MOHAMED -v- WELLINGER [2012] WASC 470 (3 December 2012)

4 At the time of the offence, on 2 September 2011, the appellant was studying for his TEE. The appellant and two friends went into a David Jones store in Claremont. The three of them browsed the menswear section. The appellant selected two shirts. One shirt was red. He concealed the red shirt under the other shirt. Then he went into the change room. In the change room the appellant hid the red shirt in his trousers. He walked out, handing the other shirt to a staff member. He did not pay for the red shirt. He was followed by a store officer who detained him and recovered the shirt. The appellant told the store officer that he took the shirt to prove to his friends that he could and 'so I can fit in'.

5 The appellant was charged with stealing the shirt under s 378 of the Criminal Code (WA). The shirt was valued at $99.95.

6 On 5 October 2011, the appellant pleaded guilty to the charge of stealing the shirt. At his sentencing the learned magistrate asked the appellant if he had anything to say. The appellant said that it was the first time he had ever stolen anything. He said that he had made some new friends who 'usually do this stuff'. The appellant was asked by his Honour whether he was working and the appellant said that he was 'at college doing year 12 TEE'.

7 The learned magistrate ordered that the appellant pay a $400 fine and costs of $121.95.

8 The appellant filed an application for leave to appeal nine months out of time. The application for leave to appeal from sentence did not contain any grounds of appeal. Based on the affidavit evidence from the appellant, who was unrepresented, the respondent proceeded on the basis that the ground of appeal was that there would be a miscarriage of justice if a spent conviction were not ordered. The appellant confirmed that this was his ground of appeal.

9 Where there has been a lengthy delay, the Court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[1]

10 The appellant's affidavit evidence is that he was not aware that he could obtain a spent conviction order until after he applied for employment in July 2012. The respondent properly did not oppose a grant of leave in light of (i) the fact that the appellant was unrepresented in the Magistrates Court, and (ii) the fact that the appellant had no other experience of such matters. These two factors are sufficient, in the circumstances of this case discussed below, to demonstrate that a miscarriage of justice would occur if leave to appeal were refused due to the nine month delay. Further, for the reasons below, I am satisfied that the ground of appeal has a rational and logical prospect of succeeding or, in other words, a real prospect of success[2] and that leave to appeal should accordingly be granted. There was no objection to the grant of leave to appeal by the respondent.

11 On 31 August 2012, the appellant swore an affidavit in these proceedings. He deposed to the following facts.

12 At the time of his arrest, the arresting officers had told the appellant that he would probably receive a fine. He was told that he could represent himself. He did not seek legal advice. He says that he was not aware of a spent conviction order. If he had been aware of it then he would have sought legal advice and applied for one.

13 In midJuly 2012, the appellant obtained casual employment with Telstra. Two weeks after he commenced work he was told by a manager that he had been 'red flagged'. His conviction for stealing meant that he was unable to return to work.

14 The appellant says that he is now suffering hardship because he is unable to secure employment. He is currently studying Geology and Commerce and when he completes his studies he will face further difficulty in securing employment. He says that this is particularly because most employers are now seeking police clearance.

15 The appellant says that there is little to no chance that he will reoffend.

16 From the bar table the appellant also said that he had applied to David Jones to obtain work and has applied for summer vacation work but that with his conviction he was finding it difficult to obtain work.

The principles governing spent conviction orders

17 This section of my reasons considers the principles relating to spent conviction orders. I acknowledge the assistance I received from meticulous submissions, both written and oral, by Ms Cleary.

18 The maximum penalty for stealing is seven years' imprisonment, with a summary penalty of a fine of up to $6,000 where the value of the property does not exceed $1,000.

19 Section 39 of the Sentencing Act 1995 (WA) provides for the power to make a spent conviction order as one of the sentencing options. The power to make a spent conviction order arises whenever a fine is imposed.[3]

20 Section 45(1) provides:

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.

21 The combination of s 39 and s 45 means that the conditions in s 45(1) only enliven discretion to make a spent conviction order. They do not mandate such an order. The power to make a spent conviction order has been described as an exceptional power, and it is a matter of discretion whether it should be exercised.[4]

22 In R v Tognini,[5] in passages which have been cited and applied numerous times in this State, including by the Full Court and Court of Appeal of this Court,[6] Murray J said:

Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.

...

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.

Spent conviction orders for stealing or other dishonesty

23 Although a conviction for stealing or other dishonesty is a serious matter, it was contemplated in the second reading speech of the Sentencing Bill that a spent conviction might, in exceptional circumstances, be awarded in such cases.

24 An example given by the Honourable Attorney General in the second reading speech of the Sentencing Bill was that the discretion might be exercised for a spent conviction in a case of minor shoplifting where the antecedents of the offender are good, and where the conviction might have a detrimental effect on an offender's employment prospects. The Attorney said this:[7]

One of the progressive elements of the Sentencing Bill is that, where the court determines that the offence is not serious - for example in the case of minor shoplifting - and the antecedents of the offender are good, and where the conviction might have a detrimental effect on an offender's employment prospects, clauses 39 and 45 in part 5 enable a court to order that a conviction be spent. This will mean that the protections afforded by the Spent Convictions Act 1988 will immediately apply. This is not to mean that the offender is not punished. However, it is anticipated that this power will provide a significant incentive to refrain from further offending by allowing the stigma of a conviction to be lifted which could otherwise have disqualified them from pursuing their chosen career.

25 There have been very few appeals concerning whether a spent conviction should be ordered in cases of stealing or other dishonesty. But some examples can be given.

26 In R v Tognini,[8] Mr Tognini was an insurance agent with the Australian Mutual Provident Society. He was convicted after trial of an offence of obtaining by a false pretence, with intent to defraud, a cheque for $7,355 from the AMP. Although the dishonesty was patent, the trial judge, and Court of Criminal Appeal, described the circumstances of the offence as 'bizarre' and emphasised that the only person who suffered any loss was Mr Tognini himself.[9] A further exceptional circumstance in that case was that there was a long time between the offence and the trial, and in the nine years since the offence Mr Tognini had not committed any further offence. The trial judge found that it was unlikely that Mr Tognini would commit such an offence again because of his previous good character which, as references before the Court testified, was recovered after the offence. A spent conviction was imposed. A Crown appeal against the imposition of the spent conviction was dismissed by the Court of Criminal Appeal.

27 In Marchesani v Dalton,[10] the appellant was a security guard who stole a watch in the course of his employment. He was fined $1,500 and the magistrate declined to make a spent conviction order. The appellant was also convicted of possession of a controlled weapon, possession of police clothing, possession of a prohibited drug (two counts), and possession of a smoking implement. McKechnie J held that the learned magistrate had erred in failing to mention in her Honour's reasons whether she had directed her mind to one of the statutory preconditions for a spent conviction order, namely whether the offender is unlikely to commit such an offence again. However, McKechnie J held that, had the magistrate addressed the issue there was no evidence from which the magistrate could have concluded that the appellant was unlikely to commit the offence again. The controlled weapon (nunchakus) had been purchased a year earlier. The police clothing had been found by the appellant more than a year earlier. The appellant was a cannabis user and was in possession of dexamphetamine, despite the fact that the appellant wished to pursue a career in security, allied to law enforcement.

28 In A v Price,[11] Ms A was convicted after a plea of guilty of five counts of theft. On one date in Booragoon she stole $148 worth of jewellery from one shop, bangles worth $73 from another shop, and bangles and earrings worth $300 from a third shop. On another date in Fremantle she stole clothing worth $1216 and a dress worth $109 from different shops. Ms A's offences occurred after events which the learned commissioner described as 'tragic circumstances' following a 17 year unblemished career as a police officer which included a bravery award. On appeal, the Court imposed spent conviction orders for each of the offences.

29 In CR v Walker,[12] the appellant was convicted after a plea of guilty to two charges of stealing goods from Woolworths. The first instance involved household goods to the value of $406. The second instance, three weeks later, involved stealing manchester worth $248. The appellant was fined $400 for each offence, with costs and restitution orders. The learned magistrate held that if there had been only one offence then a spent conviction would have been awarded but 'to go back again three weeks later and have another go at it, that's gone too far'.[13] The appellant had no previous criminal convictions. She was committed to a nursing degree. Working as a nurse would bring financial security to her and her daughter. The conviction would affect her future as a nurse, although even a spent conviction would still need to be disclosed. She had also worked in the community assisting the aged and the disabled. It was accepted by all parties that she was not likely to offend again. On appeal, E M Heenan J held that a miscarriage of justice would occur without the imposition of spent conviction order.

30 This brief survey of spent convictions for theft and dishonesty offences reflects the wide variety of circumstances in which these offences can occur. If the statutory preconditions for the making of a spent conviction order are met, the exercise of discretion to make such an order will be heavily dependent upon the particular circumstances of a case. Nevertheless, there are several common threads which might be drawn from the decisions.

31 First, it will be extremely rare for an offence of dishonesty to be characterised as 'trivial'. In this case, the stealing of a shirt by the appellant was not trivial. Hence, the discretion to make a spent conviction order will almost always be enlivened only if the Court considers that (1) the offender is unlikely to commit such an offence again, and (2) having regard to the previous good character of the offender, the Court considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

32 Secondly, the scarcity of appellate examples where a spent conviction has been ordered for offences of dishonesty may provide some illustration of the legal principle that even where the preconditions of a spent conviction are met the exercise of a discretion 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.[14]

33 Thirdly, the discretion to make a spent conviction order requires the court to have regard not only to the interests of the offender but also to the public interest. One aspect of the public interest is general deterrence which includes the exposure to public scrutiny of a conviction which may have a general deterrent effect.[15] As Burchett AuJ said in Brewer v Bayens:[16]

If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from response to inquiries, and placing a legal impediment in the way of some inquiries. The court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, 'the preservation of confidence in the judicial system' requires publicity...

34 The appellant remains unrepresented. His only ground of appeal for which leave is sought is simply that there would be a miscarriage of justice if a spent conviction were not ordered. An appeal from a decision of the Magistrates Court of Western Australia can be brought on the broad ground that there has been a miscarriage of justice.[17]

The absence of any consideration of a spent conviction by the Magistrate

35 The words in s 39(3) of the Sentencing Act, 'with or without making a spent conviction order', mean that when imposing a fine, the Court must give consideration to whether the particular sentencing option should be accompanied by a spent conviction order.[18] There was no express mention by the learned magistrate of the sentencing option of a spent conviction.

36 A magistrate will not always be required expressly to advert to whether a spent conviction should be imposed. In relation to issues of law, s 31 of the Magistrates Court Act 2004 (WA) requires that a magistrate 'need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so'. A failure expressly to mention a sentencing option does not necessarily mean that it was not considered.[19]

37 Whether a magistrate should advert expressly to consideration of a spent conviction will depend upon all the circumstances. The reasons given by a magistrate must be read as a whole in all the circumstances and the reasons include findings which can be inferred.[20] A relevant circumstance is whether it is reasonably arguable that the power to grant a spent conviction is enlivened. Another relevant circumstance is whether a spent conviction is sought; if it is not sought, the reasons of the learned magistrate would be expressed in response to matters not canvassed in argument. However, in relation to the factor of whether a spent conviction is sought, it is also a relevant factor whether an offender is legally represented.

38 For reasons I explain below, and as the respondent submitted, it is sufficient in this case to proceed on the assumption that the learned magistrate implicitly considered, and rejected, the availability of a spent conviction order.

39 Since there was no express consideration of a spent conviction order by the learned magistrate, there was no express consideration of whether such an order should be rejected on the basis of (i) or (ii) or (iii) below:

(i) that there was not 'convincing evidence'[21] that the appellant is unlikely to commit such an offence again;

(ii) whether despite the previous good character of the offender the Court did not consider that the appellant should be relieved immediately of the adverse effect that the conviction might have on him; or

(iii) whether, because of any other reason, it was not considered appropriate to exercise a discretion in favour of a spent conviction.

40 Different considerations may apply according to whether the inference is drawn, or could be drawn, that a spent conviction is refused based upon the failure to meet pre-condition (i) above, or whether the spent conviction is refused because of an exercise of discretion under (ii) or (iii) above. In relation to exercises of discretion, it is a basic principle that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.[22] However, it may be that an error of law could occur if the discretion is enlivened but there is no express reference by the magistrate to reasons for the exercise of discretion.

41 In this case the respondent submitted that there was insufficient evidence before the Magistrates Court that the appellant was unlikely to commit the offence again. The effect of this, as described in Redding v Robinson[23] by Hall J, was that there was no cogent evidence upon which a discretion to grant an order could operate.[24] For the reasons below it is sufficient to proceed on that assumption.

The assessment of all the evidence properly before this Court

42 In considering whether there has been a miscarriage of justice it is necessary to consider the material which is properly before this Court as well as the material before the learned magistrate.[25]

43 The respondent did not object to the admission of the appellant's affidavit evidence. In considering whether that evidence is admissible, the respondent submitted that the appropriate test is set out by Hall J in Redding v Robinson.[26] His Honour explained there that questions of admissibility including distinctions between fresh evidence and new evidence must take into account circumstances which include the absence of the appellant's criminal record prior to the sentencing, the appellant being unrepresented, the proceedings being very brief and the absence of anything to suggest that he appreciated the possible consequences of a conviction or that an application for a spent conviction was a possibility. I also proceed on this basis.

44 Further, on an appeal against a sentence under s 14(5) of the Criminal Appeals Act 2004 (WA), the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.

45 Although the matter is finely balanced, I am satisfied that on all the evidence which is now before this Court, a miscarriage of justice would occur if the appellant were not given a spent conviction. This is for three reasons.

46 First, I consider that the evidence now establishes that the appellant is unlikely to commit such an offence again. This was his first offence. The appellant admitted his guilt immediately to the store officer. He pleaded guilty. He committed the offence only so that he could 'fit in' with his new friends. In a year and three months since the offence the appellant has not reoffended. He is now studying for a tertiary qualification and he is aware of the consequences of his conviction on his employment prospects. He has provided sworn evidence that there is little to no chance that he will reoffend.

47 Secondly, having regard to the previous good character of the appellant (and the lack of any prior convictions) I consider that the appellant should be relieved immediately of the adverse effect that the conviction might have on the offender. The conviction of the appellant has had, and will have, an adverse effect on his employment. His conviction has meant that he has been unable to return to work for Telstra while he is studying. Although the hardship that this has caused him was only referred to in general terms in his affidavit, I accept that the loss of this parttime employment has had some effect of hardship on him.

48 Thirdly, on balance, the matters to which I have referred above sufficiently compel the conclusion that if discretion were not exercised to order that the conviction be spent, then a miscarriage of justice would occur. As I have said, this is not a clear case. The offence was one of dishonesty which the respondent rightly submitted requires general deterrence. As the respondent also observed, there were some gaps in the appellant's affidavit evidence, and an absence of any personal references. If the appeal were to turn upon this issue, in circumstances in which the appellant has been selfrepresented and had proffered further unsworn evidence from the bar table then I would have given him the opportunity to adduce that further evidence. But it is not necessary to consider this point in light of the conclusion I have reached.

49 The stealing offence in this case was a first offence and the appellant was of previous good character. I am satisfied, particularly from the affidavit material which was not before the learned magistrate, that the appellant is unlikely to commit the offence again. Although this is not a clear case, in all the circumstances I consider that there was a miscarriage of justice and that a spent conviction should be ordered. The remaining orders of the learned magistrate concerning the fine and costs should remain unaffected.

50 The appropriate orders to be made are that (1) the appeal be allowed, and (2) a spent conviction order be made. The spent conviction order has the effect of providing various protections to the appellant. These include the provisions of the Spent Convictions Act 1988 (WA) concerning disclosure of convictions (s 27) as well as the provisions making it unlawful for an employer to discriminate against the appellant on the ground of a spent conviction of the person on matters including arrangements made for the purpose of determining who should be offered employment; in determining who should be offered employment; or in the terms or conditions on which employment is offered.

51 The appellant did not seek an additional order that his name be suppressed. At the delivery of these reasons I raised this issue with the parties.

52 A suppression order represents an incursion into the principle of open and transparent justice. Such orders may be appropriate in some cases where spent conviction orders are made. In this case, although I consider that, on balance, the conviction should be spent with the legal protection which that order will provide the appellant, I do not consider that the evidence before me could justify the additional step of suppressing the appellant's name from the proceedings.

[1] Wimbridge v The State of Western Australia [2009] WASCA 196 [19] (Wheeler JA) [42] (Buss JA).

[2] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56] (the Court).

[3] Sentencing Act 1995 (WA), s 39(2).

[4] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 296 297 [24] (Murray J).

[5] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 296 298 [24], [27] [28] (Murray J).

[6] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 514 515 [14] [16]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, 226 227 [72].

[7] Western Australia, Parliamentary Debates, Legislative Assembly, 25 May 1995, p 4258.

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

[9] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 294 [11], 298 [29] (Murray J).

[10] Marchesani v Dalton [2006] WASC 204.

[11] A v Price [2011] WASC 121.

[12] CR v Walker [2012] WASC 401.

[13] CR v Walker [2012] WASC 401 [4].

[14] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 297 [24] (Murray J).

[15] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 516 [18].

[16] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 516 [18].

[17] Criminal Appeals Act 2004 (WA), s 8.

[18] Scanlon v Bove [2008] WASC 213 [13] (Johnson J).

[19] Scanlon v Bove [2008] WASC 213 [74] (Johnson J).

[20] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA); Bennett v Carruthers [2010] WASCA 131 [27] (Mazza J).

[21] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 514 [14] (Burchett AuJ).

[22] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 672 [15] (the Court).

[23] Redding v Robinson [2009] WASC 403.

[24] Redding v Robinson [2009] WASC 403 [9].

[25] Criminal Appeals Act 2004 (WA), s 40(1)(e).

[26] Redding v Robinson [2009] WASC 403 [11], [14].