File No : PE 42699 of 2005, PE 42700 of 2005, PE 42701 of 2005, PE 42702 of 2005, PE 42703 of 2005, PE 42704 of 2005, PE 42705 of 2005

Criminal law and procedure - Spent conviction - Conviction may prejudice visa application - Whether relevant consideration

Criminal Procedure Act 2004 (WA), s 147(1), s 148

Migration Act 1958 (Cth), s 501

Sentencing Act 1995 (WA), s 39, s 45

Spent Convictions Act 1988 (WA)

Bensegger v The Queen [1979] WAR 65

Brewer v Bayens (2002) 26 WAR 510

Leucus (1995) 78 A Crim R 40

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

Lynch v Heidrich & McGrath [2002] WASCA 154

Neale v Sloan (1997) 27 MVR 246

R v Aloia [1983] WAR 133

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

"A" v Ray [2001] WASCA 340

Dauphin v The Queen [2002] WASCA 104

Koenig v Alizadeh [2002] WASCA 267

R v Shrestha [1991] HCA 26; (1991) 173 CLR 48

Riley v Gill, unreported, SCt of WA; Library No 970731; 8 December 1997

Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18

Yam (1991) 55 A Crim R 116

1 MCKECHNIE J: The sole question in this appeal is whether the decision to grant the respondent a spent conviction order was an error.

2 The respondent pleaded guilty to 7 counts of fraud. The first count alleged that he gained a Bankwest MasterCard with a credit limit $1000. Five other charges related to the use of that card to obtain fuel and the final charge related to the use of the card to withdraw $500 from an ATM.

3 The background facts disclose a reasonably sophisticated attempt to create a false identity. The respondent had spent nearly 5 years in a detention camp and had been released into the community 2 years before the commission of these offences. He had no visa or legal entitlement to work and was not allowed access to social security or health benefits. In February 2005 the respondent went to Australia Post, Cannington. He rented a post office box in the name of George Prasad by completing an application form in that name, listing a vacant block in East Victoria Park as his home address and having mail redirected from that vacant block to the post office box. Over the course of the following 7 months the respondent strengthened his false identity until he made an application for a Bankwest MasterCard using a false passport and false motor vehicle driver's licence details to satisfy the 100 point identification requirement. He filled in the independent referee and employer section with false particulars and gave a mobile phone number that he had access to so that he or an associate could verify the details. A MasterCard was duly issued by Bankwest in the name of George Prasad. The seven offences then occurred over 3 weeks.

4 The Magistrate imposed a global fine of $1000 and made an order for restitution of $762.55. No challenge is made to these orders.

5 A psychological report from Dr Anne Pedersen was tendered.

6 The respondent was a qualified forklift operator. His wife owned a cleaning business.

7 The Magistrate considered that the offences were not trivial but very serious. He was satisfied that the respondent was unlikely to commit such an offence again. He accepted that the respondent was of good character. No challenge is made to these findings. The Magistrate then considered whether the respondent should be relieved immediately of the adverse effect of the conviction and decided that a spent conviction order should be made, first, because the respondent's future employment would be in jeopardy and, secondly, because of possible adverse consequences to a pending visa application.

8 The principles governing the exercise of the discretion are well settled: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291; Brewer v Bayens (2002) 26 WAR 510; Neale v Sloan (1997) 27 MVR 246; Lynch v Heidrich & McGrath [2002] WASCA 154. Discretion is especially important in the area of sentencing where judicial officers have a wide latitude to select the sentencing disposition or order which seems best suited.

9 The principle which is akin to the principle of double jeopardy and relates particularly to prosecution appeals applies: Leucus (1995) 78 A Crim R 40; Tognini at [6].

10 A court of appeal may not substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised its discretion in a manner different from the Magistrate: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

11 The appellant submits that the Magistrate made three errors.

1. The Magistrate failed to take into account the public interest.

12 Following the findings I outlined earlier, the Magistrate's decretion under the Sentencing Act s 45 was enlivened. However, these were necessary but not sufficient conditions to make a spent conviction order. The public interest must be considered: Tognini [24] - [27].

13 There were seven offences. Despite the plea in mitigation indicating that the false identity was obtained to enable the respondent to work, the facts of the offences were quite different and do not relate to the professed purpose. The purpose of the false identity was also linked to part of the Magistrate's reasons for granting the spent conviction; that is, relating to future employment. However, this aspect overlooks the fact that the respondent obtained a false identity (in circumstances of considerable deviousness) and a MasterCard in a false name in order to do what he was plainly prohibited from doing by the terms under which he was released into the community; that is, seek employment.

14 Although the Magistrate did not specifically avert to the public interest matters, I hesitate to find that he overlooked them. The prosecutor made a vigorous submission opposing the making of a spent conviction order and averted to the matters of public interest which would tell against the making of such an order.

15 It is important not to elevate sentencing remarks by a Magistrate in a busy Court to the status and requirements of a reasoned judgment. Clearly the Magistrate gave anxious consideration to the possibility of a spent conviction order.

16 It was a matter for the exercise of balance and judgment and as this is a prosecution appeal I am not persuaded that the Magistrate's discretion miscarried to such an extent as to demonstrate error.

2. The Magistrate made an error in concluding that without a spent conviction order the respondent would be further jeopardised in gaining employment.

17 The question of future employment is often allied to the issue of public interest. There are some convictions, and perhaps some occupations, where the public interest requires no spent conviction order because of the need to alert potential employers. However, the Sentencing Act s 45 is not limited to particular offences and is clearly capable of operation in circumstances where a necessary result is to deprive present and future employers of knowledge of a conviction.

18 The appellant submits that having regard to the sparing nature of the orders to be made upon cogent evidence, the Magistrate should have made further enquiries about the employment prospects. It was pointed out that, in any event, the respondent was qualified as a forklift driver.

19 The prosecutor did not challenge directly what was said in mitigation about job prospects. In these circumstances I do not consider the Magistrate was obliged to do more or make further enquiries: R v Aloia [1983] WAR 133. There was material available indicating future employment prospects would be jeopardised. I do not uphold this submission.

3. The Magistrate took into account an irrelevant consideration which was the fact that if a spent conviction was shown on the respondent's record it might have adverse consequences in the consideration of his visa application.

20 The Magistrate took into account the possible effect on a visa application. This was an error of principle.

21 The Migration Act 1958 (Cth) s 501 provides that the Minister or delegate may refuse to grant a visa if he is not satisfied that the person passes the character test. The relevant part of s 501(6)(c) reads:

"(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

..."

22 For the purposes of the character test, a sentence imposed on a person is to be disregarded if the conviction concerned has been quashed or otherwise nullified: s 501(10)(a).

23 The respondent submits that a spent conviction order means that the conviction has been nullified. Hence, it is within contemplation of the policy of the Migration Act that some convictions will not be relevant to the character test.

24 Spent conviction orders are made under the Sentencing Act but defined in the Spent Convictions Act 1988 (WA) the long title of which reads:

"An Act to make provision for a person who has been convicted of an offence against the law of this State or of a foreign country and who has not re-offended during a specified period to be rehabilitated by limiting the effects of the conviction, ..." (my emphasis)

25 Part 3 deals with the various effects of a conviction becoming spent. In summary, when interpreting written laws a reference to a conviction of a person does not include a reference to a spent conviction. Disclosure or acknowledgement of spent convictions is not required. A right to take proceedings for discrimination under the Equal Opportunity Act 1984 (WA) can be exercised in certain circumstances where there is discrimination against a person with a spent conviction.

26 There are exceptions. A spent conviction order does not apply in courts in certain proceedings, including bail proceedings. Moreover, under the Schedules to the Spent Convictions Act certain organisations are exempt from the discrimination provisions.

27 A necessary consequence of a finding of guilt is a judgment of conviction: Criminal Procedure Act 2004 (WA) s 3(2)(a); s 147(1) and s 148. I do not overlook the apparently persuasive "may" in s 147. I do not consider that there is a discretion to refuse to enter judgment. The Sentencing Act s 39(2) assumes that a conviction is recorded even though a person may thereafter be released without sentence and a spent conviction order made: cf Young Offenders Act s 55.

28 The overall policy of the Spent Convictions Act is not to nullify the conviction. In certain circumstances a person will be protected from the consequences of a conviction either by not having to disclose it or from being discriminated against because of it. The conviction is not nullified.

29 I hold that a spent conviction is not a nullity for the purpose of s 501(10) of the Migration Act. The spent conviction order is limited in its effect to Western Australian law: Spent Convictions Act s 25 and s 26. Because the respondent's conviction was not a nullity then his criminal conduct was relevant to the character test under the Migration Act.

30 The respondent submitted that the Magistrate was not in error when he took into account the possible adverse consequences on the visa proceedings. I cannot accept this submission. It is an error of principle to make a spent conviction order for the purpose of depriving a Commonwealth Minister or delegate of a complete picture when the respondent is to be considered for a visa application under the Migration Act.

31 In Bensegger v The Queen [1979] WAR 65 per Burt CJ at 71:

"... It is unthinkable that a court should ignore the criteria laid down for the exercise by it of its discretion and decline to make an order with the intention expressed or unexpressed that it should operate so as to deny the occasion for the exercise by the Governor-General of a discretion which has been conferred upon him by statute."

32 These words may be precisely adapted to the making of a spent conviction order in circumstances where such an order may impinge upon the exercise by the Minister or delegate of a discretion conferred by statute.

33 The error of principle I have identified has caused the sentencing discretion to miscarry and it is necessary for me to exercise it afresh.

34 I take into account the additional material put before me, in particular a letter written on 6 February 2006 by the Department of Immigration and Multicultural Affairs concerning the progress of the visa application. However, the persons carrying out the security and character checks referred to may have been unaware of the respondent's convictions. I note Dr Pedersen's report and the effect of the uncertainty of the respondent's future on his mental health. I accept, as did the Magistrate, there is a real possibility that the respondent's employment prospects will be adversely affected if no spent conviction order is made.

35 As against that, the underlying criminality reflected in the nature, number and type of offences provides a strong public interest in declining to make a spent conviction order. In the exercise of my discretion, even though the necessary conditions to make a spent conviction order have been enlivened, having regard to the sparing nature of such orders and the public interest, a spent conviction order should not be made.

36 The appeal is allowed, the spent conviction order is set aside.