DAVIDSON -v- DI GREGORIO [2012] WASC 505 (8 November 2012)

3 On appeal, Mr Davidson asks this court to make a spent conviction order.

4 On 17 September 2012, Mr Davidson applied for leave to appeal. He was then just short of four months out of time. The application for leave and the extension of time have both been referred to the hearing of the appeal.

5 On many occasions the court has stressed the importance of complying with time limits. Where an applicant seeks a favourable exercise of the court's discretion to extend the time limit, he or she needs to give cogent explanation for the delay. The failure to give a satisfactory explanation can result in a refusal of an extension of time, even where the prospective appeal appears to have merit: see, for example, Butler v The Queen (1989) 44 A Crim R 215; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [97] - [114]; and Eastough v The State of Western Australia [No 2] [2010] WASCA 88.

6 The reason for the delay is in this case inextricably linked with the merits of the application. I will deal with them together.

7 In an affidavit admitted by consent, Mr Davidson says that at the time of the conviction he was unaware of two things: that the penalty for contravening his learner's permit would be regarded as a criminal conviction; and the adverse impact the conviction would have on his future. It was only when he was advised that he could not continue his application for entry into the Royal Australian Air Force until his conviction was spent that he became aware of the position he could put himself into by his conduct.

8 The affidavit is unsatisfactory. On a matter of this nature, when seeking a favourable exercise of the court's discretion, the least that could have been expected was some detail as to when Mr Davidson applied to join the Air Force, and when he was advised of the effect the conviction would have. Only then could the court satisfactorily assess the reason for the delay, and the extent of any delay after Mr Davidson became aware of the true situation. The applicant is now legally represented. It may have assisted to know when he first received legal advice.

9 There is another aspect in which the affidavit evidence falls short. It asserts (and in this regard is in the nature of a submission rather than evidence) that the offence was trivial because it attracted only a modest fine as a maximum penalty. That is not the question. Rather it is whether the offending behaviour on this occasion was trivial, having regard to the actual circumstances in which the offence was committed: Tambyrajah v Gablonski [2004] WASCA 105 [17], [24]. The appellant has put no information before the court as to the particular circumstances of this offence. I note however that the prosecutor before the magistrate informed her: 'He didn't have an instructor present but had everything else.'

10 The principles for the application of s 45 of the Sentencing Act 1995 (WA) are well settled: see Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510; R v Tognini [2000] WASCA 31; (2000) 22 WAR 291; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211. While I can make no finding about whether the offence was trivial, that is one of two alternative criteria in s 45(1)(b). I am satisfied on the alternative: that Mr Davidson was previously of good character. Further, and despite the defects in the affidavit, I am satisfied that he meets the other criteria in s 45. Mr Davidson was only 21 at the time of the offending. The nature of the position which he now seeks to obtain will require him to uphold high standards. He plainly recognises that fact, and also the risk to his future should he fall short of them. I consider that it is unlikely that he will commit such an offence again, and it is appropriate that he should be relieved immediately of the adverse effect that the conviction might have on him.

11 An appeal is normally to correct error. There has, however, been a series of cases in this court in which, on appeals of this nature, the court has been prepared to correct a miscarriage of justice, even though that miscarriage is established only by matters which were not before the magistrate. In A v Esposito [2011] WASC 198 [10] [11], Edelman J said:

On the limited material before his Honour it was open to the learned magistrate to conclude that the preconditions for a spent conviction were not met, in particular as a consequence of the lack of sufficient evidence of the adverse effect that conviction might have on the offender. His Honour had a discretion and it cannot be said that the discretion was exercised upon a wrong principle, by reference to extraneous or irrelevant matters, by a mistake concerning the facts, or by failing to take into account some material consideration before him: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 205 [21]; House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

However, with the benefit of the additional material that is now before me, and to which no objection is taken, I am able to take into account the additional relevant matters raised by the appellant. In particular these include the following: the effect of conviction on the appellant's employment prospects ...; the interests, and effect, of conviction upon the appellant's family; and further evidence of the unlikelihood of the appellant reoffending: see R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [23]. Taking those additional circumstances into account, counsel for the respondent conceded that the material before the court was sufficient to make a spent conviction order. This concession was properly made. I consider that the additional material is sufficient to meet the preconditions of s 45(1) of the Sentencing Act for a spent conviction order, and I also consider that, in light of the additional evidence, such an order should have been made. In the absence of a spent conviction order a miscarriage of justice would occur.

12 See also Wahab v Higgs [2012] WASC 356 (McKechnie J); Redding v Robinson [2009] WASC 403 [11] (Hall J); Papas v Godwin [2010] WASC 226 (Simmonds J); Costello v Bennasar [2012] WASC 406 (Heenan J).

13 The principle on which Mr Davidson relies has some acceptance in decisions of this court. Despite the reservations I have expressed about the affidavit, I believe that this is a proper case for a spent conviction order to be made. I will extend time and grant leave to appeal, and allow the appeal. I make a spent conviction order.