Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal from magistrate - Adequacy of reasons

Criminal law and procedure - Appeal from magistrate - Offence under Criminal Code s 440A - Whether error in magistrate's approach to whether appellant had used restricted-access computer system other than in accordance with her authorisation

Criminal law and procedure - Appeal from magistrate - Whether magistrate had erred in his approach to whether Criminal Code s 24 applied

Criminal law and procedure - Appeal from magistrate - Whether magistrate had erred in his approach to whether to make spent conviction order

Criminal Procedure Act 2004 (WA), s 120

Magistrates Court Act 2004 (WA), s 31

Police Act 1892 (WA), s 8, s 23, s 33L

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

AR v Wood [2008] WASC 119

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bennett v Carruthers [2010] WASC 5

Bennett v Carruthers [2010] WASCA 131

Joyce v Gee [2010] WASC 76

KK v Zanetti [2009] WASC 83

Koenig v Alizadeh [2002] WASCA 267

R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291

Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525

Stark v Plant [2010] WASCA 74

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

1 This is an appeal by leave against conviction and sentence in the Magistrates Court. The conviction and sentence followed a trial for an offence of unlawful use of a restricted-access computer system. The appeal against conviction is on three grounds: whether there had been a failure to give adequate reasons for the decision that the appellant had used the computer system she was authorised to use other than in accordance with her authorisation; whether there had been an error of fact or law involving a failure to apply adequately the test for such a decision where the evidence laid a 'proper foundation' for it; and whether there had been a failure to apply or apply adequately the defence of honest and reasonable but mistaken belief that she was acting in accordance with her authorisation when the evidence laid a 'proper foundation' for that defence. The appeal against sentence concerns whether there was an error of fact or law involving a failure to apply the test for a spent conviction order when the evidence laid a 'proper foundation' for the making of such an order.

2 I first describe the background to the conviction and sentence before describing the proceedings in the Magistrates Court and the proceedings in this court. I then turn to consider each of the grounds of appeal. The final section of these reasons is my conclusion and call for orders.

4 On 27 March 2009 the appellant was a police officer. She had been assigned to the Western Australian Metropolitan District Family Protection Unit. Her position was as a district Australian National Child Sex Offender Register (ANCOR) Officer. She was on duty.

5 On that day she received a message through her daughter that a Mr RA wished her to ring him urgently. RA was a Senior Police Auxiliary Officer in the Darwin Watch House in the Northern Territory. The appellant had some years earlier met RA in Alice Springs where she was living and working at a women's shelter. RA was then a police officer positioned in the domestic violence unit at the Alice Springs police station. The appellant had had professional dealings with RA in relation to the shelter; she had also come to know RA socially at a club where she also worked, and where she would see him, his wife and their two infant children. She became a friend of both RA and his wife. During that time in Alice Springs the marriage between RA and his wife broke up. RA's wife left Alice Springs for Western Australia about one and one-half years before the appellant left Alice Springs, which was in 2004. RA's children were with RA's wife. The appellant remained a friend of RA. However, after the appellant left Alice Springs and moved to Perth, she did not keep in touch with RA, although there were 'probably' two or three e-mails between them, in the period to 27 March 2009.

6 Following the appellant's receipt of the message from her daughter that RA wished her to ring him urgently, she rang him, and he informed her he had just learnt his wife had died and he was concerned about where his children were. He gave her his e-mail address.

7 The appellant gave evidence that that telephone conversation produced in her a concern that RA's children would be at immediate risk. Her evidence was that this concern arose because she had been told by RA, while she had known him in Alice Springs, that his wife had been a victim of child sex abuse which the appellant could see RA's wife trying to deal with. The appellant had also observed RA's wife as having a problem with drinking and becoming 'quite aggressive'. The appellant had witnessed an episode in which RA's wife had hit RA or done something similar. Her evidence was, based on her 'experience with domestic violent relationships', that 'quite often' the children could be victims of domestic violence also, and so, if RA's wife was 'really dead', that would mean the children were possibly with one of her partners. As RA's wife had a 'domestic violent background [that] would mean that those children would be at risk'.

8 The appellant also gave evidence that RA had in a telephone conversation, apparently that of 27 March 2009, raised a concern about the children's welfare, by reference to domestic violence.

9 Following the telephone conversation of 27 March 2009, the appellant undertook a number of inquiries with respect to the death of RA's wife and the whereabouts of his children and communicated with RA at the e-mail address he had given her. A number of those inquiries involved the use of a part of the Western Australian Police computer network, being a part she was authorised to access.

10 That part was the Information Management System (IMS). At all material times, after log-on to the network a user seeking to log-on to the IMS was presented with a log-on screen which read, in material part, as follows (exhibit B):

Information contained within the Western Australia Police Computer Systems is confidential, must not be disclosed to unauthorised persons under any circumstances and not be accessed for personal reasons. (emphasis added)

As will be seen the matters in this appeal centred on the emphasised restriction on the appellant's authorisation to use the IMS.

11 The appellant was asked in examination-in-chief about how she would compare RA's request for assistance with other requests she received while working in her position, and how his request in her view related to her duties as an ANCOR officer, in the following exchange:

All right. Based on your experience as an ANCOR officer as at 27 March 2009, how would you compare [RA's] request to you for assistance with other requests that you received whilst working in that position?---It was no different to any other request. If the local butcher had come and said, 'This is what's happened,' we would have helped him.

All right. Now, how did [RA's] request in your view relate to your duties as an ANCOR officer?---They related to every part of my duties, because it's to do with family and domestic violence and this was a person who, his children were part of a family and domestic violent family, or a family that were experiencing domestic violence (4 August 2010, ts 41).

12 The appellant used the IMS to access records for RA's wife, for her parents and for the children. A record of her access including times and the name or names accessed was tendered into evidence (exhibit E). The appellant learnt, through that use of the IMS, that RA's wife had been living in York, but was unable to confirm from that source that she had died, or the location of the children. The appellant then discussed with her superior at her office, Acting Sergeant Rita De Stefano, what the appellant knew about RA and his wife and her concern as to the whereabouts of the children, telling Acting Sergeant De Stefano that she had been rung by RA, a friend from the Northern Territory who was a police officer and who had told her his wife had died and he wanted to find out where the children were. Acting Sergeant De Stefano's advice to the appellant led to her making further inquiries, including telephone contact with police in York, from whom she confirmed the death of RA's wife. Her inquiries of colleagues in the Department for Child Protection revealed that RA's children were not in their care, but might be with the next of kin of RA's wife. The appellant learnt from e-mail contact with RA the names of the parents of RA's wife and the address for them RA had gained from a Landgate search and a telephone white pages printout. The appellant's subsequent use of the IMS for the parents produced the same address for them. The appellant also used the IMS to search for addresses for the children, without success.

13 The appellant had, in an e-mail sent at 11.58 am on 27 March 2009, confirmed the 'current address on our system' for RA's wife. Later, following the use of the IMS for the parents of RA's wife, the appellant provided further information to RA as to the results of her inquiries and advice to him as to what he might do.

14 That provision of information and advice was by an e-mail of 27 March 2009 sent at 1.00 pm. In this e-mail the appellant confirmed the death of RA's wife and said that 'apparently' RA's children had been living with the parents of RA's wife for 'at least the last year', while also advising him as to 'options' including where he could go for further advice. The e-mail sent at 1.00 pm was copied to a police officer in Geraldton who had had a lot to do with RA's wife and knew the history. At 1.04 pm the appellant had re-sent the e-mail to RA, this time not copied to the police officer in Geraldton, after attempting unsuccessfully to recall the 1.00 pm e-mail, because she had realised she had not explained the background to that police officer.

15 The appellant also booked a job through the police system for Geraldton police to do a welfare check to confirm the children were with the parents of RA's wife. The appellant was to get those police to ring RA to let him know if the children were there or not.

16 On 4 August 2010 the appellant was tried in the Magistrates Court in Perth before Magistrate Malley on the charge that she had unlawfully used a restricted-access computer system contrary to Criminal Code (WA) (Code) s 440A(3)(c). Code s 440A read at all material times as follows:

(a) a part of a computer system;

(b) an application of a computer system;

restricted-access computer system means a computer system in respect of which -

(a) the use of a password is necessary in order to obtain access to information stored in the system or to operate the system in some other way; and

(b) the person who is entitled to control the use of the system -

(i) has withheld knowledge of the password, or the means of producing it, from all other persons; or

(ii) has taken steps to restrict knowledge of the password, or the means of producing it, to a particular authorised person or class of authorised person;

(a) to gain access to information stored in the system; or

...

(2) For the purposes of this section a person unlawfully uses a restricted-access computer system -

(a) ..; or

(b) if the person, being authorised to use it, uses it other than in accordance with his or her authorisation.

(3) A person who unlawfully uses a restricted-access computer system is guilty of a crime ... .

17 It was common ground before the magistrate that the unlawful use in this case was in s 440A(2)(b).

18 There were before the magistrate admissions for the appellant under Evidence Act 1903 (WA) s 32 that included that the Western Australian Police computer network was a 'restricted-access computer system' within Code s 440A(1); that the IMS was a part of that system; that the appellant was authorised to use that system including the IMS; and that on 27 March 2009 the appellant had used the IMS to access records for RA's wife and her parents. It was common ground before me that that left as the sole issue for the magistrate in the trial whether or not the appellant's use was other than in accordance with her authorisation (Code s 440A(2)(b)); in addition, the question arose at the trial whether the issue of the appellant having had an honest and reasonable, but mistaken, belief that she was authorised to use the IMS as she did had been raised (see Code s 24).

19 The testimonial evidence at the trial had been given by two witnesses, one called by the prosecution, and the other the appellant; there were also documentary exhibits, including e-mails between the appellant and RA on 27 March 2009 (exhibit D), admitted through the witness for the prosecution, David John Markey, a senior constable attached to the internal affairs unit of the Western Australian Police. At the conclusion of Senior Constable Markey's evidence, a no case submission was put to the magistrate, which he did not uphold.

20 At the conclusion of the evidence from the appellant, both counsel addressed the magistrate, who then delivered his decision to convict, which in material part reads as follows:

In this case we have [RA], who there's no doubt, it would appear on the face of the correspondence, was and is a close friend of the accused. The nature of the language is such that only somebody who was, certainly, I would say emotionally involved, not in the sense of sexual or otherwise, but certainly somebody who you have close ties with.

This is not an inquiry by somebody from the Northern Territory police or a police officer. This is a personal request by, effectively, a member of the public from outside the state to ascertain the whereabouts of his children. He is, in the accused terms, the butcher, the local butcher. The accused agrees that she did access the records. She provided the information as to the parents, well, the grandparents of the children's address. Effectively she would do the same work for the butcher.

That, in my view, is simply not credible. She agrees she would not provide the details of the nature of the address, certainly without proper investigation. It's simply nonsense to suggest that such details would otherwise be provided to [RA] based certainly on an email or a phone address, if the only reason was to ascertain the address.

If it was any member of the public, that simply I can't accept would occur. She suggests she gave the information, effectively, in a rush. Well, once again, I have to say I just don't accept. This is quite a lengthy email that she sent, one which would have taken presumably more than just a few seconds or even minutes. Thereafter there is a series of correspondence. So when she says to me that she had 185 cases or something during that day, the amount of time that she's clearly spent in relation to this matter is more than one would say is just a, certainly, 'I was rushed off my feet and that's why I just simply sent that information,' is probably unwise.

There's an ongoing communication, and I have to say the nature of the correspondence, whatever she may say, in my view is certainly inconsistent with somebody who is acting as a role as a police officer. Certainly the nature of the comments are clearly of the nature of somebody who has some involvement in the legal area, particularly in relation to family disputes, and she's given, sort of, effectively, advice in relation to this person as one would give as a friend, and I can well understand that.

I have to say, I'm satisfied the accused has tried simply to embellish the justification for her behaviour. This is clearly a close friend who was seeking information, and the purpose of that information was the current address of his children so he could get custody. If one needs to have any doubts as to that, one just simply looks at the first correspondence from Ms Giles to [RA].

'Chucky, Kiralee just rings. Give me her name and date of birth, and I'll look up the IR and send you the information you need to contact the kids.' So this is a point where she hasn't made any investigations at all. The first correspondence is, 'Give me the details and I will send you the name and address.' So at that point of time she can't have had any, shall we say, concerns, one would think, about - she wasn't aware, hadn't done any investigations, she was just told obviously from that, that he wanted to find out the location of the children, and she said, 'Yeah, sure. Give me the information, name and address, and I'll find it for you.'

If one goes into the next correspondence from [RA], 'I was thinking about you. Her name is [SLG], found out that she passed away on 13 February.' So that's presumably, it might be the first time where the question of her death comes into it:

'They would not tell me how or where the kids are. I googled her name and found a short blog. I attach this email for you. Don't get yourself into trouble. I'm currently seeking lawyer's advice in WA to try and locate and see if I can get my kids back.'

So that was clearly at that point of time, once again, the primary purpose was to get his kids back. That's what he was doing, he was asking a friend to give him information as to the current address, and then in the next one, the reply of Ms Giles, I think it was on the attachment:

'The current address in our system but she is not coming up with a deceased note. I have not found a sudden death report on the system. How genuine is this incident report? Definitely something needs to be done because even if this is some heist - '

I presume from heist it means it's some sort of set up or something of that nature -

'it is evidence the children do need to be taken out of a toxic situation. We have a couple of DCP workers who work in our office. I'll ask them if [SLG] is on their system. I assume so, given her drug and mental health history. Hopefully DCP will know where the kids are and maybe, if you can get the kids back, they will need some support. Let me know if I can help further. As soon as I get further information I'll let you know.'

So at that point of time, she did not have any of that information, because she hasn't accessed it, and the primary purpose, in my view, was to locate where the children are so that he could get the children back. Everything else that follows after that, in my view, almost becomes just part of the overall actions on her part. I have no doubt that in her own mind she had some sort of belief that she was acting in the best interests of the children, but at this stage, did she have an honest and reasonable - it's simply in my view certainly not reasonable.

That comes down to the fact that her primary concern at the time, and the primary request, was to provide any information in relation to the current whereabouts of the children which, in my view, she was not entitled to disclose and certainly in those circumstances inappropriate to let her use the computer to access that information to provide to a third party. In the circumstances, I am satisfied that the charge is proven beyond reasonable doubt. Yes? (4 August 2010, ts 97 - 100)

21 After that determination counsel for the prosecution presented submissions as to sentence, during the course of which the magistrate said this, of relevance, as will be seen, to his decision with respect to whether or not to make a spent conviction order:

My view is that in this case, primarily a fine would reflect the criminality because I have no doubt there will be other ramifications for this officer, one would think, within her own environment, the effect of a conviction, those sorts of matters. Does the community require for it to be said, 'Oh, well, this requires an immediate term of imprisonment or suspended term of imprisonment?'

I have a difficulty, that's all, with that proposition. The prisons are full to overflowing. Realistically, I just don't see that it's warranted. I accept it's an appalling error of judgement on the part of the officer concerned, but the nature wasn't like leaking information to criminal elements or any of that nature. It's simply in her own mind she might have well been able to justify it in the interests of the children, but that can be reflected in a fine, and no doubt that what will follow from that one would think - - - (4 August 2010, ts 102)

22 Following those submissions from the counsel for the prosecution, counsel for the appellant, who was also her counsel before me, made submissions as to sentence. Those submissions were principally in support of the magistrate making a spent conviction order.

23 Following the conclusion of the submissions from counsel for the appellant, and after submissions in reply from counsel for the prosecution, the magistrate delivered his decision as to sentence as follows:

Yes. Just stand up, please, Ms Giles. As I said earlier, you have allowed your personal knowledge, personal involvement, to cloud your professional judgement. If you have in any way in your mind considered what you did was appropriate, and when I say 'appropriate' I mean 'lawful', then I have to say your judgement is severely impaired, and you really need to consider your professional values.

I have to say, they're not the same, but one can only equate me hearing my son's extraordinary motor driver's licence, because if I was to consider that to be appropriate or lawful, will we say, nobody else would agree with me that was appropriate, and I can't say your situation is any different. It's just simply as soon as somebody else who you were acquainted with to that extent came into involvement with you, the first thing I would have thought an officer would do was to hand it, accepting that it may well be a matter of some importance, to somebody else capable of handling it at arm's length.

I accept that you're unlikely to reoffend. I accept that your character references are of the highest order, and I can accept that there may well be adverse effects of a conviction. They're all factors that I'm considering in relation to whether a spent conviction order should be made, and I acknowledge that, at the end of the day, once having made those findings, then it's a discretion.

In relation to the fine, in my view that should reflect the seriousness of - when I say 'seriousness', it is a serious breach. It involves accessing materials, matter, in my view that the public have to have a confidence that their information and records would not be misused, and in that aspect that is the case in this situation and the fine should reflect that, and there is a fine of $3000, costs of $119.20.

In relation to the question of a spent conviction, the question is really in my view, having found on the other factors, is there a public interest and a need for general deterrence, particularly by organisations such as the police force, the courts, hospitals an[d] the like?

The public, as I said, must have confidence that information supplied that's held will not be misused and that if a breach occurs that the courts will deal with it, in my view, in a manner that reflects that seriousness. Whilst, as I say, I have some sympathy for your personal circumstances, in my view a conviction should follow in this particular case. Thank you (4 August 2010, ts 111 - 112).

24 By appeal notice dated 25 August 2010 the appellant applied for leave to appeal and assigned the following as the draft grounds of appeal:

1. The Learned Magistrate made an error of law in failing to give adequate reasons for decision in that there were no reasons given that the Appellant had acted other than in accordance with her authorisation as required by section 440A(3) of the Criminal Code.
2. The learned Magistrate made an error of fact and law in failing to apply or adequately apply the test required by section 440A(3) of Criminal Code namely whether the Appellant had acted other than in accordance with her authorisation when the evidence laid a proper foundation for the assertion that the Appellant had acted in accordance with her authorisation, and in doing so there was a miscarriage of justice.
3. The learned Magistrate made an error of fact and law in failing to apply or adequately apply the defence of honest and reasonable but mistaken belief pursuant to section 24 of Criminal Code when the evidence laid a proper foundation for the assertion that the Appellant had a honest and reasonable but mistaken belief that she was acting in accordance with her authorisation, and in doing so there was a miscarriage of justice.
4. The learned Magistrate made an error of fact and law in failing to apply the test for a spent conviction order when the evidence laid a proper foundation for the making of a spent conviction order and in doing so there was a miscarriage of justice.

25 By orders dated 10 September 2010, Jenkins J granted leave to appeal against conviction in respect of grounds 1 - 3, and also granted leave to appeal against sentence in respect of ground 4.

26 I turn now to examine each of the grounds of appeal, 1 - 4.

27 The requirement for a magistrate to give reasons for decision has recently been reviewed in Bennett v Carruthers [2010] WASCA 131 [22] - [28] (Mazza J, McLure P & Newnes JA agreeing), where reference is made to the Magistrates Court Act 2004 (WA) s 31, and the Criminal Procedure Act 2004 (WA) s 120(2).

28 Magistrates Court Act s 31 reads as follows:

31. Judgments, content of

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

29 Criminal Procedure Act s 120(2) reads as follows:

(2) The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

30 In Bennett v Carruthers WASCA [23] - [28], Mazza J said this:

Section 31 had no statutory predecessor. Prior to its commencement on 1 May 2005, the duty of a magistrate to give reasons for decision and the content of that duty were derived from the common law. Justice Hall, at [14] - [21] of his reasons [in the decision appealed from, Bennett v Carruthers [2010] WASC 5], refers to many of the relevant cases and accurately states the rationale for the existence of the duty and its content. There is no need for me to repeat what his Honour has already said.

Section 31 of the Act gives statutory voice to these common law principles. As much was stated in the Explanatory Memorandum to the Magistrates Court Bill 2003 WA in reference to cl 31, which later became s 31 of the Act:

'[Clause 31] specifies the factual and legal components that are to be included in written reasons for judgment.

The clause also requires that Court must also give reasons for judgment thus complying with the minimum requirements set by the Full Court regarding judgments.

The purpose of the clause is to ensure consistency between the material content of the Court's judgments, to facilitate understanding by the parties affected and to aid determination of whether grounds of appeal exist. (emphasis added)'

In order to gauge whether s 31 of the Act has been complied with, it is necessary to look at the reasons as a whole in the context of the evidence. The content of the obligation is not the same in every case and depends very much on the circumstances of the particular case: Tran v Claydon [2003] WASCA 318 [37] - [38] (McLure J).

The question of compliance with s 31 of the Act and provisions such as s 120 of the Criminal Procedure Act raises questions of degree. In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [84] Heydon J said in the context of s 120 of the Criminal Procedure Act:

'In many cases the question of whether there has been compliance with the duty imposed by s 120(2) of the Criminal Procedure Act will raise questions of degree. Those questions will arise where a trial judge has stated various principles of law but has failed to state another, although it has obviously been assumed. They may arise where a judge has stated that numerous facts have been found, but has omitted to state a particular finding of fact. In many cases the question of whether there has been compliance with s 120(2) will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the 'reasoning process linking' the principles of law to the findings of fact. Sometimes the statement of positive propositions coupled with the non-statement of others can satisfy s 120(2) because it amounts to a statement of the principles of law actually applied or the findings of fact actually relied on even though the omission reveals error in what was said; sometimes, on the other hand, the statement will not satisfy s 120(2).'

The question of whether reasons are adequate may involve a consideration of what can be legitimately inferred from the reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA).

This proposition was criticised by Mr Richardson in his written submissions. Mr Richardson noted that Meagher JA cited Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824 in support of this proposition, but submitted that this case did not, in fact, support it. With respect, this is incorrect. An issue before the Privy Council in that case was whether the trial judge had omitted to make specific factual findings fundamental to the issues in the case. In delivering the Board's judgment Lord Scarman said:

'It is understandable that the Court of Appeal may have felt disposed to criticise the judgment at first instance as unstructured and prolix. But it is abundantly clear that the judge had the evidence, all of it, very much in mind. It is, of course, not necessary for a trial judge to make explicit findings on every disputed piece of evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion ... (826).'

His Lordship was clearly speaking about what could be implied from reading the whole of the reasons and the trial judge's final conclusion. Selvanayagam v University of West Indies supports Meagher JA's proposition.

31 I also note the reasons of Hall J in the decision appealed from, Bennett v Carruthers [2010] WASC 5 [14] - [21], referred to with approval in Bennett v Carruthers WASCA [23]:

Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any ground of appeal. Should there be an appeal, adequate reasons enable the appeal court to determine whether any errors of fact or law have occurred: Pettitt v Dunkley [1971] 1 NSWLR 376, 382 - 390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 256 - 259, 268, 274, 277 - 278; Lloyd v Faraone [1989] WAR 154, 162 - 164; Stojkovski v Fitzgerald [1989] WAR 328, 334, 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 - 238 (Pidgeon J), 248 - 249 (Owen J); and Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569.

In Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Steytler P said [32]:

'While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ, and Mount Lawley, above, at 282 - 283.'

Making findings of fact where there is conflicting evidence is an important component of the giving of reasons. If the conflict is on a matter of significance it will usually be a necessary part of the reasoning process to consider whether the evidence of one party can be preferred over that of the other. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA said (443):

'Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824.'

In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 the High Court considered the obligations of a trial judge sitting without a jury to give reasons for a verdict. The trial judge failed to refer expressly to a legal requirement to use great care in respect of evidence of a particular type. A warning in this regard would have been given had there been a jury. The High Court concluded that although consciousness of the importance of such a warning would no doubt be of second nature to many judges, in that case there was a statutory requirement for a judge to include the principles of law that had been applied in reaching a conclusion. The High Court held that this requirement was intended to ensure that criminal justice was not only done but seen to be done. For that reason the court held that the reasons must show expressly or by necessary implication that the relevant warning was taken into account. In a joint judgment the members of the High Court said that the statutory provision in that case was not satisfied by a bare statement of the principles of law and the findings of fact that the judge has made, rather 'there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict' (263).

In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 the High Court again considered the adequacy of reasons given by a judge sitting without a jury. In that case the relevant statutory provision was s 120(2) of the Criminal Procedure Act 2004 (WA). The critical issue at trial was the identity of the offender. In giving his reasons for convicting the accused the trial judge stated that he was satisfied on the question of identity but did not set out the findings of fact on which he relied. The Court of Appeal held that this constituted an error but dismissed the appeal applying the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) and holding that no substantial miscarriage of justice had occurred. In the High Court, Gummow, Hayne and Heydon JJ held that because the failure to provide a reasoned decision had been in respect of a central issue, the proviso could not apply.

Section 120 of the Criminal Procedure Act is differently worded to s 31 of the Magistrates Court Act, but not so as to reduce the requirement for magistrates to make findings of fact and give the reasons those findings have been made. In this respect the two sections are materially the same. Section 31 does obviate any need for a magistrate to canvass the evidence given in a case or to canvass all the factual and legal arguments or issues arising in the case. These latter dispensations appear to recognise the summary nature of Magistrates Court proceedings. Nonetheless, there remain some essential requirements and they include making findings of fact.

The realities of pressure of work and limited time in the Magistrates Courts must be acknowledged. Less detail is to be expected where reasons are delivered ex tempore: Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995). However, reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length, which is important.

In Pallot v Harrison Owen J held that unless it is apparent on the face of the reasons why the magistrate arrived at the conclusion she did, the entire process is called into question. In Lam v Beesley (1992) 7 WAR 88, 93 Owen J said a litigant is deprived of the opportunity to bring an appeal not only where there is a complete absence of reasons but also where there is uncertainty as to the reasons upon which the finding is based. A recent example of reasons which, whilst lengthy, were inadequate because of a failure to make necessary findings is Tetlow v Evans [2009] WASC 374. In that case, despite in excess of 30 pages being taken to recount the evidence and relevant statutory provisions, McKechnie J held that the magistrate had failed to expose the intellectual process which led to her acceptance of the prosecution evidence or to explain why she had rejected the defence evidence.

32 Counsel for the appellant submitted that the magistrate had failed to provide adequate reasons as he had failed to refer to the element of the offence in Code s 440A which was the issue before him, whether it had been proved beyond a reasonable doubt that the appellant had used the IMS other than in accordance with her authority; the magistrate had failed to refer any evidence he considered in determining whether the prosecution had discharged the burden of proof to the requisite standard on that element; and the magistrate had failed to explain why he had rejected the appellant's evidence that the use she made of the IMS on 27 March 2009 was part of her duties and therefore within the scope of her authorisation, there being no evidence to the contrary.

34 The first submission, the magistrate's alleged failure to refer to the element of the offence proof of which beyond a reasonable doubt was the issue before him, in my view, cannot be accepted because of the language with which the magistrate's reasons conclude. True it is that his emphasis is on disclosure of information where the charge was of course concerned with the prior matter of access to the IMS from which the information came. However, the magistrate's language indicates that his concern with disclosure was for the light it cast on the purpose for the appellant's use of the IMS. Earlier in his reasons he had referred to her agreement that she 'would not provide' address details 'certainly without proper investigation' (4 August 2010, ts 97 - 98). In my view, it is apparent from the immediately following language in his reasons ('[s]he suggests she gave the information, effectively, in a rush') this was a reference to the following exchange in cross-examination:

Would you agree with me that, if a father rang you up and said, for example, 'I have concerns that my children might be exposed to domestic violence, can you help me?' and you tracked them down, that you wouldn't give that father the address, but you would send a police car around to check on the children?---Yes, that's right.

Why didn't you just do that in this situation?---I wasn't giving Robert anything that he didn't already have.

Why did you feel the need to give him the address of the grandparents and not simply get back to him, say, an hour or two hours later and say, 'The police have gone around in Geraldton and checked on them and the kids are fine.' Why did you feel the need to give him the address?---I didn't. I was in a rush. I had 185 cases that I was dealing with at the time (ts 61).

35 The second submission, that the magistrate had failed to refer to any evidence he considered in determining whether the prosecution had discharged its burden of proof to the requisite standard on the element of the offence in question, cannot be accepted because of the magistrates' reference to 'correspondence', being the e-mails in exhibit D, and the action the appellant did not take before providing the information she did. In my view, it is apparent from the magistrates' consideration of the early exchange with RA, which he quoted in his decision, that he took that exchange as indicating she was prepared to provide information which would enable RA to get custody of his children without any investigation of the children's circumstances. That he was emphasising the absence of such investigation in his reference to 'she did not have any of that information, because she hasn't accessed it' (4 August 2010, ts 99) is apparent from his earlier reference to the information she ultimately provided 'certainly without proper investigation' (ts 98).

36 The third submission, that the magistrate had failed to explain why he rejected the appellant's evidence that the use she made of the IMS on 27 March 2009 was part of her duties and therefore within the scope of her authorisation, cannot be accepted because of his reference to the matter in the previous paragraph as indicating she acted as she did for personal reasons, being to achieve the purposes of a 'close friend' (ts 97), with the 'ongoing communication, and I have to say the nature of the correspondence, whatever she may say, in my view ... certainly inconsistent with somebody who is acting as a role as a police officer' (ts 98). True it is he did not refer to what she had to say as to her duties, being that exhibit F and exhibit G described respectively the position she occupied and her responsibilities (ts 31 - 32), and her further evidence, as to her role as an ANCOR officer and the use of the IMS in relation to that role and related matters (ts 32 - 37) and having to do with domestic violence (see especially ts 41).

37 In oral submissions counsel for the appellant took me to exhibit E, showing accesses by the appellant to data through the IMS. I took this to indicate that that access was strongly indicative of or at least consistent with the appellant's performance of her duties.

38 However, in my view the reference by the magistrate to evidence of these kinds was unnecessary on the explanation I have said he gave. His finding that she used the IMS for personal reasons in my view included, as I have indicated, an explanation of why he found she 'tried simply to embellish the justification for her behaviour' (ts 98). The reference to 'justification' can only be to the matters of a domestic violence character to which she testified in cross-examination (see especially the references above, to ts 39 - 40, 57, 69). In order to gauge whether or not adequate reasons have been given, it is 'necessary to look at the reasons as a whole in the context of the evidence' (Bennett v Carruthers WASCA [25], above). Those reasons in that context, in my view, provide an adequate account of why the magistrate concluded that, notwithstanding the evidence as to matters of a domestic violence character, he should find the appellant's reasons for using the IMS (as exhibit E showed) were personal reasons.

39 In respect of all of these submissions I should add that it appears to me that, on the authorities, provided the intellectual process is revealed by which the conclusion was arrived at on the matters of significance, entailing the provision of reasons for the rejection of evidence proffered to the contrary, then the fact reference is not made to all of the pieces of contrary evidence and indications given for rejecting each such piece of evidence is not a failure to give adequate reasons. See Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 [32] (Steytler P) and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA) as quoted in Bennett v Carruthers WASC [15] - [16], above, respectively; and Magistrates Court Act s 31(1)(c) and the observations about s 31 in Bennett v Carruthers WASC [19], above.

Ground 2: error in relation to assertion appellant had acted in accordance with authority

40 The appellant's submissions were that the magistrate had made findings as to the purposes of RA for his request for the appellant's assistance which were in themselves immaterial to whether or not the appellant acted lawfully within Code s 440A(2)(b). So much may be granted. However, as I will indicate, the magistrate did not approach those purposes as in themselves material to the issue under Code s 440A(2)(b).

41 The appellant's further submission was that the magistrate's inference that the appellant's purpose in using the IMS was the same as RA's purpose for his request was drawn without any reference to or consideration of evidence from the appellant as to her duties as an ANCOR officer, evidence which was uncontradicted in cross-examination and which included that it was part of her duties to use the IMS for the purpose of providing advice and support to families where the children were at risk of domestic violence. Her evidence was also that those duties applied whether the person who sought the assistance was a friend of hers or not.

42 For the purposes of this submission, I was referred to the examination-in-chief of the appellant on 4 August 2010 at ts 33 and ts 35. However, neither dealt with inquiries from persons who were friends of hers. I note that the appellant was referred in cross-examination to a code of conduct issued to her as a police officer. Although that code was not in evidence as an exhibit, there was the following exchange about it:

'Where you become aware of an inquiry or matter requiring police attention involving a friend, associate or person, with whom you have had a relationship, you are not to become involved with the inquiry or matter. There may be exceptional circumstances, such as working in a small community.'

43 However, there was also evidence from the appellant as follows:

Based on the training, what was the position with regards to making inquiries on IMS if you personally had knowledge of any of the people involved in the inquiry that you were making?---You were to disclose that you knew that person and - - -

And who would you disclose that to?---To your senior officers (ts 37).

44 It will be recalled that the appellant testified she had indicated to Acting Sergeant De Stefano she had received an inquiry, and Acting Sergeant De Stefano was the appellant's 'immediate supervisor'. However, the appellant did not testify this was disclosure for the purposes of the principle above, of which she was aware at the time. It may be noted also that she had commenced her use of the IMS before the indication she gave to Acting Sergeant De Stefano. Further, she acknowledged in cross-examination that Acting Sergeant De Stefano had not told her she was authorised to proceed as she did, although I also note that she did not tell the appellant she was not authorised to do so.

45 However, I consider it was open to the magistrate to conclude that, even if what the appellant had done answered the description of performance of her duties as she had testified to them, the appellant had done what she did for personal reasons. This was open on the evidence on which the magistrate relied for that conclusion as I indicated in the previous section of these reasons. This reliance included that the timing, tone and content of the appellant's response to RA's request, considered with RA's purposes for his request as indicated to her, showed she responded as she did for personal, not professional, reasons.

46 In my view, it was undoubtedly relevant to the determination of the reasons for which the appellant acted to consider the nature of the appellant's duties. While in my view the present ground is not formulated so as to be a claim that the magistrate failed to take into account evidence as to the nature of the appellant's duties, the written submission for the appellant appear to me to have so proceeded, and the respondent took no objection to that approach. Had there been a failure to weigh such evidence then it seems to me there would have been an error of law or fact: see Stark v Plant [2010] WASCA 74 [15] (McLure P, Owen & Buss JJA agreeing).

47 However, it was not evident to me that the magistrate had failed to consider that evidence. Indeed, in my view, there is indication to the contrary in his reference to the appellant having 'tried simply to embellish the justification for her behaviour', where that justification on the appellant's evidence was in terms of her role as an ANCOR officer in relation to domestic violence matters.

48 Further, while in my view the principal ground was not formulated so as to be a claim that the magistrate made a determination that the appellant had done what she did for personal reasons based on inferences which on the whole of the evidence should not have been drawn, the written submissions for the appellant appear to me to make such a claim, to which the respondent made no objection. Undoubtedly, the magistrate's finding was based on inferences he drew from the timing, tone, and content of her initial communications with RA, and action she did not take before providing the information she did, considered with her explanations of those communications and her conduct. In a case where the primary facts have been established or accepted, an appellant court is in as good a position as the primary decision maker to decide on the proper inference to be drawn from those facts: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs & Murphy JJ). Here I consider, on the evidence on which the magistrate relied, that the proper inference to be drawn is that which he drew. I consider further that no difference is made by the unchallenged evidence the appellant had disclosed to her superior, Acting Sergeant De Stefano, after she began her investigations, that she had been rung by a friend who was a police officer in the Northern Territory who had discovered his wife had died and he wanted to find out where his children were. I so consider for the reasons I explain when I consider the next ground of appeal.

49 It follows I would not uphold the present ground.

50 This ground relies on Code s 24, which reads in material part as follows:

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

51 For the appellant, it was submitted that a proper foundation for this defence had been laid in the appellant's evidence as to her duties and her discussion with Acting Sergeant De Stefano.

52 It is not in contest that the magistrate considered the defence in the following terms from his decision, which I quote again for convenience:

I have no doubt that in her own mind she had some sort of belief that she was acting in the best interests of the children, but at this stage, did she have an honest and reasonable - it's simply in my view certainly not reasonable.

That comes down to the fact that her primary concern at the time, and the primary request, was to provide any information in relation to the current whereabouts of the children which, in my view, she was not entitled to disclose and certainly in those circumstances inappropriate to let her use the computer to access that information to provide to a third party (ts 99 - 100).

53 I consider that this passage indicates the magistrate proceeded on the basis that an evidentiary foundation for the defence had not been laid, that is, the evidence was not capable of supporting a reasonable belief within Code s 24 which if not negatived beyond a reasonable doubt would require the acquittal of the appellant. See Criminal Law in Western Australia, as at 15 December 2010, [s 24.5].

54 In the written submissions for the appellant it was put that the quotation indicated that the magistrate had not considered the issue in terms of the appellant's honest and reasonable but mistaken belief that she was using the IMS in accordance with her authority. Rather, he had considered whether she had an honest and reasonable but mistaken belief she was acting in the best interests of the children or she was entitled to disclose the information in relation to the whereabouts of the children. I accept that if the magistrate had approached the question under Code s 24 simply in those terms, he would have erred. However, in my view, it has not been shown he so approached that question.

55 In my view, when the magistrate's reasons are read as a whole the magistrate is shown to have concluded that the belief of the kind referred to in Code s 24 was negatived, on his finding of the appellant's 'primary concern'. He so considered because that primary concern meant she could not reasonably believe she was using the restricted-access computer system in accordance with her authority, as that primary concern represented personal reasons for such use, which I set out when I considered the first ground of appeal. The magistrate's reasons, as I there outlined, indicate why the foundation for the appellant's belief so far as it rested on her evidence as to her duties was incapable of supporting a belief within Code s 24. However, the matter of the appellant's discussions with Acting Sergeant De Stefano raises slightly different considerations.

56 It was not in contest that Acting Sergeant De Stefano had not told the appellant she had authorisation to use the IMS to find out where the children of a friend of hers were living. Her evidence was that she had never been made aware she would need special authorisation from someone such as Acting Sergeant De Stefano to make such a use. At the same time, she did not give any evidence that she invested with any significance the fact Acting Sergeant De Stefano had not said anything on the matter.

57 In my view, the magistrate's finding that the appellant was using the IMS for personal reasons meant, and the evidence just described also meant, that she could not have reasonably believed as a result of her discussion with Acting Sergeant De Stefano that she was using or would be using the IMS in accordance with her authorisation.

58 It follows I would not uphold the present ground.

Ground 4: error where there was a proper foundation for making a spent conviction order

59 It was not in contest that the magistrate had concluded the discretion to make a spent conviction order under Sentencing Act 1995 (WA) s 39(2)(c) read with s 45 had been enlivened. It had been enlivened because the magistrate considered the appellant was unlikely to commit such an offence again (s 45(1)(a)) and the appellant had previous good character (s 45(1)(b)(ii)).

60 It was not in serious contest that the discretion is of an 'exceptional character' (R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291 [27] (Murray J, Malcolm CJ & Wallwork J agreeing)) to be exercised 'sparingly' (Tognini [24]). In both her written and oral submissions, counsel for the appellant referred me to AR v Wood [2008] WASC 119 (EM Heenan J), which appears to be a reference to [39]. There his Honour indicated reasons for his view that those observations as to the discretion quoted from Tognini should not be read as of general application, but rather as applying to the particular circumstances of Tognini. However, it was not pressed on me that those observations had no application to the circumstances of this case. In any event, for reasons I gave in KK v Zanetti [2009] WASC 83 [50], after I had reviewed the authorities in [29] - [49], I consider those observations to be of general application.

61 I further consider that the following two propositions are not in contest. The first, from Tognini [25], is this:

The Second Reading Speech of the Hon Attorney General introducing the Sentencing Bill into the Parliament shows, I think, that that was the intention of the legislature. Hansard for 25 May 1995, p 4258 records the Minister as saying:

'One of the progressive elements of the Sentencing Bill is that, where the court determines that the offence is not serious - for example in the case of minor shoplifting - and the antecedents of the offender are good, and where the conviction might have a detrimental effect on an offender's employment prospects, clauses 39 and 45 in part 5 enable a court to order that a conviction be spent. This will mean that the protections afforded by the Spent Convictions Act 1988 will immediately apply. This is not to mean that the offender is not punished. However, it is anticipated that this power will provide a significant incentive to refrain from further offending by allowing the stigma of a conviction to be lifted which could otherwise have disqualified them from pursuing their chosen career.'

62 The second of the two propositions is that the seriousness or gravity of the offence does not prevent the making of a spent conviction order. See Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [70] (Wheeler JA, Buss JA agreeing). So much, in my view, is also evident from Sentencing Act s 45(1)(b)(i) and from Tognini [25].

63 It was not put to me that the magistrate had erred in his statement of his approach other than (as I understood the written submissions for the appellant) by what was said to be his invocation of 'seriousness' (4 August 2010, ts 112). I do not consider the magistrate erred in that last respect. On Tognini it was relevant to consider the seriousness of the offence. The magistrate does not indicate he considered seriousness meant other factors could have no significant weight. Indeed, I consider the contrary to be the case, as, in my view, the magistrate indicates that 'other factors' were outweighed by the 'public interest' and the need for 'general deterrence' he identified. So to approach his task was in my view in accord with Tognini [25] - [26], above.

64 In the appellant's written submissions it was put to me that the magistrate erred in that he failed to consider:

(1) the appellant's position as a district ANCOR officer responding to a distressed parent who could not locate his children;

(2) the appellant's discussion of the problem with [Acting Sergeant De Stefano] and was not told to desist because of her personal relationship;

(3) that to relieve the appellant of the adverse consequences of a conviction would positively aid her rehabilitation in a way which may be seen to best accord with the interest of the community by allowing the appellant to continue to perform the important functions of an ANCOR officer; and

(4) that there is no pressing public interest in being able to continue to have access to the fact of the conviction as part of the process of securing protection of the community, because:

(a) the appellant's use of the restricted-access computer system is confined to her role within the WA Police Service and is therefore highly supervised and monitored; and

(b) to allow the appellant to continue to work within that system and continue the good work her referees spoke of (either within the police service or outside), she requires the confidence of her employer.

65 I accept that factors (1), (3) and (4), as stated, would be relevant to the exercise of the discretion referred to in Tognini [25]. I separately consider (2) below. However, in my view factors (1), (3) and (4) as stated were not shown to be present in this case, including that they were inconsistent with the magistrate's findings; if those factors were restated in ways supported by what was before the magistrate including his findings, I am not satisfied it has been shown he did not consider them in this context. Finally, as so restated I am not satisfied they meant it was not reasonably open to the magistrate to exercise his discretion as he did. I now explain each of those conclusions.

66 In my view factors (1), (3) and (4) were not shown to be present on the material before the magistrate by reason of the following. Factor (1) was inconsistent with the magistrate's finding that the appellant did not act as a police officer but for personal reasons. Factor (3) was not shown to be present as it had not been demonstrated the appellant's conviction would prevent the appellant continuing as an ANCOR officer. Factor (4) was not present as it had not been shown the appellant's use of the restricted-access computer system was highly supervised and monitored and as it was not shown access to the fact of the appellant's conviction would prevent an employer having confidence in her.

67 However, it might be suggested that factors (1), (3) and (4) might be restated in ways supported by what was before the magistrate. Restated to allow for the appellant's concern for the best interests of RA's children, the possibility of adverse consequences of her conviction and the low prospect she would re-offend, it is not evident to me that the magistrate did not consider them in the present context. I so conclude because he expressly referred to the second and the third in the present context, and he had expressly acknowledged the first in the context of his determination of guilt earlier the same day.

68 In oral submissions to me, counsel for the appellant put it that the appellant was exposed to a risk of disciplinary action under the Police Act 1892 (WA) s 23 and a loss of confidence report under s 33L. Discharge from the Police Service is one of the consequences of disciplinary action (see s 23(4)(f)) or a loss of confidence report (see s 8). Counsel for the appellant had put to the magistrate the risk to the appellant's position and her career in the Police Service from her conviction, which counsel told me was a reference to possible discharge under the provisions referred to. Counsel put to me that the magistrate had erred in failing to consider whether or not a spent conviction order would positively aid in her rehabilitation by reducing or eliminating this risk. I note that it is not clear from the provisions referred to that a conviction, as opposed to the underlying conduct, would create the risk, so that a spent conviction order would or might reduce the risk. I note in that respect the restriction on use of the IMS forming part of its conditions of use (see exhibit B, above). See Koenig v Alizadeh [2002] WASCA 267 [14] - [15] (Wheeler J) on the relevance of considerations of that kind. However, the magistrate appears to have proceeded to sentence the appellant on the basis that 'there will be other ramifications for this officer, one would think, within her own environment, the effect of a conviction, those sorts of matters' (4 August 2010, ts 102).

69 At the same time, it has not been shown to me that the magistrate failed to consider the matter of the possible significance to the Police Service and therefore to the appellant of the appellant's conviction. Indeed it seems to me that the magistrate indicated he had weighed the matter of the possible significance to the Police Service and other potential employers as against factors personal to the appellant, including the possible impact on her position with and career in the Police Service. In doing so he proceeded as commended in Koenig v Alizadeh [16]. He indicated he was so proceeding in the passage (4 August 2010 ts 102) just quoted, when that passage is read with his sentencing remarks (4 August 2010 ts 112), also quoted above. I quote the relevant part of those remarks again for convenience:

In relation to the question of a spent conviction, the question is really in my view, having found on the other factors, is there a public interest and a need for general deterrence, particularly by organisations such as the police force, the courts, hospitals an [sic] the like?

The public, as I said, must have confidence that information supplied that's held will not be misused and that if a breach occurs that the courts will deal with it, in my view, in a manner that reflects that seriousness. Whilst, as I say, I have some sympathy for your personal circumstances, in my view a conviction should follow in this particular case (4 August 2010, ts 112).

70 As to factor (2), the discussion with Acting Sergeant De Stefano, true it is that the magistrate makes no express reference to it in the context either of the determination of the appellant's guilt or determination of the appellant's sentence. However, in my view, where the matter of that discussion had been pressed on him in connection with the determination of guilt and he had rejected the defence of mistake for the purposes of which was pressed, that rejection entailed a view of that matter which made it largely if not entirely irrelevant to the present matter, of making a spent conviction order. That was because it did not go the performance of the appellant's duties as a police officer. However, factor (2) did go to show she had not sought to conceal what she was doing and also went to indicate she had no consciousness of wrongdoing. I accept that the magistrate gave no indication he had considered the relevance of factor (2) in that way. However, he had indicated that he had had regard to the possibility the appellant considered what she had done to be 'appropriate' in the sense of 'lawful', qualifying its relevance as he indicated (4 August 2010, ts 111, source of quotations). In my view, while that was not an express indication he had considered the matter on which factor (2) in that respect bore, it appears to me he had considered that matter in a way which was open to him. That consideration made factor (2) entirely irrelevant to making a spent conviction order.

71 I should add that I have also considered whether, if the magistrate was in error in any of the respects indicated, Criminal Appeals Act 2004 (WA) s 14(3) (the 'proviso') has application. It is established that the proviso has application to appeals against sentence, where it has been shown that 'error or errors made by a court at first instance would not have led to any reduction in the sentence that was imposed by the court': Joyce v Gee [2010] WASC 76 [34] (Mazza J). In my view, on the findings and conclusions of the magistrate in the other respects I have considered, and the proper approach to the making of spent conviction orders, there has been such a showing here.

72 It follows I would not uphold ground 4, or, applying the proviso, I would not allow the appeal in respect of the failure to make a spent conviction order.

73 I have not upheld any of the grounds of appeal, and in any event would not allow the appeal in respect of the failure to make a spent conviction order. I would thus dismiss the appeal. I will hear from the parties as to any other orders I should make.