File No : PE 56507 of 2005, PE 56508 of 2005, PE 56509 of 2005, PE 56510 of 2005, PE 56511 of 2005, PE 56392 of 2005

Criminal law - Sentencing - Whether a spent conviction order should be made - No new principles

Sentencing Act 1995 (WA), s 45

Brewer v Bayens (2002) 26 WAR 510

Harper v Page [2004] WASCA 269

Lynch v Heidrich & Anor [2002] WASCA 154

Neale v Sloan (1997) 27 MVR 246

Nichols v Harnett [2004] WASCA 311

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

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

Nichols v Harnett [2004] WASCA 311

1 On 12 December 2005 the appellant appeared in the Magistrates Court Perth and pleaded guilty to a charge (PE 59392/05) that on 7 November 2005 at Belmont:

"... being a security guard at Chubb Security, stole one men's Nixon watch, property of Masaru Tasuki, which came into your possession on account of your employment with Chubb Security."

2 He was fined $1500 and the Magistrate declined to make a spent conviction order. He also pleaded guilty and was dealt with for other less serious charges as follows:

2 x possession of prohibited drug (PE 56509/05 & PE 56511/05)

3 The facts put before the Magistrate on the stealing charge were that on 7 November 2005 the appellant was on duty at the Perth Domestic Airport. He was working for Chubb Security in the Qantas Domestic Terminal screening all persons entering the terminal area. A male passenger, was asked to empty all metallic objects into a plastic container. The appellant carried the container over to the X-ray screening device and took the passenger's watch, hiding his actions as he did so. The passenger immediately advised other security officers that his watch was missing but the appellant had left the area and gone home with the watch. The watch was valued at $550. The watch was subsequently found in a jeweller's shop in Fremantle waiting to have some links removed from the band.

4 The items leading to the other charges were found following a search of the appellant's home.

5 The appellant was represented by counsel who made a comprehensive plea on his behalf. The thrust of the plea related to the stealing charge. The appellant was 20 years old and had just started the job at the airport. It was submitted that the appellant took the watch for no reason. His antecedents were very good. An explicit request was made for a spent conviction order. This request was opposed by the prosecutor. The Magistrate concluded that appellant's family contributes to the community in many ways as does the appellant:

"but my overwhelming difficulty is the nature of the particular offence. He is employed as a security guard ... but this is a breach of trust in my view of such a magnitude that I'm not able to see my way to making a spent conviction order in this particular case".

"I don't intend to make a spent conviction order having taken into account the matters that have been raised, because I think it would be inappropriate as this charge is serious, it's not trivial and it does come within the second limb of the section."

I suspect she said or meant to say "does not come within the second limb of the section".

7 The Magistrate expressed her view as to the seriousness of the offence as follows:

"Whether you succumb to this culture that's been described or not I don't know, but you were employed as a security agent. The whole security process is put at jeopardy obviously by this sort of action. It's a breach of trust in my view which is of the higher end of the scale."

8 The appellant originally appealed on a single ground that:

"The learned Magistrate erred in law and/or in fact in concluding that it was not appropriate to exercise her discretion and grant a Spent Conviction Order."

9 By a provisional decision published on 21 April 2006 I refused leave to appeal because the ground of appeal was defective: Criminal Procedure Rules 2005 (WA) r 65(2)(a).

10 The appellant sought a review of that decision and on 26 May 2006 I granted leave to appeal on an amended ground of appeal:

"The learned Magistrate erred in law in deciding that a spent conviction was not appropriate purely be reason of the nature of the offence and without having proper regard to the relevant statutory provisions of s 45(1) of the Sentencing Act".

11 The Sentencing Act 1995 (WA) s 45 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."

12 The principles relating to spent conviction orders are well settled: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 per Murray J at [24], [25], [28]; Brewer v Bayens (2002) 26 WAR 510 particularly per Burchett AUJ at [14] ff; Neale v Sloan (1997) 27 MVR 246 ; Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997; Lynch v Heidrich & Anor [2002] WASCA 154; Harper v Page [2004] WASCA 269.

13 The appellant referred and relied upon Nichols v Harnett [2004] WASCA 311, particularly that portion of my judgment at [9]. In that case the Magistrate was inconsistent in his reasoning because he was satisfied that the appellant was unlikely to commit such an offence again. It was significant that a month later the camera that had been stolen was still hidden away. Emotional and psychological upheaval which might lead a young man to committing an offence out of character was readily explained and was being addressed.

14 The appellant argues that the Magistrate directed her mind to the Sentencing Act s 45(1)(b) namely, the appellant's lack of prior convictions but her reasons do not reveal that she directed her mind to s 45(1)(a); namely, whether the offender is unlikely to commit such an offence again. It is argued that the Magistrate's intellectual processes fell into error in failing to turn her mind to the considerations in s 45(1)(a) and that this was a failure to consider a significant aspect of the policy underlying the Spent Convictions Act 1988 (WA); namely, the policy of aiding and the rehabilitation of the offender by immediately relieving him from the adverse effects of the convictions in the way described by the Act.

15 The Magistrate did not mention s 45(1)(a) in her reasons and I conclude that she did err in the manner submitted.

16 It is necessary to see whether there was any material that would sustain a conclusion, after consideration, that the appellant is unlikely to commit such an offence again and so bring him within the Sentencing Act s 45(1)(a).

17 The explanation proffered through his counsel for the stealing offence was as follows:

"... So this happened. It was towards the end of his shift. He accepts he simply took the watch for no reason. He's got a better watch. ... the only thing you could put it down to was he was frustrated with the job and perhaps there was a culture there that people were doing this and other things, and of course he didn't want it and the watch was given to somebody else, a friend, who had taken it to a jewellers in order to get a couple of links taken out of it so it would fit them."

18 The appellant clearly gave the authorities assistance in relation to other possible offenders at airport security.

19 In assessing whether the appellant was likely to commit such an offence again, in addition to his antecedents, assistance to the authorities and efforts he had made to further his education, it is relevant to consider the other charges. He was not a person of unblemished character. The nunchakus had been purchased a year earlier. The police hat had been found by the appellant 1½ years before. He was a cannabis user and in possession of dexamphetamine. While cannabis is regarded by many as a recreational drug, and is possibly widely used within the community, the blunt fact is that it is illegal to possess and smoke it. Yet the appellant wished to pursue a career in security - a career allied to law enforcement.

20 I have concluded that the Magistrate did err in failing to specifically address the issue raised by s 45(1)(a) of the Sentencing Act. However, had she addressed the issue there is no evidence by which she could conclude positively that the appellant was unlikely to commit such an offence again. The facts are quite distinguishable from Nichols v Harnett where there was such evidence. The case is similar to Brewer v Bayens at [15].

21 A jurisdictional fact that enlivens the discretion to make a spent conviction order is missing. The existence of factors which bring a person within s 45 are enlivening factors for the exercise of the discretion not conclusive factors. Bearing in mind the principle in Tognini "it (the power to order a spent conviction) should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable", I am not persuaded in any event that this is such a case. The Magistrate was correct in concluding that this was a breach of trust of such magnitude that a spent conviction order would be inappropriate.