A v Ray

Criminal Appeals Act 2004 (WA), s 14

Sentencing Act 1995 (WA), s 45

Spent Convictions Act 1988 (WA)

A v Ray [2001] WASCA 340

Allen v Powell [2000] WASCA 65

Caseley v Zampogna [2006] WASC 259

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Nevermann v R (1989) 43 A Crim R 347

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Smith v C [2001] WASCA 262

1 The appellant, Amy Rochelle Webb, has obtained leave to appeal in respect of sentences imposed in the Magistrates Court at Perth on 15 November 2006. A central issue is whether the primary court erred in refusing to make a spent conviction order in favour of the appellant.

2 By a prosecution notice dated 3 October 2006 the appellant was charged in respect of two matters being first, that on 18 July 2006 at Perth she drove a motor vehicle registered number 1AKP 560 on a road, namely, Mounts Bay Road, without due care and attention contrary to s 62 of the Road Traffic Act 1974 (WA); second, that on 18 July 2006 at Leederville she did an act with the intention of creating a false belief contrary to s 171(2) of the Criminal Code.

3 Section 62 of the Road Traffic Act provides that every person who drives a motor vehicle without due care and attention commits an offence. The penalty for careless driving is said to be 12PU; that is, 12 Penalty Units. A reference to a number of PU is a reference to an amount (in dollars) that is that number multiplied by 50. This means that the maximum penalty for the offence was $600.

4 Section 171(2) of the Criminal Code provides that a person who does or omits to do any act with the intention of creating a false belief is guilty of a crime and is liable to imprisonment for 2 years. The penalty upon summary conviction is imprisonment for 12 months and a fine of $12,000.

5 The matters in question, being complaint numbers 54882/06 and 54883/06, came before Justices of the Peace in the Magistrates Court at Perth on 15 November 2006.

6 On that occasion the appellant was represented by counsel and entered pleas of guilty to both charges. A statement of material facts was presented by the prosecutor in respect of both matters.

7 As to the careless driving matter it was said that at about 10.15 pm on Tuesday, 18 July 2006 the accused drive a Toyota Corolla registered number 1AKP 560 in a northerly direction on an access road which runs from Mounts Bay Road and the Mitchell Freeway, Perth. Due to the speed at which she was travelling the appellant lost control of the vehicle whilst negotiating a left hand bend in the road. She slid off the left hand side of the road and collided with a concrete wall.

8 It was said that the appellant had four other persons in the vehicle with her but no person was injured in the accident. Damage to the value of more than $1000 was caused.

9 As to the creating false belief matter, it was said that the appellant left her vehicle at the accident scene and went to the Hip-E Club in Oxford Street, Leederville. At 11.02 pm (that is close to an hour after the accident) the appellant contacted the police and reported the vehicle as being stolen from the Hip-E Club between 9.30 pm and 10.30 pm.

10 However, subsequently, on the following day (that is, 19 July 2006) the appellant contacted the police about the matter. She participated in a video interview in which she readily admitted that she had reported the vehicle as being stolen to cover up the fact that she had been involved in an accident in the vehicle. In due course, the present charges were preferred.

11 It appears from the transcript at the hearing before the Justices that defence counsel made a plea in mitigation. It was said that the appellant admitted driving carelessly, but the only damage was to her own car. It was said that she was encouraged by friends to leave the car at the scene and report it stolen as a means of avoiding blame being attached to her by her parents. However, to her credit, on the following day she admitted what had actually happened.

12 Defence counsel described the appellant's personal circumstances including reference to her position as an 19 -year-old student studying to be a drama teacher at Edith Cowan University. Application was made for a spent conviction order with reference being made to the fact that the appellant has no prior record.

13 The prosecutor opposed the application for a spent conviction order upon the basis that the matter before the Court was not a trivial offence. This led to further discussion about the relevant considerations in that regard with reference being made to s 45 of the Sentencing Act 1995 (WA).

14 It was against this background that one of the Justices of the Peace (described in the transcript as JP 1) made these observations:

"Ms Webb, we've heard what your counsel has told us and we have conferred together up here. In the matter of prosecution notice 34882 we record a conviction and we impose a fine of $300. In the matter of prosecution notice 54883 where the penalty is $12,000 we'll bring that back to a quarter of that and impose a fine of $3000. Gives an aggregate of $3300 with court costs of $105.70 but we agree with the sergeant that there is not sufficient need for you to have a spent conviction. We will refuse that and allow you to make application to the Department of Education and see if you can get a dispensation on that. Thank you. You may stand down now."

15 It was common ground at the hearing before me that a fine of $300 was imposed in respect of the careless driving offence; a fine of $3000 in respect of the creating false belief offence.

16 By an appeal notice filed at the Central Office at the Supreme Court on 27 November 2005 the appellant applied for leave to appeal against the sentences.

17 The grounds of appeal were expressed in this way:

"1. The Justices erred in that the penalty imposed for creating a false belief was manifestly excessive having regard to the following:

(a) the appellant's youth and good character;

(b) the circumstances of the offence, in that the appellant advised police with 24 hours that she had made a false report, thereby preventing any misuse of police resources.

2. The Justices erred in refusing to grant the appellant a spent conviction in relation to the offence of creating a false belief having regard to:

(a) the factors referred to in 1(a) and (b) above;

(b) the fact that the appellant was studying to become a teacher and a conviction could have serious consequences for her employment prospects."

18 By order dated 18 January 2007 Blaxell J granted leave to appeal in respect of all grounds and made other programming orders.

19 It was against that background that the matter was listed for hearing before me on Tuesday, 24 April 2007. It will be useful now to look at the legal principles bearing upon the issues before me.

20 By s 14 of the Criminal Appeals Act 2004 (WA), the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. If the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

21 For an appeal to succeed against the exercise of a discretionary power to determine the appropriate sentence, it is generally necessary to establish that the judicial officer at first instance failed to properly exercise his discretion by acting upon a wrong principle, mistaking the facts or allowing irrelevant matters to affect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671.

22 The Spent Convictions Act 1988 (WA) facilitates rehabilitation by limiting the effects of the conviction. The effect of the Act is to make it unlawful to discriminate against a person on the grounds of a spent conviction. Hence, questions put to a convicted person about his past should not be taken to relate to a spent conviction or the charge to which the conviction relates. Nonetheless, a court may take account of spent convictions in fixing a punishment for some further offence: Smith v C [2001] WASCA 262.

23 A spent conviction order cannot be made unless the preconditions set out in s 45(1) of the Sentencing Act are met. In effect, a court is not to make a spent conviction order unless it considers the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial, or 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.

24 The decided cases indicate that the offender does not have to satisfy both criteria in s 45(1)(b). It will be sufficient to show that the offender is unlikely to commit such an offence again and that he or she should be relieved of the adverse effect of the conviction, having regard either to the fact that the offence is trivial, or to his previous good character.

25 However, a spent conviction order will not necessarily be made simply because the relevant criteria are satisfied. The crucial question is whether the appellant has demonstrated that the power in s 45(1), which is to be sparingly exercised, should be exercised in his favour, so as to relieve him of the adverse effects of the convictions: A v Ray [2001] WASCA 340.

26 For the purpose of determining whether the primary court's failing to make a spent conviction order amounts to a miscarriage of justice an appellant court may have regard to new information which has been gathered for the purpose of the appeal and shows the appellant's good character and the likely consequences of the conviction upon his or her future career: Caseley v Zampogna [2006] WASC 259 per Blaxell J at [19].

27 At the hearing of the appeal counsel for the appellant was granted leave to adduce an affidavit by himself, Robert David Young, sworn 16 April 2007 to which was exhibited certain letters bearing upon the circumstances of the appellant, namely, an undated letter from Associate Professor Dalip Sondhi of Edith Cowan University, a letter dated 15 November 2006 from the appellant's mother and a character reference dated 4 December 2006 from Dr Tim McDonald, a Program Director at Edith Cowan University.

28 The letters and references spoke well of the appellant. She was said to be studying as a drama teacher at Edith Cowan University and was described as a reliable and conscientious student. It was common ground at the hearing before me that the appellant was of good character and had no prior convictions.

29 The appellant's written submissions included these passages:

"6. The appellant deserved substantial credit for having owned up to the offence and for doing so in a timely manner. In addition, she participated in a videotaped record of interview and pleaded guilty on her first appearance in court. She was a very young woman with no prior record, who was engaged in studying for a professional career and who came from a very supportive family.

7. In relation to the penalty imposed, the JPs appeared to have no regard for any matter other than the maximum penalty being $12,000. Clearly they thought that imposing a fine that was a quarter of the maximum represented a proper penalty. Sentencing is not a mathematical exercise. When one has regard to the nature of the offence, it is at the lower end of the scale for an offence of its type. The more serious examples of creating a false belief would be cases in which the false report is directed at another person, so that an innocent third party becomes the subject of police attention. The next most serious example would be a case where police resources were wasted in pursuing the false report. In this case, no other person was involved and the appellant voluntarily admitted her actions within 24 hours such that police action would have been limited to logging the complaint on the computer.

8. When the circumstances of the offence are coupled with the appellant's co-operation, plea of guilty, youth and excellent antecedents, a fine of $3,000 was unjustified. The appellant has been unable to find any reported cases that might serve to demonstrate the range of fines imposed, but from experience can respectfully suggest that usually not more than $500 would have been imposed as a monetary penalty by a Magistrate.

9. The JPs declined to grant a spent conviction on the basis that 'there is not sufficient need.' That was based upon the prosecutor's submission that the Education Department was entitled to know about 'any court appearance.'

10. It is submitted that the JPs erred in not having regard to the criteria set out in s45 of the Sentencing Act in considering the application for a spent conviction. In particular, no regard was had to whether the appellant was likely to re-offend, whether the offence could be characterized as trivial or the appellant's previous good character. In terms of the adverse effects the conviction might have, the JPs were of the view that the fact that she would be required to disclose the matter if seeking employment in the Education Department meant that there could be no adverse consequence to having a conviction recorded rather than spent."

30 The appellant's written submissions included this passage also:

"13. It is true that under Schedule 3 of the Spent Convictions Act, a person applying for employment with the Department of Education and Training must disclose all convictions, whether spent or not. However that does not preclude the appellant from being granted a spent conviction, nor does it mean the granting of a spent conviction is superfluous. It assumes that the appellant will always remaining working in the Education Department. It overlooks the possibility of her seeking to travel overseas. The prosecutor's submission that the appellant should not be granted a spent conviction on the basis that she should have to explain what happened and leave any prospective employer to obtain the statement of facts is simply unrealistic. Moreover, that submission necessarily acknowledges that prospective employers will have regard to the nature of the offence. A prospective employer looking at a recorded conviction with a $3,000 fine would assume that the appellant had been convicted of a very serious offence. A spent conviction coupled with a more modest fine would obviously be less cause for concern."

31 Counsel for the respondent submitted as to the first ground of appeal that no error had been demonstrated on the part of the Justices in relation to the penalty imposed. It was said that the offence in question was serious. While the appellant did acknowledge her fault within 24 hours, the initial falsehood and her failure to confess that falsehood promptly was a matter that could well have led to the wasting of significant police resources.

32 As to the second ground of appeal concerning the spent conviction issue, counsel placed reliance upon R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 in which it said that the power to make a spent conviction order should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.

33 Counsel submitted further that there was no convincing evidence before the Court as to why a spent conviction was necessary for the appellant to pursue her chosen career, bearing in mind that a person employed by the Department of Education and Training is required to disclose spent convictions in any event. There was no evidence before the Court concerning any alternative or intended plans. It was not for the Appeal Court to speculate on potential or possible future events. The issue for the Court at sentencing was whether or not there was convincing evidence that a good reason existed that the appellant be relieved of the normal consequences of a conviction.

34 Further, the nature of this conviction, involving dishonesty and the attempted misleading of police for the purpose of personal advantage, was such that the public interest lay in the disclosure of the conviction.

35 It was said that the decision to decline a spent conviction was entirely within the discretionary power of the Justices and it could not be said that their discretion had miscarried. There is no requirement for a sentencing court to state extensive or detailed reasons for decision, which would be impracticable for a court, particularly a court of summary jurisdiction: Nevermann v R (1989) 43 A Crim R 347 at 350.

36 The object of the sentencing process is not to censure the wrongdoer for supposed flaws in his or her character or conduct, but to impose a just penalty for a particular offence. The sentencing rules indicate that a balance must be struck between various considerations. The sentencing options allow for a degree of flexibility in the exercise of the discretionary power. These precepts assist the process of identifying omissions or extraneous considerations, bearing in mind that an appeal court must not simply substitute its own opinion for that of the judicial officer in the court below. As indicated by the decision of the High Court in Lowndes (supra) it is generally necessary to establish that the judicial officer at first instance failed to properly exercise his discretion by acting upon a wrong principle, mistaking the facts or allowing irrelevant matters to effect the decision.

37 It is true that in courts of summary jurisdiction it is not usually necessary to provide extensive reasons for decision. However, there must be indications that proper attention was given to the relevant considerations. It is said in the present case that the Justices of the Peace failed to give sufficient weight to the youth and previous good character of the appellant, the unlikelihood of re-offending, circumstances personal to the appellant concerning the commission of the offence, and the effect a conviction was likely to have upon the future prospects of the appellant.

38 With these general observations in mind, let me now deal with each of the grounds of appeal in turn.

39 As to this ground of appeal, I see force in the submissions made on behalf of the appellant. It is clear that the Justices of the Peace gave attention to the prescribed statutory penalty and, in so doing, characterised the matter as a serious offence. However, in my view, they erred in placing an undue emphasis upon the prescribed maximum penalty. It emerges from the transcript that they did not give sufficient consideration to the youth and good character of the appellant, and to the particular circumstances of the offence. They did not give sufficient weight to her admission of responsibility and plea of guilty.

40 The courts are generally prepared to show a measure of understanding in dealing with youthful offenders and recognising that young people sometimes behave foolishly and impulsively. There are indications in the materials before me that the appellant was in a state of panic and upset at the time she made the false report. It is undoubtedly to her credit that she owned up to her mistake on the following day. The references before me suggest that this was consistent with her usual standards of good conduct. The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made.

41 Accordingly, I am of the view that the reasons for decision and the fine imposed of $3000 for the charge of creating a false belief did not reflect all the relevant considerations and was unduly severe. I consider that the first ground of appeal should be allowed. Nonetheless, the fact remains that this was a grave offence because the proper functioning of the traffic control system depends upon the truth being told when accidents occur and investigations are undertaken. In the present case, the penalty must reflect the need for general and personal deterrence. I am of the view that the appellant should be required to pay a fine of $1500.

42 In earlier discussion I indicated that a spent conviction order cannot be made unless the preconditions set out in s 45(1) of the Sentencing Act are met. The decided cases indicate that the offender does not have to satisfy both criteria in s 45(1)(b). It will be sufficient to show that he or she is unlikely to commit such an offence again and that he or she should be relieved of the adverse effect of the conviction, having regard either to the fact that the offence is trivial, or to his or her previous good character.

43 Counsel for the appellant conceded that the offence in question, which involved misleading conduct in regard to an accident could not be characterised as trivial. His principal submission was that the appellant was unlikely to commit such an offence again and, having regard to her previous good character, there was a basis for relieving her of the adverse effect of the conviction.

44 The decided cases indicate that the discretionary power is of an exceptional character and requires the Court to determine whether there is some particular circumstance to show that it would be desirable why the adverse effect of the conviction should be immediately set aside. A spent conviction order will not necessarily be made simply because the criteria specified in s 45 of the Sentencing Act are satisfied. Consideration must be given to all of the circumstances of the case and of the offender, including the wider interests of the public.

45 The crucial question is whether the applicant for a spent conviction has demonstrated that the power, which is to be sparingly exercised, should be exercised in his or her favour. A justification may often be found in the fact that a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship.

46 These principles were applied in Allen v Powell [2000] WASCA 65. In that case, Scott J was prepared to make a spent conviction order in circumstances where an 18-year-old offender was convicted of stealing small amounts from her employer on two separate occasions.

47 The learned Judge emphasised that stealing as a servant involves a fundamental breach of trust and could therefore not be characterised as a trivial offence. This reflects the rule that in such cases a term of imprisonment is generally inevitable, save in exceptional circumstances or where the amount of money obtained is small. General deterrence to prevent breaches of trust is a major consideration. Nonetheless, Scott J was prepared to make the spent conviction order, having regard to the offender's previous good character, and the unlikelihood that she would commit such an offence again.

48 In the present case, the Justices of the Peace were invited to consider the question of whether a spent conviction order should be made. It cannot be said that the issue was overlooked or not addressed directly by them. Nonetheless, it does appear that they gave limited consideration to the issue, and quite clearly, as appears from the passage in the transcript quoted in earlier discussion, they did not expressly give consideration to the criteria enunciated in s 45(1) of the Sentencing Act. They made no findings as to whether the appellant was likely to re-offend or as to whether she should be relieved of the adverse effect of the conviction.

49 Further, and in any event, as emerges from my general observations, it does not appear that they devoted sufficient attention to broader considerations bearing upon the exercise of the discretionary power including the youth and career prospects of the appellant. Her previous good character, and absence of any prior record, allows for a finding to be made that she is unlikely to re-offend.

50 In my view, an apparent failure to weigh up the relevant considerations in a case of this kind provides a basis for reviewing the determination in the Court below. I am of the view that the presence of a prior conviction in a field of employment requiring professional skills such as a drama teacher is likely to prejudice the appellant's future prospects. This can be regarded as a particular circumstance showing why the offender in this case should be relieved of the adverse effect of the conviction.

51 The appellant's youth and career prospects make it desirable, not only from the point of view of the offender but also, having regard to her rehabilitation, from the point of view of the community, that the adverse effect of the conviction should be ameliorated by the making of a spent conviction order. For these reasons, I will allow the appeal on the second ground.

52 I will allow the appeal as to the creating a false belief charge only. I will vary the decision by quashing the sentence previously imposed and ordering that a fine of $1500 be paid by the appellant in respect of the offence of creating a false belief. A spent conviction order is to be made in respect of the relevant conviction. I will hear from the parties as to whether any further orders or directions are required.