AR -v- WOOD [2008] WASC 119 (18 June 2008)

Sentencing Act 1995 (WA)

Spent Convictions Act 1988 (WA)

Weapons Act 1999 (WA)

1 EM HEENAN J: On 19 July 2007 the appellant appeared before his Honour Magistrate Tarr in the Perth Magistrates Court on two charges, namely that:

1. On 17 April 2007 he was at a hospital where he behaved in a disorderly manner by using threatening and abusive language and actions; and
2. On 17 April 2007 he carried a tyre lever contrary to the provisions of the Weapons Act 1999 (WA).

2 Through counsel he pleaded guilty to both charges and was thereupon convicted. After hearing very short submissions on the appellant's behalf, the learned magistrate imposed a fine of $1,500 on the charge of disorderly conduct and a further fine of $500 on the charge of carrying a tyre lever contrary to the provisions of the Weapons Act. The appellant, by counsel, had submitted that the learned magistrate should make spent conviction orders in relation to both convictions pursuant to s 45 of the Sentencing Act 1995 (WA) and Spent Convictions Act 1988 (WA). The learned magistrate made the orders imposing the fines but, initially at least, did not deal with the application for the spent conviction orders. When asked by counsel whether or not orders for spent convictions would be made his Honour simply announced that he was not going to make any such order and did not elaborate in any way on his reasons for that refusal. The whole application was dealt with speedily and the reasons for the size of the fines were not given. The appellant was previously of good character. Unfortunately a number of errors in explaining the relevant background facts to the learned magistrate were made, both by the prosecution and by defence counsel, and significant mitigating circumstances, accepted before me by the respondent as being correct, were not disclosed to the court.

3 The version of the facts, incomplete as I have just indicated, put to the court by the prosecution was as follows:

It was about 9.50 pm on Tuesday, 17 April this year [2007], the accused entered through the main entrance of the hospital and was refused entry to see his son after normal visiting hours. The accused became aggressive and abusive towards hospital staff and had to be escorted from the hospital by security officers on to the public footpath.

As he was being escorted from the hospital the accused used abusive language and made threats towards the security officers. The offender - the accused - then removed the tyre lever from his vehicle and re-entered the hospital, again using abusive language and making threatening actions with the tyre lever, which caused security officers to fear they may be injured. They defended themselves with threats of using their pepper spray, holding the accused at bay just outside the hospital doors.

The accused returned to his vehicle, placed the iron bar inside the vehicle and then returned again to confront the security officers, and was held at bay until police had arrived, when he was arrested.

Sir, he has no prior convictions. Seeking costs of $243.

4 By notice dated 7 November 2007, AR sought leave to appeal from these orders on the grounds that:

1. The learned magistrate erred in refusing to make a spent conviction;
2. the learned magistrate erred in determining the offence under s 8(1) of the Weapons Act was not trivial in all the circumstances;
3. the learned magistrate erred in determining the offence under s 74A(2)(a) of the Criminal Code was not trivial in all the circumstances;
4. the learned magistrate erred in failing to apply the principles in s 45 and s 46 of the Sentencing Act.

5 By order dated 14 November 2007 McKechnie J granted leave to appeal on all those grounds and made other directions dispensing with the need for an appeal book and setting a timetable for the hearing of the appeal.

6 The appeal was heard before me on 22 May 2008 and, in the course of proceedings it became evident that the appellant was also, in substance, contending that the amounts of the fines which had been imposed were excessive. Counsel for the respondent recognised that this raised issues which went beyond the scope of the grounds of appeal as framed but was in a position to deal with that expansion of the proceedings and was willing to do so. In the circumstances, therefore, I granted leave, then and there, to expand the grounds of appeal to include contentions that the fines imposed were, in all the circumstances, excessive. The hearing of the appeal proceeded on that footing.

7 At the end of submissions I made orders allowing the appeal, reducing the fines, respectively to $100 for the charge of disorderly conduct and $250 for the charge of carrying a tyre lever contrary to the Weapons Act. Spent conviction orders were also made in relation to each offence. At the time I gave brief oral reasons based on the facts which had emerged during argument, that a number of material facts were misstated or not revealed to the learned magistrate and that in all the circumstances the penalties imposed were unduly severe. When doing so I indicated that more detailed reasons for decision would be prepared and published later and these are now those reasons.

8 The version of events put to the learned sentencing magistrate by counsel for the appellant (who incidentally had only seen the appellant and obtained instructions a short while earlier that morning) was that the appellant's wife had had a premature baby and was in the intensive care unit at the hospital at the time. According to counsel, the appellant had previously been advised that he could visit his wife at any time but this was not known to the security guards. The incident with the tyre lever occurred outside the hospital grounds and he was frustrated because his wife had had surgery, she had sutures and the baby was newborn. He was told that it was after 8.00 pm and that 'you can't go in'. He asked the guards to check with the nurse, and he was told 'if you don't leave I'll spray you'. Counsel submitted that the appellant was also withdrawing from the effects of antidepressive medication. He left the hospital, went back to the car and drank some water. The accused's occupation was a handyman, there were some tools in the car, he selected the tyre lever and sat in the car waiting for his wife. The police arrived.

9 The appellant is a middle-aged man who was, at the time, enrolled in a post graduate degree at university. He was also working as a part-time handyman to supplement the family income.

10 He was said to be a Kurdish Muslim who had been in this country for eight years with a right of permanent residence and was in the course of applying for his citizenship in three or four months' time. The court was told that the financial penalties would hit hard. Counsel asked for a spent conviction order given his previous good record, and because of the potential consequences for his application for citizenship. He asked the court to take into account his impecunious situation.

11 It is most unfortunate that neither counsel for the appellant, nor for the accused, or for that matter, the court, were able to take the time to get an accurate version of the events because, when the picture truly unfolds a very different complexion appears. Perhaps it is inevitable that in a busy list in a magistrates court dealing with pleas of guilty, only limited time is available to deal with an individual matter but that is really no adequate reason why the facts should not be stated accurately, and a measured and proportionate response be made by the court to them. This disposition was peremptory. As became apparent on the hearing of this appeal there was really no controversy about what actually happened at the hospital on the night of 17 April 2007. The prosecution was in possession of statements from the police and others which, had they been fully assimilated, would have revealed the true position. Counsel for the appellant, no doubt unwittingly, misdescribed the position and did not put his client's position fully or in its necessary context.

12 The facts, as they became established before me, were narrated by the appellant and accepted by the prosecution. In the first place the appellant is not a Kurdish Muslim but, rather a Kurdish Christian who was driven out of Iraq with his family as a child and was educated, to university level in Iran. He migrated to Australia, obtained work here, began studying and married his wife who also comes from overseas. His wife had their first child a few days or a week before 17 April 2007. It was a premature birth with complications, including maternal tearing and the need for intensive care of the neonate. His wife was kept in hospital for some days to recover from the birth and from her remedial treatment. The baby was placed in the hospital intensive care neonatal clinic. A few days before 17 April 2007 his wife was discharged from the hospital and allowed home but the baby was kept in the intensive care clinic and the parents were allowed, indeed encouraged, to visit whenever they wished. Their ability to visit the baby in the intensive neonatal unit was not limited to hospital visiting hours and they were both assured that they could visit, and come and go, whenever they wished. Before me the prosecution accepted that the appellant was free to visit the neonatal intensive care unit and see his child at any time.

13 On 17 April 2007 both the appellant, and his wife, attended the hospital to visit their baby in the neonatal unit some time well before 8.00 pm - the end of visiting hours for other wards at the hospital. They went up to the intensive care unit, and saw the baby together. At some point a little before 8.00 pm, the parents decided to fetch a child's shawl from the car and the appellant left the neonatal unit, with his wife remaining with the baby, to go and fetch the shawl and return. He went down in the lift, out through the main entrance, to the hospital car park, went to his vehicle, found the shawl and returned without incident.

14 On reaching the hospital foyer he pressed the button for the lift to go up to the intensive care ward floor but there was no response. On enquiring at the desk he was told that it had gone 8.00 pm and that access to the lifts had been switched off at the close of visiting hours. He explained the position, saying that his wife was waiting for him and that he believed that he was free to go to the intensive care unit and the staff responded by saying that they would call the security staff because only they were able to switch on and give access to the lifts. The appellant was told that he should wait for a little while until the security staff could respond. Accordingly he waited in the foyer until he could be given access to the lifts.

15 For some reason or other it took longer for the security staff to arrive than had been expected. According to the appellant he was waiting there for 20 - 45 minutes before the security staff arrived and by then he had become impatient. When the security attendant did eventually arrive, the appellant, inadvisedly, but perhaps not surprisingly, made some derogatory remark about the security attendant taking a long time and having a smoke instead of coming. That was a bad start and from then on the situation rapidly deteriorated. He then asked to be given access to the lift and the security staff made some enquiries at the desk and came back to say that he could not go up to the neonatal ward. The appellant protested that his wife was already there waiting for him and that the staff should communicate with the ward to confirm this. It seems probable that his impatience was rising as this discourse went on. The security officer remained steadfast and said that he was not allowed up to the ward. As he had no means of contacting his wife he asked the security staff to go up and tell her what had happened but was told that that was not possible and that he had to leave the premises and, that if he did not do so the security staff would use their pepper sprays upon him.

16 All this happened in the hospital main foyer near the lifts and, according to the appellant, the area was subject to CCTV surveillance. There was no violence used or threatened by the appellant. No patient or other members of the public were in the vicinity and what took place was the expression of indignation and surprise that the appellant was not permitted either access to his wife or any means of communication with her in circumstances where he believed, and it is now not disputed that he was correct, that he was entitled to return to his wife and child in the neonatal ward.

17 The appellant left the hospital premises as he had been told to do and went back to his car in the car park. He was upset - probably he was fuming. But he sat in the car, drank some water but was worrying about what his wife would think and how to contact her. He decided to go back to the hospital and, in doing so, made what I believe to be his most serious misjudgement. He took a tyre lever from a tool box at the back of his vehicle, together with water, he said because he was afraid that the pepper spray would be used. He met the security guards on the pathway outside the hospital building but just inside the grounds and again asked for access to his wife or for some message to be conveyed to her about what had happened so he could collect her. He was faced with the security guards and an impasse developed. No violence occurred or was threatened, but the implication of him holding the tyre lever was, to say the least, disturbing.

18 At that point the security staff called the police and a police car attended quite quickly. Two officers took the appellant aside, spoke to him, obtained his explanation about what had happened and took him back to his car. The situation quickly calmed down and the officers told the appellant that he should go home. He explained that he was concerned for his wife, but he was told that he would not be permitted into the hospital and that he should go home. He indicated that he would drive home but, because he was in an agitated state, and it was revealed that he had taken an anti-depressive tablet, the police officers told him that he should not drive. The family only lived a short distance away and he therefore decided to walk home and told the police he would. They accepted this and placed no restraint upon him leaving and he did in fact walk home.

19 On his arrival at his home he sat down and calmed himself but he was worried about his wife and how she would get home and what she would think of his absence. After giving the matter some thought he decided that he should go back to the hospital, try and contact his wife or get somebody to explain to her what had happened. He set out from home walking along the streets heading towards the hospital. In the course of doing so a police car, coming from the direction of the hospital, stopped. It was the same two police officers who had spoken to him outside the hospital and this time they had his wife in the car. They had enquired about her at the hospital, explained what had happened and were giving her a lift home. They had seen him walking in the street and, after explaining that his wife was with them, asked him what he was doing walking back. He explained that he was looking for his wife and was going to get his car which had been left in the car park. They again told him that he should not drive the car and, at this point, impatience, and perhaps temper, got the better of the appellant. He asked if he would be arrested if he tried to drive his car and the policeman told him that he would. He said that he could not be arrested in the street and an argument broke out. The upshot of all this was that the appellant was indeed arrested, placed in the police car and his wife put out and left to walk the short distance to their home. The appellant was then taken to a police station where he was kept for some time. He was then transferred to the East Perth police station and lock up where he was processed, put in a cell and kept overnight before he appeared before the magistrate the next morning on these charges and was bailed.

20 It became apparent, and was acknowledged by the respondent, that the statements put to the learned magistrate on 17 April 2007 were wrong in at least the following material respects. Namely:

(a) the appellant was not attempting to visit his wife in the hospital after hours when the incident at the hospital first occurred. The fact of the matter was that he and his wife had already made a visit to the hospital that evening to see their baby in the neonatal intensive care unit, that the appellant had left the visit to fetch an item of clothing from his car leaving his wife waiting for him and expecting his return;

(b) although the normal hospital visiting hours did end at 8.00 pm the restriction on visiting hours did not apply to the appellant or to his wife and he had been told and encouraged to visit the baby after hours;

(c) he was not initially refused entry. On discovering that the lift access had been automatically closed down after 8.00 pm, he enquired about the position and was told that he could be given access but it would be necessary for the security staff to come and adjust the lifts and he was asked to wait for this to be done;

(d) the accused did not immediately become aggressive or abusive but waited patiently for something between 20 and 40 minutes before the security staff arrived. When the security staff did arrive matters got off to a bad start when the appellant became terse about being kept waiting for so long and from then on matters went rapidly downhill without the security staff making proper inquiries about his right of access or the fact that his wife was upstairs waiting for his return;

(e) the accused was not escorted away from the hospital by security officers but he was told that if he did not leave, pepper spray would be used against him;

(f) after leaving the hospital car park he returned, this time with the tyre lever, and had a confrontation with the security officers leading to the police being called. The police did arrive, they investigated the position and, at least at that stage, decided to take no action but told the appellant to walk home which he agreed to do. No restraint of any kind was placed upon his departure;

(g) the appellant was arrested, not at the scene, because of any threats or conduct towards hospital staff, but on the street some distance from the hospital when he was stopped by the police who were returning his wife to his home. It seems that his refusal to obey instructions not to attempt to drive his car that evening, and his intemperate behaviour at that point, were the real reasons for his arrest;

(h) whatever the circumstances, he had spent a night in custody because of the incident.

21 All this was accepted by the respondent at the hearing of the appeal before me and, while not excusing the appellant's conduct, nor detracting from his pleas of guilty and the propriety of the convictions which were entered upon them, it certainly puts the entire episode in a different and less menacing context.

22 Obviously it was most inappropriate and indiscreet of the appellant to speak abruptly to the security officers after he had been waiting for their arrival. It seems that he later became argumentative and confrontational when he walked back from the car park with the tyre lever in his hand. Quite possibly he lost his temper.

23 Nevertheless, the situation had its human side. The appellant was a first time father of a newly born infant who required and was receiving intensive medical care. His wife had been through a difficult birth and her health was, obviously, of concern to him. He had actually been with his wife seeing the baby and left the hospital in the confident and justifiable expectation that he could return. He was delayed, and then prevented from returning to see his child and collect his wife for reasons which, in the end, were unjustified and mistaken. He was indignant and reasonable enquiries which could have been made to confirm the justification of his position were declined.

24 All this seems to have been appreciated by the police officers who clearly took a sensible view of the situation in calming the appellant down and allowing him to go home. Only later when he again became indignant, and would not calm down, was he arrested. He was not charged with any offence in relation to the conduct which immediately did lead to his arrest.

25 As a first offender, and a man of good character he has suffered the ordeal of a night in the lockup and, in all the circumstances, I have no doubt that this was a case for leniency and the imposition of only very moderate penalties.

26 It is most unfortunate that an impression was created before the magistrate which led to his Honour apparently assuming that the appellant posed a real threat to staff at the hospital and to members of the public or to patients; and that his Honour was not told that the initial police intervention resulted in no more than him being spoken to and allowed to leave.

27 The appellant has only a very modest income and, with the responsibilities of his wife and new child, the fines imposed resulted in a very heavy burden. There was no reason to suppose that the appellant posed a threat to the community generally or that any repetition of this incident was likely. There is, at least, scope for the view that the appellant's ordeal was one of the whips and scorns in Hamlet's list of laments and perhaps the second or the fifth, but no attempt to raise any such point was made by the appellant.

28 Detailed written submissions were filed in advance by the respondent, which were relied upon at the hearing, although, as the hearing developed, the fact that the sentencing had taken place on a number of erroneous factual assumptions meant that, to a significant extent, these were displaced. Initially, however, the respondent maintained the submission that for the appellant to succeed it was necessary for him to establish that the learned magistrate failed properly to exercise his discretion by acting on 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, 671. Self-evidently, however, once it became established, as it was, that the sentencing had proceeded on a mistaken appreciation of the facts, the basis for review on appeal emerged.

29 The power to make a spent conviction order is recognised by s 39(2)(a) of the Sentencing Act. A series of submissions were advanced by the respondent to the effect that a spent conviction order could not, or should not, have been made in this case, notwithstanding the facts as they did emerge on the appeal. Before those submissions can be considered it is necessary to identify, precisely, the provisions of s 45 of the Sentencing Act, so far as applicable, which is a full statement by Parliament of the relevant principles and considerations. The statute provides at s 45:

(1) Under s 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

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 1998.

(3) The Spent Convictions Act 1998, 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.

(5) ...

(6) ...

30 Relevantly, therefore, the statutory criteria conditioning the grant of any such order, requires consideration by the court that the offender is unlikely to commit such an offence again (meaning the particular category of offence or offences with which he has been charged) and also that there be one, or both, of two subsequent conditions simultaneously satisfied; namely, that the court considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender, having regard to the fact that the offence is trivial or to the previous good character of the offender.

31 In the present case, this offender unquestionably had a previous good character and all the appearances were that he was unlikely to commit such an offence again. That is sufficient to enliven the power to make a spent conviction order. Yet so far as can be seen, the only implication which can be drawn from the learned magistrate's very limited reference to the requirements for a spent conviction was that because the offences involved a serious matter they were, therefore, not trivial and that, consequently, no such order could be made. In its true perspective it seems to me, with all respect, that the initial argument between the appellant and the security officers about access to the lift and to the hospital after hours, leading him to be told to leave the premises under threat of being subjected to pepper spray, was, at least from the appellant's viewpoint, quite trivial. The merits, so far as they could be seen, were on the appellant's side and his reaction in the circumstances, although undesirable, was not alleged to amount to an assault and was, in the circumstances, not at all surprising.

32 On the other hand, his return to the hospital carrying a tyre lever was very indiscreet and could not, in my view, properly be regarded as trivial, although it does not seem to be as grave as the magistrate regarded it to be. Nevertheless, as s 45(1) shows, even if one of the offences was not regarded as trivial, that does not exclude the possibility of the grant of a spent conviction order if the other conditions are satisfied, as it seems to me they were.

33 Therefore, it follows that by failing fully to examine and apply the criteria for deciding whether or not a spent conviction order could be granted, the learned magistrate erred in law and, consequently, the appellant has made out in part his first, third and fourth grounds of appeal. It remains to consider whether or not, in circumstances where there was power to grant a spent conviction order, this was an occasion for the exercise of that power.

34 Further submissions were made to the effect that the offences, or at least the second, were not trivial, that is, 'of little importance, petty, frivolous or trifling' - see Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997) 9 (Parker J); Canale v Bayens [2001] WASCA 383 [14], and Furtak v Timmers [2001] WASCA 65 [35] -[36], and that in the present case the court had been clearly satisfied, having regard to the nature and circumstances of the offence, the personal circumstances of the offender, and the public interest, that a spent conviction order was not appropriate. I accept that the descriptions contained in these authorities provide a sufficiently adequate working synonym for 'trivial' for present purposes, although, of course, reference must always be made to the actual language used by the statute itself. However, the impression of the circumstances of this case formed by the learned magistrate is wrong and unreliable because of his Honour's mistaken appreciation of the facts which has already been described. Further submissions were also made to the effect that an offence should not be regraded as trivial if it is a typical example of the behaviour proscribed for such an offence and that there must be something which clearly distinguishes the particular breach under consideration from what may be regarded as a typical breach - Tambyrajah v Gablonski [2004] WASCA 105, 24 (Le Miere J) and Bembridge v G-K-R Karate Australia Pty Ltd (Unreported WASC, Library No 980502, 8 September 1998) 9 (Miller J). On this basis it was submitted that the appellant's behaviour was not distinguishable from the typical type of behaviour proscribed by s 8(1) of the Weapons Act or by s 94A(2)(a) of the Criminal Code.

35 Having regard to the different factual basis which emerged at the hearing of this appeal from that which underpinned the approach to sentencing by the learned magistrate, it is unnecessary for me to examine this submission further or to examine the authorities relied upon. There is, however, a clear danger that observations in one case deemed appropriate for the circumstances directly addressed may, unwittingly, be given a wider than necessary or intended application if abstracted to an entirely different situation. I am not presently prepared to accept that for an offence to be 'trivial' within the meaning of s 45(1) of the Sentencing Act it must be markedly less serious than the typical form of offence proscribed by the statute or regulation. Take, for example, jaywalking which is an offence contrary to reg 702 and reg 704 of the Road Traffic Code 1975 (WA). Fortunately, and perhaps understandably, prosecutions for jaywalking seldom come before the courts because in the wide range of human experience this is mostly often regarded as a very minor or trivial offence. However if, unusually, a case for jaywalking did come before the court I would certainly not endorse any proposition which contended that in order for the offence to be regarded as trivial so that s 45 of the Sentencing Act could be applied and a spent conviction order be made, that the particular case of jaywalking should be markedly less serious than the more common kind of this proscribed behaviour.

36 Further submissions were advanced by the respondent that the satisfaction of the criteria set out in s 45(1) of the Sentencing Act is a necessary, but not sufficient, condition for making a spent conviction order and that the ordinary rule is that a conviction will be a matter of record with all the consequences that may entail: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 296 - 297. In advancing that submission, counsel for the respondent contended that the power to grant a spent conviction order is a discretionary power of an exceptional character and should only be sparingly exercised. As the submission went, the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender 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, that the adverse effect of a conviction should be immediately set aside - R v Tognini, 297.

37 In dealing generally with spent conviction orders, in R v Tognini Murray J at 297 referred to other legislation to similar effect in other Australian jurisdictions before concluding that the power to make such an order should be regarded as being of an exceptional character. His Honour's judgment was agreed with by Malcolm CJ and Wallwork J at 292 but those observations must, in my view, be regarded as applying to the particular circumstances of the offence there under consideration. The first spent conviction orders examined in R v Tognini involved offences of actual dishonesty in a commercial context but, nevertheless, spent conviction orders were made and upheld on appeal. The spent conviction order which was set aside was in relation to the second respondent, McGuire, who had been convicted of an offence of indecent assault, contrary to s 323 of the Criminal Code. Having regard to the circumstances of the offences of dishonesty and of indecent assault examined in Tognini's case, one can readily appreciate why the learned judges dealing with that case described the making of a spent conviction order as exceptional and, indeed, in Tognini's case the circumstances were sufficiently exceptional for the making of those orders to be affirmed.

38 That is a far cry from the circumstances of this particular case, which were impulsive, eventually harmless, and prompted by an understandable human reaction to a somewhat frustrating attitude struck by the hospital personnel.

39 I am not prepared to consider that, in every case, the making of a spent conviction order must be regarded as an 'exceptional' course because to do so would involve placing a gloss upon the requirements of s 45(1) of the Act which, in unequivocal terms, is the statement by Parliament of when the power to make such orders arises. It has long been established that it is not the proper approach to put a gloss on a statute with implications derived from other considerations outside the statute itself, see Cornwell v The Queen [2007] HCA 12; (2007) 234 ALR 51 [184], and that such an approach of glossing a statute should not be used as a substitute for the text, see Vigolo v Bostin [2005] HCA 11; 221 CLR 191 [21] (Gleeson CJ). Such an approach had been described by Williams J in Coates v National Trustees Executor & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 512, as the use of a paraphrase which is apt to mislead. In every case the court must give effect to a statute by ascertaining the intention of Parliament and, when dealing with s 45, there is no scope for incompleteness, uncertainty or ambiguity.

40 True it may be that spent conviction orders and the power to make them under s 45 require mature judgment and a sense of discrimination but they are obviously intended to be used in suitable cases. There is a long history of other legislative provisions in former times, allowing first offences or minor offences to be dealt with leniently - see the history of jurisprudence which examined the former s 669 of the Criminal Code which, generally, and with suitable qualifications, espoused the policy that the operation of a conviction could be suspended or avoided in suitable circumstances - compare Pearce v Paskov [1968] WAR 66 and Greenfield v Edwardes [1987] WAR 207. In the latter case Burt CJ, although dissenting in the result where Brinsden and Olney JJ held that s 669 of the Criminal Code, as it then was, was excluded by operation of s 106 of the Road Traffic Act 1994 (WA), referred to the decision of Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 where a majority of the Justices held that a particular offence against the Road Traffic Act 1961-1967 (SA) could be dismissed without proceeding to a conviction under the provisions of the then Offenders Probation Act 1913-53 (SA). The Chief Justice cited in particular the judgment of Windeyer J where his Honour concluded that the answer to the question of the meaning of the statutory provision could not rest upon any 'presuppositions of a probable legislative intent' and that, even if it could, that would not support the prosecution's submissions. His Honour said:

Rather, I would think the contrary. The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

41 In my view, and with respect, these are the considerations which underlie the meaning and effect of s 45 of the Sentencing Act and, in appropriate circumstances, a court should give effect to them and not require more.

42 There is also the long established inherent discretion of courts to be merciful when sentencing by exercising leniency - see Morrison v Behrooz [2005] SASC 142 [46] - [48] (Gray J where reference was made to R v Miceli [1997] VSC 22; [1998] 4 VR 588 and R v Osenkowski (1982) 30 SASR 212 which was specifically approved by Winneke P and Hayne JA in R v Carter (1997) 91 A Crim R 222. These decisions have been approved and applied in this State by the Full Court in Nguyen v The Queen [2001] WASCA 119, [33] - [40], (Malcolm CJ). This discretion is independent of and additional to the specific statutory provisions in s 45 of the Sentencing Act. It is recognised by s 39(2)(a) of that Act. In the scheme of federal offences, s 19B of the Crimes Act 1914 (Cth) may be regarded as an analogue and similar considerations apply - see Nelson v Quinn [2001] WASCA 297 (McLure J).

43 It must not be overlooked that under s 39 and s 45 of the Sentencing Act, a penalty, including a conviction, may be actually imposed, even if it later becomes 'spent'. This reveals a legislative intention to make this dispensation more flexible and available than the former option of not proceeding to a conviction at all - compare the former approach examined by Steytler J in Jones v McDonald (Unreported, WASC, Library No 980039, 6 February 1998). Under s 39(2)(a), (b), (c) and (d) a disposition or sentence may be made with or without making a spent conviction order so that, for example, under s 39(2)(a) and s 46 a court sentencing an offender may impose no sentence and release the offender unconditionally. It may perhaps, be the case that for s 39(2)(a) and s 46 to operate more needs to be established than in an instance where a spent conviction order is made in conjunction with some other form of sentence. This case falls into the latter category and, therefore, so long as the statutory conditions set by s 45(1) exist, it does not seem to me that any more is required to be shown to enliven the sentencing officer's broad power.

44 In this case, the consequences of the convictions for the appellant were not merely embarrassing but there was at least the possibility that they might jeopardise his pending application for citizenship. He was a man of no prior convictions, well educated, attempting to care for his wife and family. If he succumbed to temper by the pressure of the circumstances in which he found himself, this was a rather human foible.

45 The financial circumstances of the appellant made it obvious that he has very little in the way of resources. He and his wife are subsisting at present on Commonwealth benefits. The baby bonus for the birth of his child was consumed by paying for the attenuated legal representation before the magistrate and he has no other assets of significance. In my view, the fine of $1,500 for the disorderly conduct offence should be reduced to $100 and the fine for $500 for the carrying of the tyre lever should be reduced to $250.

46 Bearing in mind that he spent a night in the lockup, and is subject to fines, I have no doubt in concluding that this was a suitable occasion for spent conviction orders to be made. In allowing this appeal, I consider that such orders should be made.

1. the appeal be allowed;
2. the fine for the offence of disorderly conduct contrary to the Criminal Code be reduced from $1,500 to $100;
3. the fine for the offence of carrying a tyre lever contrary to the Weapons Act be reduced from $500 to $250;
4. there be spent conviction orders in relation to both offences.

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