DAVIS -v- WA POLICE [2026] WASC 122 (15 April 2026)

1. On 12 September 2024, the appellant and his wife agreed to a parenting plan through the Family Court of Western Australia. The parenting plan permitted communications between the appellant and his wife that directly discussed their children's health, education, extracurricular activities or trying to communicate with the children directly. In addition, the parenting plan states that '[e]xcept in relation to emergency matters or time sensitive matters, the parties will endeavour to limit their communication with the other party to once per day'.[2]
2. On 15 September 2024, the appellant sent six messages including some images to his wife using the Our Family Wizard app (the App). This was the first breach of the Order.
3. On 16 September 2024, the appellant sent five messages including some images to his wife using the App. This was the second breach of the Order.
4. On 19 September 2024, the appellant sent a message to his wife using the App. This was the third breach of the Order.
5. On 27 September 2024, the appellant sent nine messages including some images to his wife using the App. This was the fourth breach of the Order.
6. On 2 October 2024, the appellant sent three messages including some images to his wife using the App. This was the fifth breach of the Order.
7. On 4 October 2024, the appellant sent six messages to his wife using the App. This was the sixth breach of the Order.
8. It is not suggested that the messages or images were intimidatory, offensive or emotionally abusive. However, the Order prohibited the appellant from communicating or attempting to communicate with his wife by any means whatsoever, including SMS or text messages or any other electronic means, unless relevantly the appellant complied with a parenting plan allowing him to communicate with or about the welfare of the children named in the parenting plan.
9. The appellant breached the Order because the appellant failed to comply with either or both of two aspects of the parenting plan.
10. First, each of the messages did not directly discuss the children's health, education, extracurricular activities or trying to communicate with the children directly. The parenting plan only permitted communications of that kind.
11. Second, with the exception of the breach committed on 19 September 2024, the appellant sent his wife more than one message on each of the days he breached the Order. As I have noted, the parenting plan required the appellant to endeavour to limit communication with his wife to once per day, '[e]xcept in relation to emergency matters or time sensitive matters'. It is not suggested that the messages related to emergency matters or time sensitive matters.
12. On 28 October 2024, the appellant voluntarily participated in an electronic record of interview with police. He explained that he believed his messages were in the spirit of the parenting plan, to communicate in a polite and respectful manner. He maintained that submission before the learned Magistrate.[3]

The hearing before the learned Magistrate on 20 June 2025

1. In refusing to make the spent conviction orders, the learned Magistrate said:[4]

I have no question about your prior good character. However, I do pose the question about detriment, and frankly, I'm not satisfied on the basis of the evidence before the court that there will be detriment as a consequence of convictions being recorded. However, even if I'm wrong about that, the authorities make clear that it's only the exceptional case that the court ought to exercise its discretion to grant a spent conviction. The authorities make clear that it's not merely what is in your interest, so that's your private interest, but the court has to consider the public interest as well.

The public interest in convictions being recorded, and then being available to be cited if necessary in future for proper purposes, and of course the issue of general deterrence, that is, family violence is a very significant problem in our community, and government, state and federal, increasingly have focused on how to deal with this issue. If this was one day when there was a breach by communication, then I would be more favourably disposed to grant a spent conviction. This is not one day. This is six separate occasions.

And even if I accept the likely detriment, I'm not satisfied that this is the exceptional case where a spent conviction order should be made. So for those reasons, that application is dismissed.

1. It is not in dispute that the appellant can appeal from the learned Magistrate's refusal to make the spent conviction orders. A person who is aggrieved by a 'decision' of a court of summary jurisdiction may appeal to the Supreme Court against that decision.[5]
2. The learned Magistrate's refusal is a decision of that kind.[6]
3. The appellant must obtain leave to appeal.[7] If leave to appeal is not granted on at least one ground of appeal, the appeal is taken to have been dismissed.[8]
4. The court must not grant leave in respect of a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[9] A ground will have a reasonable prospect of success in this sense if it has

a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.[10]

1. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[11] However, the possibility that an appeal may be dismissed on this basis is not to be considered in determining whether a ground has a reasonable prospect of success.[12]

1. Both parties applied to adduce evidence in the appeal.
2. The appellant sought to rely on an affidavit sworn by him on 3 February 2026 in which he deposes to the consequences which may follow if he is not granted a spent conviction order in respect of each of his convictions.[13]
3. The respondent sought to rely on an affidavit affirmed by Gregory John Stockton on 18 February 2026, which attached an affidavit affirmed by Adrian Robert Jones on 18 February 2026.[14] Mr Jones' affidavit attaches the two character references and the security industry licences provided to the learned Magistrate at the hearing, together with the appellant's Western Australian criminal and traffic offences report dated 18 February 2026 and a redacted bundle of the statement of material facts on the police brief of evidence for the hearing before the learned Magistrate.
4. In the course of the hearing of the appeal, counsel for the respondent offered to tender the Order into evidence.[15] Counsel for the respondent also offered to tender a conduct agreement order made in respect of the appellant under s 10H and s 43 of the Act on 1 November 2024.[16] The conduct agreement order protected the appellant's wife and was made on a no admission basis, with an expiry date of 30 July 2025.
5. I must decide the appeal on the evidence and material that were before the learned Magistrate.[17] However, for the purposes of dealing with the appeal I may admit any other evidence.[18]
6. In M v Seidner,[19] Pritchard J set out principles relevant to the exercise of the power to admit other evidence:

The test for the admission of fresh evidence is whether, had the evidence been before the sentencing court, a different sentence may have been imposed.

Evidence of facts since the sentence was imposed may be received to show facts relevant to the sentencing process, which were in existence at the time of a sentence but either not known to the sentencing judge or not properly appreciated at the time.

For the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction.

1. As Lundberg J recently observed in IHS v Director of Public Prosecutions,[20] when speaking of additional evidence a distinction is observed between fresh evidence and new evidence. As in IHS, it is unnecessary for me to explore this distinction because the admission of the additional evidence described above at [24] - [26] was not opposed and this is an appeal against sentence only.
2. In addition to the admission of the additional evidence being unopposed, the additional evidence was either before the learned Magistrate or relevant to determining the appeal.
3. The appellant's affidavit deposes to additional facts that are relevant to whether he may experience a detriment if a spent conviction order is not made in respect of each of his offences. That evidence is relevant to whether the spent conviction orders should be made.
4. In addition to its inclusion of material before the learned Magistrate, Mr Jones' affidavit includes the statement of material facts and a service certificate to the effect that the appellant was served with the statement of material facts by postal service.
5. The material facts were largely read to the learned Magistrate. However, Mr Jones' affidavit helpfully makes it clear that the parenting plan required the appellant to endeavour to limit his communication with his wife to once per day except in relation to emergency matters or time sensitive matters.[21]
6. Putting the Order into evidence makes it clear what the Order required the appellant to do and to refrain from doing. While the conduct agreement order was made after the appellant breached the Order, it is consistent with the appellant's submissions[22] that he is no longer subject to an order under the Act and no finding was ever made against the appellant (before his convictions for the breaches).
7. For those reasons, it was appropriate to admit the additional evidence.

Determining whether there has been a miscarriage of justice

1. The appellant does not contend by his sole ground of appeal that the learned Magistrate erred in refusing to make the spent conviction orders. Instead, the appellant relies on evidence that was not before the learned Magistrate and contends that, taken with the evidence that was before her Honour, refusing to make the orders occasioned a miscarriage of justice.
2. As Derrick J observed in JAD v McRae:[23]

[I]n a case such as the present where there is additional evidence before the court that was not before the magistrate and which goes to the issue of the appropriateness or otherwise of the making of a spent conviction order in respect of the appellant's conviction, the question whether the magistrate made an error by not making a spent conviction order on the material that was before her is not relevant. The finding of error on the part of the magistrate in not making a spent conviction order is not required for the conclusion that a miscarriage of justice has occurred. Rather, the question is whether taking account of the additional evidence admitted on the appeal, the magistrate's failure to make a spent conviction order has occasioned a miscarriage of justice.

1. In answering the question posed by Derrick J in JAD v McRae, I must consider the merits of the appellant's application for a spent conviction order afresh in relation to each offence.[24] However, I cannot interfere with the learned Magistrate's decision merely because I would have exercised the discretion differently.[25] I must be satisfied that her Honour's decision not to grant the spent conviction orders has occasioned a miscarriage of justice taking into account the additional evidence on the appeal.
2. If, on the evidence before me on the appeal, I am satisfied that not making the spent conviction orders has occasioned a miscarriage of justice, I can allow the appeal even if on the evidence before the learned Magistrate, it was open to her Honour to refuse to make the spent conviction orders.[26]

Principles applicable to deciding whether to make a spent conviction order

1. The learned Magistrate imposed a global fine on the appellant in respect of his six breaches. A court imposing a fine on an offender who is a natural person may do so with or without making a spent conviction order.[27]
2. Section 45(1) of the Sentencing Act 1995 (WA) (Sentencing Act) sets out the pre-conditions which must be established before a court can make a spent conviction order, namely that:

(a) the offender is unlikely to commit the offence again; and

(b) the offence is trivial or the offender is of previous good character; and

(c) having regard to the triviality of the offence or the previous good character of the offender, the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

1. The pre-conditions must be established by convincing evidence.[28]
2. Further, it is only if the first two pre-conditions are established that the court can consider whether it is satisfied that a spent conviction order should be made, having regard to the triviality of the offence or the previous good character of the offender.[29]
3. The court has a discretion to make a spent conviction order and is under no duty to do so.[30] The applicable principles were outlined in Tognini:[31]

In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.

1. The public interest considerations to which Murray J referred in Tognini include

maintaining the community's confidence in the judicial system and ensuring general deterrence by the public recording of convictions. The public interest also comprises a consideration of employers being aware of an offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work undertaken by the offender.[32]

1. The power to make a spent conviction order 'should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable'.[33]

Has a miscarriage of justice been occasioned by the refusal to make spent conviction orders? The first two pre-conditions have been established

1. The respondent concedes that the first two pre-conditions have been established: namely that the appellant is unlikely to commit the offence again and the appellant is of previous good character.
2. That concession is appropriately made for the reasons given in the respondent's submissions at [24] - [29], namely that:

(a) the appellant pleaded guilty at an early stage, which demonstrates that he accepts his offending;

(b) the offending spanned a three-week period and the appellant has not offended since;

(c) the Order and the conduct agreement order are no longer in effect; and

(d) the appellant is of previous good character, having had a three-month driver's licence suspension in 1997 and no other criminal convictions. I also note the two character references that were before the learned Magistrate and attest to the appellant's good character.

Should the appellant be relieved of the adverse effects of his conviction?

1. As the first two pre-conditions are established, it is necessary to consider whether the discretion to make a spent conviction order in respect of each of his breaches should be exercised in his favour, having regard to:

(a) the seriousness of each of the appellant's offences in the circumstances of its commission and in the circumstances personal to the appellant;

(b) whether there is some particular circumstance to show that it would be desirable both from the appellant's point of view and, having regard to his rehabilitation, from the community's point of view for the adverse effect of the conviction to be immediately set aside; and

(c) whether there is a pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.

1. In considering those matters, I should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. I should also regard the discretionary power to make a spent conviction order as being of an exceptional character.

Breaching a family violence restraining order is inherently serious

1. As Whitby J observed in Manchanda,[34] family violence offences are inherently serious. I respectfully agree with Whitby J's observation, which as I read her Honour's reasons extends to the offence of breaching a family violence restraining order.[35]
2. It is not suggested on behalf of the appellant that his offending was trivial. However, it is submitted that his offending barely falls within the definition of 'family violence' in s 5A of the Act.[36]
3. Section 5A(1) and (1A) of the Act provides:

(1) A reference in this Act to family violence is a reference to -

(a) violence, or a threat of violence, by a person towards a family member of the person; or

(b) any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.

(1A) Behaviour or a pattern of behaviour referred to in subsection (1)(b) -

(a) may occur over a period of time; and

(b) may be more than 1 act, or a series of acts, that when considered cumulatively coerces or controls the family member or causes the member to be fearful; and

(c) is to be considered in the context of the relationship between the person and the family member as a whole.

1. Section 5A(2) of the Act provides a non-exhaustive list of examples of behaviour or a pattern of behaviour that may constitute family violence.
2. In oral submissions, the appellant's counsel acknowledged that the appellant's conduct

is a pattern of behaviour which tends to control, at least to some extent, the victim, because it requires her to continue to engage with [the appellant] about matters that she does not want to engage with him about.

But in terms of the various ways in which that definition can be met, in my submission, this conduct falls within the very lowest rung of how family violence might be perpetrated upon someone. I accept that it's not an isolated incident. I'm not suggesting it's the lowest of the low. But even with the repeated communications over a period of time ... in breaches of the restraining order, it is at most, in my submission, behaviour that - or a pattern of behaviour by [the appellant] that tended to control the victim.[37]

1. This submission reflects an acceptance that the appellant's offending was capable of being family violence within the meaning of the Act, albeit at a very low level. This acceptance was appropriate on the facts of this case, given the appellant's pattern of behaviour tended to control his wife.
2. However, the appellant submits that breaching a family violence restraining order is not inherently serious, at least if the conduct constituting the breach does not come within the definition of 'family violence' under the Act.[38]
3. The definition of 'family violence' was inserted in the Act on 1 July 2017 as one of a number of changes made to the Act and related legislation by the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA) (2016 Act). Included among those changes were the introduction of family violence restraining orders and conduct agreement orders.
4. Those changes were intended, as the Hon Attorney General explained in his second reading speech on the Bill, 'to improve the overall legal response to family violence'.[39]
5. The second reading speech specifically addressed both family violence restraining orders and conduct agreement orders, including in the following passages:

The bill proposes to introduce a new category of restraining order crafted specifically to deal with family violence - the family violence restraining order. The new FVROs will be based on a contemporary understanding of the nature of family violence and a risk management approach in the courts. The new FVROs will allow for tailored conditions to address the complex dynamics of family violence, including introducing a new capacity - to be developed over time - for a perpetrator to attend a behaviour change program. This signals a significant step for the justice system in dealing with the causes of family violence as opposed to simply dealing with the consequences of family violence.

...

The law in relation to family violence and restraining orders is particularly challenging. It often involves a wide range of complex human interactions, behaviour and relationships. The law must ensure that there are effective methods for victims of family violence to seek protection when they need it most, particularly in times of crisis. The law relating to restraining orders - which result from civil proceedings in the courts - must also provide all parties with procedural fairness, and protect people from unfair and false allegations. The government has a responsibility to get this balance right. This bill strives to achieve that balance.

...

The bill also provides for a new type of conduct agreement that will allow a respondent to consent to a final order on a no-admissions basis. The proposed conduct agreement order is enforceable if it is breached, in the same way as an FVRO, but is aimed at encouraging more respondents to consent to the order in appropriate circumstances rather than contest the matter at a final order hearing. This reduces the stress to applicants and to respondents who dispute the allegations being made against them and fear the stigma of being bound by a violence restraining order but are otherwise prepared to comply with the terms of an order. Unlike when the parties agree to 'undertakings', which is currently the case in many of the courts, a conduct agreement order allows for criminal consequences if the order is breached and will be enforceable to the same extent as an FVRO. Disposal of cases by agreement will also empower applicants and allow the courts to focus their attention and resources upon other cases where the dispute is intractable.

1. The Hon Attorney General concluded the second reading speech (save for a reference to standing orders) in the following terms:

In conclusion, it is trite learning that legislation alone will not fix family violence or violence on our streets. The justice system alone cannot eliminate violent behaviour. However, the manner in which the legal system deals with incidents involving family violence is an important element of an effective overall response to the issue, building confidence in its ability to protect victims and encouraging them to report incidents and seek the assistance of the authorities. When those victims take that difficult and often dangerous first step, it is crucial that our legal system is properly geared to understand the nature of the violence they are dealing with. It is crucial that our legal system promotes holistic, integrated and risk-conscious service delivery practices and addresses victim safety at each and every decision point.

1. Family violence restraining orders and conduct agreement orders form part of a statutory scheme for dealing with incidents involving family violence. As the Hon Attorney General recognised in the second reading speech, how the legal system deals with those incidents is an important element in our community's overall response to family violence. An effective response will build confidence in our legal system's ability to protect those affected by family violence and encourage them to seek assistance from authorities.
2. In Rogers v Hitchcock,[40] Hall J observed that:[41]

The Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, 32 [13]. Deliberate breaches of court orders or police orders made under the Act undermine the efficacy of such orders. Deterrence both personal and general must play a significant role when orders are breached. If those who are the subject of such orders believe that they can breach them without suffering any real consequence then there will be little incentive to be compliant.

1. In Lawson v Director of Public Prosecutions [No 2],[42] Forrester J said:

Any breach of a violence restraining order (or, as in this case, a [conduct agreement order]) is serious. It is not only an offence against the protected person, who is entitled to be protected from conduct of this kind, but it is also an offence against the court - a disregard of a court order. General deterrence is a paramount sentencing consideration in cases of this kind.

1. A breach of a family violence restraining order or a conduct agreement order is inherently serious. It tends to undermine confidence in our legal system's ability to protect persons affected by family violence and encourage them to seek assistance from authorities. Indeed, any breach by a person bound by a restraining order is likely to generate in the person protected by the order genuine fear of further breaches.[43] In addition, in breaching a restraining order the person bound disregards a court order.
2. That is not to say that it will never be appropriate for a spent conviction order to be made in respect of such a breach.[44] Nor does it deny that offences of this kind can vary in seriousness. As Jenkins J recognised in Dennis v Lanternier [No 2],[45] '[t]here is no tariff or standard penalty for an offence against s 61(1) [of the Act] as the facts of an offence under s 61(1) can range from a minor, technical breach to a very serious breach involving personal violence'. But the starting point must be that a breach of a family violence restraining order is inherently serious.
3. The breach will be inherently serious even if the conduct constituting the breach does not of itself come within the definition of 'family violence' in s 5A of the Act. Even when the conduct does not come within that definition, the person restrained will still have breached a court order - an order provided for by the Act to enable restraints to be placed on the person's lawful activities and behaviour to prevent the person from:[46]

(a) committing family violence against the person seeking to be protected; or

(b) if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or

(c) behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.

1. The appellant cites AZY as an example of a case where a breach of a family violence restraining order ought not be considered inherently serious.[47] The appellant in AZY breached an interim family violence restraining order by sending an email to his estranged wife attaching Family Court documents. It was not in dispute that the email was neither threatening nor intimidating.
2. The appellant in AZY sent the email on legal advice, but accepted that the terms of the restraining order were clear and he should have known that sending the email would breach the order.[48]
3. Tottle J allowed the appeal in AZY on the ground that not granting a spent conviction order occasioned a miscarriage of justice. In doing so, his Honour did not accept that the breach of the interim family violence restraining order was trivial within the meaning of s 45(1) of the Sentencing Act. Applying the test for whether an offence is trivial in this sense, including having regard to the inherent seriousness of the offence and the maximum penalty,[49] Tottle J said:

Objectively, while this offence might not fall at the more serious end of the spectrum of offences, it cannot be characterised as an inherently trivial offence. Further, the fact that the communication was not threatening or intimidating does not of itself establish triviality in the context of a breach of an FVRO.[50]

1. AZY does not provide an example of where a breach of a family violence restraining order was not inherently serious. On the contrary, it is consistent with such a breach being inherently serious, but still one which may vary in seriousness and in certain circumstances may appropriately be the subject of a spent conviction order.
2. The breach will also be inherently serious if the order was made without hearing from the person restrained by the order or was made with that person's consent on a no admissions basis.
3. An interim family violence restraining order can be made ex parte without hearing from the person bound by the order.[51]
4. A conduct agreement order can be made at any stage of proceedings under the Act relating to a family violence restraining order and does not constitute an admission by the person bound of all or any of the matters alleged in the application for the family violence restraining order. The court may make the order without being satisfied there are grounds for making a family violence restraining order in the same terms as the conduct agreement order. However, a conduct agreement order is taken to be a family violence restraining order for the purposes of the Act.[52]
5. It is important to bear in mind that interim family violence restraining orders and conduct agreement orders are part of the statutory scheme created by Parliament to ensure that persons can gain protection from family violence without having to wait for[53] or unnecessarily participate[54] in a final hearing of their application for an order. While obtaining such orders may be less difficult in some circumstances than obtaining a final order under the Act, they are not less binding on the person restrained and breaching them remains inherently serious.
6. Indeed, a family violence restraining order will be made (unless there are special circumstances that would make the order inappropriate), whether on an interim or final basis, if the court is satisfied that:[55]

(a) the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or

(b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.

1. A conduct agreement order will only be made if the person restrained by the order agrees to being subject to an order imposing restraints of the kind referred to in s 10G of the Act - and thereby agrees to being restrained in the manner provided for by the order.

The seriousness of the offences in the circumstances of their commission and the circumstances personal to the appellant

1. I accept the appellant's submission that there were never any findings against him in the context of making the Order or the conduct agreement order.[56] However, that fact does not detract from the inherent seriousness of the breaches he committed.
2. In this case, as the learned Magistrate found and counsel for the appellant rightly concedes, the appellant's breaches involved 'a deliberate, repeated, persistent breach of the [Order]'.[57] The appellant 'clearly, deliberately and repeatedly breached the [Order]'.[58] This aggravates the seriousness of his breaches of the Order.
3. Further, and as his counsel conceded,[59] the appellant's belief that he was acting in the spirit of the parenting plan does not mitigate the seriousness of his breaches to any real extent. That concession was rightly made.
4. The parenting plan provided for communication between the appellant and his wife, including what any communication was to be about and how often communication was to occur. That any communication was to be respectful presupposed that the communication was to occur at all. Even accepting that the appellant believed he was acting in the spirit of the parenting plan, he deliberately and repeatedly ignored the limits on communication with his wife for which that plan provided.
5. While the appellant understates the seriousness of his offending when he submits that it 'was very much towards the lower end of the spectrum',[60] given its deliberate, repeated and persistent manner, I accept that his offending was at the lower end of the range. I also accept, as did the learned Magistrate, that there were significant mitigating factors.[61]
6. The learned Magistrate accepted that in sending the messages the appellant had no intention to manipulate or harm his wife. However, her Honour did not accept that a lack of intention to harm means that there is no harm done.[62] I respectfully agree with her Honour.
7. The learned Magistrate proceeded on the basis that the appellant had made early pleas of guilty and accepted that he had no previous criminal history (which is consistent with the two references before her Honour attesting to the appellant's prior good character).
8. The learned Magistrate also noted the appellant's acceptance that his messages were overly (or overtly)[63] sentimental, although her Honour considered that understated the effect of what the appellant had done insofar as it was persistent.[64]
9. The nature of the offending and the significant mitigating factors explain the global fine imposed by the learned Magistrate of $1,500,[65] when the maximum penalty for breaching a family violence restraining order is a fine of $10,000 or imprisonment for 2 years, or both.[66]

The circumstance on which the appellant relies to support the making of a spent conviction order for each offence

1. Before the learned Magistrate, the appellant relied on the effect of the convictions on his ability to travel[67] and their effect on his employment. On appeal, the appellant relies solely on the effect of the convictions on his employment.[68]

1. The potential adverse effect of the convictions on his employment should be identified, rather than merely speculated upon.[69] It is sufficient that the identified adverse effect be one which might occur.[70]
2. In his written submissions on the appeal, the appellant contends that:[71]

[The appellant] holds a senior and trusted position at the company and is part of the leadership. The company provides security services to several large corporate clients who require those who enter their sites to provide police clearances. When undergoing tender processes for new clients, the leadership will from time to time have to provide police clearances.

If the Appellant is unable to provide a police clearance free of convictions to current or prospective clients, there is a real chance that he will not be able to carry out the duties inherent to his role or will cost the company business. It will certainly undermine his reputation. This may ultimately result in either his termination or demotion from his current role.

Given the significant salary and position he currently commands, and his long service, it is unlikely that he will be able to find an equivalent role should he lose his job. It is a common requirement for most jobs that a prospective applicant provide a police clearance, and it is likely that the appellant's convictions will further hamper his ability to secure equivalent employment.

1. In support of those submissions, the appellant relies on his affidavit sworn 3 February 2026 (Exhibit 1 in the appeal). The effect of that affidavit is as follows:

(a) The appellant leads over 1,100 employees and is responsible for the management of his employer's security, cleaning and integrated services contracts in Western Australia.

(b) His employer holds contracts with numerous client businesses in Western Australia for the provision of security and cleaning services. As part of his role, he attends on site to train staff, inspect and monitor their work, and liaise with clients.

(c) Many of his employer's clients require that the employer provide police clearances free of convictions for any staff working on site. These clearances are normally provided when staff receive their inductions. Even though the appellant's role on a client's site is limited, he has also routinely provided a police clearance prior to entering the site and received inductions for new client sites.

(d) Requirements relating to the provision of police clearances are normally set out in the contract between his employer and its client. Due to the confidentiality attaching to those agreements, the appellant cannot provide or publish the information in those contracts without the consent of the client. Attempting to obtain that consent would require him to disclose these proceedings which would render them inutile.

(e) During the tender process for new business, it is common for members of his employer's executive management team (of which he is a member) to provide police clearances to prospective clients.

(f) Since his convictions, there have been no new tenders, and the appellant has avoided attending client sites where there is an obligation on him to provide a police clearance free from convictions. However, this is not a situation that can continue indefinitely into the future and has required him to delegate work that he should otherwise be doing.

(g) If he does not receive a spent conviction order in respect of each of his convictions, the unspent convictions will eventually become known to many of his employer's clients and prospective clients. This may have the result of his employer losing business, either by not securing prospective clients or the loss of confidence of existing clients. If this occurs, then the appellant's position with his employer will become untenable.

1. Taken at its highest, that evidence is not that the appellant is required to provide a police clearance to any of his employer's clients. That requirement only applies to company staff working on site and, while the appellant may visit a client site, he does not work on site.
2. Counsel for the appellant accepted this,[72] but submitted that the appellant providing a police clearance

has been a matter of routine. So the provisions - well, the - it's a matter of perhaps common practice rather than absolute requirement or obligation. In that sense, it can't be said that he would be bound to provide a police clearance to any one client. And of course how - he has ... deposed to an obligation to provide a police clearance free from convictions, but it would be accepted that he was essentially providing his own police clearance with everyone else and undergoing the same induction so that he can do his job of ... attending on-site to train staff ... inspect and monitor the work of staff and liaise with the client.

Now, while I would accept it is possible that he could avoid himself providing police clearances to clients, certainly that would raise eyebrows at the very least given it has been his - part of his routine to do that and would perhaps create more questions than answers for him in this sort of matter. The - it would essentially - without his convictions being made spent, it would require him to continue to make changes to how he performs in his role in terms of attending client sites, and it would raise the spectre of his convictions becoming known to those clients, because either he does provide a police clearance or he declines to provide one and that really creates the question in the client's mind about why he isn't willing to provide one; and there's really only one answer to that question.[73]

1. It is the appellant's convictions becoming known to his employer's clients that he says creates the risk to his employment. As his counsel accepted:

within the company the appellant is not at risk, but if, and on the appellant's evidence, when his convictions did become known more broadly throughout his clients or prospective clients, then certainly his reputation would suffer, and if business was lost as a commercial reality, his position might very well become untenable. Of course, nothing can be known for certain, as there are several steps between here and there.[74]

1. The appellant's reliance on the possible effect of the convictions on his employment is not confined to the possibility of losing his current employment. The appellant's counsel submitted that:[75]

I would accept that it would not involve [the appellant] becoming unemployable, but what, in my submission, would be the adverse effect in that sense is that if he loses the position he currently enjoys, it would be very difficult for him to secure a position of similar seniority and similar remuneration at another business. He has worked at this company in its various forms for over two decades. He has worked his way up and he has become the respected member of the executive management team that he is today.

Whether he could just walk into a similar position in another company is, in my submission, certainly highly speculative and perhaps could be said to be unlikely, particularly if he still has convictions of this nature on his record. Certainly, his current colleagues are willing to tolerate them and to - and their opinion of him has not been diminished, but that is because, I would suggest, they have worked with him for two decades or a long period of time in any event. And starting fresh somewhere else he will not have that same level of grace, in my submission.

The Appellant has not provided evidence as to a clear and real impact on his employment beyond a hypothetical exercise. The Appellant's assertion that his position has become untenable is not supported by any evidence from the Appellant's employer that this would in fact be the case, despite senior members of the company being aware of his convictions. The Appellant has not provided any evidence as to whether his employment would be terminated or whether he could take on another role within the company.

1. However, in oral submissions counsel for the respondent accepted that:

(a) his company's clients becoming aware of his convictions might have an adverse effect on his employment;[77]

(b) the appellant's failure to put on evidence from his superiors in the company about the potential for him to lose his employment if his convictions become known to the company's clients may be explicable on the basis that seeking that evidence - that is, of the circumstances in which the company may have to dismiss him - might of itself increase the risk that he will lose his employment;[78] and

(c) given the limited information provided in a police clearance about a conviction, providing a police clearance to a client or alternative employer without more information about those convictions might adversely affect his employment prospects, although counsel for the respondent pointed out that the detriment was likely to be greater in respect of a prospective employer than a client and it was open to the appellant or his current employer to provide that information.[79]

1. I am satisfied that the convictions might have an adverse effect on the appellant in two ways that have been identified and are not merely speculative: first, the loss of his employment with the company because his position becomes untenable for either or both of two reasons - namely that the appellant can no longer perform the duties of his position or that his continued employment with the company will result in an unacceptable loss of business for the company; and second, if he loses his current position, he will be unable to find a position with equivalent seniority and salary.
2. However, as counsel for the respondent pointed out,[80] it does not follow from the appellant's convictions becoming known to his company's client(s) that he will lose his current employment. For that to occur:

(a) one or more of his employer's clients must respond to that knowledge in a way that (i) is attributable to them becoming aware of the appellant's convictions; (ii) further impairs the appellant's ability to perform his duties, causing his employer to lose business, or both; and (iii) cannot be mitigated, such as by explaining the circumstances of his offending, the company expressing confidence in the appellant or the company changing his duties or finding him a different position within the company (although that may involve a reduction in seniority and salary); and

(c) the appellant's continued employment with the company must become untenable.

1. Whether or not the fact of his convictions would be likely to adversely affect the appellant's prospects of retaining his current employment or securing alternative or future employment cannot be known and it is inappropriate to speculate. If the appellant's convictions become known in an employment context, I cannot exclude the possibility that they may be taken into account in a way which adversely affects his employment.[81]

1. The appellant submits that, as the appellant's offending was out of character, he has good prospects of rehabilitation. Those prospects would be further reinforced by his retaining employment in his current role, in which great trust is reposed in him and he can meet his commitments to his children, whereas losing his role would set back those prospects. If spent conviction orders are granted, that will give the appellant peace of mind about his employment and secure his employment against any potential adverse effect of his convictions. The appellant submits that this is a significant factor in favour of exercising the discretion to make spent conviction orders.[82]

1. Counsel for the appellant accepted that:[83]

[G]eneral deterrence is a very significant consideration to weigh in the balance, and certainly, family violence is something that needs to be - to attract a high level of general deterrence in a general sense.

But, ultimately, I would fall back on the submissions that I set out in writing, which is that that does not mean that all family violence offences ought to be treated in the same way when it comes to exercising this sort of discretion. On any view of the facts underpinning these offences, this is a low level breach of a family violence restraining order. I appreciate there are six of them, and I appreciate that they would certainly not fall within the trivial category, but ultimately the learned sentencing magistrate did only impose what does amount to a relatively modest fine for six breaches.

1. The respondent also emphasised the importance of general deterrence in this case, given the prevalence of family violence in our community.[84]
2. As is apparent from the discussion above of the inherent seriousness of breaching a family violence restraining order, general deterrence is plainly a very significant consideration. Indeed, the reputational consequence of being convicted of such a breach and having that conviction remain on the public record may be a greater deterrent for some persons restrained by a family violence restraining order than the prospect of a fine.
3. Of course, as counsel for the appellant submitted, the importance of general deterrence does not mean that all family violence offences should be treated in the same way. As I have already observed, it does not follow from the inherent seriousness of breaching a family violence restraining order that it will never be appropriate for a spent conviction order to be made in respect of such a breach or that there is not a range of seriousness of offending.

Public interest in employers being aware of the convictions

1. The public interest includes 'consideration of employers being aware of an offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work undertaken by the offender'.[85]
2. The respondent concedes that the appellant's convictions are not particularly relevant to his role and acknowledges that his employer is aware of the convictions.[86] That concession is appropriately made.

The prospect that the conviction may have an adverse effect on the appellant's future employment does not necessarily mean that it is unjust if he were not to be relieved of the consequences of the conviction. The adverse consequences on the appellant's employment prospects are factors to be weighed with all other considerations bearing on whether a spent conviction should be made.

1. After considering the evidence on the appeal and the parties' submissions and having weighed the relevant factors, I have concluded that the learned Magistrate's decision not to grant spent conviction orders has not occasioned a miscarriage of justice.
2. I acknowledge the appellant's prior good character and that his offences were at the lower end of the range of seriousness. I also acknowledge the possibility that his convictions may adversely affect his employment and, if they do, this may in turn set back his rehabilitation. However, those factors are outweighed by the strong public interest in general deterrence.
3. As the learned Magistrate found and the appellant accepts on appeal, the appellant deliberately, repeatedly and persistently breached the Order. There is a strong public interest in deterring those restrained by family violence restraining orders from choosing to breach them. The possibility of being convicted and having that conviction be a matter of public record, with all the consequences that may entail in the future, may be a powerful deterrent.
4. This is not one of those clear cases where, for cogent reasons, the grant of a spent conviction order can be seen to be desirable not only from the appellant's point of view, but also from the point of view of the community. On the contrary, this is a case where it is in the public interest that general deterrence be promoted through the appellant's convictions remaining a matter of public record.
5. For these reasons, I have concluded that while leave to appeal should be granted, the appeal must be dismissed. I will hear the parties on the proper form of those orders and any application for costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Exhibit 2 in the appeal (Affidavit of Gregory John Stockton affirmed 18 February 2026, attaching as GJS1 the Affidavit of Adrian Robert Jones affirmed 18 February 2026), 15.

[3] Exhibit 2 in the appeal, 15, 16, 19, 25, 28, 30; Transcript, 20 June 2025 (Magistrates Court transcript), 6, 7, 8, 11.

[4] Magistrates Court transcript, 18 - 19.

[5] Criminal Appeals Act 2004 (WA) s 7(1).

[6] Criminal Appeals Act s 6(g); AZY v McIntosh [2021] WASC 34 (AZY) [26] - [30] (Tottle J).

[7] Criminal Appeals Act s 9(1).

[8] Criminal Appeals Act s 9(3).

[9] Criminal Appeals Act s 9(2).

[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 (Samuels) [56] (Steytler P, Wheeler and Roberts-Smith JJA).

[11] Criminal Appeals Act s 14(2).

[12] Samuels [56] (Steytler P, Wheeler and Roberts-Smith JJA).

[17] Criminal Appeals Act s 39(1).

[18] Criminal Appeals Act s 39(3) and s 40(1)(e).

[19] M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 (M v Seidner) [26] - [28] (footnotes omitted), in which Pritchard J cited Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [29] - [30] (Newnes AJA, with whom Pullin and Mazza JJA agreed), Caseley v Zampogna [2006] WASC 259 [19] (Blaxell J) and A v Staples [2007] WASC 36 [17] (Hasluck J).

[20] IHS v Director of Public Prosecutions [2025] WASC 437 (IHS) [42].

[21] Reference was made to this aspect of the parenting plan before the learned Magistrate, but not in clear terms: Magistrates Court transcript, 6.

[23] JAD v McRae [2022] WASC 220 [71] (footnotes omitted and emphasis added).

[24] Manchanda v WA Police [2025] WASC 49 (Manchanda) [20] (Whitby J).

[25] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (the Court).

[26] Rule v Trudgill [2015] WASC 196 [35] (Allanson J).

[27] Sentencing Act 1995 (WA) s 39(1) and s 39(2)(c).

[28] Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510 (Brewer v Bayens) [14] (Burchett AUJ, with whom Wallwork and Wheeler JJ agreed).

[29] Norbu v WA Police [2024] WASC 473 (Norbu) [26] (McGrath J).

[30] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 (Tognini) [24] (Murray J, with whom Malcolm CJ and Wallwork J agreed); GNR v The State of Western Australia [2015] WASCA 5 [44] (McLure P, with whom Buss and Mazza JJA agreed).

[31] Tognini [27] - [28] (Murray J, with whom Malcolm CJ and Wallwork J agreed).

[32] Norbu [31] (McGrath J), citing Brewer v Bayens [17] - [18] (Burchett AUJ, with whom Wallwork and Wheeler JJ agreed) (footnotes omitted).

[33] Tognini [24] (Murray J, with whom Malcolm CJ and Wallwork J agreed).

[35] See also the definition of 'family violence offence (category B)' in the Sentencing Act s 4 and Thompson v WA Police [2024] WASC 476 [81], where Seaward J says that breaches of a family violence restraining order are serious.

[38] Appellant's further submissions filed 25 March 2026.

[39] Second reading speech for the 2016 Act by the Hon Michael Mischin MLC, Attorney General, Legislative Council in Hansard, 14 September 2016, 5933 - 5938 (second reading speech).

[40] Rogers v Hitchcock [2015] WASC 120 [46] (Hall J).

[41] See Thompson v WA Police [2024] WASC 476 [79] - [80] (Seaward J); Smartt v Sloane [2019] WASC 35 [32] (Allanson J); Dennis v Lanternier [No 2] [2017] WASC 5 (Dennis v Lanternier [No 2]) [152] (Jenkins J).

[42] Lawson v Director of Public Prosecutions [No 2] [2024] WASC 279 [89] (upheld on appeal in Lawson v Director of Public Prosecutions [2024] WASCA 138).

[43] Marich v WA Police [2024] WASC 173 [43] (Forrester J).

[44] The learned Magistrate acknowledged as much when her Honour said that '[i]f this was one day when there was a breach by communication, then I would be more favourably disposed to grant a spent conviction': Magistrates Court transcript, 19. See also AZY for an example of a spent conviction order being granted on appeal for a breach of a family violence restraining order.

[45] Dennis v Lanternier [No 2] [150].

[47] Appellant's further submissions filed 25 March 2026 [3].

[49] AZY [39], [41] - [43], applying Sharpe v Vinning [2020] WASCA 79 [110] - [111].

[51] The Act s 24A, s 26, s 27, s 28 and s 29.

[53] The process leading to a final order involves an application and can involve more than one hearing before there is a final order: see the Act Part 2A.

[54] The statutory scheme recognises the risk of re-traumatising victims of family violence and requires those performing a function under the Act in relation to family violence restraining orders to have regard, among other things, to the following - 'that in order to encourage victims of family violence to report that violence and seek help, proceedings under this Act should be conducted in a way that treats victims with respect and dignity and endeavours to reduce the degree to which victims might be subject to re‑traumatisation during those proceedings': the Act s 10B(1)(j).

[55] The Act s 10D(1). A family violence restraining order may also be made for the benefit of a child if the court is satisfied in accordance with the Act s 10E(1).

[63] See the Magistrates Court transcript, 10.

[69] Hussaini v Szolnoski [2013] WASC 64 [45] (Hall J).

[70] Sentencing Act s 45(1); M v Seidner [66] (Pritchard J); Norbu [47] (McGrath J). Counsel for the appellant properly drew attention to IHS [72], where Lundberg J said '[a]s Forrester J explained in Rawle v Collins, where the asserted adverse effect relates to employment, evidence of the likely impact of a conviction on the appellant's ability to undertake such employment is required'. His Honour made that observation in a context where there had been no evidence before the Magistrates Court to support the existence of an adverse impact on employment, but there was evidence on appeal which demonstrated that likely impact. I do not understand Lundberg J to have intended to differ from the position stated by Forrester J in Rawle v Collins [62] (and referred to by his Honour in the immediately preceding sentence), namely that '[t]he potential adverse effect of the conviction should be identified, rather than merely speculated upon'. Rather, I take the wording of Lundberg J's observation to reflect the facts of the appeal before his Honour and the basis on which Pritchard J held in M v Seidner [28] that additional evidence could be admitted on an appeal alleging that the failure to make a spent conviction order amounted to a miscarriage of justice, namely 'new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction'. This is consistent with Lundberg J's later reasons in El-Mouelhy v WA Police [2025] WASC 521 [82] - [88], [107] - [111].

[71] Appellant's submissions [25] - [27].

[76] Respondent's submissions [37] (footnotes omitted); see also the respondent's further submissions filed 25 March 2026 [10].

[81] M v Seidner [66] (Pritchard J); Norbu [47] (McGrath J).

[82] Appellant's submissions [30]; ts 20.

[84] Respondent's submissions [38] - [39]; ts 31.

[85] ADA v Director of Public Prosecutions (WA) [2022] WASC 112 [37] (McGrath J).

[86] Respondent's submissions [41]. See also appellant's submissions [29].