CR -v- WALKER [2012] WASC 401 (29 October 2012)

4 In the dialogue which followed in the interchange between the appellant and his Honour the learned magistrate intimated that, because of the circumstances, he would have been disposed to grant a spent conviction order if there had been only one offence, but that because she had repeated the same type of offending three weeks later this was not an occasion for a spent conviction order. His Honour imposed a fine of $400 for the first offence plus costs of $121.95 and a further fine of $400 for the second offence plus costs of $121.95 and ordered restitution in amounts reflecting the value of the goods which had been stolen. Before making those orders his Honour said:

As I said, if there had only been one, you would have got a spent conviction, but to go back again three weeks later and have another go at it, that's gone too far. I have read these references, they all speak very highly of you. I accepted that that would be the situation before I read them, but as I said, the fact that you went back again for a second bite, having got away with it for the first time, was enough, as far as I was concerned, for there not to be a spent conviction.

Also, you are an intelligent lady. You are not a foolish young teenager who comes along who can say, 'I was young and stupid and I made a mistake.' You are a mature lady.

5 From the refusal of the application to impose spent conviction orders the appellant by leave appeals on the following proposed grounds:

1. The learned magistrate erred in refusing to make a spent conviction order in that:

(a) he failed to turn his mind to the preconditions set out in s 45(1) of the Sentencing Act 1995 (WA);

(b) he failed to turn his mind to the exercise of his discretionary power to make a spent conviction order if those preconditions were established.

1. The failure of the learned magistrate to make a spent conviction order resulted in a miscarriage of justice.

6 Further, in support of the application for leave to appeal and the appeal the appellant has filed and served an affidavit which she seeks to have read.

7 By notice dated 15 May 2012 the respondent has consented to an order being made that the appellant should have leave to rely on her affidavit of 10 May 2012 for the purposes of this appeal. Accordingly, that affidavit has been received and forms part of the materials for consideration on the determination of this appeal.

8 In this she describes herself as a 45yearold single woman, whose present occupation is assistant nurse and student. She deposes that she was married but divorced from her husband 15 years ago, after a marriage lasting 15 months. She has a daughter aged 16 years for whom she is caring and this young girl has behavioural problems and mental health problems including depression and an anxiety disorder. She deposes that she began to abuse alcohol following the breakdown of her marriage and during the trouble she was experiencing with her daughter. She says that prior to these two stealing offences she had been sober for four years but began to abuse alcohol again in the few months before these offences and that she was intoxicated at the time of each of them. Her personal circumstances before these offences were difficult because she and her daughter had been ejected from the house where she had been living because of the daughter's behaviour and they had moved house three times within a fourmonth period.

9 CR also describes efforts to recover control of her life since the offences and how she began attending Alcoholics Anonymous meetings five times a week from 1 May 2011. She had entered a Salvation Army Bridge residential rehabilitation programme but experienced further pressure because her daughter had been put into custody at Rangeview remand centre and her mother had attempted suicide and was in intensive care. She then attended another rehabilitation centre in Gosnells. She has been studying parttime for a Bachelor of Science (Nursing) at Edith Cowan University but her graduation, which was due at the end of 2012, has been delayed because of the period she spent in the residential rehabilitation programme. She is concerned about the effect of convictions because of the need to obtain a police clearance to complete her nursing practical rotations and to obtain employment as a paramedic or nurse. This affidavit annexes four character references, being the references which the applicant had put before his Honour in the Magistrates Court. All these speak highly of her character and prospects.

10 The material provisions of s 45 of the Sentencing Act, so far as applicable, are:

(1) Under s 29(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.

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

11 The circumstances of the offending were that in each case the appellant took a trolley full of goods or merchandise to the checkout counter of a large supermarket and utilised an unmanned self checking counter which allowed the shopper to have goods automatically scanned for price so as to establish the total due and to insert her credit card in the machine and to enter the PIN or code authorising the credit card to be charged with the aggregate purchase price. The appellant followed this procedure to a large extent on each occasion but, on the first episode, there was a fault in the machine and the credit card was not charged, but the appellant walked off with the merchandise without correcting the situation and without making an electronic debit to her card. On the second occasion the process was also followed but, having inserted her credit card in the machine, the appellant did not insert her PIN number and withdrew the card and went off with the goods without the card being charged.

12 In written submissions the respondent refers to R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24] to support the proposition that the appellant would have been eligible for a spent conviction order, the satisfaction of the preconditions contained in s 45(1) of the sentencing order do not themselves result in entitlement to an order which, rather, remains at the discretion of the judicial officer having regard to all the circumstances.

13 Counsel for the respondent has submitted that the case comes down to the situation that the learned magistrate accepted that the appellant was a person of good character and otherwise entitled to avail herself of the provisions with respect to a spent conviction order but that as a general factor her offending was too serious because of the repetition of the offence three weeks later. Counsel for the respondent submits that this was simply an exercise of discretion by the learned magistrate in circumstances where the preconditions for the grant of a spent conviction order had been met but where the discretion whether or not to make such an order remained with his Honour. Counsel for the respondent conceded that the appellant is not likely to reoffend again and that there was nothing to suggest that his Honour thought that she would. Counsel submitted that she was a person of previous good character and, notwithstanding that the conditions had been met, the learned magistrate had decided this was not an occasion to exercise his statutory discretion in her favour.

14 In support of the first ground of appeal counsel for the appellant submits that in the course of the dialogue between the appellant and his Honour after the plea of guilty his Honour effectively prejudged the application for a spent conviction order before hearing the full extent of the plea in mitigation or reading the references tendered by the appellant. Reference is made to the transcript at page 4 at an early part of this dialogue where his Honour said, 'I don't think you can get a spent conviction', and then later, 'I'm not going to grant it because it's just too easy', and then at page 5 of the transcript, 'Well, there's no spent conviction.' The submission is that by making these observations his Honour could not but leave a fairminded observer with the view that he had already determined that he would not grant a spent conviction order regardless of any circumstance that was brought to his attention during the plea in mitigation. By her counsel the appellant further submits that it was the fact that the appellant had committed a second offence that was the determining factor which led his Honour to refuse to grant any spent conviction orders but there is no suggestion that his Honour was not satisfied that the appellant was unlikely to commit such an offence again. She had no previous criminal convictions but had some convictions for traffic offences of a minor nature which dated back more than 20 years.

15 The appellant's references spoke of her commitment to her nursing degree course, her work in the community assisting the disabled and the aged, the financial security that working as a nurse would bring to her and to her daughter, and the potential impact of a conviction on her future as a nurse. It was submitted that, having regard to the appellant's prospects of rehabilitation, there were clear and cogent reasons which rendered it desirable, both from the appellant's viewpoint and that of the community, to grant a spent conviction order.

16 With regard to this ground it is necessary to read the whole of the transcript dealing with the plea of guilty, the plea in mitigation and the claim for a spent conviction order. The appellant, appearing in person, made it apparent from the very outset that she was seeking a spent conviction order so that the examination of the issues of mitigation going to penalty and the entitlement to a spent conviction order were closely interwoven throughout the hearing rather than being dealt with sequentially. It is apparent from the transcript that his Honour was alert to the application for the spent conviction order from the very outset and was addressing this in the context of all the circumstances which had, by then, already been outlined by the prosecution. As counsel for the appellant acknowledges, there is no error in a magistrate indicating to counsel a preliminary view prior to the conclusion of a plea in mitigation and, in most cases, the expression of such a view will assist counsel to focus on matters which are truly in issue. However, so the appellant's submission goes, there will be an error if the magistrate prejudges the application for a spent conviction order before hearing the plea in mitigation and where there is nothing in the nature of the offences themselves or in the appropriate disposition of them which disqualifies the offender from receiving the spent conviction orders: AB v Lloyd [2011] WASC 97 [49] [50] (Jenkins J) and NJL v Martin [2010] WASC 310.

17 It is perhaps a little unfortunate that his Honour expressed himself in apparently conclusive terms before the plea in mitigation had been completed, even more so before the character references in support of the appellant had been read. By doing so there may have been an impression created that his Honour was closing the gate against the possibility of any second thoughts on the subject but it is evident that his Honour had focussed on an issue of major potential significance, namely the increased gravity or culpability of the offending conduct displayed by the repetition of an offence committed in much the same fashion as the first, three weeks later. In all the circumstances I do not, with respect, consider that this was an example of prejudgment which precluded consideration of other relevant material or considerations. It was a judgment by his Honour which was based on discretionary considerations.

18 The question which still remains is whether or not the judgment to refuse spent conviction orders in these two cases constituted a miscarriage of justice. As explained by Simmonds J in Papas v Godwin [2010] WASC 226 [19] [20], even though there may have been no error of fact of law on the part of the judicial officer, an appeal may still succeed if the refusal to make a spent conviction order results in a miscarriage of justice. To determine whether or not it did, an appellate court may have regard to additional material which has been gathered for the purposes of the appeal and which may show the appellant's good character and the likely consequences of a conviction upon her future career: Caseley v Zampogna [2006] WASC 259 [19] (Blaxell J).

19 The grant of a spent conviction order in relation to these two offences would not mean that the appellant would be released from the obligation to disclose the existence of her convictions to appropriate authorities. Under the Health Practitioner Regulation National Law (2010) an applicant for registration as a nurse must disclose his or her criminal history, including matters for which a spent conviction order was granted. The national board so constituted is able to obtain an applicant's criminal history notwithstanding a spent conviction order. Although disclosure of a criminal history will not apply to a potential employer, the public interest would be gauged and assessed by the national board when application for registration as a nurse is made: A v Price [2011] WASC 121 [14] [18] (Sleight C). It was submitted for the appellant that in the present case the factors in favour of a spent conviction order outweighed the factors against the refusal of such an order because the appellant is of mature age, unlikely to commit such an offence or other offences again, has no previous significant criminal record, and is making a major contribution to society which may be prejudiced if no such order is granted. Furthermore, stress is laid on the difficulties and pressures encountered by the appellant because of her own illness, dislocated accommodation and the responsibilities of caring for her daughter over the months leading up to the commission of these offences. By contrast, it is emphasised that the efforts made for selfrehabilitation since then have been most salutary.

20 The preponderance of the evidence in this case discloses that the appellant was unlikely to commit this offence again and so much appears to have been acknowledged by the learned magistrate and conceded by counsel for the respondent. It must not be overlooked that at the time it was necessary to make that determination she had committed the offence twice, but the statutory criterion in this respect is whether or not she was unlikely to commit the offence again.

21 I accept the submissions of counsel for the respondent that, in all the circumstances, neither of these offences could be regarded as trivial because of the value of the goods concerned and the evident deliberation with which each offence was committed, but the requirements under s 45(1)(b) are not cumulative but disjunctive and it is clear that she was a person of previous good character. R v Tognini is an example where a spent conviction order was made, and upheld on appeal, in a case of dishonesty where the offender obtained a cheque for $7,355.54 from an insurance company by a false pretence with intent to defraud. So the nature of the particular offence and the presence of a degree of dishonest deliberation in its commission are not incompatible with the grant of a spent conviction order. As I observed in AR v Wood [2008] WASC 119 [48], while it is correct that spent conviction orders and the power to make them under s 45 require mature judgment and a sense of discrimination, they are obviously intended to be used in suitable cases. I then drew attention to the observations of Windeyer J in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, 269:

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 a 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.

22 The observations of Murray J in MLJ v Martin at [37] have some analogy to the present case because there his Honour considered the exercise of the statutory discretion under s 45(1) had miscarried because the sentencing magistrate 'simply could not get past the fact that this would be the third occasion upon which, if the application succeeded, the court would make a spent conviction order in the appellant's favour'. Of this, Murray J wrote that the learned magistrate was not prepared to ask himself the questions posed by s 45(1) and had not been prepared to consider the exercise of his discretion if he concluded that the proper answer to those questions was in the affirmative. There are close similarities between that case and the present where, as is now clear, it was the fact that there had been two offences rather than one which the learned magistrate considered was an inescapable impediment to the grant of the orders sought. That is not what s 45(1) says, and approaching the question in that way imposes an unjustifiable constriction upon the breadth of the statutory power and introduces an obstacle which the section itself does not identify.

23 Nor must it be overlooked that in A v Price [2011] WASC 121 Sleight C allowed an appeal and made five spent conviction orders following five stealing offences for shoplifting committed over 11 days at five different shops in circumstances where the offender was a woman of mature age with two daughters and where the context was one of substantial deterioration in her mental health because of tragic personal circumstances. At [22] his Honour considered that that offender was more likely to get her life back on track notwithstanding her past traumas if she were to be given the opportunity to put the convictions behind her and that as a person of otherwise good character she had committed the offences out of character and at a time when she was suffering from mental issues.

24 Much the same can be said of this appellant who was struggling valiantly against past difficulties and heavy responsibilities to make a positive contribution towards her family and to the community. This is a case in which I am satisfied that the refusal to grant the spent conviction orders did not fully have regard to the relevant statutory criteria and, in any event, produced a miscarriage of justice.

25 I consider the appeal should be allowed and that spent conviction orders should be made in respect of each of the two offences. Otherwise, the fines and orders for costs imposed following the convictions will stand.