ADA -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 112 (8 April 2022)

4 The appellant appeared before Magistrate Harries in the Perth Magistrates Court on 31 August 2021, on which occasion the appellant pleaded guilty to the offence at the first reasonable opportunity.

5 The facts upon which the learned Magistrate imposed sentence are not in dispute. The appellant returned from Victoria to Western Australia and was required as a person entering Western Australia to complete 14 days quarantine. There is no suggestion that the appellant had COVID-19 but, as a person who had been residing outside Western Australia, she was required to quarantine for the mandatory 14‑day period.

6 The appellant proposed to complete the mandatory 14 days quarantine by herself in a private residence. The appellant entered into the 14 days quarantine two days prior to the offending.[1]

7 The learned Magistrate accepted that, whilst in quarantine, the appellant received a distressing telephone call from her ex‑husband who stated that he hated her, that she was not welcome to collect her property from their home and requested that she not return to Victoria.[2] After receiving that telephone call the appellant remained in effective home detention in Western Australia, without any support and being unable to leave quarantine. The appellant was emotionally distraught. The appellant suffers from depression and anxiety and is on a mental health plan.[3] After receiving the telephone call from her ex‑husband, the appellant consequently became intoxicated with alcohol.[4]

8 At 5.00 pm on 15 June 2021, the police attended at the appellant's address as she had not answered a telephone call from police earlier that day. The officers observed the appellant and were concerned about the appellant's behaviour.[5] Therefore, the police officers arranged for an ambulance to take the appellant to a hospital.[6]

9 At 7.45 pm, the medical staff observed the extent to which the appellant was emotionally distraught and, therefore, decided that a sedative should be administered. The medical practitioner told the appellant that she must remain in the room and requested that she take the sedative.[7] The appellant did not wish to take the sedative.

10 The learned Magistrate appeared to accept the submission of the appellant's counsel that she had a prior negative response to sedatives.[8] The appellant stood up in the room and commenced moving towards a security officer. The medical staff thought that the appellant was trying to leave and therefore told the appellant that she was required to remain in the room.[9] There was no contention by the prosecution that the appellant was in fact endeavouring to leave but rather the medical staff became concerned given the appellant's movements in the room.

11 Two security officers, concerned about the safety of the medical staff, then restrained the appellant on the bed with one officer holding the accused by her shoulder and standing to the left of her.[10] At that time the appellant resisted and was thrashing her body whilst the medical practitioner attempted to administer the sedative.[11] The appellant leaned her head and bit the arm of the security officer. The appellant was wearing a face mask and consequently the bite did not pierce the security officer's skin. The biting did not cause any bodily injury. The security officer told the appellant, 'don't bite me'.

12 The appellant then squeezed her fingernails into the security officer's skin. He was wearing gloves. The fingernails did not pierce the security officer's skin and did not cause any bodily injury. The appellant then bit the security officer a second time on his left arm. The bite did not pierce the security officer's skin. The biting did not cause any bodily injury. The appellant was still wearing her mask. The assault caused distress to the victim.

13 The appellant was then administered a sedative by the medical practitioner, causing her to calm down. The appellant remained in hospital for two days due to the ongoing health concerns.[12]

14 The learned Magistrate accepted that the appellant pleaded guilty at the first reasonable opportunity, was 'truly remorseful' and was of good character, being a chartered accountant with no criminal record.[13] The learned Magistrate accepted that the appellant suffers from anxiety and depression and that she is undertaking treatment on a mental health plan.[14] The learned Magistrate accepted that the appellant was distressed due to her personal relationship with her ex‑husband who had told the appellant that he wanted a divorce and that she should not return to Victoria.[15]

15 The learned Magistrate determined that the appellant was unlikely to commit such an offence again and although the offence was not trivial, the learned Magistrate was satisfied that the appellant was of good character and therefore, the discretion to grant a spent conviction order was enlivened.[16]

16 The learned Magistrate then considered whether the enlivened discretion should be exercised to grant a spent conviction. Her Honour stated that the seriousness of the offence and the circumstances personal to the appellant must be considered. The learned Magistrate appeared to accept that a conviction may have adverse consequences on the appellant's employment prospects as an accountant.[17] Her Honour referred to the need to balance the public interest in the public recording of convictions and achieving general deterrence.[18]

17 Her Honour stated that a spent conviction may be granted for a serious offence and it is not in itself 'a disqualifying factor but it is a relevant factor and it is a weighty factor.'[19] Further, the learned Magistrate observed that the seriousness of the offence may 'also affect public interest considerations and one aspect of the public interest is for an employer, or potential employer, to be aware of the conviction.'[20] The learned magistrate stated that after balancing the factors she had determined that the offending was 'of such a serious nature' and that a spent conviction order would not be made.[21]

18 The ground of appeal on the Notice of Appeal dated 23 September 2021 pleads that the learned Magistrate erred in the exercise of her discretion in not granting a spent conviction order.[22] The parties prepared written submissions addressing that ground.

19 On the eve of the appeal, the appellant filed an application to include a further proposed ground of appeal contending that 'the Appellant would suffer a miscarriage of justice if she does not receive a spent conviction having regard to her personal circumstances and the adverse consequences of a conviction upon her.'[23] The respondent did not oppose that application. I granted leave to the appellant to rely upon the second ground of appeal.

20 This is an appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[24]

21 Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal against the decision to the Supreme Court constituted by a single judge sitting in its General Division.

22 Section 6 of the Criminal Appeals Act provides, relevantly, that in pt 2 of the Act, unless the contrary intention appears, 'decision' of a court of summary jurisdiction means, relevantly, 'a refusal to make an order that might be made as a result of a conviction'.[25]

23 Her Honour's refusal to make a spent conviction order was 'a refusal to make an order that might be made as a result of a conviction', and therefore a decision within s 6(g) of the Criminal Appeals Act.

24 Section 8(2) of the Criminal Appeals Act expressly provides that an appeal may be made under div 2 against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.

25 The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[26] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[27]

26 The question to be determined in this appeal is not whether the learned Magistrate had sufficient reason to make a spent conviction order, but rather whether the Magistrate's decision involved a material error of fact or law, revealed either by the reasons given or by implication from the failure to make a spent conviction order. The two grounds of appeal do not allege any specific error by the learned Magistrate.

27 The appellant sought to adduce evidence at the appeal hearing.[28] The evidence is outlined in the appellant's affidavit sworn on 22 December 2021.[29] The appellant deposes in that affidavit that, since the sentencing hearing before the learned Magistrate, the extent to which the conviction impacts detrimentally on both her professional and personal life has become evident. The appellant deposes that she applied for casual employment as a parcel sorter pre‑Christmas with Australia Post and was refused on the basis of having a criminal conviction.[30] The appellant further deposes that that she has become ineligible to be employed in specified financial roles namely being a financial manager for Public Private Partnerships for a number of prisons and hospitals.[31] Further, the appellant states that after inquiring with several insurance companies online and consulting insurance brokers she has been informed that she will be unable to obtain vehicle and home insurance as a consequence of the conviction.[32]

28 The general principle is that an appeal court must decide an appeal on the evidence and material before the learned magistrate. However, s 14(5) of the Criminal Appeals Act provides that on an appeal against sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.[33] Section 40(1)(e) of the Criminal Appeals Act provides a discretion to admit other evidence on appeal.

29 The respondent did not oppose the court receiving the further evidence but did not concede that the further evidence supports a finding that the learned Magistrate erred in the exercise of her discretion. I will allow the appellant to adduce additional evidence and I will receive the appellant's affidavit.

Legal principles in relation to spent conviction orders

30 The power to make a spent conviction order is found in s 39(2)(a) ‑ (d) of the Sentencing Act 1995 (WA). Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order. Relevantly, s 45 provides:

(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.

...

(2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.

(3) The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

(4) A spent conviction order is to be taken as part of the sentence imposed.

31 Accordingly, s 45 of the Sentencing Act directs the court not to make a spent conviction order unless three conditions are satisfied. The conditions, which are prerequisites to the making of the spent conviction order, are:

1. The court must consider that the offender is unlikely to commit such an offence again;

2. The offence must be trivial, or the offender must be of previous good character; and

3. Having regard to the pre-condition that the offence must be trivial, or the offender must be of previous good character, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

32 Therefore, the first two pre-conditions must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order.

33 The pre-conditions must be established by convincing evidence.[34]

34 The term 'trivial' in its natural and ordinary usage means of little importance, trifling, insignificant.[35] In Sharpe v Vinning,[36] the Court of Appeal considered the meaning to be given to the term 'trivial offence', stating:

The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act directs attention primarily to the type or nature of the offence in question, including the inherent seriousness of the offence and the maximum penalty, having regard to the spectrum of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.

As we have mentioned, the term 'offence' in s 45(1) refers to the acts or omissions (that is, the factual ingredients or elements) under a written law in respect of which the offender is to be sentenced in accordance with the Sentencing Act and the written law which imposed the criminal penalty for the relevant acts or omissions. It is apparent, therefore, that the material facts establishing guilt, which are the specific acts or omissions which establish the particular offender's criminal responsibility under the written law, must also be taken into account in determining whether the offence is 'trivial', within s 45(1)(b)(i). However, the relevant factors to be taken into account in determining whether an offence is trivial do not extend beyond the material facts establishing guilt, so as to include such matters as mitigating factors that are not part of the material facts establishing the offender's guilt or the objective and subjective personal circumstances of the offender.

35 If the conditions for the making of a spent conviction order are satisfied, the court is not obliged to make a spent conviction order. The sentencing court has a discretion, not a duty, to make a spent conviction order.[37] Consideration must be given to all the circumstances of the offence and the offender as well as the public interest.[38]

36 The relevant principles in respect of the discretion to order a spent conviction order were outlined in R v Tognini:[39]

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 of 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 would positively aide 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.

37 Therefore, the public interest must be considered by the court. The public interest includes maintaining the community's confidence in the judicial system and ensuring general deterrence by the public record of convictions.[40] The public interest also comprises a consideration of employers being aware of an offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work undertaken by the offender.[41]

Assessment of the merits of the appeal Ground one

38 By ground one the appellant relies upon implied error. If, on the facts, the exercise of discretion is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court at first instance.[42]

39 In determining this appeal from the learned Magistrate's refusal to grant the spent conviction, the court cannot substitute its own opinion for that of the sentencing Magistrate merely because it would have exercised the discretion differently.

40 The learned Magistrate determined that the necessary pre‑conditions to enliven the exercise of the discretion were satisfied. The findings of the learned Magistrate that the pre-conditions were satisfied are not challenged on the appeal. I will briefly outline the reasoning of the learned Magistrate in finding that the pre-conditions for the exercise of the discretion had been enlivened.

41 The learned Magistrate determined that the appellant was unlikely to commit such an offence again. Her Honour referred to yhe antecedents of the appellant in making that finding.[43] The respondent does not challenge that finding. I agree that the appellant is unlikely to commit such an offence again. In making this determination, the antecedents of the appellant, including that she has not been convicted of previous offences, is highly relevant. Further, reliance may be placed on the contention that there will be adverse consequences for the appellant if the conviction is not spent, being that it will have a detrimental effect on her prospects for employment.

42 The learned Magistrate determined that the offence was not trivial.[44] The appellant does not challenge that finding. In determining whether an offence is trivial, consideration is given to the inherent seriousness of the offence, the maximum penalty available and the range of the seriousness of offences created under written laws. Parliament has provided that the maximum penalty for the offence of assaulting a public officer is imprisonment for 7 years or imprisonment for 3 years and a fine of $36,000, if dealt with summarily. The fact that Parliament has provided for a term of imprisonment supports the finding that the offence of assaulting a public officer is serious. The offence may be committed in a myriad of circumstances. Further, the material facts that establish guilt, namely the specific acts, which establish the appellant's criminal responsibility under s 318(1)(d) of the Criminal Code, must also be taken into account.

43 I agree that the offence committed by the appellant is not trivial.

44 The learned Magistrate determined that the appellant is of good character. The respondent does not challenge that finding.

45 I agree that the appellant is of good character, being a professional woman with excellent antecedents who has no criminal record.

Whether the appellant should be relieved of the adverse effect of the conviction

46 Accordingly, the pre-conditions to enliven the discretion to order a spent conviction have been established. I must, therefore, determine whether the learned Magistrate erred in the exercise of her discretion in not relieving the appellant of the adverse effect of the conviction.

47 After careful consideration and reflection, I am persuaded that the learned Magistrate did err in the exercise of her discretion by not granting the appellant a spent conviction. I have reached this determination for the following reasons.

48 The offending occurred in the most extenuating of circumstances. The appellant was required to undertake 14 days mandatory quarantine upon arriving in Western Australia from Victoria. Within two days of commencing the 14 days mandatory quarantine, the appellant received a telephone call from her ex-husband demanding a divorce and stating that her possessions could not be collected from their home and that she should not return to Victoria. At the time of receiving that telephone call the appellant was, in effect, in home detention, given that she was undertaking 14 days quarantine, without any support, and was not able to leave the residence. The appellant became intoxicated with alcohol. The appellant became so emotionally distressed that police officers, undertaking a routine check, determined that it was necessary to take the appellant to hospital.

49 The appellant suffers from depression and anxiety. The medical practitioners at the hospital determined that it was necessary that the appellant required a sedative. The appellant did voluntarily become intoxicated with alcohol after receiving the telephone call from her husband. I accept that the alcohol must have affected the appellant's judgment and behaviour. However, the appellant did not become intoxicated and then choose to attend the hospital. The appellant was taken to the hospital by the police officers.

50 The act of assaulting a security officer at a hospital is a serious offence. General deterrence is a significant sentencing factor in such cases, including in the circumstances in which the appellant committed the offence. However, the seriousness of the offending must be considered in the context of the offending. The assault of the security guard occurred as the medical practitioner was administering a sedative due to the emotional state of the appellant who was consequently not compliant. The acts of the appellant did not result in any bodily harm to the security guard. I accept that the incident was distressing for the security officer. The fact that the security guard did not suffer bodily harm is most fortunate and most likely was a consequence of the fact that the appellant was wearing a facemask. However, the fact remains that the appellant was convicted, on her own plea, of one count of assault without causing bodily harm.

51 The appellant has outstanding antecedents. The appellant was 38 years of age at the time of the offending and of good character, having no prior criminal record and an excellent employment history.

52 There are adverse consequences for the appellant if convicted of the offence. At the sentencing hearing, the appellant's counsel submitted that police clearances were required for the appellant to work as a financial accountant.[45] Counsel referred to the appellant's employment with a correctional facility in NSW. Counsel stated that the appellant's future employment prospects as an accountant would be severely impacted and that 'she would be, essentially, excluded from returning to that profession'.[46]

53 The appellant has adduced evidence concerning the impact that the conviction will have on her employment opportunities. That evidence was not before the learned Magistrate. I have outlined that evidence. I accept that the conviction will have a significant impact on the future employment opportunities for the appellant.

54 I am mindful that this is not a case where there is a public interest in an employer being aware of the appellant's conduct, given that the conduct is very unlikely to be relevant in assessing the appellant's suitability for the type of professional work that the appellant undertakes.

55 The prospect that the conviction will have an adverse effect on the appellant's employment does not necessarily mean that it is unjust if she were not to be relieved of the consequences of the conviction. The adverse consequences on the appellant's employment prospects are factors to be weighed with all other considerations bearing on whether a spent conviction should be granted.

56 After undertaking the weighing of all relevant factors, I find that a spent conviction order should be made. In making that determination, I wish to stress that assaulting a security officer at a hospital is a serious offence and that it will be a rare occasion when such an offender is granted a spent conviction. The highly unusual extenuating circumstances in which the offending occurred, the excellent antecedents of the appellant and the significant impact that the conviction will have on the appellant supports the granting of a spent conviction in this case.

57 Therefore, leave to appeal is granted on ground one and the appeal is allowed.

58 Ground two contends that the refusal to grant a spent conviction order has resulted in a miscarriage of justice having regard to the appellant's personal circumstances and the adverse consequences of a conviction.[47] The ground may be established if, on the material before the appeal court, the court is satisfied that there would be a miscarriage of justice in failing to grant a spent conviction order.[48]

59 The appellant relies upon the adduced additional evidence outlined in her affidavit. The contention of the appellant is that, in the event that the appeal is not allowed on ground one and therefore, the learned magistrate did not err in the exercise of her discretion, then the evidence adduced on the appeal establishes, for reasons not known at sentencing, that there has been a miscarriage of justice.

60 Given that I have determined that the appeal is allowed on ground one, I need not consider ground two.

61 Accordingly, leave to appeal is granted on ground one. I need not decide ground two and, therefore, leave is not granted. The appeal is allowed and the order of the learned Magistrate is set aside and a spent conviction order is made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[22] Notice of Appeal dated 23 September 2021.

[23] Application to amend the Notice of Appeal dated 3 February 2022.

[24] Criminal Appeals Act 2004 (WA), s 9(1).

[25] Criminal Appeals Act 2004 (WA), s 6(g).

[26] Criminal Appeals Act 2004 (WA), s 9(2).

[27] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

[28] Application to adduce evidence dated 22 December 2021.

[29] Affidavit of appellant sworn 22 December 2021 filed 22 December 2021.

[30] Affidavit of appellant sworn 22 December 2021 filed 22 December 2021 [8].

[31] Affidavit of appellant sworn 22 December 2021 filed 22 December 2021 [9].

[32] Affidavit of appellant sworn 22 December 2021 filed 22 December 2021 [11].

[33] Criminal Appeals Act 2004 (WA), s 14.

[34] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14].

[35] GNR v The State of Western Australia [2015] WASCA 5 [49].

[36] Sharpe v Vinning [2020] WASCA 79 [110] ‑ [111].

[37] GNR v The State of Western Australia [2015] WASCA 5 [44].

[38] Wright v McMurchy [2012] WASCA 257 [59].

[39] R v Tognini [2000] WASCA 31 [27] ‑ [28].

[40] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [18].

[41] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [17].

[42] House v King [1936] HCA 40; (1936) 55 CLR 499.

[47] Application to amend the Notice of Appeal dated 3 February 2022.

[48] Rule v Trudgill [2015] WASC 196 [35].