HLR -v- WA POLICE [2025] WASC 86 (17 March 2025)

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.

1. That discretion is of an exceptional character and should only be exercised in clear cases. That is a significant hurdle for applicants to overcome where the discretionary power is enlivened,[6] which it is accepted is the case here.
2. The exercise of the discretion involves a consideration of the interests of the offender and the public interest. The public interest includes general deterrence, as well as the protection of the community. That is particularly so in the case of drink driving offences.
3. The public interest can include the interests of an employer or a potential employer being aware of the conviction insofar as it may be relevant to assessing the person's reliability or suitability for a particular type of work. The public interest may coincide with the interests of the offender where relieving him or her of the consequences of the conviction would positively aid the offender's rehabilitation and, in that sense, would also be in the best interests of the community.
4. Rehabilitative effects may include the impact on the offender's employment, present or future, and the avoidance of exceptional hardship to the offender or his or her family. I must therefore consider whether the appellant should be relieved immediately of the adverse effect that the conviction might have had on her. As to that, the appellant's application was initially put on the basis that she would suffer difficulty in potential future employment as a tax agent if the conviction was not made the subject of a spent conviction order.
5. I reject that proposition on two bases: first, that it was unsupported by any evidence as to the appellant's recent intentions as to future employment; and, secondly, on the basis that there was no evidence to suggest that a drink driving offence might cause the appellant to fail any 'fit and proper person test' in the context of an application to become a tax agent and the obligations of what such a person is required to do.
6. The appellant was, however, permitted by leave of the court, with no opposition from the respondent, to give further evidence in support of her application viva voce.
7. There are two aspects of her oral evidence which are of significance in considering the exercise of the discretion in relation to her appeal. The first is that it appears that the appellant has been denied applications for employment on four or five occasions from working as a fly‑in fly‑out worker. In each case, she has disclosed the existence of her conviction, and I accept that I can also take judicial notice of the facts that mine sites ordinarily require workers to refrain from drinking whilst onsite and that the existence of a conviction for a drink driving offence is likely to influence her prospects of employment in such a venture.
8. The second is that the appellant expanded upon certain scant evidence in the affidavit filed in support of the appeal as to her mental state and the effect that the conviction has had upon it. It appears that the appellant has been diagnosed with post-traumatic stress disorder, borderline personality disorder and depression, together with anxiety. She has been undergoing treatment for those conditions for some time.
9. The learned magistrate's comments in the course of the hearing before him indicated that it was obvious that the charge was causing concern to the appellant, and having seen the appellant in court, I have no doubt that her mental condition is exacerbated by her uncertainty as to the future arising from the conviction.
10. There is a balancing exercise to be carried out in this case. On the one hand, there are the adverse effects of the conviction on the appellant to consider, and on the other, there is a public interest in an employer or potential employer being aware of the conviction insofar as it may be relevant to assessing the appellant's reliability or suitability for a particular type of work.
11. The learned magistrate took a favourable view of the appellant where she came before him on 30 September 2024 and was clearly minded to impose the minimum penalty in relation to her offence, given her age and circumstances. Knowing more about her, I am satisfied that it is in her and the community's interests for her to be relieved of the adverse effects of the conviction, based on the further evidence she was allowed to adduce at the hearing. Had the matter rested on the evidence disclosed in her affidavit, I would have taken a contrary view.
12. As it is, however, the appellant is 24 years old. She suffered an unfortunate personal tragedy early in 2024 and, since then, has taken a number of steps to improve her position in life. In my opinion, the community is best served by granting a spent conviction order, based on the evidence before me. Given the helpful attitude taken by the respondent, it is not necessary to assess how the learned magistrate came not to consider whether to make a spent conviction order when the matter came before him, and I therefore do not intend to give reasons in relation to that matter.
13. I am satisfied, however, that there was an error of law in failing to consider whether a spent conviction order should be made, notwithstanding that no application for such an order was made at the time, due to the provisions of the Sentencing Act. I find, based on the evidence adduced by the appellant today, that there has been a substantial miscarriage of justice as a result of the magistrate's failure to consider that issue, and I would therefore grant leave to appeal, allow the appeal and make a spent conviction order.
14. These reasons have been anonymised to preserve the benefit of the spent conviction order, having regard to s 14(3) of the Spent Convictions Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Section 9(1) of the Act.

[4] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

[5] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27].

[6] Brewer v Bayens [2002] WASCA 271 [16].