Police Act 1892 (WA), s 20

Sentencing Act 1995 (WA), s 39(2), s 45

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

Bienki v Minister for Primary Industries and Energy (1996) 63 FCR 567

Dhu v Ward [2000] WASCA 140

House v The King [1936] HCA 40; (1936) 55 CLR 499

King v Power, unreported; SCt of WA (Walsh J); Library No 930289; 27 May 1993

Koenig v Alizadeh [2002] WASCA 267

Narrier & Yates v Lewandowski, unreported; SCt of WA (Wallwork J); Library No 8429; 10 August 1990

Nevermann (1989) 43 A Crim R 347

Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

Smoker v The Queen [2001] WASCA 388

Yam v Richardson [2002] WASCA 177

1 BARKER J: This is an appeal under the Justices Act 1902 against a sentence imposed on the appellant by Mr T J McIntyre SM in the Court of Petty Sessions at Armadale on 13 August 2002.

2 On 13 August 2002, the appellant appeared before the learned Magistrate upon two complaints that respectively alleged in substance as follows:

(1) On 7 August 2002, at Cannington the appellant assaulted the respondent, being a public officer then performing a function of his office, contrary to s 318(1)(d) of the Criminal Code;

(2) that on 7 August 2002, at Cannington the appellant resisted the respondent a member of the Western Australian Police Force then acting in execution of his duty, contrary to s 20 of the Police Act 1892.

3 The appellant, who was represented by counsel before the learned Magistrate, entered a plea of guilty to each charge.

4 The facts relating to each charge, which were admitted by or on behalf of the appellant, were then read to the learned Magistrate by the Prosecutor. They were that, at about 10.30 pm on 7 August 2002, the appellant, with others, was at the Foundry Hotel in Albany Hotel, Cannington. The appellant was spoken to by police at the front of the premises regarding other matters, such as refusing to leave licensed premises and disorderly behaviour. The appellant then approached the respondent, Constable Worthington, who was standing still. The appellant made a comment and "chested" into the front of the officer's body, making contact. The appellant used the front of his chest to make the contact with the police officer. The appellant was then advised by the respondent that he was under arrest. The appellant threw his arms up violently when taken hold of and grabbed by the respondent, and grabbed the respondent on the jumper, near the throat area. A violent struggle ensued during which two further police officers were required to assist the respondent and to subdue the appellant. The appellant struggled violently on the ground, requiring officers to handcuff him. He was subsequently conveyed to the Cannington Police Station.

5 It was common ground that there was no record of prior offences.

6 Counsel for the appellant before the learned Magistrate, who also appeared before this Court, then made a plea in mitigation on behalf of the appellant. He explained to the learned Magistrate that the appellant had been working in Perth on the day in question and had a few beers after work with some workmates. He had had very little to eat. He apparently normally only drank mid-strength beer, as he is a diabetic, but on this occasion there was only full-strength beer available. They went on to the Foundry Hotel afterwards, the appellant obviously having had far too much to drink. One of the appellant's mates had a difference of opinion with a bouncer and the appellant intervened when he probably should not have done so. As a result of that altercation which involved others, the police were called and things got out of hand, largely due to the appellant having had too much to drink.

7 Counsel advised the learned Magistrate that the day after the incident the appellant was horrified at what he had done and, of his own accord, telephoned the respondent the following evening and apologised for his behaviour.

8 Counsel further informed the learned Magistrate that the appellant's personal circumstances were that he was 30 years of age, was married and had one child aged two years. He further advised that the appellant is qualified as a heavy-duty diesel fitter and works for the Alcoa company at its mine site near Perth on a seven day on, seven day off roster. He also has his own mechanical business, which he runs on his days off. The learned Magistrate was further advised that the appellant was paying off a mortgage on his home, earns good money and has a weekly surplus and had the capacity to pay a fine.

9 Counsel then asked the learned Magistrate to make a spent conviction order on both charges. He produced four references from persons who knew the appellant by reason of family connections or employment connections. Each noted the good character of the appellant and, in one way or another, the surprise of the referee that he should have behaved in the manner with which he was charged. The opinion was variously expressed to the effect that the appellant had acted, so far as the referee was concerned, totally out of character.

10 Counsel submitted to the learned Magistrate that, in the particular circumstances of the appellant, and having regard to the material before the learned Magistrate, this was an appropriate case for a spent conviction order to be made on both charges. Counsel emphasised that the referees spoke well of the appellant, the appellant has no prior convictions, the offences should be seen as a "one-off" incident and totally out of character for the appellant. Counsel emphasised the age of the appellant and that he has no prior convictions. He also emphasised that the appellant, of his own volition, had apologised to the respondent soon after the incident and was remorseful about his conduct. Further, counsel emphasised that the appellant had pleaded guilty at the first opportunity. Counsel then submitted that, although the convictions if recorded would, in all probability, not affect his client's current employment at a mine site, it was common experience that anybody applying for work on a mine site for a mining company or a subcontractor would find it almost impossible to obtain employment.

11 In respect of the latter proposition, the learned Magistrate expressed some difficulty and suggested that the appellant would be able to explain to a prospective employer his personal circumstances as they had just been explained to the Magistrate and that the employer would make a decision based upon what the employer knew about him as a result.

12 The learned Magistrate, it is fair to say, was somewhat dismissive of that aspect of the submission made by counsel on behalf of the appellant. The transcript records the following exchange immediately upon the proposition being put by counsel:

"HIS WORSHIP: I find that difficult to accept. Why can't he explain to some prospective employer what you've just explained to me?

MR RENNIE: Well, that is - -

HIS WORSHIP: They can then make a decision based upon what they know about him.

MR RENNIE: Well, they could do, your Worship, but - -

HIS WORSHIP: Look, I'm sick of this sort of speculation that goes with this sort of issue. 'He might work in the mining industry, he might want to travel to America, he might want to do this, and if you record a conviction it'll prevent him doing all that.' That's nonsense. It doesn't prevent people from doing anything. It's a factor that prospective employers can take into account if they choose to do so."

13 The learned Magistrate then made further sentencing comments and imposed a $1000 fine for the assault of the police officer and a $250 fine for resisting arrest, observing that the "whole incident is worth that amount, $1250 plus $38 in costs, and that reflects the serious nature of the offence and the circumstances surrounding it."

14 The appellant appeals against the sentences imposed by the learned Magistrate on the following grounds:

"1. The Learned Magistrate erred in law in refusing the application for spent conviction orders pursuant to s 45 of the Sentencing Act 1995 on both complaints in that he:

(a) paid no or insufficient regard to the issue of the likelihood of the applicant committing such offences again.

Particulars

(i) Four referees expressed the view that the offences were out of character and that the applicant was unlikely to commit such offences again;

(ii) The applicant, entirely of his own volition, apologised the police officer concerned the day after the offences; and

(iii) The applicant indicated his remorse by pleading guilty on his first appearance;

(b) The Learned Magistrate paid no or insufficient regard to the previous good character of the applicant.

(c) The Learned Magistrate dismissed out of hand the applicant's submission that recorded convictions would affect the applicant's future prospects of employment in the mining industry and denied the applicant's counsel an opportunity to respond to the Learned Magistrate's contention that convictions could be explained to prospective employers."

15 The Sentencing Act in Pt 5 deals with sentencing options. Section 39(2) refers to the option of a court making a spent conviction order when imposing various sentences. Section 45 deals with the making and effect of spent conviction orders. Section 45(1) provides as follows:

"45. Spent conviction order: making and effect of

(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."

16 The first matter that has to be considered, therefore, under s 39(2) is whether the offender is unlikely to commit such an offence again. The first ground of appeal is that the learned Magistrate paid no or insufficient regard to this consideration. I do not consider that this ground has been made out. The learned Magistrate expressly took into account the four references and acknowledged that the appellant had no "prior history", that is to say, no prior offences. He also specifically addressed the application that he should make a spent conviction order in the circumstances, but then expressed the view that it was "inappropriate". The learned Magistrate ultimately expressed a view, before imposing the sentencing option of a fine in each case, that:

"Assaulting police officers ... is an extremely serious offence and if at some stage in the future this issue comes up, then you can explain to prospective employers or to anyone else, the circumstances under which you got involved in this incident. And you might be able to say something along the lines of, 'Well, I've learnt my lesson out of this and I'll never do it again, and I'm a better person for it'."

17 In these circumstances, I think it is not at all reasonable to contend that the learned Magistrate did not pay any or any sufficient regard to the likelihood of the appellant committing the offences again. He seems, on any proper view of his sentencing remarks, to accept that this is so. Certainly, for my part, on reviewing the evidence before me, I think it would not have been unreasonable for the Magistrate to have formed the view, that I think he did form, that the offender is unlikely to commit such an offence again.

18 The second consideration that must be addressed and satisfied before a spent conviction order can be made is either the fact that the offence is trivial (which, plainly, these offences were not) or the previous good character of the offender. The second ground of appeal is that the learned Magistrate paid no or insufficient regard to the previous good character of the appellant.

19 In my opinion, having regard to the same sentencing remarks referred to above in relation to the first ground of appeal, it is plainly the case that the learned Magistrate did have regard to the previous good character of the appellant. He specifically recited the references before him and otherwise noted that there was no "prior history" of offending. In my view, having regard to the context in which the sentencing remarks of the learned Magistrate were made, he accepted (as I think was right) that, for the purposes of s 45(1)(b)(ii), the appellant was of previous good character.

20 The third, and perhaps most important consideration in the process of determining whether a spent conviction order should be made, is whether, the first two considerations having been satisfied, the Court "considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender". It is well established that these terms of s 45(1) give the Court a broad discretion to decide whether or not the spent conviction order should be made. It certainly is not the case that satisfaction of the two considerations entitles an offender to a spent conviction order: Neale v Sloan (1997) 27 MVR 246.

21 Rather, the power to make a spent conviction order should only be exercised sparingly in a clear case where, for cogent reasons, its exercise is seen to be desirable: R v Tognini [2000] WASCA 31; 22 WAR 291 per Murray J (with whom Malcolm CJ and Wallwork J agreed) at [24]. In Tognini at [27] and [28], Murray J explained the "exceptional character" of a spent conviction order and how the Court may be aided to reach the conclusion that a spent conviction order should be made "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".

22 In different circumstances, the discretion to grant a spent conviction order may well be exercised in different ways. As McLure J noted in Brewer v Bayens [2002] WASCA 37, at [29], there must be a material error of fact or law discerned in the reasoning or the circumstances of a case before a court will intervene to exercise a discretion in a manner different from the sentencing Magistrate; and her Honour referred to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 by way of confirmation of that undoubted proposition.

23 In Brewer v Bayens McLure J could not discern any error in the exercise of the s 45 discretion on the part of the learned Magistrate. In that case, the question was whether a spent conviction order should have been made in relation to the offence of public soliciting of a prostitute. The appellant was a 52-year-old man who was married with children. He was a qualified psychologist with psychology degrees from Edith Cowan University and a Master's degree from Murdoch University. He was a member of the Australian Psychologists' Association and had no prior record of conviction. It might have been suggested that a spent conviction order was appropriate because of the considerable adverse effect the conviction would have upon the appellant. McLure J noted at [39], however, that "the nature and circumstances of the offence weighed heavily against the grant of a spent conviction order. It was not suggested that the offence was trivial. The penalties reflected the seriousness with which the conduct is viewed by Parliament". The legislation under which the appellant was convicted was enacted in response to widespread community concern and with the intention of reducing the prevalence of the conduct. Her Honour also found that there was nothing in the particular circumstances of the case which justified or excused the commission of the offence or somehow lessened the appellant's guilt. There were no extenuating circumstances. She did not regard his age and personal situation as in any way mitigatory. Her Honour considered that, if a spent conviction order were made, it would deprive relevant institutions (tertiary institutions, the Education Department and the like) of the opportunity to know of and to make an assessment concerning the relevance of the conviction and what is proposed from time to time and for which approval is required. In her opinion, "it is in the public interest in this case for the relevant institutions to have that knowledge and make that assessment having regard to all the relevant facts and circumstances. That process would be impeded if a spent conviction order was made." [43]

24 The public interest to which the authorities plainly refer is an interest that the public, or particular segments of it, have in knowing the facts of a particular conviction. If a spent conviction order is made, they will not be facts on the public record. In this case, the learned Magistrate plainly considered that prospective employers of the appellant in the mining industry would be entitled to have such information made available to them. Indeed, in submissions before me, counsel for the appellant, correctly in my view, accepted that, in the mining industry, it would be relevant to the consideration of an employment application for an employer to know that a prospective employee had been convicted of an assault of a policeman and had resisted arrest. That such convictions were the result of the overuse of alcohol would also appear relevant to the consideration of an employment application by a prospective employer in the mining industry, particularly in a remote place. On no view can it is said that such serious offences would be unimportant to a prospective employer of a person such as the appellant.

25 In these circumstances, all that can be said is that the Magistrate, in exercising the sentencing discretion by reference to s 45 of the Sentencing Act, was not persuaded that the personal circumstances of the appellant should override the public interest in the convictions remaining on the public record. I can see no error in the exercise of the sentencing discretion by the learned Magistrate.

26 The third ground of appeal is that the learned Magistrate dismissed out of hand the appellant's submission that recorded convictions would affect the applicant's future prospects of employment and that he denied counsel for the appellant an opportunity to respond to the learned Magistrate's contention that convictions could be explained to prospective employers. I have set out above the relevant exchange between the learned Magistrate and counsel. As I have suggested, it is fair to say that the learned Magistrate was somewhat dismissive of this submission and brought that particular line of submission to an abrupt halt.

27 Before me, counsel informed the Court that what he would have submitted to the learned Magistrate, if he had been given the further opportunity, was that, in the case of large mining companies, the Court could take judicial notice of the fact that they are generally large bureaucracies which would require written applications for employment. It has been an employer's market for probably the last 10 years and may, indeed, remain so for some time. The pendulum swings sometimes, but if any conviction of this type or these types were disclosed on an application for employment, which they would almost invariably have to be, unless a spent conviction order were made, the appellant's application for employment would probably end up in the pile headed, "Not to be interviewed". It may be slightly different with an application to say a small employer in a country town or indeed even in Perth, where things are not done quite so formally and these sorts of things would certainly be explained to a prospective employer, but, when you are dealing with large mining companies and large bureaucracies, it is unrealistic to suggest that an employee could really satisfactorily explain those sorts of things to an employer. Counsel said that he would have put the submission in that form and would not have sought to have led any more formal evidence concerning the practices of large mining companies.

28 In my opinion, while it might be said that the learned Magistrate cut off counsel to some extent, the making of that submission was something that the learned Magistrate immediately appreciated, upon the general proposition having been earlier put by counsel to him. The fact is that the learned Magistrate was plainly not satisfied that appropriate representations could not be made to a prospective employer as to the circumstances in which these convictions have come about. He said so again in his closing remarks when imposing sentence.

29 I should say, for my own part, that I can see no reason why, as the learned Magistrate suggested, the appellant should not be able to explain to any prospective employer, including a large mining company in a remote place with a large bureaucracy, what the particular circumstances were as to these two convictions and to explain to such an employer why he (the appellant) should not be considered an employment risk.

30 In the event, while I have little doubt on the basis of the references and other materials filed in support of the appellant's appeal in this case, that he is unlikely to commit such offences again and that he is of previous good character, there is nothing in the materials before me to show that the learned Magistrate erred in the exercise of his sentencing discretion under s 45(1) in refusing to make a spent conviction order and there is nothing in the materials that suggests that I should exercise that discretion differently from the learned Magistrate.