Criminal law and procedure - Sentencing - Spent conviction - No error by magistrate - Miscarriage of justice

Sentencing Act 1995 (WA), s 45

1 McKECHNIE J: The appellant sought an urgent hearing because he wishes to travel to Canada in February 2013. I have had the benefit of competent and comprehensive submissions from both counsel and have been assisted by oral argument.

2 The appellant is an investment adviser. Shortly after midnight on 26 October 2012 he drove along Graham Farmer Freeway at a speed of 134 km per hour in an 80 km per hour zone, exceeding the speed limit by 54 km per hour. His explanation at the time was 'I was in my own little world'. In due course he was charged with reckless driving under the Road Traffic Act 1974 (WA) s 60(1)(b).

3 On 13 December 2012 he represented himself in the Magistrates Court and pleaded guilty and was convicted. He was fined $1,200 and subject to a eight month licence suspension. This is a proper deterrent sentence, both in relation to personal and general deterrence. He represented himself and did not ask for a spent conviction order.

A miscarriage of justice was caused by the learned sentencing magistrate not making an order for a spent conviction pursuant to s 45 of the Sentencing Act 1995.

5 As is apparent it is not submitted that the magistrate was in error. This is correct. She was never asked to consider the matter and the facts do not immediately cry out for consideration for a spent conviction.

6 The Sentencing Act 1995 (WA) s 45 provides:

(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

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

7 A spent conviction order does not affect a disqualification of licence.

First, I do want to apologise for the speed. I do realise driving at such a speed is very reckless so that is obviously my fault. The context was ... that I had just dropped my very good friend off at the airport, was driving back late at night, wasn't paying enough attention and obviously my speed went well and truly over the acceptable limit. I was obviously in my world. I wasn't focusing properly and I'm very sorry for that.

9 The magistrate enquired whether he is a person who relies on his licence, receiving the response that the appellant needed to drive to work and to meetings. The magistrate said:

Look, I've taken your plea of guilty and your remorse into account. Again, it's only by the grace of God that someone wasn't killed. It is a confined space and someone would not have stood a chance in there. You were going at an excessive speed, and whilst you say that you were in your own little world whilst you were that many Ks over the speed limit, I can't accept that you wouldn't have known that you were travelling at such an excessive speed.

Although the record goes back to 2006, it is relevant because of demerit point suspension, and again for doing excessive speed in a 100 zone, so that sort of offending has been prevalent for you and of course there's a need to protect the community.

In the circumstances of this offence, again something over the minimum is required. You are fined $1200 and ordered to pay costs of $125.70, and you have now lost your licence for eight months, which is cumulative (ts 3 4).

10 A court cannot make a spent conviction order unless the conditions are met. If the conditions are met, the court has a discretion whether to make a spent conviction order.

11 The appellant concedes the offence is not trivial: s 45(1)(b)(i). This is clear from the magistrates comments and from the charge itself.

12 I turn to the preconditions in more detail: s 45(1)(a) 'unlikely to commit such an offence again'.

14 In 19 June 2006 he was convicted of exceeding the speed limit by 20 to 29 km per hour, doing 124 km per hour in a 100 km per hour zone and fined $150. The statement of material facts for that offence disclose that it occurred on the Mitchell Freeway at 8.40 pm on 9 February. The accused's explanation was, 'I needed to get into work at Subiaco before they shut'.

15 On 23 August 2006 his licence was suspended for three months for accumulation of demerit points. He has no other criminal convictions. He has sold his high performance vehicle:

On 8 January 2013 I sold my vehicle to North City (1981) Pty Ltd. A copy of one of the sales documents is attached hereto and marked 'CJW9'. I have sold my high performance vehicle so that when I recommence driving upon completion of my period of suspension I will not be tempted to exceed the speed limit. I have no intention to purchase a highperformance vehicle in the future as I have recognised the detriment and relative ease of mishandling highpowered vehicle [18].

16 It is reasonably arguable that the provisions of the Sentencing Act s 45(1)(a) would be fulfilled.

17 The previous good character of the offender: s 45(1)(b)(ii). The offender is of good character as evidenced by the two references he supplied.

18 I consider it is arguable that the previous good character of the appellant might make a spent conviction order appropriate.

The reasons why the appellant says he should be relieved of the conviction

19 The appellant is currently preparing applications for United States universities and expects an offer commencing autumn 2014. He is booked to leave Perth on 19 February 2013 to travel abroad for business and not due to arrive back until late March 2013. On 2 March 2013 the appellant is required to attend a conference convention in Toronto. The Canadian website for visa requirement indicates that a conviction for reckless driving may make a person inadmissible to Canada. If there is a spent conviction under an Australian State law the website says:

In cases where the clean slate/spent schemes have been applied, Canada also accept these cases as spent - and the person is admissible to Canada. There is no need for you to seek an admissibility assessment.

20 For this reason the case can be distinguished from Cunningham v Kahn [2006] WASC 28.

21 The respondent argues that there is no evidence to support the contention that the appellant would lose his present employment. At best the evidence suggests that the appellant may be restricted in some aspects of his job.

22 It is not necessary for a spent conviction order to show that employment would be lost although obviously that would be a factor. Commonsense would suggest that the appellant's employment opportunities may be restricted without a spent conviction in this case. It is at most one of the factors to be taken into account, not decisive either way.

23 The respondent also points correctly to the need for general deterrence and that a strong public interest in traffic offences, particularly serious offences, remain on the public record. This is undoubtedly correct. However, the same can be said for any relatively serious offence where a spent conviction is being considered. General deterrence is a discretionary matter to be taken into account but the Sentencing Act s 45 does focus principally on the offender and relief to the offender of the adverse effect of the conviction.

24 Having regard to the prior very good character of the appellant, the serious potential for a conviction to impact on his travel, especially to Canada, and the consequent possibility of restriction or loss of employment, the fact that the offender has taken positive steps to avoid further offending, such as selling his high performance vehicle, I consider that even though no error has been shown, the appellant has established there was a miscarriage of justice and a spent conviction order should be made.

1. Leave to appeal is granted.
2. Appeal allowed.
3. Spent conviction order made.