Criminal law - Appeal - Refusal to grant spent conviction order - Driving vehicle with percentage of alcohol in blood in excess of 0.08% - Probationary driver - Exercise of sentencing discretion

Criminal Appeals Act 2004 (WA), s 14(2)

Road Traffic Act 1974 (WA), s 64A

Sentencing Act 1995 (WA), s 15, s 39, s 45

1 JOHNSON J: In the early hours of the morning of 9 December 2006, the appellant, Brendan Walter Ennis, was stopped by police after being observed to drive on to the incorrect side of the road and overtake another vehicle at speed near a bend in the road. He underwent a preliminary breath test which returned a positive reading. A breath analysis subsequently taken at the police station gave a reading of 0.111%, calculated to 0.102% at the time he was driving. The appellant was a probationary driver. A probationary driver is prohibited from driving if the percentage of alcohol in his blood equals or exceeds 0.02%: s 64A Road Traffic Act 1974 (WA).

2 The appellant pleaded guilty to a charge of driving a vehicle with a percentage of alcohol in his blood exceeding 0.08% ('excess 0.08% offence') and sought a spent conviction order. The magistrate declined to make a spent conviction order and fined the appellant $500 and disqualified him from holding or obtaining a driver's licence for four months.

3 The sole ground of this appeal against sentence is that the magistrate erred by refusing to make a spent conviction order. A number of particulars of that ground are identified in the Notice of Appeal, however, they can be somewhat condensed to the following issues:

1. Whether the magistrate's comments demonstrated a perceived or actual pre-judgment of the issue of whether a spent conviction order should be made and a disregard of the particular circumstances of the case;
2. Whether the magistrate gave insufficient weight to the appellant's prior unblemished record and character and to the absence of any likelihood of re-offending;
3. Whether the magistrate gave insufficient weight to the circumstances in which the offence was committed;
4. Whether the magistrate gave insufficient weight to the likely adverse effect of a conviction on the appellant's future employment;
5. Whether the magistrate erred in refusing the appellant's request to give evidence on the likely adverse effect of a conviction on his future employment;
6. The prosecution consented to the spent conviction order;
7. Whether the magistrate's decision was within a sound and lawful range of his sentencing discretion under s 39 and s 45 of the Sentencing Act 1995 (WA).

Circumstances of the offence and matters personal to the appellant

4 The appellant disputed some of the circumstances of his driving alleged by the prosecution. He disputed that he was driving on the wrong side of the road other than for the purpose of overtaking the other vehicle and maintained that he was well clear of the bend. It was suggested that the police officers may have seen only 'a fragment of the overtaking and it may have appeared that he was just driving along the wrong side of the road as a matter of course'. Even if that is so, it remains the case that the appellant was engaged in a manoeuvre requiring an added degree of skill, judgment and timing when he was substantially inebriated.

5 On behalf of the appellant it was also said that he arrived at the Floreat Hotel to collect a friend and only had one pint of beer whilst waiting for his friend. In view of the blood alcohol reading, I have some difficulty with the proposition that the appellant consumed only one pint of beer. In any event, the appellant was taking a significant risk in consuming even that amount of alcohol when he was subject to a 0.02% blood alcohol limit and was allegedly at the hotel simply for the purpose of driving his friend home. I can see no mitigating factors in the circumstances of the offence.

6 Further, where the legal limit for probationary drivers is 0.02%, the high blood alcohol level of 0.102% makes this a serious offence of its type.

7 The appellant was 19 years old when the offence was committed and had no prior criminal record. At the time he was studying at university for a degree in commerce and engineering. Character references were provided to the court; one from a work colleague and the other from his employer. Both had known the appellant for a period of one year. The work colleague, who also socializes with the appellant, attests to the appellant's integrity and describes him as a responsible and law abiding person who has shown incredible remorse following the offence. He then expresses a number of opinions about the appellant's conduct. The first is his belief that the appellant made an error in judgment on the occasion of the offence and the second is his belief that the appellant is not likely to repeat the offence. The appellant's employer describes him as a reliable, honest and punctual employee and states that he has shown genuine remorse for his actions. He also expresses the following opinion: 'With regards to the charge he faces I am confident in saying it was a one-off mistake on his behalf ...'.

8 The character references certainly indicate the appellant's good character which is relevant to sentencing generally and specifically to the making of a spent conviction order. However, I would view the broad statements of opinion about the appellant's likelihood of re-offending with some caution. It is easy to make such statements, it is more difficult to justify them. Being a probationary driver, the appellant had only had his licence for a relatively short period. His practice with respect to driving having consumed alcohol is relatively untested. However, it is true to say that there is no evidence to suggest that the appellant would re-offend and the level of his remorse is a positive factor. The absence of convictions for any other traffic offences is some evidence of a generally positive attitude towards driving, despite only being licensed for a short time.

9 Sections 39 of the Sentencing Act sets out the options available to the court when sentencing an offender who is a natural person. Some of the options in s 39(2) permit the imposition of sentence 'with or without making a spent conviction order'.

10 Section 45 of the Sentencing Act governs the making of a spent conviction order. Section 45(1) provides:

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

(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.

11 Section 45(2) and (3) provide that when a spent conviction order is made the conviction becomes a spent conviction for the purposes of the application of the Spent Convictions Act 1988 (WA). Under Div 3 of that Act, discrimination on the basis of a spent conviction is unlawful against certain persons, such as job applicants and by specified persons, such as employers. By s 26 it cannot be taken into account in determining good character, fitness, propriety or the like and by s 27 the spent conviction is not required to be disclosed for any purpose.

12 The Spent Convictions Act also provides a mechanism for obtaining a certificate declaring that a lesser conviction is spent: see s 11 and s 7. However, an application under the Spent Convictions Act may only be made after a period of 10 years. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Murray J (with whom Malcolm CJ and Wallwork J agreed) observed (at [20]) that the provisions of the Spent Convictions Act are clearly based on the proposition that after conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction.

13 The requirements for making an order under s 45(1) of the Sentencing Act were identified by Burchett AUJ in Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 where his Honour concluded that a court must be satisfied of three matters before making a spent conviction order:

It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied [11].

14 The decision in R v Tognini was decided as a guideline judgment on the operation of s 45(1). Murray J concluded (at [24]) that the nature of the power and the extent to which the section interferes with the ordinary operation of the Spent Convictions Act is such that the power should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable. Later in his Honour's reasons (at [27]), he described the discretionary power as being of 'an exceptional character'. Murray J described the approach to be taken in considering the making of a spent conviction order in the following term:

If the necessary preconditions 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 [27] - [28].

15 The operation of s 45 was also considered by Malcolm CJ in Wood v Marsh [2003] WASCA 95; (2003) 139 A Crim R 475 where his Honour, applying the decision in R v Tognini, observed that, in contrast to the Spent Convictions Act, s 45 confers a discretion on a sentencing judge to make an order that a conviction become immediately spent. Malcolm CJ also reiterated the proposition that, if the necessary conditions set out in s 45(1) are met, the court should go on to have regard to the seriousness of the offence, the circumstances of its commission and the personal circumstances of the offender: at [43].

16 The following propositions concerning the application of s 45 can be gleaned from these authorities:

1. The power is discretionary;
2. The power is of an exceptional character and should be exercised sparingly;
3. The following pre-requisites must be satisfied:

1. The offender is unlikely to commit such an offence again; 2. Either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character;

1. The Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her.
2. Once the pre-requisites are met, the court must consider the seriousness of the offence, the circumstances of its commission and the personal circumstances of the offender.
3. There should be clear and cogent reasons for the exercise of the power; that is, the applicant must be able to point to some particular circumstance to show that it would be desirable for the adverse effect of the conviction to be immediately set aside.

Whether the magistrate comments demonstrated a perceived or actual pre-judgment and a disregard of the particular circumstances of the case

17 Counsel for the appellant submitted that, rather than exercising his discretion, the magistrate applied a rigid policy approach by refusing the spent conviction order on the basis that the offence committed fell within a class of offences for which spent convictions are not appropriate. Further, it is said that the magistrate failed to refer to the relevant circumstances of the offence. Counsel for the respondent conceded that the magistrate erred by making certain comments indicating that a spent conviction order was inappropriate for the offence of driving with a blood alcohol level exceeding 0.08%.

18 If the magistrate determined the appellant's application on the basis that spent convictions are inappropriate for excess 0.08% offences or for traffic offences generally, then he would indeed have fallen into error. In Harper v Page [2004] WASCA 267, Le Miere J concluded that placing emphasis on the type of offence rather than the circumstances of the particular offence was not the correct approach when considering an application for a spent conviction order: at [26]. His Honour observed:

Furthermore, in considering the seriousness of the offence, the offence to be considered is the offence committed by the offender and not the offence in the abstract. Seriousness is not to be determined by reference to the class of offence committed, but must be ascertained by reference to the conduct which constitutes the offence for which the offender was convicted and to the actual circumstances in which the offence was committed. It is erroneous to determine the seriousness of the offence by reference simply to the class of offence to which it belongs, in this case a drug offence. Her Worship appears to have considered that drug offences stand in a special category [26].

19 Further, as counsel for the appellant noted, s 45 of the Sentencing Act makes specific reference to the fact that the making of a spent conviction order does not affect the right or duty of the court to make orders under the Road Traffic Act cancelling a driver's licence or disqualifying an offender from holding a driver's licence: s 45(5)(a)(i) and (b). The inclusion of those specific provisions are entirely inconsistent with the proposition that it is inappropriate to make spent conviction orders in relation to traffic matters generally or excess alcohol offences specifically.

20 Counsel for the appellant relied on the following two statements made by the magistrate: 'I don't believe that a spent conviction order is appropriate for these sorts of offences' and 'I don't believe that a spent conviction order is appropriate for an 0.08 offence. It's a traffic matter'. Taken alone, it would appear from these statements that the magistrate made the very error identified by Le Miere J in Harper v Page. However, as his Honour also noted in that case (at [24]), a magistrate's remarks must be read as a whole.

21 When counsel for the appellant first referred to a spent conviction order she stated that a conviction would adversely affect the appellant's future employment prospects and that the appellant believed that there would be difficulties in him obtaining employment in his chosen fields of commerce and engineering. The magistrate's immediate response was: 'I don't know whether that's the case'. It is apparent that the magistrate's initial reaction was to dispute the basis of the application; that a conviction would cause future employment problems for the appellant. The magistrate then went on to make the two statements on which the appellant relies. However, immediately after the second statement the magistrate adds:

There have been Supreme Court judges convicted of 0.08 offences. It's not something that's going to bar him from future employment, I would have thought, if he explains the circumstances. But I just don't think it is appropriate.

Again, the magistrate takes issue with the alleged adverse impact of a conviction on the appellant's employment prospects.

22 If that were an end to the discussion then the appellant's case would be stronger. However, the appellant's counsel then proceeded to make a full submission on the appellant's compliance with the pre-requisites for the making of a spent conviction order. Reference is made to the appellant's good character, his lack of any prior record, the circumstances of the commission of the offence, the appellant's acceptance of responsibility for his 'one-off error of judgment' and further reference to the impact of the conviction on his future employment. It was said that the conviction would impede the appellant's future employment prospects, 'particularly if he wishes to work for a mining company who have very stringent requirements with regard to prior convictions'. The adverse impact on the appellant's employment prospects was said not to be in the public interest.

23 After referring to the decision in R v Tognini, counsel for the appellant made the submission that there was no need for the public to have access to the appellant's conviction and that it would be to the public detriment if the appellant were hindered in his employment prospects because of it. The magistrate responded to this proposition by observing that it is in the public interest that people do not drink and drive, a message the government spends a lot of money trying to get across to the public, together with the message that drink drivers are a danger to other road users. The magistrate added:

It's my view that a spent conviction order is not appropriate. There are people who may need to know that he had a conviction, including his insurance company. Now, we all suffer the consequences of our actions. He's made a decision to drive and he was in excess of five times over his limit ... The government is trying to get the message across, particularly to young drivers, that if they drink and drive, they're a danger to other road users. You only have to look in the newspapers and watch the television to see the carnage on our roads caused by young drivers who have been drinking. In my view, this is not a trivial matter. It's one of those charges where it's my view that I don't believe a spent conviction order is appropriate.

24 When one considers this passage in its entirety it is apparent that the reference to a spent conviction order not being appropriate is a conclusion based on the reasons referred to in the passage including the particular circumstances of the offence, its seriousness and the public interest in deterring young drivers from drinking and driving. I do not accept the proposition that this particular reference to a spent conviction order not being appropriate is a reference to a pre-conceived view of the propriety of making spent conviction order for drink driving offences generally.

25 Despite the fact that the magistrate indicated at this point that he would impose the minimum sentence, counsel for the appellant continued to pursue her submission, pointing out that the seriousness of the offence was not the only consideration. She further submitted that the court was also required to consider the personal circumstances of the offender, his prior good conduct, and the fact that the adverse impact of the conviction might be disproportionate or not appropriate with respect to the circumstances of the offence.

26 Counsel also requested that the appellant be allowed to give evidence as to why he believed the conviction would adversely affect his future employment prospects. The magistrate observed that the accused would be speculating about his future employment and that such information would probably need to come from a future employer. Ultimately, the magistrate observed that any adverse impact would only be known in the future and concluded the application by stating that, for the reasons he had given, he did not believe that a spent conviction order was appropriate and did not propose to make one.

27 Again, when taken in context, I consider the belief expressed by the magistrate that a spent conviction was not appropriate was a reference to the circumstances which had been discussed, in particular the fact that the assertions about the adverse future impact on the appellant's employment were mere speculation.

28 In the course of passing sentence the magistrate provided reasons for declining to make a spent conviction order. He said:

As I indicated, we all suffer the consequences of our actions. We make decision and consequences follow. I would have thought that this type of offence is not the type of offence which necessarily reflects badly on a person down the track. You're young, an employer would take that into account, I would have thought.

This is not an offence of stealing or any offence of dishonesty. It's one of the offences that young people commit often, or sometimes, with fairly serious consequences. So I don't believe this is going to jeopardise any future employment.

29 I accept that the statements made by the magistrate to the effect that spent conviction orders are not appropriate for 'for these sort of offences' or 'for 0.08 offences' would constitute error if they were the basis of the decision not to make the order. However, reading the magistrate's remarks in their totality, I am not persuaded that the decision not to impose a spent conviction order was based on a view that traffic offences, in particular alcohol related offences, are in a special category where spent conviction orders should not be made. It is apparent that, despite making those remarks, his Honour considered the submissions made on the appellant's behalf, in particular the alleged adverse impact that a record for an excess 0.08% offence might have on the appellant's particular career, and was not persuaded that the submission relating to the future impact on the appellant's employment had substance. His Honour observed: 'There have been Supreme Court judges convicted of 08 offences. It's not something that's going to bar him from future employment, I would have thought, if he explains the circumstances'. Ultimately, the magistrate was not satisfied that a record for an excess 0.08% offence would have the serious consequences suggested by counsel. This was a conclusion that he was entitled to draw as a result of which he could not be satisfied that it was desirable for the appellant to be immediately relieved of the effect of the conviction.

30 It is also apparent from other comments made by the magistrate that he was concerned about the social problem of youths drinking and driving and of the public interest in deterring young drivers from doing so. Further, by referring to the fact that the appellant's blood alcohol level was five times the legal limit, the magistrate was clearly particularly concerned about the serious nature of the offence as committed by a probationary driver subject to a 0.02% maximum blood alcohol level limit.

31 For these reasons I do not accept the appellant's submission that the magistrate demonstrated a perceived or actual prejudgment of the relevant issue. Nor did he disregard the particular circumstances of the case.

32 On the hearing of the appeal, counsel for the appellant submitted that nearly all magistrates hold the view that spent convictions are not available for traffic offences. There being no evidence to support this assertion, I am not prepared to accept it as an accurate account of the attitude of the magistracy. In any event, it is apparent from the decision in Harper v Page and from the decision in this case, that in dealing with applications for spent convictions a blanket approach based on the type of offence is in error.

Whether the magistrate gave insufficient weight to the appellant's prior unblemished record and character and to the absence of any likelihood of re-offending

33 I have grouped these factors together because they all relate to matters personal to the appellant.

34 Counsel for the appellant submitted that that there was no finding by the magistrate that the appellant was not of previous good character. Indeed, nothing was said by the magistrate to indicate he rejected the content of the character references. Further, as the appellant had no prior convictions, the magistrate could not have refused the application because the appellant was not of prior good character.

35 Counsel for the appellant also submits that there was nothing in the learned magistrate's remarks that gave any indication that he considered the appellant to be at risk of re-offending. Further, it is said that there was no information before the court on which an assessment of re-offending likelihood could have been made.

36 As the condition is a mandatory factor, the appellant submits that the absence of this consideration from the magistrate's deliberations provides evidence that the magistrate erred by failing to follow the preconditions or by exceeding 'the sound range of discretion' available to him.

37 I do not accept that the failure to refer to a matter is necessarily evidence of error. As McLure J observed in Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189 [31], a beneficial construction is given to an ex tempore statement of reasons given in a Court of Petty Sessions. Her Honour added:

For example, the failure by a decision maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. Further, it is to be assumed that the Magistrate has complied with the duties imposed by the legislation and taken relevant matters into account.

38 Further, it is apparent from a reading of the statements made by the magistrate that he raised only those issues which he believed impeded the application. Implicit in his comments is his acceptance of the appellant's prior good character, lack of any criminal history and the fact the appellant was unlikely to re-offend.

39 I have made some comment on the difficulties in drawing a conclusion that the appellant is unlikely to re-offend in the particular circumstances of a relatively recently licensed driver. I have also referred to the caution necessary in accepting at face value, in those same circumstances, expressions of opinion from friends and associates that an offender is unlikely to re-offend. However, clearly these were not issues which were of concern to the magistrate.

40 In my view, there is no substance to this issue.

Whether the magistrate gave insufficient weight to the circumstances in which the offence was committed

41 This issue was raised in the same particular which dealt with the appellant's good character. It was not specifically addressed in the appellant's written submissions but was raised at the hearing in the context of the allegation that the magistrate applied a 'rigid policy-like approach' to the making of a spent conviction. The submission made was that the magistrate erred by failing to refer to the circumstances in which the offence was committed by the appellant.

42 It is simply inaccurate to state that the magistrate failed to refer to the circumstances of the offence. It was of considerable concern to the magistrate that the appellant, a probationary driver, was driving whilst under the influence of a substantial amount of alcohol. Indeed, at one point he observed that the appellant should not have been driving with any alcohol in his blood. The magistrate expressed his view on the circumstances of the offence in quite strong terms:

He's made a decision to drive and he was in excess of five times over his limit. His limit as a probationary driver was ... 0.02. He knew that as a probationary driver. He drove with a blood alcohol level exceeding 0.10, five times his legal limit.

43 In this passage the magistrate identifies three aspects of the circumstances of the offence which he considered to be particularly serious. The fact that the appellant was, and knew he was, a probationary driver; that he deliberately drove having consumed alcohol; and that his blood alcohol level was five times the allowable legal limit for probationary drivers.

44 Not only did the magistrate specifically refer to these aspects of the offence but it is apparent that they played the central part in his decision not to make a spent conviction order.

45 It is also the case that the manner of the appellant's driving was referred to in the sense that the magistrate expressly referred to the fact that the appellant had not been charged in relation to his driving other than with the excess 0.08% offence. In my view, it is implicit in this statement that the magistrate made no finding adverse to the appellant in relation to the manner of driving.

46 I consider there to be no basis to this particular complaint concerning the magistrate's conduct in dealing with the application.

Whether the magistrate gave insufficient weight to the likely adverse effect of a conviction on the appellant's future employment

47 Counsel for the appellant submitted that the magistrate erred in failing to give any, or any sufficient, weight to the likely future adverse effect of failing to make a spent conviction order on the appellant's employment. It was further submitted that the magistrate erred in describing the potential adverse effects as mere speculation. According to the appellant, as the Spent Convictions Act sets a 10 year period before an application can be made for an offender to have his or her record expunged, the adverse effect of the appellant's conviction must be carried throughout a 10 year period. Section 45 of the Sentencing Act, therefore, requires consideration of adverse effects the offender may suffer throughout the duration of the 10 year period, necessarily requiring some projection, speculation or supposition. However, even counsel for the appellant concedes that such projection or speculation must have some basis in presently existing facts.

48 No authority is cited for the proposition that, under s 45 of the Sentencing Act, the court is obliged to consider the potential adverse effects of the conviction for the period of time before which a further application can be made under the Spent Conviction Act. Nor is any authority cited for the proposition that the alleged 'link' between the two Acts allows speculation or supposition about the potential effect of the conviction which is the subject of the application.

49 I do not accept that there is any 'link' between the two Acts which requires the court to consider the effect of the conviction over the next 10 years. That is not to say that, if it can be established by direct and credible evidence that a particular event will occur at a future point within that time period, the court cannot take into account that this event will occur before another opportunity arises to seek a spent conviction order. However, that is not the same as a requirement to consider the following 10 year period in every case. More significantly, the fact that a further application cannot be made until a period of 10 years has elapsed does not allow speculation or supposition. Such a proposition directly conflicts with established authority.

50 I have already referred to the decision in R v Tognini where Murray J clearly indicated (at [20]) that the requirement for a 10 year waiting period is to allow sufficient time to pass to establish the absence of re-offending so that the court may consider the convicted person to be rehabilitated and deserving of relief from the effects of conviction. If the court at first instance were required, or even entitled, to speculate as to what might happen in that period and make a spent conviction order if there is any possibility of an adverse impact, however remote, and in the absence of any factual basis, the Spent Convictions Act would lose much of its effect and purpose. Further, Murray J emphasised (at [24]) that the power in s 45 should only be sparingly exercised in a clear case and for cogent reasons. I consider that statement of principle to be completely at odds with the proposition being put on behalf of the appellant that speculation and supposition is an appropriate basis for a spent conviction order.

51 Despite the assertion made by counsel at the time of the application that the conviction will adversely affect the appellant's future employment, the evidentiary basis for the application was slim indeed. Counsel stated that the appellant was studying commerce and engineering at university and the appellant believed he would have difficulty obtaining employment in those fields with the conviction. This belief on the part of the appellant was repeated at a later point in the submissions and the following statement added: 'particularly if he wishes to work for a mining company who have very stringent requirements with regards to prior convictions' (emphasis added).

52 That was the entire extent of the evidence. The area of the appellant's study, his belief that his future employment would be affected by his conviction, the possibility that the appellant might want to work for a mining company and a hearsay statement as to the requirements of mining companies with respect to convictions. On appeal, counsel for the appellant made the positive statement that the appellant planned to work in the mining industry, but that was not the material that was before the court at the time of the application.

53 I will address the issue of the evidence sought to be adduced by the appellant but will foreshadow the conclusion I have reached which is that the evidence of the appellant could not have cured the deficiencies in the evidence before the court.

54 At one point the magistrate noted that the appellant was speculating about his future employment while the court needed to be satisfied that some adverse impact was likely to occur. He then observed that the appellant 'would probably need to call a future employee who would tell me that he's unlikely to get a job'. It was at this point that counsel for the appellant sought an adjournment to obtain that evidence. The magistrate then commented that it was evidence that would only be known in the future. In my view, it was not appropriate to grant an adjournment for counsel to obtain evidence that was necessary to the success of the application and should have been ready to present to the court at the time of the application. Putting to one side the issue of what might transpire with respect to the attitudes of the mining industry in the future, if counsel wished the court to accept that employers in the mining industry would not employ engineering and commerce graduates with convictions for excess 0.08% offences, then someone who could give direct evidence of that fact should have been arranged to attend and give evidence on the application.

55 It is apparent from the comments made by the magistrate that he did not accept the assertions made by counsel for the appellant of the potential impact of the conviction on the appellant's future employment. After making the comment that there have been Supreme Court judges convicted of excess 0.08% offences, the magistrate expressed the view that such a conviction would not bar him from future employment, particularly if he explained the circumstances. He further remarked that he thought this type of offence was not the type of offence which necessarily reflects badly on a person down the track and that an employer would take into account the fact that the appellant was young when he committed the offence. Further, the magistrate also indicated his view that the effect, if any, on the appellant's employment would only be known in the future. His final statement was that he did not believe that the conviction was going to jeopardize the appellant's future employment.

56 It is apparent that the magistrate simply did not accept the proposition put to him that the conviction would have an adverse impact on the appellant's employment future. In R v Tognini Murray J referred to the need for the applicant to establish some affirmative reason why the conviction should be declared to be spent: at [23]. In the absence of any evidence upon which even an inference could be drawn that the appellant was likely to have employment difficulties because of his conviction, in my view, it cannot be said that the magistrate gave insufficient weight to that factor.

57 At the hearing of the appeal, counsel for the appellant submitted that the magistrate was not entitled to draw a conclusion that the conviction would not have an adverse effect on the appellant's employment future because there was no evidence before the court that there would be no adverse effect. This submission shifts the onus of adducing evidence on which to base a finding from the appellant to the respondent. It is for the appellant to establish the proposition on which it relies and, in these particular circumstances, it was necessary to adduce evidence from which the necessary finding could be made. In the absence of such evidence the magistrate was quite entitled to rely on his own view that the conviction would not jeopardize employment in the mining industry as alleged. In effect, what the magistrate is really saying is that he is not satisfied that the conviction would have an adverse effect. As I have said, in the absence of anything other than speculative assertions, that was a finding the magistrate was quite entitled to make.

58 The conclusion drawn by the magistrate that the appellant's conviction would not adversely affect his employment prospects is one which is consistent with authority. In Reynolds v Commissioner of Police [2001] WASCA 203 [22] it was observed that a conviction of a traffic offence does not normally jeopardize employment, although in that case the offence was of dangerous driving causing bodily harm. Pidgeon AUJ considered that the offence could be easily explained. That statement is not dissimilar to the magistrate's statement that he considered the offence was not something that was going to bar the appellant from future employment if he explained the circumstances.

59 The appellant's written submissions also include a statement that there was no requirement upon the appellant to prove the adverse effects of the conviction beyond a reasonable doubt. That observation is entirely correct. However, there was no suggestion by the magistrate that such was the standard of proof required. The point being made was that an evidentiary basis was required for the proposition that the conviction would have adverse effects on the appellant's future employment. The appellant may not have been required to prove the adverse effects beyond a reasonable doubt but he did bear the evidentiary burden of establishing the basis for the making of the spent conviction order.

Whether the magistrate erred in refusing the appellant's request to give evidence on the likely adverse affect of a conviction on his future employment

60 On behalf of the appellant it was submitted that the magistrate erred by refusing the application for the appellant to give evidence on the likely future adverse affect of the conviction on his future employment.

61 As I have noted above, I am not persuaded that there is any merit in this point. It is apparent from the statements made by the magistrate that he was not taking issue with the propositions that the appellant was a student of engineering and commerce nor that, at this point in time, the appellant hoped to obtain employment in the mining industry. The contentious issue was whether his employment prospects would be jeopardized by his conviction for an excess 0.08% offence. That was something about which the appellant could only give hearsay evidence. Where the person giving the evidence is the person in whose interests it is that the evidence is accepted, there are obvious dangers in accepting hearsay evidence. On that basis, there was no purpose to having the appellant give evidence under oath because he could not give the evidence which the magistrate considered necessary in order to grant the application.

62 Counsel for the appellant referred to s 15 of the Sentencing Act which allows the court to inform itself in any way it thinks fit. In my view, the power contained in s 15 does not overcome the deficiency in the evidence adduced by the appellant in support of the application for a spent conviction. It was a matter for the magistrate as to whether he was prepared to accept the assertions of the appellant or his counsel as to the attitude of employers in the mining industry to prospective employees with convictions for excess 0.08% offences. At the time of the application, the magistrate expressed the view that the appellant would need to call a future employer who would tell the court that the appellant was unlikely to obtain employment because of the conviction. I have already referred to the conclusion of Murray J in R v Tognini that the power to make a spent conviction order should be only sparingly exercised in a clear case and for cogent reasons: at [24]. This emphasis on the quality of the material justifying the order supports the position taken by the magistrate.

63 The following observation of Burchet AUJ in Brewer v Bayens at [14], and cited by counsel for the respondent, provides further support:

Bearing in mind the special nature of the jurisdiction to grant [a spent conviction order under s 45(1)], and the clear case the Full Court has said must be shown, it is to be expected that generally those who contend they come within the conditions laid down by s 45 will demonstrate that fact by convincing evidence.

64 In these circumstances, the magistrate was quite entitled to insist that the evidence on this issue be direct evidence.

The prosecution consented to the making of a spent conviction order

66 On appeal, emphasis was placed on the fact that the prosecution did not oppose a spent conviction order. The relevant particular of the ground of appeal states that the prosecution consented to the making of a spent conviction order. Counsel for the respondent indicated at the hearing that the prosecution did not object to the order and further observed that it would be improper for the prosecution to presume to consent to the making of an exceptional order such as a spent conviction order.

67 According to the appellant's written submissions, prior to the appellant entering a guilty plea, the appellant's counsel had discussions with an Assistant Superintendent from Police Prosecutions regarding the prosecution's position on the making of a spent conviction order. Counsel was advised by the Assistant Superintendent that the police had no objection to the appellant being granted a spent conviction order. Apparently this attitude was confirmed with the prosecutor prior to the commencement of the court proceedings. During the submissions on sentence, counsel expressly confirmed the absence of any objection by the prosecution to the application and the prosecution made no submissions opposing the application.

68 Following the magistrate's rejection of the application, the appellant's counsel had further communications with the Assistant Superintendent who then provided counsel with a copy of his letter to the State Solicitor's Office with respect to the appeal. In the letter the Assistant Superintendent confirmed that the granting of a spent conviction was not opposed.

69 The apparent purpose of providing this information to the court appears to be the proposition that, having decided not to oppose the application at first instance, the respondent is not entitled to advance arguments on appeal in opposition to the granting of the application.

70 Counsel for the respondent emphasized that the respondent's position is that the grant of a spent conviction order is not opposed. Counsel also rejects any proposition that the respondent is raising any new point.

71 Counsel relies on the observation, frequently made in sentencing cases, that it is the responsibility of counsel on both sides to make themselves aware of the relevant law and to ensure that the court is passing a sentence which is one within its jurisdiction to pass. Under s 45(4) of the Sentencing Act a spent conviction order is taken as part of the sentence imposed. Counsel also relies on the principle that it is the duty of both counsel to inform themselves of the extent of the court's powers in any case in which they are instructed, to know what options are available to the court and to correct the court if it should make a mistake: see Justice Ipp, 'Lawyers' Duties to the Court' (1998) 114 LQR 63, 79 citing Walker [1996] UKHL 6; [1996] 1 Cr App R 447, 448; and Granvias Oceanics Armadora SA v Jibsen Trading Co (The Hartrey) (1993) 14 Cr App R (S) 507.

72 I accept that these statements accurately describe the proper role of counsel. I also accept the submission made by counsel for the respondent that it is appropriate that the respondent discharge its duty to the court by making submissions which identify the principles applicable to the making of a spent conviction order and any apparent deficiencies in the application being made.

73 In a case such as this the latter aspect of the role of counsel is of particular significance because, where an order is not opposed, the absence of a party prepared to point out any apparent deficiencies in the application, or the unwillingness of a party to do so, deprives the court of the assistance normally provided by an opposing party in the adversarial system.

74 In my view, both in the written and oral submission made by counsel for the respondent, the respondent was not advancing a position but assisting the court in the manner I have just described. The prosecutor at trial would have been quite entitled to take the same position if he or she had chosen to do so or been in a position to do so. I find nothing improper or inappropriate in the way in which the respondent has conducted itself in this appeal.

75 Further, the fact that an application is not opposed by a respondent in no way binds the court, either at first instance or on appeal. It is trite to observe that it is always for the court to determine the matter and, in cases where a discretion exists, it is the court's discretion that must be exercised. The basis for deciding not to oppose an application may on occasions be of assistance to the court in that it may identify material relevant to the matters about which the court must be satisfied. However, in this case, at every stage and, as far as I am aware, in any of the communications to which I have referred, the Assistant Superintendent has not identified the reason why he was prepared to direct the prosecuting officer not to oppose the application and to give the same instructions with respect to the appeal. They are certainly not obvious to me.

76 I am not persuaded of any impropriety in the way in which the respondent has conducted itself in this appeal.

Whether the magistrate's decision was within a sound and lawful range of his sentencing discretion under s 39 and s 45 of the Sentencing Act

77 In essence, this particular is a re-statement of the actual ground of appeal which is whether the magistrate erred by refusing to grant the application for a spent conviction order. This particular also covers the matters which would be considered in determining whether no substantial miscarriage of justice has occurred, as referred to in s 14(2) of the Criminal Appeals Act 2004 (WA). In considering this ground it must be kept in mind that it is for the appellant to prove that the magistrate has erred in the exercise of his discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

78 I have already addressed a number of ways in which the magistrate is said to have fallen into error and it is convenient to address under this general heading the remaining matters raised by the appellant.

79 One such matter is the appellant's objection, as irrelevant and inaccurate, to the magistrate's statement concerning the need of the appellant's insurance company to know that he has a conviction for an excess 0.08% offence.

80 The appellant submits that speculation about what may be in the best interests of profit making by insurance companies does not equate to it being in the public interest that this sort of information should be available to insurance companies. Counsel asserts that public safety is not maintained or enhanced by the appellant having to disclose his conviction to insurance companies, if indeed the appellant applies for vehicle related insurance in the future. It is also said that there was no evidence before the court about the appellant's current or future insurance arrangements and hence the magistrate was engaging in mere speculation. Counsel for the respondent submitted that the magistrate erred by taking into account irrelevant and speculative effects on insurance companies of the appellant being granted a spent conviction order.

81 In my view, the appellant makes more of the reference to the insurance company than the magistrate did or intended to do. The reference was made in the context of pointing out that a spent conviction order was not appropriate because, as the magistrate expressed it: 'There are people who may need to know that he had a conviction, including his insurance company'. No further reference is made by the magistrate to insurance or insurance companies.

82 It is apparent to me that the magistrate was doing no more than giving insurance companies as an example of organizations which might need to have this type of information and hence as an example of a circumstance in which the public interest is at odds with the making of the order.

83 The respondent referred the court to the decision in Neale v Sloan (1997) 27 MVR 246 where the appellant was refused a spent conviction order in relation to a conviction for an excess 0.08% offence. Wheeler J observed that the making of a spent conviction order does not automatically flow once the criteria in s 45 are satisfied. Her Honour stated that consideration must be given to all of the circumstances of the case and of the offender as well as the wider interests of the public. Consequently, considerations extraneous to those listed in s 45 are not thereby rendered irrelevant: at 247. Wheeler J specifically addressed the issue of insurance companies (at 247):

Particularly in relation to the driving of motor vehicles, the presence or otherwise of such a conviction may be relevant in many circumstances. His Worship referred to the interests of insurers, and I note that s 27 of the Spent Convictions Act has the effect that the insured's duty of disclosure is apparently avoided once a conviction is declared to be spent.

Wheeler J concluded that this consideration was relevant to the discretion whether to make a spent conviction order.

84 In my view, it is not speculation to suggest that there are certain circumstances in which it is important for various organizations to know that a person has a conviction or a conviction of this particular type. I respectfully adopt the view of Wheeler J in Neale v Sloan that the situation with respect to insurers is a relevant consideration when dealing with an offence of this type. However, I remain of the view that in this particular case, the magistrate referred to insurance as an example of the public interest in not ordering a conviction to be spent rather than as the linchpin of the public interest and was not in error in making that reference or addressing that issue.

85 In dealing with the application, the magistrate expressed the view that the offence was not trivial in nature. No issue is taken with the conclusion that the offence was not trivial and, in my view, the circumstances of the offence would preclude such a description. However, counsel for the appellant suggests that there is a contradiction between the statement that the offence is not trivial and the following comment of the magistrate: 'I would have thought that this type of offence is not the type of offence which necessarily reflects badly on a person down the track ...This is not an offence of stealing or dishonesty'. Counsel suggests that in this regard the magistrate's remarks and deliberations appear to be irrational. I consider that description to be without justification.

86 The view that an offence is not trivial is a judgment made which usually takes into account the impact of the offence on a particular person or on the community because of the risk posed to the community by conduct of that nature. However, the way in which a person with a conviction for such an offence is viewed by the community, or at least some sections of the community, may depend on various factors including whether the offence is one which is regularly or rarely committed within that community, whether the person has learnt from the conviction or has continued to repeat the conduct, and whether a short or a long time has elapsed since the conviction occurred.

87 The comment made by the magistrate as to the impact of the conviction made specific reference to the impact 'down the track'. It seems to me that the magistrate was making the very valid comment that if, after a period of time, the appellant commits no further offences of this type, the offence can be seen as an aberration of youth without any adverse conclusion being drawn as to his character and no consequential impact on his employment prospects. That comment fits with other statements made by the magistrate including the following statement:

It's not something that's going to bar him from future employment, I would have thought, if he explains the circumstances. (emphasis added)

88 In support of the proposition that the magistrate erred in failing to make a spent conviction order, counsel for the appellant submitted that there was no evidence before the court to suggest that the public not having access to the appellant's record of conviction was going to be a danger to public safety. Again, counsel for the appellant reverses the burden of proof and overlooks the obligation of the appellant to adduce evidence from which it can be concluded that the adverse effect on the appellant of carrying the conviction with him outweighs the public interest in the knowledge that a person has committed an offence being available either generally or to specific entities.

89 Identifying the public interest, including issues of specific and general deterrence, is something which magistrates and judges are well trained and well placed to address, without the requirement for specific evidence to be adduced. In this case the magistrate acknowledged the significant public interest in deterring people from drinking and driving and referred to the fact that the government spends a lot of money trying to get that message across to people. He made the following statement:

The government is trying to get the message across, particularly to young drivers, that if they drink and drive, they're a danger to other road users. You only have to look in the newspapers and watch the television to see the carnage on our roads caused by young drivers who have been drinking.

90 The magistrate also referred to the fact that people who drink and drive are a danger to other road users. He also noted the prevalence of the offence amongst young drivers. In this way the magistrate again identifies the public interest in deterring people from committing offences of this type. As referred to above, the magistrate also noted the need for certain people to know that the appellant has a conviction for drinking and driving.

91 At one point in her submissions, counsel for the appellant submitted that having to carry with him this conviction for a ten year period was an enormous burden for a man as young as the appellant to bear. Despite the existence of the power to make a spent conviction order in appropriate circumstances for cogent reason, I do not accept that the burden of bearing the conviction is anything other than entirely appropriate where the appellant has committed the offence.

92 For myself, I can find no basis for the proposition that the exercise by the magistrate of his discretion miscarried in this case. The offence committed by the appellant was serious in its nature and serious in the particular circumstances in which it was committed. The appellant, a probationary driver, went to a hotel, allegedly simply to collect a friend and drive him home, and deliberately drank alcohol well knowing that the blood alcohol level limit for probationary drivers was a mere 0.02%. The amount he drank was sufficient to result in a reading of 0.102% as at the time of the offence, more than five times the allowable limit. It was no doubt for that reason he was charged with an excess 0.08% offence rather than a 0.02% offence. The appellant knowingly breached the rules applicable to a probationary driver and in the normal course of events would, and should, carry that conviction with him and be obliged to make others aware of it where appropriate.

93 There is a clear and, in my view, significant public interest in maintaining the usual result of committing this offence. Those who drink and drive present a danger to other road users, a cost to the community and the offence remains prevalent despite substantial money being spent and effort taken by those in authority to deter people from this type of behaviour.

94 Despite the fact that the appellant has no prior convictions, is of good character and even if accepted that he is unlikely to re-offend, it is still necessary for the appellant to adduce clear and cogent evidence that, if the conviction is not ordered to be spent, his future employment and career prospects will be adversely affected. This, in my view, he clearly failed to do.

95 It is the case that the appellant is still to complete his university degree. Many factors could intercede in what was described before the magistrate as the possibility of the appellant obtaining employment in the mining industry and what was described on appeal as his intention to obtain employment of that type. Even if it were accepted that the appellant would in due course seek employment in the mining industry, there was no evidence that a conviction for an excess 0.08% offence would prevent or even impede that intention now or in the future. An assertion from counsel or even from the appellant himself that such is now the case and would be in the future is not, in my view, adequate evidence of the fact. It is certainly not adequate to displace the public interest issues involved in an offence of this type committed in the serious circumstances of the extremely high blood alcohol reading. I consider that there was inadequate material before the court to conclude that the best interests of the community would be served by allowing the fact of the commission of the offence to be generally concealed rather than, in the ordinary way, having knowledge of the conviction': R v Tognini at [30].

96 I am not persuaded that the exercise of the magistrate's discretion miscarried and I would dismiss the appeal.