FJM -v- CAMERON [2016] WASC 109 (4 April 2016)

3 The respondent to the appeal concedes that it is open for me to find that there will be a miscarriage of justice if an extension of time is not granted and that it is open to me to find that that the appeal should be allowed and a spent conviction order made.

4 The appellant was born in January 1993. He was aged 20 on 1 August 2013 when he committed the offence. He went to a hardware store. He picked up a butane gas canister valued at $2.50. He placed the canister in the front of his trousers and left the store without paying for it.

5 On 5 August 2013 police contacted the appellant about their investigation into the offence. They asked him to attend the police station for an interview. Later that day the appellant went to the hardware store. He identified himself to the store manager and paid $11, the full value of a four pack of butane gas canisters, but declined to take the pack.

6 Police contacted the appellant on 7 August 2013 and again asked him to attend the police station. The appellant said that he thought that the matter would be discontinued as he had paid for the gas canister. He attended the police station on 9 August 2013. He admitted that he was the person on the CCTV recorded at the time of the offence. He said that he was intoxicated at the time and that he could not recall what had occurred.

7 The appellant attended court without legal representation on 2 October 2013. He pleaded guilty to the charge. He told the learned Magistrate that he accepted the facts. The Magistrate asked him if he could remember why he did it. He said:

No, it was a celebration of a friend having a baby, and also the celebration of someone's life because a friend passed away the weekend before. It's no excuse but.

10 In cases of lengthy delay in appealing the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension of time is not granted.[1]

11 Section 8(1)(b) of the Criminal Appeals Act 2004 (WA) provides that an appeal may be made on the ground that there has been a miscarriage of justice.

12 By reason of the lengthy delay in the appellant appealing against the Magistrate's decision and his failure to ask the learned Magistrate for a spent conviction order this appeal turns on whether there will be a miscarriage of justice if a spent conviction order is not made.

13 The appellant seeks to rely upon an affidavit made by him on 17 December 2015 and an affidavit of Jacalyn Lorraine Martleton, his solicitor's legal secretary, made on 15 March 2016. On an appeal against sentence the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.[2] The court can admit evidence on the hearing of the appeal.[3]

14 The respondent consents to the affidavits being admitted into evidence in the appeal. As the affidavits go to the issue of whether there has been a miscarriage of justice I admit them into evidence on this appeal.

15 On 5 August 2011 the appellant was convicted of failing to obey a move on notice. He was fined $250 and a spent conviction order was made. The appellant has deposed that a friend's mother who works as a security guard at the court saw him on the day he had been in court and told him that he should ask for a spent conviction order. The appellant arranged for the matter to be recalled. He asked for a spent conviction order and the order was made.

16 On 10 May 2013 the appellant was convicted of disorderly behaviour in public. He was fined $600.

17 On 2 October 2013 the appellant was convicted of the offence the subject of this appeal.

18 On 8 January 2014 the appellant was convicted of driving with a blood alcohol content in excess of .08 g per 100 ml, being greater than or equal to .09 g per 100 ml and less than .10 g per 100 ml. He was fined $550 and his motor driver's licence was disqualified for 7 months.

19 The appellant has deposed that when he went to court on 2 October 2013 he was deeply ashamed of stealing and of what his parents would have thought. Even though his friend's mother had told him to apply for a spent conviction order in 2011 it did not occur to him to apply for an order on 2 October 2013. It did not occur to him that the conviction might affect his career and travel.

20 The appellant acknowledges that he had an issue with weekend binge drinking of alcohol from the age of 16 to the age of 20. If he drinks alcohol now it would only be once a week and only one or two cans of alcohol.

21 The appellant applied to join the army when he was aged 17. Soon afterwards he broke his ankle and wrist in an accident. The day after the accident he was contacted by the army and asked to do a medical test. As he was injured he could not do the test at the time.

22 At approximately the beginning of 2015 the appellant again applied to join the army. He had an aptitude test and a hearing and sight test. He was required to get a report from his doctor about his eczema. That issue was resolved by that report.

23 Approximately a month later the appellant was contacted by an army career adviser who told him that there was a problem with his application to join the army by reason of his 2013 conviction for stealing.

24 The appellant has sought assistance from the court at which he was convicted, the police, the Legal Aid Commission and another lawyer. He saw his current solicitor on 28 October 2015. The solicitor advised him to obtain something in writing from the army. The appellant endeavoured to do so, but was not successful.

25 The appellant was not crossexamined on his affidavit and his evidence was not challenged by the respondent. I accept the appellant's evidence.

26 References attesting to the appellant's good character are attached to his affidavit.

27 Attached to the affidavit of Ms Martleton is correspondence with the army. The army regards stealing offences very seriously. If the appellant obtains a spent conviction order in respect of his conviction for stealing his application to join the army will be assessed on its merits and subject to the normal recruitment process.

28 Section 45(1) of the Sentencing Act 1995 (WA) provides that a court is not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial or the previous good character of the offender, it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

29 Even when the conditions of section 45(1) are satisfied the discretionary power to make a spent conviction order should be regarded as being of an exceptional character. The court should have regard to the seriousness of the offence and 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. The court 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.[4]

30 The appellant has no other stealing conviction. His other offences were not offences of dishonesty. I am satisfied from the appellant's affidavit and the references attached to it that the appellant is a person of good character. I am satisfied that he is unlikely to commit an offence of stealing again.

31 Ordinarily an offence of stealing would not be a trivial offence. However in this case the item stolen was a canister worth $2.50. If a person were to commit such an offence today the matter could be dealt with by an infringement notice under the Criminal Code (Infringement Notices) Regulations 2015 (WA). I am satisfied that, in the circumstances, the offence was trivial. I am also satisfied that the appellant is, and was before he committed the offence, a person of good character. It is clear that if a spent conviction order is not granted he has minimal prospects of a career in the army.

32 Having regard to all of those matters I am satisfied that the conditions of s 45(1) are satisfied, that a spent conviction order should be made and that there would be a miscarriage of justice if such an order were not made by this court.

1. The appellant be granted an extension of time to appeal;
2. The appellant be granted leave to appeal;
3. The appeal be allowed;
4. A spent conviction order under s 45 of the Sentencing Act 1995 (WA) is made in respect of the conviction of stealing on 2 October 2013; and
5. The appeal is not to be reported so as to identify the appellant.

[1] Lancaster v The Queen [1989] WAR 83, 85; Gavin v The Queen (1992) 6 WAR 195, 198; EXF v The State of Western Australia [2015] WASCA 118 [5].

[2] Criminal Appeals Act 2004 (WA) s 14(5).

[3] Criminal Appeals Act 2004 (WA) s 40(1)(e).

[4] The Queen v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] - [28].