome of the investigations into the money paid into the appellant's account, nor aware of the inconvenience and disruption which must inevitably be caused to the appellant by having her accounts frozen for a period of six months until the confiscation proceedings were discontinued. Those are matters which can be considered now in the light of the undisputed account of events and they are of added significance because of the view obviously taken by the learned magistrate in the sentencing remarks which has earlier been described.
In this present case, it is apparent that the statutory criteria for the grant or withholding of a spent conviction order were not referred to the learned magistrate nor expressly identified by her Honour. The fact that one indispensable factor and one of two alternative factors was present and so the power to grant the order was enlivened was not addressed. In resolving the application for a spent conviction order upon the point of absence of evidence to show likely prejudice to the employment of the appellant, I consider, with respect, that an erroneous inference was drawn because all the indications are that a conviction would be potentially detrimental. Furthermore, the effect of a conviction upon employment prospects is not the determining factor, although it is relevant factor to be considered with others. Accordingly, I consider that this exercise of discretion miscarried and that an error of law has been demonstrated. Furthermore, I consider that the refusal of the spent conviction order in these present circumstances, in light of the known results, would be wrong.
At the conclusion of the hearing I decided that, for these factors, which I had then mentioned briefly, indicating that more extensive reasons would follow, there should be an extension of time within which to apply for leave to appeal; that leave to appeal should be granted in relation to the appeal against sentence; and that the appeal should be allowed and a spent conviction order made. These are, accordingly, the detailed reasons for those conclusions.