Criminal law and procedure - Sentencing - Spent conviction order - Turns on own facts

Local Government Act 1995, s 2.22 and s 5.65

Sentencing Act 1995, s 39 and s 45

Aitken v Wilson [1974] WAR 166

Docker v Faulkner [2000] WASCA 282

Richardson v Porteous [2000] WASCA 261

Riley v Gill; unreported; SCt of WA; Library No 970731; 8 December 1997

1 PULLIN J: On 9 November 2001, each of the respondents was convicted by Mr S P Sharratt SM of an offence against s 5.65 of the Local Government Act 1995. The respondents are married to each other and were, at the time of the offence, partners in a farming business which also conducted concreting work in the Shire of Jerramungup.

2 At the time of the offence, the respondent Mr McGrath was the President of the Shire of Jerramungup, and the respondent Ms Heidrich was a councillor of the Shire.

3 In each case the charge of which each respondent was convicted read:

"On the 15th day of September 1998 at Bremer Bay [the respondent] being a member of a council who had an interest in a matter to be discussed at a council meeting and having attended that meeting, failed to disclose the nature of the interest in a written notice given to the CEO before the meeting or at the meeting immediately before the matter was discussed, in circumstances in which Section 5.63 of the Local Government Act 1995 did not apply; contrary to Section 5.65 of the Act."

4 The facts, which are not in dispute, are that some time before the date of the offence, Mr McGrath operated a concrete business in partnership with one Grimmond. This business had ceased operating before September 1997. That partnership had sold some of the business assets and was trying to sell the balance. Those assets which were left were taken over by the two respondents, who at the time farmed together in partnership under the name of "Qualinup".

5 Before September 1997, no concrete contract work had ever been carried out by the respondents for the Shire.

6 On 16 September 1997, the council of the Shire of Jerramungup had on its agenda a topic about dual use pathways, and in particular the discussion was about the relative merits of asphalt or concrete in the construction of such paths.

7 Both respondents decided to announce that they had an interest, and they left the meeting when the item was discussed and voted upon.

8 The respondent Mr McGrath was asked why he did this, and his explanation was to the effect that he was concerned with perception, rather than reality, and he could not be seen to vote for concrete as a preferred dual use pathway ("DUP") material because he still had a concrete agitator.

9 The council voted in the absence of the respondents for concrete dual use pathways in the future.

10 The next council meeting was on 21 September 1997. It concerned the funding of DUP works that the council had voted on in the month before.

11 It was reported to the meeting that the council was only partially successful in its attempt to gain State funding for dual use pathways in John Street, Bremer Bay. The resolution passed was that $6,600 should therefore be used from the council general road maintenance account to complete the works. The respondents attended and voted at this meeting. Mr McGrath gave evidence that he did not declare his interest at this meeting because the resolution was only to give effect to the resolution of the previous meeting. He saw the resolution as confirming that the job was going ahead and that the council was giving more funding, which was necessary because of the shortfall caused by partial failure of the State funding application. At the time, Mr McGrath had no intention of being involved in further concrete work. Some time after that meeting, Mr McGrath was invited by the Shire to quote for the John Street DUP work. His partnership had done no concrete work, except for community work, since ceasing his partnership with Mr Grimmond, and he had not solicited any. A contract was entered into between the Shire and the respondents, and they carried out the concrete work on the John Street project, which was completed in about June 1998.

12 The failure to declare an interest in relation to the 21 September 1997 meeting resulted in other charges under s 5.65 of the Local Government Act, which were dismissed.

13 About three months after completing the John Street work, there was another council meeting on 15 September 1998. This is the council meeting at which the respondents failed to declare an interest and which has resulted in their convictions. An item on the agenda was entitled "Subsidies for Cycle Related Projects".

14 A resolution was passed by the council as follows:

"That Council provide DUP's in Coral Sea Road and Roderick Street to the value of Council funds set aside for this project, (ie $13,800 each)."

15 Both respondents voted in favour of that resolution. No interest was declared.

16 The partnership then submitted a quote for the Roderick Street job, but it was not successful. Each respondent was convicted of the offence under s 5.65 of the Local Government Act in relation to the resolution quoted above.

17 The maximum penalty which can be imposed for the offence is $10,000 or imprisonment for 2 years. The counsel appearing for the complainant (the appellant in these proceedings) conceded that imprisonment was not appropriate. Two other important concessions were made by the appellant during submissions made to the Magistrate. The first was that both respondents were of previous good character, and the second was that they would be unlikely to offend again.

18 The Magistrate made the following sentencing remarks after noting that he was impressed by Mr McGrath, who had given evidence. The Magistrate said:

"I'm also cognisant of the fact that you thought that you had declared your interest when the question of using concrete against asphalt was discussed, and that you thought that, when you went to those meetings, because that had already been decided, and all that there was to be decided was the allocation of funds, you thought that you weren't obliged to disclose your interest, and you didn't.

Now, I know that the reality of the fact is that, having disclosed, or even before you disclosed, your interest, everyone present at the meeting knew that you had an ability to tender for concrete work because it's a small town, and you can't miss a 12-metre agitator. You'd already disclosed yourself at a prior meeting, and that disclosure wouldn't have been lost on the other councillors.

As it turned out, all the votes were unanimous, so it wouldn't have made any difference whether you turned up or not. However, this Act and this penalty is concerned, not only with something that you're conscious of and you gave evidence of, it's the perception, as well as the reality. Now, you've both come before me as persons with no record, and you've come before me, from what I can tell - - and I take into account evidence given that you've performed community work on the shire for nothing. You'd cobbled together your concreting business, and you had performed work for nothing, in addition to your long service as shire councillors and shire president.

They're things I'm entitled to take into account when considering how to deal with the matter, and it's true that this Act gives a penalty of 2 years' imprisonment or $10,000, but the sort of range of activity which could breach this offence is massive in its spectrum, so you could have someone who was very culpable and someone who's not very culpable, and I find that you two defendants are at the lowest edge of the scale. You have no prior record of dishonesty.

This offence that's created by the Act casts its net very wide. Now, it's in some ways unfortunate that you two councillors took the view that you didn't have to disclose your interest. I note from the other meetings that are part of the evidence that councillors disclose their interests quite regularly throughout these proceedings, and were in and out. I'm satisfied, however, that I can spend the convictions in your case. I propose to deal with the matter by the imposition of a conditional release order in the sum of $250 for each of you.

Now, what this conditional release order does is that, during its currency which will be a period of 12 months, if you commit another offence against the law, then you'll be brought back to court and you'll be dealt with for this offence and re-sentenced on it, but I'm sure you'll have no difficulty in staying out of trouble with the law, because otherwise, I would have been presented with a record showing breaches, so you've stayed out of trouble all your lives. You can keep doing it.

Now, the reasons I've spent the convictions are because of your good character, because of the nature of the offence I perceive as being at the lower edge of the scale, not quite as low as the councillors in Ramms v Alroyd, because ultimately, you did tender, but because of your mistaken belief that you'd already done the right thing, and you didn't have to keep, every time that the meeting came up, disclosing your interests, so for those reasons, I haven't dealt with you as harshly as the Crown has asked me to, so I spend the conviction and put you on a good behaviour bond in the sum of $250 for 12 months. Once you sign the good behaviour bond, you'll both be free to go."

19 In exercising his discretion, the Magistrate was controlled by the provisions of the Sentencing Act 1995.

20 Section 39 deals with sentences for natural persons. Section 39(2) lists a series of sentencing options. The first and second sentencing options are that the court, on sentencing an offender, may:

(a) with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender;

(b) with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender."

21 Section 39(3) provides that:

"A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option."

22 The Magistrate obviously considered that it was not appropriate to use the first sentencing option but decided that it was appropriate to make orders under option (b).

23 The Magistrate was also constrained by s 45 of the Sentencing Act 1995, sub-section (1) of which reads:

"(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."

24 It is clear that the Magistrate was conscious of s 45, because he specifically addressed the two pre-conditions in s 45(1)(a) and (b) which had to be established before he had any discretion to make a spent conviction order. He recorded that the respondents would have "no difficulty in staying out of trouble with the law", which satisfied the pre-condition in s 45(1)(a), and he noted that they were of "good character", which satisfied the pre-condition in s 45(1)(b)(ii). As I have already mentioned, these two points were conceded by the complainant.

25 The appeal is brought on grounds that the Magistrate's discretion miscarried because (a) the offence was not trivial and (b) there was no sufficient reason to conclude that the respondents should be relieved immediately of the adverse affect that the conviction might have.

26 The circumstances referred to in s 45(1)(a) and (b) of the Sentencing Act are circumstances which must be shown to exist before the discretion to grant a spent conviction order comes into existence: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.

27 The power to grant a spent conviction order should be regarded as an exceptional power. See Tognini's case (supra), where Murray J said at par 27:

"In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."

28 In Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997, Wheeler J noted that s 45 of the Sentencing Act does not require the making of an order once the criteria are satisfied, and went on to say that "consideration must be given to all of the circumstances of the case and of the offender - and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in s 45 are not thereby rendered irrelevant".

29 The court, in exercising the discretion to make a spent conviction order, is obliged to make a finding that there was some particular circumstance why it was desirable that the adverse effect of the conviction should be immediately set aside being conscious that the power to make a spent conviction order should be exercised sparingly: Koenig v Ryan [2001] WASCA 339.

30 The Full Court again considered s 45 in Mickelberg v The Queen [2000] WASCA 319, where it was stated in par 8 of the judgment of the Court:

"Those criteria for the making of such an order and the circumstances in which the order should be made generally were discussed by this Court in R v Tognini & McGuire [2000] WASCA 31; 22 February 2000. There is no need for present purposes to repeat what was said there. It is sufficient to deal with this submission, in our view, that although the applicant is unlikely to commit a similar offence again, the offence of which he was convicted could hardly be described as a trivial offence of its kind and, in our opinion, the previous good character of the applicant is not sufficient of itself in this case to warrant taking the exceptional course of making an order under the section, the effect of which is to immediately confer upon the conviction the status of a spent conviction under the Spent Convictions Act 1988 (WA) so that it need not be disclosed by the offender. Nothing of pressing moment was advanced by the applicant to justify the making of the order and, in our opinion, it would be inappropriate to do so: cf R v Tognini & McGuire per Murray J, with whom Malcolm CJ and Wallwork J agreed, at par [27] and par [28]."

31 The Full Court was not there saying that previous good character would never be sufficient to warrant making a spent conviction order. The Full Court merely stated that it was not sufficient "in this case" to warrant the exceptional course of making such an order.

32 Thus, in summary, after the pre-conditions in s 45(1)(a) and (b) of the Sentencing Act have been satisfied, the court should decide whether or not the offender should be relieved immediately of the adverse effect the conviction might have on the offender after having regard to (a) the seriousness of the offence in the circumstances of its commission, (b) the circumstances personal to the offender, and (c) public interest considerations if any are relevant in the particular case. What the sentencing court must do is to have regard to these considerations. The existence or non-existence of the considerations does not dictate a particular result. In one case, the public interest considerations may suggest that a spent conviction order should not be granted (for example, a firearms offence such as in Furtak v Timmers [2001] WASCA 65), but the minor nature of the offence and (or alternatively, or) the circumstances personal to the offender, may be of great significance, and in such case the court may then grant a spent conviction order notwithstanding the adverse public interest considerations. In another case, the court dealing with an identical charge but on different facts, might decide not to grant such an order. In yet another case, with no adverse public interest considerations, with exceptionally good character references but no particular circumstances personal to the offender, which pointed to an order, the court might decide not to grant a spent conviction order. On the other hand, in another case, on an identical charge with different facts, the court might grant a spent conviction order. I mention these examples to stress that what has been conferred in s 45 is a discretion. Parliament confers a discretion when it realises that circumstances might differ infinitely from case to case, and when it realises that to prescribe a particular result for every case is impossible. So long as the court bears in mind that the grant of a spent conviction order is to be granted only in exceptional cases after taking into account the relevant considerations mentioned above, and if it does not avert to irrelevant considerations, then (absent some error of principle or misunderstanding of the facts) the exercise of discretion cannot be set aside by an appeal court.

33 Counsel for the appellant referred to other cases where a spent conviction order was held to be inappropriate. For example, in one case the facts that a person was of good character and in employment were not sufficient to justify a spent conviction order: Game v Whitehead [2000] WASCA 50. In another case, the appellant's desire not to have criminal convictions on his record, even after 47 unblemished years, was not enough to warrant such an order because of the nature of the offences which had been committed (firearm offences): Furtak v Timmers (supra). In my view, they are cases which turn upon their own facts.

34 The principles which govern this appeal are well known. The Magistrate must be shown to have fallen into error, error being understood as explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3].

35 In Dinsdale v The Queen (supra), it was stated by Gleeson CJ and Hayne J at [4] that the principles which apply to appeals based upon alleged inadequacy of sentence and appeals by offenders based upon alleged excessiveness of sentence, are the same. Their Honours further stated in [3] that the task of the court on appeal is to determine whether there was an error made in sentencing the offender, error being understood, in this context, as it was explained in House v The King (supra) at 505, when it was said:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

36 The first ground of appeal is that the Magistrate erred in finding that the offence was trivial. As I have already mentioned, there are two circumstances specified in s 45(1)(b) of the Sentencing Act. A finding that one exists, along with the finding that the condition in s 45(1)(a) exists, will be enough to enliven the jurisdiction to make a spent conviction order. There was a finding that the respondents were unlikely to commit the offence again. Indeed, this was conceded. As a result, it was not necessary for the Magistrate to consider whether the offence was trivial or not, when deciding whether he had the jurisdiction to make a spent conviction order. In any event, the Magistrate did not make a finding that the offence was trivial, so it cannot be a ground of appeal that he did so. Insofar as this ground suggested that all the necessary pre-conditions in s 45 had not been satisfied, the ground fails. In submissions by the appellant, it was argued that this ground was really a particular of the second ground, which is concerned with the general considerations which had to be taken into account in the exercise of the discretion itself. Insofar as it alleges that the Magistrate found that the offence was trivial, it must fail for the reason already mentioned, ie that the Magistrate made no such finding.

37 The second ground, and in effect the only ground, is that there was no reason given by the Magistrate in the exercise of his discretion so as to relieve the respondents immediately of the adverse effects of the conviction.

38 As I have made clear above, this is an appeal which seeks to review the exercise of a discretion by the Magistrate.

39 The written submissions filed on behalf of the appellant spend some time contending that the offence was not trivial. I have already dealt with that aspect of the case.

40 A further part of the written submissions contended that "although the prosecution conceded the Respondents were of previous good character, other than the fact that the Respondents had no criminal record there was no independent evidence of previous good character". Such an argument could not possibly succeed, because independent evidence of previous good character was unnecessary following the concession by the complainant that the respondents were of previous good character. The respondents were nevertheless concerned about this part of the appellant's written submissions, and as a result they gathered together an impressive collection of references as to their character. The appellant consented to the tender of the references. I received these into evidence pursuant to s 196 of the Justices Act. They reveal that Mr McGrath has impressed members of his community with his dedication and commitment to the Shire, often to the detriment of his own business operations, and that he has served the community in the Shire of Jerramungup well during his term in office. The references reveal that the fact of the charges against the respondents was well known within the community. Ms Heidrich is now employed by the Education Department. She suffers some heart troubles which prevent her carrying out physical work on her farm, and as a result she obtained employment as a teacher. Ms Heidrich is now at a probationary level, but she has produced a number of impressive references speaking highly of her as an educator, including references from the principal of the school at which she works, teachers at that school, and parents.

41 The appellant submits that the evidence of good character which was conceded before the Magistrate, and which has been bolstered by additional material before me, is not likely in most cases to be sufficient foundation for the exercise of the discretion to grant a spent conviction order. As I have said above, in some exceptional cases, good character may be sufficient ground for the exercise of the discretion to grant a spent conviction order.

42 It was submitted by the appellant that there was nothing exceptional put before the Magistrate to justify departing from the usual rule that a conviction would be a matter of record, with all the consequences that that entails. It was submitted that the respondents were no longer members of the Shire council or that they intended to reapply; there was no evidence that the respondents would lose their employment; there was no submission made that a spent conviction order would contribute to the rehabilitation of the respondents; and there was no submission made that the respondents would suffer unusual hardship if no spent conviction order was made. Furthermore, it was submitted that public interest considerations should have led the Magistrate not to grant a spent conviction order. It was submitted that the granting of a spent conviction order would allow the respondents to seek re-election at the next available opportunity, even though there was no evidence that they would do so. It was said that this was contrary to the intent of s 2.22(1)(b) of the Local Government Act. It was further submitted by the appellant that there was public interest in the convictions being a matter of public record, so that they would act as a general deterrent to those in positions of trust to ensure they carry out their duties assiduously.

43 All of these points were doubtless points which the Magistrate was entitled to take into account.

44 In submissions before the Magistrate before sentence was imposed, counsel for the complainant pointed out the seriousness of the offence, submitted that it was not trivial or technical, and distinguished the case from the case of Rands v Oldroyd [1959] 1 QB 204, where a councillor had been convicted for not declaring an interest in relation to a matter which could, in theory, have resulted in work being given to the councillor. In that case, the court accepted that the councillor had not sought the work, and indeed had a policy of not doing any work for the Shire while he was a councillor. As I have noted above, during the submissions to the Magistrate, counsel for the appellant stated that the appellant did not seek a sentence of imprisonment, had some sympathy with the defendants, conceded previous good character, conceded that they were unlikely to commit the offence again, but submitted that there should not be a spent conviction order due to what was submitted to be the seriousness of the offence.

45 Now it is true that it is important that councillors do disclose any interest or potential interest which may affect their decision-making, or which may be perceived as affecting their decision-making. Observance of the law in this area is perhaps one reason why this country does not suffer from the poor reputation that many countries have for corruption in government. It must be a rare case for a conviction against s 5.65 of the Local Government Act to be followed by a spent conviction order. As the Full Court has said in general terms, the grant of a spent conviction order is exceptional. Nevertheless, there are cases where it is appropriate, even in the case of a charge under s 5.65 of the Local Government Act.

46 It is not suggested that the Magistrate took into account any irrelevant considerations. In my view, the Magistrate took into account relevant considerations. He considered the provisions of s 45 of the Sentencing Act by considering, and finding, that the pre-conditions for the exercise of the discretion existed. He then turned to consider the circumstances as a whole, as he was obliged to do.

47 The Magistrate considered the seriousness of the offence. He considered that the case was "at the lowest edge of the scale". He noted circumstances personal to the offenders by noting the long service of the respondents as Shire councillors. His Worship also noted that the interest of the two respondents had been disclosed when the matter was first debated by council. The Magistrate noted that they had mistakenly believed, in his words, that they had "done the right thing". The Magistrate was aware of the public interest considerations involved in an offence of this kind, because he noted the fact that the charge could cover very serious offences and less serious charges, and that it was "unfortunate that [the respondents] took the view that [they] didn't have to disclose [their] interest". He also noted that other councillors disclosed an interest "quite regularly"

48 It is true that the Magistrate did not decide whether the conviction might have some impact on the respondent's future employment, and it is true that he did not refer specifically to the provisions of s 2.22(1)(b) of the Local Government Act; but these are not considerations which the Magistrate was obliged to mention if he considered that other factors were sufficient to justify the exercise of his discretion. They are merely conditions or circumstances which might have led to a different outcome.

49 In my opinion, it has not been shown that the Magistrate has fallen into error.

50 I should add that even if I had concluded that the Magistrate had fallen into error and I was asked to exercise the discretion myself, I would also grant a spent conviction order. I would take into account the fact that there are public interest considerations in recording a conviction in a case of this kind; I would note that it must be a very rare case for a conviction against s 5.65 of the Local Government Act to be followed by a spent conviction order, but I would conclude that the offence in this case was at the lower end of the scale of seriousness; I would take into account the fact that there had been a very clear disclosure of interest when the subject of concrete for DUP paths was first considered; and I would take into account the good character of the respondents and that they dedicated a considerable amount of time in community service. Taking into account all of those considerations, I would have formed a view that this was an exceptional case and that the respondents should be relieved immediately of the adverse effect that the conviction might have on them. The adverse effect is the blight on their good character which, along with the other circumstances mentioned, was sufficient to justify a spent conviction order.