Criminal law and procedure - Spent conviction - Whether appropriate - No new principles

Sentencing Act 1995 (WA), s 45

1 McKECHNIE J: On 13 March this year, a country boy, recently arrived in Perth, had too much to drink and was on an outing with a mate in Northbridge, when he did a very silly thing. Police officers were carrying out their duties speaking to several people, who were unknown to the young man, and he decided to intervene. He grabbed a police officer by the collar and left bicep, causing slight bruising. He was apprehended by police after resisting attempts to restrain him and had to be handcuffed. The magistrate succinctly summed up the whole event in this way:

Unfortunately, you went out on this occasion and drank far too much it would seem, put your nose into other people's business where it was not required and got yourself into trouble. It is that simple.

2 Clearly the magistrate regarded the matter as very serious. The young man was fined $1,000 for assault and further fined $400 for obstructing police. The magistrate also made a spent conviction order. The prosecution has appealed against the making of that spent conviction order on the ground that:

1. Having regard to the seriousness of the offence and the personal circumstances of the Respondent, the learned Magistrate erred in law and fact in granting a spent conviction.

3 The Sentencing Act 1995 (WA) s 45(1) provides conditions on the making of a spent conviction order. The court must consider that the offender is not likely to commit such an offence again, and having regard to the previous good character of the offender, it considers the offender should be relieved immediately of the adverse effect of conviction on the offender. The alternative pre-condition that the offence is trivial does not arise here and clearly the magistrate did not regard the offence as trivial.

4 The magistrate did not specifically find that the respondent was unlikely to commit the offence again, but having regard to the respondent's background, to which I will shortly refer, it is a reasonable assumption that this was a single offence brought about by drink and is unlikely to be repeated. It is necessary to say more about the respondent. He turned 18 in January and had been living with his parents in a country town and came up to attend a bridging course to enable him to enter a course for engineering. He had been in Perth for three weeks when the event occurred.

5 Because of the amount he had to drink, he had no clear recollection of the incident. After his arrest he went straight back to the country town and told his parents. His parents attended the court hearing. They also made arrangements for him to live with his auntie so he could have supervision in Perth and took steps to engage him in some alcohol counselling with the Salvation Army.

6 The magistrate was given a number of references which the police officer, in opposing the spent conviction order, described as follows:

[A]nd no doubt they are superb references. He's a glowing young man and gets involved in community projects and all the rest of it but at the end of the day he has assaulted a police officer and work prospects.

There's nothing before the court about work prospects or where he's going to. What it may interfere with, what it may do and we do oppose a conviction.

He is trying to get into an engineering course at university. He has been accepted into the bridging course and if he successfully completes this year, he will get into an engineering course at Curtin University and there are very good work prospects for him then to work in a number of areas including the mining area, and he is very young. He is very sorry. He has made a mistake, he can't undo it but he is doing everything possible in his power to put this right.

8 The magistrate's reasons for giving a spent conviction order were shortly expressed as follows:

I will make a spent conviction order because you have no previous record of convictions, because this is something that may be taken into your consideration in the future. But you have one opportunity at that and so I think it best that you pursue the course of conduct which you have.

9 The principles in relation to the making of a spent conviction order are not in issue and are now settled. The most recent Court of Appeal authority is that of Riggall v State of Western Australia [2008] WASCA 69, applying R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.

10 The principle that the power to order a spent conviction should be exercised sparingly comes from Tognini at [24] and has been confirmed and followed in many cases since: see Nickolson v Keeble [2007] WASC 231; (2007) 49 MVR 47. The appellant's written submissions at par 14 say:

Again there is no convincing evidence before the court as to why the appellant's personal circumstances were so unique that would justify the exercising of the learned Magistrate's discretion to grant a spent conviction, other than the Appellant being young and of prior good character.

11 Most offences by their nature will show that the offender has had a disregard of the law in that respect. It is not the law that the respondent must show that his personal circumstances are so unique as would justify exercising the discretion. That imposes too severe a test and is unwarranted by the authorities to which I have referred.

12 The appellant rightly points to the gravamen of the offending behaviour. As indicated by both her comments and the fine she imposed, the magistrate correctly regarded the offending behaviour as serious but a spent conviction is not precluded because the offending behaviour is serious. Triviality is only one matter to be taken into account and in appropriate circumstances comparatively serious conduct may be offset by good character and the unlikelihood of committing a further offence.

13 In the end, what is disclosed here is a young man, just 18, who had very good prior character, on his first time away from his home went to Northbridge, got too drunk, put his nose in where it was not wanted and in the process assaulted and obstructed a police officer. There is every indication of remorse and, more importantly, that the lesson has been learned. It is not necessary to burden him with the stigma of a conviction at the start of his academic and working careers in order to satisfy any public interest in knowing of that conviction for the future. In essence, the magistrate so concluded and it was her discretion, not mine, which is important. It must be shown that she has properly failed to exercise her discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

14 I am entirely unpersuaded that her discretion to make a spent conviction order miscarried. The appeal must be dismissed.