Court of Appeal (WA)|2001-02-13|Before: Scott J, Smith J

Furtak v Timmers [2001] WASCA 65 (13 February 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FURTAK -v- TIMMERS [2001] WASCA 65

Criminal law and procedure - Appeal against sentence - Plea of guilty by endorsement on summons - Plea in mitigation by duty counsel - Magistrate not reading letter from appellant - Whether denial of natural justice

Criminal law and procedure - Appeal against sentence - Obligation to give reasons for refusing to make spent conviction order

Criminal law and procedure - Appeal against sentence - Spent conviction order - Principles

Angwin v The Queen, unreported; SCt of WA; Library No 9201337; 13 February 1992

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

King v Hill, unreported; SCt of WA; Library No 950609; 10 November 1995

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 July 1998

Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995

Papadopolous v Hunter (1995) 85 A Crim R 572

Wiggan v The Queen, unreported; CCA SCt of WA; Library No 8687; 24 January 1991

1 ROBERTS-SMITH J: On 27 September 2000 in the Court of Petty Sessions at Norseman the appellant pleaded guilty by written endorsement on a summons to one charge of being in possession of a 12-gauge shotgun and 84 rounds of 12-gauge ammunition whilst not being the holder of a firearm licence or permit and one charge of being in possession of a .22 calibre rifle and 36 rounds of .22 calibre ammunition, such rifle having been altered from its original design and characteristics of its original manufacture, whilst not being the holder of a firearms licence.

2 Both charges were laid under s 19(1)(c) of the Firearms Act 1973 (WA). The appellant was accordingly convicted on his plea of guilty. Notwithstanding his absence and his written plea of guilty, the appellant was in fact represented by duty counsel who made some submissions in mitigation on his behalf and indicated she had a letter from the appellant which he had asked be put before the Magistrate.

3 Having heard the duty counsel's submissions, which included the appellant's request that spent conviction orders be made, his Worship indicated it was not necessary that he read the appellant's letter and proceeded to impose fines of $250 and $350 respectively and refused to make a spent conviction order. By order made on 30 October 2000 Scott J extended time for the appellant to apply for leave to appeal and granted leave to appeal on the grounds that:

(1) the learned Magistrate erred in law in refusing to peruse or consider the correspondence from the appellant accompanying his endorsed plea of guilty;

(2) the learned Magistrate erred in failing to give any adequate reasons in refusing to impose a spent conviction order; and

(3) the learned Magistrate erred in the exercise of his sentencing discretion in refusing to make a spent conviction order in circumstances where the appellant was 47 years of age and of previous impeccable character.

4 In his affidavit in support of that application sworn 20 October 2000 the appellant said, amongst other things, that he lives in New South Wales so that when these matters were to be dealt with by the Magistrate at Norseman in Western Australia, he elected to take the option described at the base of the summons which was to complete an endorsed plea of guilty and forward for the Court's attention a written explanation of his actions.

5 He further deposed that he had been having discussions with Legal Aid in Kalgoorlie with a view to having them represent him in Court. He did not qualify for legal aid, so they were unable to represent him. However, they did agree to hand his letter up to the Magistrate on the day in their capacity as duty counsel. It was for that reason, the appellant says, that he sent his letter to Legal Aid at Kalgoorlie.

6 He noted in his affidavit that he requested in the letter that spent conviction orders be made and set out there why he considered that would be appropriate. He went on at par 6 of his affidavit to say that he understands that duty counsel from Legal Aid at Kalgoorlie did attempt to hand up the letter in Court on 27 September. However, the Magistrate declined to read it.

7 The appellant further deposed that he is 47 years of age and has never been convicted of a criminal offence. His only court appearances have been related to traffic matters. He said he has not handed the firearms in because he had had them for 20 years and had forgotten about them entirely by the time the buy-back scheme came along. He said he knew he no longer qualified for amnesty, so he intended to dispose of the weapons and ammunition in the bush. He said that in those circumstances he had been advised that it would have been a proper exercise of his Worship's discretion to grant him a spent conviction order in relation to both complaints and he complains that he has been denied natural justice by the Magistrate refusing to read his letter and that he should be resentenced in light of the matters raised in the letter.

8 The letter itself appears from page 18 of the appeal book. It is handwritten and fairly lengthy and I do not propose to read it now. However, some of the salient factors mentioned in the letter are again his age of 47 years and the fact that he is living in New South Wales and that as to the circumstances in which he came to acquire the two firearms, approximately 23 years ago he bought a collapsible .22 semi-automatic rifle, the barrel of which unscrewed from the main body, the main body in turn unbolted from the butt and then the barrel and main body could be stored in the plastic rifle butt. He pointed out that all of this was perfectly legal at the time. He further wrote that about 2 years later he bought a 12-gauge pump action shotgun which was also perfectly legal at the time. He describes how on occasion he did go into the bush and fire the weapons, but subsequently put them on a shelf in his shed to which only he had the key and left them there.

9 He wrote that over the next 20 years he eventually filled up all the shelves in his shed, including those on which the firearms were stored, and eventually he forgot all about them. In about late 1998 he decided to go on a holiday and buy a large vehicle with which he would travel through the outback. His letter details some aspects of his preparations and some concerns about pigs in the bush and the need for firearms to deal with them.

10 Having been told something about those dangers, he wrote in his letter, (p 20 of the appeal book), that after remembering this, he thought he really needed to take some protection and something to be able to shoot some meat to eat, seeing that he would be completely isolated for 6 months and it was at that time he remembered about what he described as "his rifles". He said he had little money at that time and could not afford to buy what would then be new legal rifles.

11 He described in his letter how he started having visions of being bitten by snakes and trying to beat them off with a stick or being confronted by a pack of wild dogs or cross-bred dingoes and concluded that at the last minute he thought how precious his life and limbs were to him and decided to take his two firearms with him. He wrote that he knew he did not have a licence, but 10 months had already gone by and he had no money.

12 He then recounted something he saw on "The Bush Tucker Man" and later described how he cut the barrel of his .22 calibre rifle shorter so it could be conveniently carried in a holster which he also made, that being to keep his hands free while walking in the bush. A little later on in his letter he wrote that he was always thinking of handing the firearms in to the Eucla police on the way home and telling them that he found them out there. On the other hand, as he got closer to Eucla, he thought he might just dig a hole and bury them. He wrote that at all times the firearms were kept in his truck under lock and key, except for the last 10 days of his stay in the wilderness. He said that he carried the .22 calibre rifle around in the holster because of apprehension about wild dogs. He later pointed out that he had no previous trouble with the police and no criminal record. He stated that he is full of remorse, that he is rehabilitated and has been shamed before all of Australia, that no doubt being a reference to the publicity which attended upon his coming out of the bush, there having apparently been a large search for him up to that time. He concluded his letter with a request that there not be a criminal conviction in respect of these offences and with some details of his financial circumstances.

13 When the matter came before the learned Magistrate on 27 September, the police prosecutor gave the following statement of facts: that during the morning of Thursday, 11 May 2000, as a result of a missing person's report, police had cause to attend at the Forrest airport in Forrest where they interviewed the appellant and, as a result of information received, questioned him in relation to his possession of unlicensed firearms. The prosecutor said that at that point the appellant produced from the front cab of his six-wheel drive International vehicle a 12-gauge pump action shotgun and a total of 84 rounds of 12-gauge ammunition.

14 The prosecutor said that as a result of further information received a short while later, police again spoke with the appellant, questioning him in relation to any other firearms he had in his possession and on that occasion the appellant unlocked the driver's door and produced a homemade red vinyl holster from alongside the driver's seat. Inside the holster was a .22 calibre rifle that had been altered from the design and characteristics of its original manufacture.

15 The prosecutor indicated that he understood the barrel had been cut down. That was the modification being referred to. As well as the firearm, the appellant produced 36 rounds of .22 calibre ammunition from behind the driver's seat. The prosecutor continued to inform his Worship that when questioned, the appellant stated that he had been in possession of both firearms and ammunition for over 20 years, but at no time had ever held a firearms licence in Western Australia, nor in any other State.

16 Duty counsel then informed his Worship that she had a short plea to make on the appellant's behalf and also what she described as "a very lengthy letter" from the appellant which he had asked be handed to the Court. She reiterated that it was a very lengthy letter and said that a great deal of it related to something else. She said she would present the plea first. In the circumstances it is useful to set out the plea in full, which I do as follows from 28 and 29 of the appeal book:

"Basically Mr Furtak had had the firearms in his possession for a considerable length of time back in New South Wales. He was planning a trip around Australia and had planned to travel into some remote areas. At the last minute he decided to take something for protection as he had visions of being attacked by wild dogs while he was out bush.

As to the firearms, he had acquired them some 20 years ago and had stored them in his shed. They were buried beneath an accumulation of 20 years of acquisition of various items and he instructs that he had forgotten all about them until he decided to go on this trip.

Mr Furtak was a man who went missing in the bush, if I recall, and was missing for some time and was the subject of a search and was finally found at a time when he had - well, was basically on his last legs, I think. He had suffered a considerable amount of weight loss and he turned up of his own volition on 10 May. He was very ill at the time and he was subsequently charged with these offences because he had the firearms with him when he came out of the bush.

A lot of the issues that he raises in his letter relate to television coverage of his return from the dead, so to speak, and whether the person who found him had any rights. I think a lot of it relates to that rather than him.

The offence itself: he actually says in his letter - Mr King has written that he's sorry he committed the offences but he in fact says in this letter in much more, shall we say, fulsome terms, that he is very sorry, that he is remorseful, that he would never do such a thing again and that he says "-

"I am full of remorse. I am rehabilitated and I have been shamed before all of Australia by being shown on TV." He says that he doesn't want a criminal record against him. He has never had a criminal record. He is aged 47 and he asks - and he says that the court can keep the rifles because he doesn't want them back and I'm instructed to ask that you consider a spent conviction in respect of the two charges.

HIS WORSHIP: Yes, thank you.

LOVEDAY, MS**:** I can tell you that he is a courier by trade, he is currently unemployed, he receives $344.90 per fortnight in unemployment benefits, he owed 2 and a half thousand dollars to his parents and at 47 years of age he has never been in trouble with the police. He was hoping to have the charges dismissed and had ongoing communication with our office but we have explained to him that he has committed the offences and the likelihood was that he would be fined."

17 His Worship then said, "Yes, I don't see the need to read the correspondence," and he proceeded to impose fines of $250 for the first charge and $350 for the second. His Worship then said:

"There will be orders for forfeiture of the firearm and ammunition to the Crown in each instance. I don't consider that it is appropriate to make an order pursuant to section 45 of the Sentencing Act given the nature of the offences and the intent to possess them, although I take note in setting the penalty that there was clearly no evidence of sinister intent in his possession of them and I choose to deal with it by way of a fine."

18 That is the full text of his sentencing remarks apart from the actual imposition of the fines.

19 I deal first with the first ground of appeal. The appellant's argument is that his Worship's refusal to read the appellant's letter was a denial of natural justice in that the letter formed part of submissions that the appellant wished to make to the Court and so his Worship's refusal to receive it denied the appellant his right to a fair hearing.

20 I certainly accept that the rules of natural justice apply in criminal proceedings in Courts of Petty Sessions and that there is nothing in the Justices Act 1902 (WA) to exclude them, Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; Allen v Gittos (1995) 13 WAR 560 at 563, however I do not accept the submission that what occurred in this case is analogous to what occurred in Allen v Gittos.

21 In that case the appellant had pleaded not guilty in a Court of Petty Sessions to a charge of unlawful assault occasioning bodily harm contrary to s 317 of the Criminal Code. The two main witnesses at the hearing were the complainant and her husband who was in fact the appellant. Evidence was also given by a police officer and a medical report was admitted by consent. The primary issue which the Magistrate there had to consider was simply one of credibility as between the complainant and the appellant. At the conclusion of the evidence the following discourse took place between the learned Magistrate and counsel for the appellant. This appears at 562 of the report:

"HIS WORSHIP: I don't intend to listen to addresses. That won't assist me in the least. It's a contest between two witnesses, the typical conflict that these courts have to resolve and so addresses won't assist me.

KERFERD, MR: The only point I raise in relation to addresses, sir, is to highlight some of the points which favour Mr Allen's version of events.

HIS WORSHIP: Yes. I can appreciate that you might do that, but I have listened to the witnesses and I see no necessity for it. It won't assist me because it's a simple contest between the two parties."

22 As Walsh J observed, the appellant's submission was that in the circumstances of that case there was a fundamental right to make submissions at the conclusion of the evidence through his counsel and that he was denied natural justice by the Magistrate's refusal to hear them. His Honour referred to Annetts v McCann and expressed the conclusion that there is nothing in s 68 of the Justices Act which pointed to any intention on the part of the legislature to exclude the rules of natural justice. He was satisfied that the Magistrate had erred in the circumstances of that case in denying the appellant his right to have observations made on his behalf by counsel.

23 The appellant here also relies on Dangerfield v Commissioner of Police [2000] WASCA 375, a decision of Miller J delivered on 28 November 2000. In that case the appellant had applied to a Court of Petty Sessions for an extraordinary motor driver's licence. When he came before the Court of Petty Sessions he was unrepresented. He gave sworn evidence as to the circumstances in which he had lost his licence, at which point the Magistrate asked the appellant why he required an extraordinary licence if he was not working. It seems that at that point the prosecutor rose to inform the Court that the application was opposed in any event, considering the appellant's record.

24 The learned Magistrate then referred to the record which contained numerous examples of serious driving offences. It was a record which the learned Magistrate described as shocking and one of the worst records he had seen. The appellant kept protesting that he was a changed man and was actually trying to overcome his problems. He had not had alcohol for over 10 years and he sought to explain the last two driver's licence suspensions were simply when he forgot to renew his extraordinary licence.

25 Nonetheless, after this brief exchange the Magistrate concluded that he was sorry and was regretful that the appellant did not have a motor driver's licence, but he had nobody to blame but himself for that. The application was refused.

26 As his Honour Miller J concluded (at par 4), it was obvious that the appellant's application for an extraordinary licence never really got off the ground. It was summarily dismissed by the learned Magistrate without the appellant being able to state his case. The dismissal was based solely on the bad traffic record of the appellant. That the proceedings had miscarried was recognised by the Crown because when the appeal came on for hearing before Miller J the Crown conceded that the appeal should be allowed. In allowing the appeal his Honour observed that that concession was entirely correct; the proceedings before the learned Magistrate were in breach of the principles of natural justice. His Honour said:

"It is beyond doubt that when a person has a right to a hearing in a court of law he must be given a fair opportunity to present his case. In this case the applicant was denied that opportunity. Any attempts that he made to explain his changed behaviour since his disqualification for life were summarily overruled. Further, he was given no opportunity to state whether or not the record of convictions was accepted by him. In short, no hearing on the merits took place at all. The common law requirements of procedural fairness were entirely ignored."

27 The present case is quite different to both Allen v Gittos and Dangerfield. There was no refusal by the learned Magistrate to hear whatever duty counsel, who in fact appeared as counsel for the appellant, wanted to put. The content of the plea she did make was in fact a much more clearly and concisely expressed version of the salient parts of the appellant's letter. It is patently obvious the content of counsel's plea came from the letter.

28 All matters in the letter relevant to the question of penalty, including the appellant's history of his possession of the firearms, his remorse, his prior unblemished record and his request that the Magistrate make spent conviction orders were put to the Court. Having heard counsel's plea in mitigation and in light of her comments that it was a very lengthy letter and that a lot of the issues that he raised in his letter related to television coverage of his return "from the dead" (AB 33) and whether the person who found him had any rights, his Worship simply made the comment that he did not see the need to read the correspondence. Had counsel considered there was some relevant material in that which she had not raised with the learned Magistrate she could have said so. She did not. Having read the letter I do not consider it adds anything relevantly to what counsel had already put. The only matter suggested by Mr Weldon initially as having been contained in the letter but not put to the Court was the appellant's explanation for the alteration to the .22 calibre rifle.

29 However, as to that, Mr Weldon conceded he could not maintain that was a question of any significance, given that it is apparent from his Worship's remarks on penalty that he saw nothing sinister in that. In short, the information and mitigating factors which the appellant wanted to have put before the Court were in fact put to the learned Magistrate. The appellant cannot complain that it was not put precisely in the particular form he wished. I acknowledge Mr Weldon's point that par (b) of the summons advised the appellant that one of the alternatives open to him was:

"(b) to enter a plea of guilty by completing the appropriate section on the reverse side of this summons and returning it to the clerk of Petty Sessions to reach him prior to the hearing date. It should be received by the clerk no later than 3 days prior to that date. There will be no need for you to attend unless you wish to address the court on mitigation of penalty. You may also forward with the summons any written explanation or other information you believe is relevant to the charge."

30 And he acted on that in expectation that there would be nothing put to the Magistrate on his behalf other than his letter. In fact, of course, duty counsel did assist and did represent him and the end result was that the relevant information was before the Court. Furthermore, as I think Mr Weldon effectively conceded, there was no actual refusal on the part of the Magistrate to receive the letter.

31 There was accordingly no refusal to give the appellant a fair hearing and no denial of natural justice. This ground is accordingly not made out.

32 The second ground is that his Worship erred in failing to give any or any adequate reasons in refusing to make spent conviction orders. His Worship's reasons were certainly brief. The question is whether they were so brief and so lacking in detail as to constitute error of law.

33 The appellant relies on Lloyd v Faraone [1989] WAR 154. The duty of a judicial officer to give reasons which expose his or her process of reasoning sufficiently to enable a litigant to understand how and why the decision has been arrived at, and to determine whether or not there is a ground of appeal, is well established; Pettitt v Dunkley (1971) 1 NSWLR 376 at 382, 390; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 256 to 259, 268 to 274, and 277 to 278; Lloyd v Faraone, (supra), Stojkovski v Fitzgerald [1989] WAR 328 at 334, 335 and 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 per Pidgeon J at 236 to 238 and Owen J at 248 to 249. The obligation to give reasons extends to the sentencing process; Nevermann (1989) 43 A Crim R 347, in which Malcolm CJ said at 349:

"The decision of what sentence to impose involves the exercise of a discretion based upon the relevant facts as found by the sentencing Judge. Consequently the process of reasoning needs to be revealed. In my opinion, a sentencing Judge, no less than a trial Judge, has a duty to reveal his reasons."

34 Of course, in Nevermann, the Court was concerned with a trial Judge imposing sentence following a jury trial. His Honour's sentencing remarks there were extremely brief and failed to find or state any facts for the purpose of sentencing, doing no more than commenting on the offender's conduct in general terms of disapprobation. At 350, Malcolm CJ, having quoted from Walters J in Tame v Fingleton (1974) 8 SASR 507 at 518 went on to say:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail.

It does not follow either from the decision of James (1985) 14 A Crim R 364 or from section 19A of the Criminal Code that because imprisonment is the sentence of last resort it is necessary in each case to name all the possible alternatives and the reasons for rejecting them. See, for example, Napper v Samuels (1972) 4 SASR 63 at 68 per Bray CJ; and Ciccone (1974) 7 SASR 110.

It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

35 In the event, the Chief Justice gave leave to appeal, but dismissed the appeal. That was the decision of the Court. Wallace J made no particular comment about the brevity of the trial Judge's sentencing remarks. Brinsden J agreed with the Chief Justice (at 354) that:

"It is necessary for a sentencing Judge to set out the facts of the case in broad outline" -

but having examined the transcript was satisfied, despite the brevity of the sentencing Judge's remarks, that the sentencing discretion had not miscarried. Again, I accept Mr Weldon's submission that a defendant is entitled to know the reasons a sentence has been imposed and specifically, here, a spent conviction order having been requested, why that request was rejected.

36 In the present case, the learned Magistrate imposed the fines he did on the basis he accepted there was clearly no evidence of sinister intent. He made that comment after saying he did not consider it an appropriate case in which to make spent conviction orders. It is clear that he had regard to that consideration not only in setting the amount of the fines, but also in regard to whether or not spent conviction orders should be made.

37 His other express reasons for not making spent conviction orders were the nature of the offences and the intent to possess the firearms. I consider his Worship's process of reasoning here was sufficiently exposed, and consequently there is no substance in the ground that there was a failure to give reasons sufficient in itself to constitute an error of law.

38 That brings me to the third ground which was that the learned Magistrate erred in the exercise of his sentencing discretion in refusing to make a spent conviction order in circumstances where the appellant was 47 years of age and of previous impeccable character. This ground implies that those two considerations themselves should have resulted in the making of such orders. Framed in that way it cannot be right. The relevant statutory provision is s 45 of the Sentencing Act 1995 (WA). So far as is relevant here, that section provides that:

"(1) 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."

39 The first thing that is plainly apparent from this section is that the legislative intent is that ordinarily a spent conviction order will not be made. It may only be made where the court is satisfied the statutory criteria are met. As presented in oral submissions, the appellant's argument in support of this ground was wider than the ground as framed in the notice of appeal. It was submitted that his Worship misapplied the criteria in not making such an order by stating that it was inappropriate by virtue of the "nature of the offences" and the "intent to possess". The submission was that the nature of the offence is not the paramount consideration.

40 Mr Weldon submitted that the factors which may incline a judicial officer to order a spent conviction include, but are not limited to, previous good character, lack of any previous convictions, the relative insignificance of the offence in question, the likelihood of recommitting the offence and remorse. He submitted that those factors were present here and were put before the learned Magistrate.

41 The operation of s 45 of the Sentencing Act was considered by Court of Criminal Appeal in Tognini and McGuire (2000) 109 A Crim R 4. As Murray J observed in that case at [20]:

"The power conferred on a sentencing Judge by s 45 of the Sentencing Act bears a very particular character" -

"The section is in terms directed to relieve the offender immediately following conviction of its adverse effect."

"It is clearly a discretionary power, and the matters enumerated in section 45(1) are merely preconditions for its exercise, not matters which if they are found to be present will automatically lead to the exercise of the power."

In those circumstances his Honour took the view that:

"It would follow from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act, that it should be only sparingly exercised in a clear case where for cogent reasons its exercise is seen to be desirable. "

42 His Honour reiterated those sentiments at [27] and [28]. He said:

"In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operation 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 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."

43 In Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 Parker J noted that in form s 45 of the Sentencing Act is a prohibition on the making of a spent conviction order unless the Court is satisfied of two distinct matters: first, that the offender is unlikely to commit such an offence again (s 45(1)(a)); second, that the offender should be relieved immediately of the adverse effects of a conviction (s 45(1)(b)). Both must be established.

44 In deciding the latter the Court is required to have regard to two considerations, either one of which may support the conclusion that the offender should be relieved of the effects of conviction. The two alternative factors are either that the offence is trivial or the previous good character of the offender.

45 His Honour referred to the judgment of Wheeler J in Neale v Sloane, unreported; SCt of WA; Library No 970729; 6 August 1997 where at page 4 her Honour says:

"Section 45 of the Sentencing Act provides that a court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied and consideration must be given to all the circumstances of the case and of the offender and indeed in my view the wider interests of the public. Considerations extraneous to those listed in section 45 are not thereby rendered irrelevant." (My emphasis).

46 Mr Weldon quite properly acknowledged that in the circumstances of this case and in light of the authorities it could not be argued that the offences were trivial, but he did contend that the preconditions of s 45(1)(a), that the appellant was unlikely to commit the offences again and section 45(1)(b)(ii) that of good character, had both been established.

47 In this case I think the preconditions for the exercise of the power were clearly satisfied, but as Murray J pointed out in Tognini, their presence does not automatically lead to its exercise. There must be some clear and cogent circumstances calling for that. The appellant's desire not to have criminal convictions on his record, even after 47 unblemished years, would not be enough and in the circumstances of this case the magistrate's conclusion that having regard to the nature of the offences and the appellant's intent to possess the firearms this was not a case of such an exceptional character as to justify departure from the ordinary consequences that would follow a conviction was certainly open to him - and could not be said to have involved a miscarriage of the exercise of his discretion. Accordingly, this ground also fails. That being so the appeal must be dismissed.

Furtak v Timmers [2001] WASCA 65

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Judgment (90 paragraphs)

Furtak v Timmers [2001] WASCA 65 (13 February 2001)

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Cases Cited (14)