MANCHANDA -v- WA POLICE [2025] WASC 49 (18 February 2025)

Community based order (8 months) with programme and supervision requirements (concurrent)

1. The learned magistrate refused to make spent conviction orders in respect of the appellant's convictions. It is that decision that the appellant appeals. The appellant seeks to admit additional evidence in support of his appeal.
2. The appellant's ground of appeal does not have any reasonable prospects of success. The application to admit additional evidence is granted, leave to appeal is refused and the appeal is dismissed. These are my reasons for doing so.

1. The offending occurred in the context of a breakdown in the appellant's relationship with his ex‑partner, [redacted]. The appellant and [redacted] have a daughter, who was born in January 2019.
2. On 20 December 2023, the appellant was served with a FVRO including terms to not communicate, or attempt to communicate, with [redacted].[5]
3. On 21 December 2023, the appellant made 23 phone calls and sent 11 text messages to [redacted] phone number. This makes up PE 30062/2024 - breach of FVRO offence.
4. On 5 March 2024, the appellant was washing dishes at the sink in the house he was living in at the time with [redacted], when she informed him that she was going to take out a restraining order. The appellant became upset and struck the kitchen window with a plate. This destroyed the window and left a hole in the glass pane. The window was property of the landlord, [redacted]. This makes up PE 18475/2024 - the unlawful property damage offence.
5. On 17 March 2024 at around 2.45 pm, the appellant went to [redacted] mother's, [redacted], home in Belmont. He argued with [redacted] at the house. [redacted] asked him to leave. As he was leaving, the appellant grabbed hold of [redacted] by the back of her head and pushed her into the outside house's exposed brick wall. [redacted] was 65 years old. This makes up PE 15876/2024 - the offence of aggravated unlawful assault.
6. On 17 March 2024, the appellant was served with a FVRO for the protection of his ex‑partner. On 18 March 2024 at 2.53 pm, 3.12 pm and 3.40 pm, the appellant called his ex‑partner using a private number. She answered the call the third time and the appellant said 'Hello. Why did you do this? Are you happy now that you have done this to me?'[6]

The hearing before the learned magistrate on 7 October 2024

1. The appellant pleaded guilty to all charges. The learned magistrate accepted, in sentencing the appellant, that he was of prior good character and had no previous convictions. However, in refusing to grant spent convictions for the offences, the learned magistrate was not persuaded that the appellant was unlikely to commit an offence of that nature again, referring to the following matters:[7]

(1) the offending occurred in emotionally volatile circumstances;

(2) the offences were committed on different dates over a period from December 2023 to March 2024;

(3) the fact that the appellant considered [redacted] as a source of his behaviour spoke to his continued vitriol towards her and the continued emotional aggravation that he has towards [redacted] and her family; and

(4) the appellant and [redacted] share a young child.

1. This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act).
2. The appellant seeks leave to amend his grounds of appeal pursuant to s 40(1)(k) of the CA Act. This is not opposed by the respondent.
3. The amended ground of appeal states:

There was a miscarriage of justice occasioned by the decision of the learned Magistrate to refuse to grant spent conviction orders in respect of each of the Appellant's convictions.

1. The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[8]
2. Section 6(g) of the CA Act states that a 'decision' of a court of summary jurisdiction includes 'a refusal to make an order that might be made as a result of a conviction'.
3. The learned magistrate's refusal to make a spent conviction order was 'a refusal to make an order that might be made as a result of a conviction' and therefore a decision within s 6(g) of the CA Act.
4. Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made.
5. The appellant must obtain leave to appeal.[9] If leave to appeal is not granted, the appeal is taken to have been dismissed.[10] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[11]
6. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12]
7. In determining whether there has been a miscarriage of justice, it is not necessary to find an error on the part of the learned magistrate in refusing to make spent conviction orders. The question is whether the failure to make a spent conviction order has occasioned a miscarriage of justice.[13] Therefore, in order to determine whether there has been a miscarriage of justice as a result of the learned magistrate's refusal to make a spent conviction order, I must consider the merits of the appellant's application for spent conviction orders afresh in relation to each offence. I may substitute my own opinion for that of the learned magistrate merely because I exercise my discretion in favour of making a spent conviction order.[14]

Legal principles regarding spent conviction orders

1. The power to make a spent conviction order is found in s 39(2)(a) ‑ (d) of the Sentencing Act 1995 (WA) (Sentencing Act).
2. Section 45 of the Sentencing Act sets out the conditions for the making of a spent conviction order and relevantly provides:

(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.

1. The court can only grant a spent conviction if the following three pre‑conditions in s 45 of the Sentencing Act are satisfied:

(1) the offender is unlikely to commit such an offence again;

(2) the offence was trivial or the offender is of prior good character; and

(3) having regard to the pre‑condition that the offence is trivial or the offender is of previous good character, the court must be of the view that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

1. Even if the pre‑conditions are met, the court has a power but not a duty, to make a spent conviction order. The court must consider all of the circumstances of the offence and the offending, as well as the public interest. In R v Tognini[15] Murray J said:

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 would positively aide 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.

1. When considering the public interest, the court should have regard to the public interest in maintaining the community's confidence in the judicial system and ensuring general deterrence by the public recording of convictions.[16]

1. The appellant seeks to adduce additional evidence in the appeal in the form of the affidavit of the appellant affirmed on 10 January 2025 and the affidavit of Priyanka Saini affirmed on 10 January 2025. This application is not opposed by the respondent.
2. Section 39(1) of the CA Act requires the court to decide the appeal on evidence and material that was before the lower court. However, the court has a discretion, pursuant to s 40(1)(e) of the CA Act to admit any other evidence.
3. Section 41(4)(a) of the CA Act provides:

The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard.

1. In determining whether failure to make a spent conviction order constituted a miscarriage of justice, an appellate court may have regard to new information which goes to the appellant's good character and the likely consequences of a conviction.[17]
2. The affidavits which the appellant seeks to admit go to the appellant's circumstances that have occurred after he was sentenced by the learned magistrate on 7 October 2024 - those being his inability to obtain employment due to his convictions and his stable relationship with his new partner, Ms Saini and his role caring for Ms Saini's daughter.
3. In my view, the evidence contained in these affidavits is relevant to the appellant's good character, whether he is likely to commit such an offence again and the adverse effect that the convictions are having and may continue to have on the appellant. I therefore grant leave to the appellant to admit the additional evidence.

1. The appellant submits that spent convictions should be granted in relation to each of the offences because he is unlikely to commit an offence of that nature again, he is of prior good character, the convictions will have an adverse effect on his future employment and it is in the public interest that the appellant be successfully rehabilitated and be a productive member of the community.
2. I accept that the appellant is of prior good character, these being his only convictions. The issue however is whether I can be satisfied that the appellant will not commit offences of this nature again.
3. Each of the offences committed by the appellant are offences in the nature of family violence. The appellant submits that the court can be satisfied that he will not commit such offences in the future because:

(1) the offences were committed in the context of the breakdown of his relationship with [redacted] and as an immediate emotional response rather than prolonged and consistent disregard of orders;

(2) the relationship between [redacted] and the appellant has ended and there is no need for the appellant to have any relationship with [redacted];

(3) at the time of the offences he was suffering from anxiety and depression and he is now on medication and seeking mental health support to address those issues;

(4) he is in a committed relationship with Ms Saini and cares for her daughter - he has moved on from his relationship with [redacted];

(5) while there are still Family Court proceedings on foot between himself and [redacted], the restraining order proceedings have been settled by way of a conduct agreement; and

(6) he has not committed a further offence since this offending.

1. I am not however, satisfied that the appellant is unlikely to commit an offence of a family violence nature again. Each of the offences occurred on a different date and over a period of months. The offending occurred in the context of a breakdown in the appellant's relationship with his partner and her mother. The appellant attributed a level of responsibility to [redacted] for the circumstances which led to his offending - he continues to do so despite the fact that he has moved on in a relationship with Ms Saini.
2. In addition, the appellant and [redacted] are engaged in ongoing family court proceedings and share a daughter. There is a likelihood for there to be ongoing circumstances of disagreement and conflict between the appellant, [redacted] and [redacted].
3. In all of these circumstances, I am not satisfied that the appellant is unlikely to commit an offence of a family violence nature again. I am satisfied of this in relation to each of the offences. In relation to the breaches of the FVRO offences, each occurred on the day after he was served with the respective FVROs. On each occasion, the appellant contacted [redacted] on more than one occasion, demonstrating complete disregard for the orders. In my view, this is an example of serious offending of this nature.
4. In relation to the criminal damage offence, it was as the result of a violent emotional outburst at being informed by [redacted] that she was going to obtain a FVRO.
5. Finally, in relation to the aggravated common assault, this offending is serious given the age and vulnerability of the victim and the nature of the offending. The appellant, while accepting responsibility for this offending, as demonstrated by his plea of guilty, attributes a level of responsibility for all of his offending to the poor way he says he has been treated by [redacted].
6. For all of the reasons I have outlined, I am not satisfied the appellant is unlikely to commit offences of this nature again and therefore, the discretion to grant spent convictions is not enlivened.
7. Although I am therefore not required to consider the adverse effect that the convictions might have on the appellant or the public interest, I do make the following observations.
8. I accept that the appellant has been unable on two occasions to obtain employment in the transport industry because of the requirement to obtain a police clearance. Further, the appellant does not have qualifications which would allow him to easily obtain other employment and he has a long working life ahead of him. I am of the view that there is not a strong public interest in an employer being made aware of these convictions as the circumstances in which his offending occurred are unlikely to arise in an employment setting. These are factors which favour the making of spent conviction orders in the court's discretion.
9. However, weighed against those factors is the public interest in general deterrence for offences of this nature. It is important that people are deterred from committing family violence offences, not only by the criminal sanctions that may be imposed, but also by the long‑term adverse consequences that accompany this type of offending. Family violence offences are inherently serious, and the appellant's offences are serious examples of this type of offending.
10. Even if the discretion was enlivened, I would have declined to exercise it in favour of making spent conviction orders given the seriousness of the offences and the public interest in general deterrence of family violence offences.

1. For the reasons above, I make the following orders:

(1) The appellant's application to amend the ground of appeal be granted.

(2) The appellant's application to adduce further evidence be granted.

(3) Leave to appeal is refused.

(4) The appeal is dismissed.

(5) The appellant pay the respondent's costs of the appeal fixed in the sum of $350.

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

[1] Contrary to s 313(1)(a) of the Criminal Code (WA) (Criminal Code).

[2] Contrary to s 445 of the Criminal Code.

[3] Contrary to s 61(1) of the Restraining Orders Act 1997 (WA).

[4] Contrary to s 61(1) of the Restraining Orders Act 1997 (WA).

[5] Transcript of Magistrates Court proceeding on 7 October 2024 (Magistrates Court Transcript) page 6.

[6] Magistrates Court Transcript, page 6.

[7] Magistrates Court Transcript, page 18.

[11] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[13] Rawle v Collins [2022] WASC 452 [59].

[14] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].

[15] R v Tognini [2000] WASCA 31 [27] - [28].

[16] Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510 [18].

[17] M v Seidner [2013] WASC 395 [28].