M -v- O'NEILL [2013] WASC 187 (17 May 2013)

Criminal law and procedure - Spent conviction order - Criteria for making an order

Spent Convictions Act 1988 (WA), s 39, s 45

1 On 28 March 2010, the appellant, then working as a transit guard at Subiaco Station, came into conflict with football patrons, Mr James Hagerstrom and his son Shane, returning from watching the Adelaide Crows and the Fremantle Dockers play at Subiaco Oval.

2 Both Hagerstroms had been drinking during the day in a procession from the Irish Club, to the game, to an Adelaide Crows function afterwards. By the time they reached Subiaco Station they were intoxicated.

3 Shane was carrying a football autographed by Tyson Edwards and Simon Goodwin. He was clowning around with the ball when it fell onto the railway tracks. Stupidly, Shane got down on the tracks to retrieve the ball, attracting the attention of some transit guards, including the appellant. Shane gave a false name. James Hagerstrom became agitated. A train came into the station and both James and Shane wanted to board the train.

4 The transit guards moved to stop them. What happened then was captured on closedcircuit television. There was an altercation. Eventually, the appellant was charged with three assaults on James Hagerstrom, particularised (ts 1/5/12, 10):

• shoved Hagerstrom to the chest;
• deployed capsicum spray onto his face;
• forced him, face first, into the concrete platform.

5 The prosecution case was that each of these acts was unlawful in that the appellant applied force to James Hagerstrom in circumstances where he either had no lawful authority to use force at all or he acted in excess of the lawful authority conferred on him by using excessive force.

6 The appellant pleaded not guilty but was convicted after trial and fined a global penalty of $5,000.

7 The appellant lodged a notice of appeal against his conviction. However, he has abandoned that appeal and now appeals against sentence on a single ground (amended at hearing):

There has been a miscarriage of justice occasioned by the failure of counsel to apply for spent conviction order for the appellant on 4 May 2012 in circumstances where a spent conviction order ought to have been made.

8 That ground does not clearly express the real issue. The appellant sought leave to file further evidence and leave was granted. In an affidavit in support the appellant swore:

1. After we left the courtroom on 4 May 2012 following my conviction and sentencing, I asked Mr Maughan when he would apply for a spent conviction. Mr Maughan said words to the effect that it was too late to apply for a spent conviction now and that I would not have been successful in obtaining a spent conviction in any event.
2. I was disappointed and accepted Mr Maughan's advice to me at that time.

9 The question is not whether counsel's actions caused a miscarriage but whether there was a miscarriage of justice because a spent conviction order should be made. The difference is important. A magistrate who is not asked to exercise the power to grant a spent conviction order may make no error. Indeed it will generally be difficult for a magistrate to assess whether a spent conviction order should be made without supporting material. A miscarriage of justice was accepted by the respondent as the real point of contest.

10 The three assaults were really part of one course of conduct, a point apparently accepted by the magistrate who imposed a global penalty. The magistrate made relevant findings.

The accused almost immediately, after having manoeuvred himself in front of Hagestrom shoves him back. ... It wasn't a hand up to stop him advancing it was a positive push and I find it was an intentional push and the intention was to push him back, push him away.

In my view there was no justification at all, lawful or otherwise, in particular no lawful justification for that stepping round in the front and pushing him (ts 2 - 3)).

11 Shane Hagerstrom was abusing the appellant, swearing at him.

12 James Hagerstrom was pushed back by a guard and did not resist.

13 The magistrate described the interaction between Shane Hagerstrom and the appellant during which time James Hagerstrom was effectively kept out of it by the other guard:

As I said his right hand, right side, is obscured but from the time that the hand with the can in it becomes visible it's a continuous movement of bringing the hand up. Before the arm is fully extended he's spraying directly towards Shane, although the two of them are only, at the most, their heads are probably maybe 600 mil apart but I find that the initial spray was, as he indicated in the evidence that he gave at the other hearing, towards Shane.

The spray can can be seen to have been used, deployed immediately, no hesitation at all. That's not in accordance with the training I accept but, in my view, that's of little consequence. He'd made a decision by then he was going to spray Shane. I find, however, that there was no warning given. Either, as Mr Smith said, it should be given or along the lines of firstly having had overtly demonstrated that he had the can so that the two of them could see it and certainly nothing to say - he did not say back - he said back off, I find, but he didn't say I've got this spray here and I'll use it if you don't do what you're told or whatever he might have said.

He didn't say anything about that he just pulled it out and sprayed. The first spray I find was directed at - well there is a continuous first spray. The first strike, if I can put it that way, of the spray was on Shane. He immediately reacts, turns his head to the right, drops his head. Mr - his father James Hagestrom hasn't reacted at all and I find - and it's on that basis not alone but principally that I find the first spray was aimed at and hit - the first part of the spray was aimed at and hit Shane and at that stage Shane still had his arm up. Not as fully extended as before in fact it's bent at the elbow. I find he's still mouthing off, still remonstrating but flat footed, as I said not advancing.

By then the train doors can be seen to have shut and after Shane got hit James is still standing in exactly the same position, facing directly at the accused, about a metre away by then and the accused then can be seen leaning forward still spraying, the same squirt. This time it's directed at James. That is after Shane had turned his head away showing obvious reaction. I find it was a reaction to being hit in the face with the spray or part with the spray (ts 5 - 6).

14 The magistrate made findings that James was also sprayed by another guard, getting a double dose in the face from both guards and his reaction is much more severe than that of his son:

Both of them turn and face the wall and they're both standing and appear to be talking to one another and as I said, James appears to be very affected and Shane turns round and says something to one of the other guards to the west and points. He's nowhere near the accused, in my view, no threat to the accused at all, that is Shane, and the accused moves in and then sprays - gives another spray towards the back of the heads of both of them (ts 7).

I find the guards are yelling at both of them to 'Get down. Get down'. Shane is ignoring it. His father gets down onto one knee, squats with his right knee on the ground, his left foot still on the ground.

...

I find he was badly affected by the spray that he couldn't see properly. He had no intention of resisting physically and he didn't resist physically. He did what he was told eventually and he was very obviously stressed.

...

James is still in the same position that I have previously described. Then whilst he is in that position the accused and the guard who was to the east of the group suddenly move in rapidly. The accused moved in more or less on the left-hand side and the other guard on the right-hand side.

James is motionless; head down, resting with his right elbow on the top of his left thigh down near his knee. His arm is down there, his head is bowed. He is not moving. I find that he was completely unaware of the approach of those two officers before they grabbed him and brought him to - right down to the pavement as they did.

The way that that happened is in essence that - I find that the accused was clearly the leader. He came in first. I find he came in hardest and I find he applied a lot more force to James than did the other officer. In fact the other officer's role appeared to be fairly minimal. He came in from the right-hand side of James.

...

What the accused did was come in behind and slightly to the left, over the top of James who had remained motionless. ...

I find that he did not struggle; he did not thrash his arms around; he did not resist, he had no option. There was no pausing. The two officers came in, the accused immediately applied force using his own body. It was unclear what his right hand was dong but I have got no doubt that his right hand and right arm made contact with James' back, shoulders, that area.

The whole time when they were approaching and when he was brought to the ground he was motionless, sitting there with his head bowed, squatting on one knee. Certainly not in a position to run away in a hurry from there and that's apart from the effects of the spray. He was flattened, he just went straight down. His legs almost immediately can be seen protruding out from underneath the accused and the accused ends up sitting astride.

I find he hit face first, there is no dispute about that, his nose was bleeding. ... I find that there was absolutely no warning that he received of that going to happen; that he was in a precarious position - he was almost as vulnerable as he could be apart from lying flat on the ground.

...

There was absolutely no need, from any point of view, for the accused (sic) to be brought down at all in my view or with that amount of force. Totally unnecessary. He wasn't offering any resistance; he was motionless when he was attacked. He had succumbed to the effects of the spray. He had succumbed to the demands of the officers to kneel down. He was defenceless and, as I said, he was taken totally by surprise.

...

I am satisfied that the circumstances included improper use of force in relation to all three offences. Therefore his conduct in pushing, in spraying and in brining James to the ground were not done in execution of the law.

...

I find that none of his [James] behaviour could ever have been reasonably perceived by the accused or perceived on reasonable grounds - believed on reasonable grounds to use the wording of the act - as constituting a threat towards him.

He was very angry, upset, annoyed and vociferous about the fact that they were giving his son a hard time, or particularly the accused, over getting down onto the railway line which was a stupid thing to do, but he never made any threat.

...

In my view the application 245, 246 and 247 are certainly not grounded in the evidence.

...

Bringing him down to the ground was an excessive use of force which was certainly prohibited by section 260 of the code. There was no justification for it at all. There was no attempt to arrest him or take him into custody is the word that is used - the words that are used in the Transport Authority Act. No attempt to do that without the use of force. Nothing to indicate that had he said to - well, let me put it another way (ts 7 - 14).

15 The magistrate made further findings for the purpose of sentencing and set out mitigating factors also relevant:

All right, in relation to sentencing I take into account all of those factors, no prior relevant convictions; a significant impact on his job, although he has still got his job; no incidents arising out of his job or anything of this nature. I accept that he has suffered financially as a result of - I assume - not being able to work the hours that he was working before on the other job and perhaps for other reasons.

I find that the accused was acting entirely properly and within his powers and reasonably when he began to engage with Shane. That Shane was acting like a fool in the circumstances, taking the whole thing very lightly, gave deliberately a false name and for the purposes of trying to avoid any penalty and dropped down on to the line which he saw as a relatively minor infringement.

I think the accused did as well initially. He said in the previous hearing that he started out with the intention of giving him a bit of a warning and a caution and that was it and I proceed on that basis.

...

I'll proceed on the basis that he [James] had lost a tooth and he suffered from that, that it was very painful. Firstly the spraying, secondly the being brought to the ground and the use of force, particularly the bringing - well both of them were severe and a long way away from what should have been applied.

I'm going to impose a global fine. There'll be a global fine of $5,000. I'm aware of the fact that he suffered some financial distress but I have to and I do intend to include in the penalty a reflection of the serious nature of the offence. The fact that he was a person in authority, the fact that there were a lot of alternatives available which he put aside and substituted the use of force in respect of the manner in which he dealt with Mr Hagestrom.

He was with other officers who were fully supportive of him. There was no violence being threatened to him. There's a need I think for an element of personal deterrents, there's also a need for general deterrents in terms of the way railway officers or authority officers, security officers approach their tasks and the need to strictly comply with the law and in that regard to comply with what they've been trained to do.

I've taken into account his relative immaturity and I'm not having a go at him. I'm not criticising him for that but he's not a mature person in the sense that ...

...

[He's] 24 year's old and in part I consider that his actions are probably as a result of some lack of experience and maturity in dealing with that sort of situation. In my view a global fine of $5,000 is sufficient to take those things into account in relation to the three separate offences (ts 17 - 19).

16 The appellant applied to adduce further evidence relevant to sentencing. The respondent did not object and leave was granted.

17 The appellant deposes that he is now 25 years old and was 22 when the offences occurred. He joined the PTA as a transit officer in July 2007, just over 2½ years before these offences. He completed high school to Year 12 and did a one year TAFE police preparation course, before working at several jobs over the next two years, including storeman and pizza driver, ultimately joining the PTA. He was stood down from operational status on October 2010 and employment terminated on 28 December 2012. He is presently employed as a storeman.

18 Following the incident on 28 March 2010, the PTA commenced an internal investigation demoting him in pay grade for three months which resulted in $1,200 lost wages.

1. I received training in all aspects of security and transit law enforcement from the PTA and I believe that I can use that training and my subsequent experience to obtain future employment in the security industry.
2. However, I am aware that most security jobs, even nightclub bouncers, have to obtain police clearance certificates. Without a spent conviction I will not be able to secure such clearance.
3. Following the termination of my employment I started looking for work and discovered that most jobs in the mining industry and even certain cleaning jobs required police clearance certificates.
4. In January 2013 I decided to apply to join the armed forces. I already have achieved a TEE and the army has a program to attend the Australia Defence Force Academy in the ACT and obtain a degree whilst working in the military.

20 The appellant also provided impressive character evidence. The following extracts give a picture of a young man whose actions on the night were entirely out of character.

21 Has known the appellant as a patient since 1993:

I am aware that he ahs been found guilty of charges of common assault in the course of his duties. I believe that aggressive or violent behaviour would be completely out of character, as I have always felt he was a gentle and unassertive man.

Peter Armstrong, Central Monitoring Room Coordinator

I am aware that Shaun has been found guilty of three charges of common assault in relation to an incident that occurred whilst he was on duty as a Transit Officer with the Public Transport Authority. In my opinion these charges do not reflect Shaun's true temperament and are totally out of character for him.

In all my dealings with Shaun, I have found him to be honest, professional and hard working. I would describe him as softly spoken, quiet and very even tempered.

Shaun is an intelligent and motivated individual that has career aspirations.

I first met Shaun 3 years ago when he became a friend of my son.

I have always found Shaun after the assault incident he has since been found guilty of, and having now known him for the time I have, I consider that this behaviour is not in Shaun's nature and is totally out of character for him. I have never seen Shaun lose his temper or act in an aggressive way at anytime.

When I heard the news that Shaun had been charged with three counts of assault, I was shocked to hear the news. The charges are completely out of character for Shaun as this is completely against his nature, personality and everything I have grown fond of about him over the last three years.

I can confirm that he is a man of great integrity, extremely dedicated to his family and work. Shaun is a professional, of the highest calibre, who meticulously researches, formats, edits and proofs his work, his computer skills are of the highest standard.

I've worked with Shaun as Transit Officer on numerous occasions and I find him to be a man of great integrity and a good officer. The reason why he is a good officer is that he is very softly spoken with offenders and only acts in a responsive way if there is no other choice.

I was in a state of disbelief when I heard that Shaun has been found guilty of three charges of common assault over an incident that occurred on duty with the PTA, and I personally considered such conduct to be totally out of character for Shaun.

I know that Shaun has been found guilty of assault from an incident that occurred whilst employed as a guard on the railways. I cannot believe that Shaun had any other thoughts at that time than to protect the public and uphold the law. In the time I have known Shaun I have never seen any kind of aggression or negative behaviour in any type of situation. I have always found him to put others safety first in many situations and is very caring of anybody in a difficult situation.

I served as a Transit officer for the Public Transport Authority for approximately 5 years and at many times acted in a senior role.

...

I understand Shaun has been found guilty of three charges of common assault over an incident that occurred on duty as a Transit Officer with the Public Transport authority. In my opinion, I consider this behaviour to be completely out of character for Shaun.

I have always found Shaun to be a good natured and kind young man. He is an intelligent and thoughtful person. Shaun has always found time to help the public and in my opinion had always acted in a professional manner.

His calm and thoughtful demeanour is an attribute which I know put him in good stead to carry out the demanding duties of a Transit Officer for PTA. This is why I found it hard to fathom that he has since had 3 charges of common assault brought against him whilst on duty for the PTA.

Put frankly, this is completely out of character for Shaun because as mentioned, I believe him to be such a thoughtful person who would never want to cause harm to anyone.

When I found out that Shaun had been charged with three counts of assault whilst on duty I was incredibly surprised and taken aback as Shaun had never shown to be anything but a calm professional, quiet and reasonable person, and to be charged with assault I believe to be completely out of character.

When I heard that Shaun had been involved in an incident whilst on duty with the PTA and was subsequently charged with common assault, I honestly couldn't believe that he could be responsible. It was and is totally out of character, in my opinion. I say this because I think that of all my friends and family, Shaun is the most measured and thoughtful and lest likely to make a 'snap decision'.

22 A court may make a spent conviction order and impose a fine: Sentencing Act s 39.

23 The term 'spent conviction' is a misnomer. The conviction is not spent at all. It remains on the record for subsequent court proceedings. The Spent Convictions Act 1988 (WA) prevents discrimination against a person for employment and other purposes and allows them to answer 'No' to questions about convictions. But there are many exceptions listed in the Spent Convictions Act sch 3, including for persons applying to be police officers or security guards when the benefits of a spent conviction do not apply.

24 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 is a seminal case. It is a decision of the Full Court. It has been followed by the Full Court and primary judges. The appellant submitted although Tognini has become an oft-cited authority for the proposition that a spent conviction order is to be regarded as unusual and only to be exercised sparingly, there is nothing in the statutory language to support Justice Murray's statement at [24] of the judgment that the power in s 45 of the Act should only be 'sparingly' exercised. To constrain the operation of section 45 in this way is to place an unnecessary and impermissible gloss on the statutory language: AR v Wood [2008] WASC 119.

25 There is something to commend the view expressed in AR v Wood [39] but a primary judge must follow decisions of the Court of Appeal: Nickolson v Keeble [2007] WASC 231.

The questions to be asked when considering whether to make a spent conviction order

26 The principles which I rephrase as questions are:

1. Is the offender unlikely to commit such an offence again?
2. Is the offence trivial?

1. Should the offender be relieved immediately of the adverse effect that the conviction might have on the offender?

27 The answer to the first question involves a prediction, noting the prediction is of the likelihood of committing 'such' an offence, not 'any' offence.

28 The answers to the alternatives in the second question are matters of fact.

29 The answer to the third question is a matter of discretion. The discretion will be informed by a number of considerations including:

1. The discretion should be exercised:
   • sparingly;
   • in a clear case; and
   • for good reason is desirable.
2. The court should take into account:
   • the nature and seriousness of the offence (both in its commission and referable to the offender); and
   • the rehabilitative effect of immediate removal of the conviction, the effect both on the offender and the community being considered. The conviction for a lesser offence (of which this is one) will be able to become spent after 10 years so emphasis is placed on immediacy.

30 In taking into account the rehabilitative effect it may be necessary to consider, among other things:

• impact on employment, present or future; and
• exceptional hardship to offender or family.
  1. The court must also take into account the public interest which includes:
     • any employer or potential employer being aware of the offences in assessing suitability and reliability for the type of work; and
     • general and personal deterrence.

31 These principles are distilled from Neale v Sloan (1997) 27 MVR 246, Riley v Gill (Unreported; WASCA, Library No 970731, 8 December 1997), Tognini, Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, Canale v Bayens [2001] WASCA 383, Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, Scanlon v Bove [2008] WASC 213, Koenig v Ryan [2001] WASCA 339, Sentencing Act s 39, s 45.

Question 1: Is the appellant unlikely to commit such an offence again?

32 The respondent submits that there is no evidence that the appellant is 'unlikely to commit an offence again'. The appellant submits that the court can infer the appellant is unlikely to offend having regard to:

• his antecedents;
• the specific circumstances in which these offences occurred no longer existing;
• the serious consequences of these offences to the appellant;
• the appellant was 22 years old when the offences occurred and had been a transit guard prior to the offences without incident;
• the learned magistrate took the view that the appellant's immaturity and lack of experience were factors in what occurred;
• the circumstances of the offences also require consideration. They occurred when the appellant was on duty as a Public Transit Authority officer where he had lawful access to OC spray. He encountered the Hagerstroms and it is not in dispute that Shane Hagerstrom was acting like a fool and being obstructive to the appellant doing his job;
• the learned magistrate made the following observations in sentencing:

I find that effectively what happened is he allowed himself to be overcome - emotionally is probably not the right word but it is probably good enough - by the behaviour of the father and the son.

That is in circumstances where there were members of the public present, there were his colleagues present. Very stressful for him. I find that for whatever reason he allowed that to build up into frustration - some frustration, some anger and he lost his cool, to put it in the vernacular, and therefore committed these three offences.

33 The appellant is now older and has paid dearly for his offending. The consequences have been brought home to him. Despite his desires, it is unlikely that he will obtain employment where he is in a position to exercise lawful force over others for sometime, if ever. There are relevant employment exemptions to the operation of the Spent Convictions Act in the schedule. I am of opinion that the appellant is unlikely to commit such an offence again. All of his character witnesses attest to this being out of character with the person they know. The answer is yes.

Question 2: Is the appellant previously of good character?

34 The answer to question 2 is simple. The appellant concedes that the offences of assault are not trivial (s 45(1)). The respondent concedes that the appellant is of good character.

35 Both concessions are plainly correct and the second question is satisfied. The answer is yes.

Question 3: Should the appellant immediately be relieved of the adverse effects of the conviction?

36 The appellant argues there is no public interest in maintaining the conviction. He is no longer a person in authority. The community is not better protected by knowing of the conviction. The community is better served by rehabilitation compared with adverse consequences. There is nothing overwhelming about the community interest.

37 The respondent argues that the circumstances could reoccur in a similar field and the public interest is in knowing the facts is a relevant and decisive consideration. He was in a position of authority and acted with excessive force. He could be in a similar position in the security field or in the military. Other potential employers should have the same information as the PTA to take it into account as to whether he needs extra training etc.

38 The assaults in combination were serious. Although not accompanied by any pleaded circumstance of aggravation, they are made serious by the circumstances in which they occurred.

39 Seriousness is not an automatic bar to a spent conviction order: Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211. It is a factor to be considered in balance with other factors. Factors balancing the seriousness of the particular offence are findings by the magistrate previously set out, including:

• his age;
• the circumstances were very stressful for the appellant;
• lack of experience; and
• relative immaturity.

40 The impact on actual or potential employment is often a battle ground in appeals such as this. It is a factor but never the only factor. Sometimes arguments between the parties develop into disputes about the impact of a lack of spent conviction on an appellant with suggestions that an appellant must establish impact before the discretion is enlivened. This is incorrect.

41 In an employment environment where police clearances are common for many occupations the particular question becomes whether the circumstances of the particular conviction should be known to employers not listed in the exemption schedule so they can assess the employment application 'without blinkers', to borrow an expression from Brewer v Bayens.

42 It is often clearly in the public interest that rehabilitation of an offender is actively assisted through employment.

43 There is an obvious need for general deterrence. Peace officers of all types are given lawful authority to deploy force. It is important they should know there are consequences to the misuse of that authority. The appellant has paid a heavy penalty and lost his job. There is little extra general deterrence by the public continuation of the conviction.

44 The appellant does not require further personal deterrence by continuation of the conviction for the personal matters I have previously outlined in a slightly different context.

45 Young men and women sometimes do really silly things and go on to lead fulfilling lives. The appellant was a young man in a stressful situation who over reacted. The past does not have to be brought up on every occasion. This is one such case.

46 Balancing all the factors I have outlined, the public interest is now best served by the rehabilitation of the appellant, which will be assisted if the adverse effects of the conviction are immediately removed.

47 I am satisfied there will be a miscarriage of justice if a spent conviction order is not made.

1. Appeal allowed.
2. Sentence varied by a spent conviction order.