Brewer v Baines

Criminal law and procedure - Spent conviction order - Whether appropriate - No new principles

Sentencing Act 1995 (WA), s 45

First Respondent : Director of Public Prosecutions (WA)

Second Respondent : Director of Public Prosecutions (WA)

Brewer v Baines [2002] WASCA 271; (2002) 26 WAR 510

Caseley v Zampogna [2006] WASC 259

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

Neale v Sloane (Unreported, WASCA, Library No 970729, 6 August 1997)

R v Lauritson [2000] WASCA 203; (2000) 114 A Crim R 333

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

Riggall v The State of Western Australia [2008] WASCA 89; (2008) 37 WAR 211

Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)

Thompson v The Queen [2005] WASCA 223

1 COMMISSIONER SLEIGHT: This matter concerns an application for leave to appeal and appeal against a magistrate's refusal to grant a spent conviction order. On 2 May 2011, I made orders that leave to appeal is granted; secondly, the appeal is allowed and thirdly, a spent conviction order is made in respect of five offences. My reasons for these orders are set out below.

2 On 31 December 2010, in the Fremantle Magistrates Court, the appellant, Ms A, was convicted on her own plea of guilty, of five counts of stealing contrary to s 378 of the Criminal Code (WA).

1. On 6 August 2010 at Booragoon, Ms A stole two earrings, five sets of bangles and a metal brooch valued at $148, the property of Diva Pty Ltd trading as Diva Garden City Booragoon.
2. On 6 August 2010 at Booragoon, Ms A stole four bunches of bangles valued at $72.80, the property of Dotti Pty Ltd trading as Dotti Garden City.
3. On 6 August 2010 at Booragoon, Ms A stole some bangles and earrings valued at $299.60, the property of David Jones Pty Ltd trading as David Jones Garden City Booragoon.
4. On 17 July 2010 at Fremantle, Ms A stole items valued at $1,215.55, the property of Country Road Clothing Pty Ltd trading as Country Road.
5. On 17 July 2010 at Fremantle, Ms A stole a dress valued at $109, the property of Myer Pty Ltd trading as Myer Fremantle.

4 The appellant had no prior convictions. The magistrate imposed a global penalty of $750.

5 The circumstances of the offending and the personal situation of the appellant were described by her counsel in submissions to the magistrate. These can be summarised as follows:

1. Ms A is 40 years old. She has two daughters aged 16 and 14.
2. The offending occurred in the context of a substantial deterioration in the appellant's mental health as a result of what were described as 'very tragic circumstances'.

(a) Ms A was a police officer for 17 years. Six years ago, she was deemed medically unfit. She had post-traumatic stress as a result of an incident where she pulled a child off a burning bus. She received a bravery award for her efforts on this occasion.

(b) Whilst still working in the police force, Ms A studied nursing part-time. She became a registered nurse and worked in that profession for two years before her health became such that she was unable to continue.

(c) Approximately five years ago, her 36-week-old baby son was killed in a car accident. Following this, her marriage broke down and she is separated from the father of her children.

(d) Ms A also suffers chronic pain as a result of a back injury suffered whilst employed as a police officer when her police vehicle collided with a truck.

(e) In an endeavour to manage her pain, Ms A has been prescribed various painkillers to which she became addicted. She has been able to break this addiction and is no longer taking pain medication. This is partly due to the fact that in 2009 she had a stimuli device implanted in her spine to interrupt the nerve signals and help her better manage the pain.

(f) Ms A has spent time as an inpatient at the Perth Clinic including a period as an inpatient in the week prior to sentencing. She is under treatment from a psychiatrist and takes regular medication. Her diagnosis is that of bipolar and major depression.

(g) Two months prior to sentencing, Ms A attended a job interview in Singapore. Whilst in Singapore, she suffered a rupture of a stomach ulcer which required her to be hospitalised and treated. She also had a further motor vehicle accident on her return to Australia and has been hospitalised and has undergone surgery for further injuries.

6 Ms A made an application for a spent conviction order and in support of that application her counsel stated as follows:

The detriment that she will suffer if this conviction is recorded is fairly self-evident as a registered nurse. She will not be able to work without a police clearance. Gaining employment again is vital to her sense of herself. Also it will really be a cornerstone, I would suggest, of what will be no doubt a long recovery. She is seeking to get her life back on track and regain a sense of purpose and direction in life and for that reason employment will be very important to Ms A. On that basis, Sir, I would seek a spent conviction.

7 The magistrate in dealing with the spent conviction order stated as follows:

HIS HONOUR: Now in relation to application for a spent conviction I must take into consideration several issues to determine whether or not, in all the circumstances, they are of such an exceptional character that it warrants the immediate relief of any convictions against you. There are certain criteria which must be applied and I don't wish to go through them individually. But the likelihood of your reoffending, that is probably at the lower end of the scale, there is little likelihood of you reoffending.

You have no previous record; your record otherwise is good and you, as a serving police officer, have been commended for your bravery and it would seem you served as a police officer for a number of years. Of prime consideration, however, is the detrimental effect that any conviction may have upon you with respect to prospective employment, particularly in the nursing industry. I accept that you will require a police clearance - or what is described as a police clearance probably to continue as a registered nurse.

But I must also take into account the public interest and in all the circumstances, having carefully considered the application, all factors of both a general and personal nature - albeit that I accept that you may suffer as a result of a conviction being recorded - I believe in the public interest you should not be given a spent conviction and I don't intend to give you one. You can stand down, thank you.

8 An appeal against a sentencing decision of a magistrate may be on the grounds that the sentence was inadequate or excessive, or that there has been a miscarriage of justice : s 8 of the Criminal Appeals Act 2004(WA).

9 The grounds of appeal in this matter are that the magistrate erred in finding that it was in the public interest not to make a spent conviction order.

10 Under s 39(2) of the Sentencing Act 1995 (WA), a court sentencing an offender may, with or without making a spent conviction order, fine an offender. Section 45(1) of the Act provides as follows:

(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.

11 It is not in dispute in this matter that the offender was unlikely to commit such an offence again and that she was of previous good character. The question is whether the magistrate ought to have found that having regard to her previous good character and her circumstances, the offender should be relieved immediately of the adverse effect that a conviction might have on the offender.

12 The principles that required consideration by the magistrate are well-known. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, Murray J said:

In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community [27] - [28].

13 In Neale v Sloane (Unreported, WASCA, Library No 970729, 6 August 1997), Wheeler J said:

Section 45 of the Sentencing Act provides that a court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require a making of an order once those criteria are satisfied, and consideration must be given to all of the circumstances of the case and of the offender - and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in section 45 are not thereby rendered irrelevant.

14 It is clear that in some cases there is a public interest in an employer or potential employer being aware of an offender's offending behaviour. This is because that behaviour may have relevance in assessing the offender's reliability and suitability for the type of work at which he or she pursues. See Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997); Brewer v Baines [2002] WASCA 271; (2002) 26 WAR 510, 515 (Burchett AUJ).

15 Part 3 div 3 of the Spent Convictions Act 1988 (WA) provides that it is unlawful for employers (s 18), principals (s 19, s 20), organisations of employees and employers (s 21), authorities that confer qualifications (s 22) and employment agencies (s 23) to discriminate against a person on the ground of a spent conviction. Section 26 in div 4 provides that where a written law of this State permits or allows a person to consider, take into account or determine good character, fitness, propriety or other like attributes, the person shall not have regard to spent convictions of the individual, the subject of the character assessment (however, sch 3 to the Act sets out numerous exceptions to pt 3 of the Act). (For a discussion of these provisions, see Riggall v The State of Western Australia [2008] WASCA 89; (2008) 37 WAR 211 per Wheeler JA.) Included in these exceptions are persons employed or seconded or who are being considered for employment or secondment by the Director General of the Department of Health under the Health Act 1911 (WA) and Hospitals and Health Services Act 1927 (WA). However, no exception applies for employees of private health operators.

16 However, an exemption exists under the provisions of the Health Practitioner Regulation National Law (WA) Act 2010 (WA). Section 77 of the Act provides that an individual may apply to the National Board for registration in the health profession for which the board is established. The application must include a declaration to disclose the applicant's criminal history. Section 77(4) provides that the requirement to provide a declaration concerning the applicant's criminal history applies, notwithstanding any criminal history law which prevents or does not require the disclosure of convictions (s 5 of the Act).

17 Similarly, there are provisions in the Act which entitle the National Board to check an applicant's criminal history and to obtain a copy of the criminal history of the applicant from a police commissioner notwithstanding a spent conviction order (s 79 and s 135 of the Act).

18 Accordingly, even if a spent conviction had been made by the magistrate, the National Board for registration of a health profession (which includes a registered nurse) would still be able to inquire as to the criminal history of the person before granting registration. However, this disclosure of the criminal history would not apply to a potential employer. However, in this case where Ms A may wish to continue with her career as a registered nurse the general public and potential employers are to some extent protected by the provisions of Act. The Act ensures that the registration body for nurses will be able to access the criminal conviction record of Ms A and make an informed decision as to the appellant's suitability to continue in nursing.

19 The magistrate was not informed of the provisions of the Act and how this impacted on Ms A's situation. For the purpose of determining whether the magistrate's failure to make a spent conviction order amounts to a miscarriage of justice an appellate court may have regard to new information which has been gathered for the purposes 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].

20 In deciding if there has been a miscarriage of justice, it is also relevant to consider whether there has been an error on the part of the sentencing magistrate. 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 effect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671. In this case, the magistrate relied upon the interests of the public as displacing the interests of Ms A. Normally, the interests of the public include a need to establish general and personal deterrence by public recording the conviction and sentence. However, in this case, the magistrate had already concluded that the appellant was unlikely to reoffend and therefore personal deterrence could not be a significant factor. Further, in view of Ms A's mental health issues, her conviction and sentence were less appropriate vehicles for general deterrence: R v Lauritson [2000] WASCA 203; (2000) 114 A Crim R 333 346 - 349 (Malcolm CJ); Thompson v The Queen [2005] WASCA 223. In my view, the magistrate failed to give consideration to this reduced relevance of personal and general deterrence and thereby fell into error.

21 For the above reasons, I am satisfied that the magistrate erred in the exercise of his discretion and it falls to me to exercise that discretion afresh.

22 It is not disputed that Ms A meets the criteria of s 45 of the Spent Convictions Act 1988 (WA). In the circumstances of this case, I do not believe there is a pressing public interest that the public have access to the fact that Ms A has been convicted of the offences committed by her. Further, I believe Ms A's life is more likely to get back on track notwithstanding her past traumas if she is given the opportunity to put these convictions behind her. She is a person of otherwise good character. Accordingly, the offences were out of character and committed at a time when she was suffering from mental issues. Taking all these factors into account, I conclude it is just that I make a spent conviction order.