File No : AR 4903 of 2010, AR 4904 of 2010, AR 4905 of 2010, AR 4906 of 2010, AR 4907 of 2010, AR 4908 of 2010, AR 4909 of 2010

Criminal law - Sentencing - Whether a spent conviction order should be made - Factual error - Discretion exercised afresh - No new principles

Spent Convictions Act 1988 (WA)

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

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

1 McKECHNIE J: The appellant, who is aged 60 and in steady employment with Komatsu, in dual roles, partly as a planner and partly as an occupational health and safety representative, is a man who committed a number of firearms offences out of carelessness and a degree of casualness, that caused him to be charged with seven offences. He pleaded guilty to each of those offences, and the sole real issue before the magistrate, and on appeal, is whether he should have been relieved of the consequences of those convictions by a spent conviction order.

2 The prosecution at trial made no submissions on the point. The State, on appeal, contends that the magistrate's decision was properly exercised and she made no error. There is really little of issue in the appeal except one point, and that is whether the magistrate made a factual error. If she did then the discretion is to be exercised by me.

3 Spent convictions seem to be a troublesome area of the law in that there are many decisions of the Court of Appeal, and of single judges, as to the exercise of the discretion. The law can be taken as reasonably well settled. It is necessary only to refer to R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 and Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, because most if not all of the authorities follow and refer back to those two cases.

4 Nevertheless, there are a number of appeals to this court in the General Division as to the exercise or non-exercise of the discretion by magistrates. This is a case in point. The magistrate came to the view, and no issue is taken, that the appellant was a person of good character, remorseful, and not likely to go and commit offences of this nature again.

5 That, she said, correctly, enlivened her discretion. She held, again correctly, that one of the most aggravating features is that the offending went on for two years, as she said:

You were very complacent, had a very lax attitude towards storage and possession of these firearms and ammunition and did nothing about it.

Now, the problem that I see is that that really flies in the face of your responsibilities that you hold with that company as an (indistinct) health and safety representative and that I'm told in the reference here you are responsible for hazard identification and problem solving, providing safe work procedures for employees to follow, and that it's your responsibility to oversee staff with less training to ensure tasks are completed safely and without incident.

6 She then went on to point out the contradictory nature of those works and a totally irresponsible attitude towards safety and possession of firearms and ammunition through an inordinate period of time, saying:

[D]espite your financial hardship that you may well suffer as a result of perhaps losing that position as an OHS representative, there's the public interest component about your employer knowing that these sorts of offences have occurred and that they are not just hidden under the carpet as it were, because it's my view that this type of offending goes directly to your responsibilities at that workplace.

7 The magistrate had before her a reference from the appellant's employer, which may not be regarded as the model of clarity on all points, but does say:

Walter has discussed his pending court appearance with me and pending charges that arise.

...

Walter has discussed this matter and the likelihood of a recurrence would be zero as he fully understands why this matter could produce severe consequences from both the WA Police Force and Komatsu Australia.

8 The reference also goes on to point out the degree of hardship that may arise, something the magistrate appears to have accepted.

9 The magistrate made a factual error in that she had overlooked that the employer did, I think, know of the offences that had occurred. It is true, as counsel for the respondent suggests, that that might be an issue in the reference, but at the same time it seems to me clear that the employer knew enough about the matter so that the magistrate's statement that the employer should know was a factual error.

10 The discretion now falls to be exercised by me in view of that factual error as the magistrate's discretion miscarried. I exercise the discretion afresh, bearing in mind the generally sparing nature of the exercise of the discretion, that it is exceptional, and particularly I have in mind the public interest. I take into account the age, prior good character of the appellant and the nature of the offences. These were firearms offences which disclose a degree of carelessness, but nevertheless his employer speaks highly of his carefulness at work.

11 In that sense, the fact that they are firearms offences, apart from being safety related, is to a degree incidental to the real criminality being the carelessness, balanced, as I say, against the employer's view of him and high regard for him. I take account of the fact that there may be other employers, but the evidence is that the appellant has been in stable employment, and there is no evidence that suggests it is likely, other than the normal vicissitudes, that he would change employment.

12 In all the circumstances, exercising the discretion afresh, I consider that there is no sufficient public interest in having the conviction recorded compared with the other matters. I would make a spent conviction order in each case.