Appeal - Criminal law - Sentence - Refusal to grant spent conviction order - Failure to consider whether pre-conditions satisfied - No material error of law or fact - No miscarriage of justice - Leave to appeal refused

Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e)

Road Traffic Act 1974 (WA), s 53(4)

Sentencing Act 1995 (WA), s 39(2), s 45

1 LE MIERE J: On 29 January 2013 the appellant pleaded guilty and was convicted of driving a motor vehicle whilst not being authorised to do so and when his authority to drive was suspended. It was the appellant's second conviction for driving whilst under suspension. He was fined $1,000 and disqualified from holding or obtaining a driver's licence for a period of nine months cumulative upon any existing disqualification. The appellant also pleaded guilty to and was convicted of giving a false name when called upon to provide his name to a police officer. He was fined $250. In relation to that offence the appellant sought a spent conviction order. The magistrate refused to make a spent conviction order. The appellant now seeks leave to appeal against the refusal of the magistrate to grant the spent conviction order.

2 Criminal Appeals Act 2004 (WA) s 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 40(1)(e) provides that for the purposes of dealing with an appeal, an appeal court may admit any other evidence. At the hearing of the appeal counsel for the appellant tendered:

• an affidavit sworn by the appellant on 12 August 2013;
• a certificate from the Criminal Investigation Department Headquarters of the Zimbabwean Republic Police dated 16 November 2012;
• a Murdoch University Statement of Academic Record of the appellant issued on 19 July 2013;
• a letter from Murdoch University Academic Registrar's office dated 19 July 2013 confirmation of completion of studies of appellant;
• a letter of reference to Perth Magistrates Court from Mr Neerav Patel;
• a letter of reference from Mr Nyatande Chaila dated 5 October 2013; and
• a Chartered Practitioners Australia membership application form.

3 Counsel for the respondent did not object to any of those documents being received into evidence on the appeal. I ordered that each of the documents referred to be received as exhibits in the appeal.

4 The appellant was born in Zambia on 6 January 1988. At the age of 10 he moved to Zimbabwe. In 2009 he moved to Australia to undertake study. He enrolled at TAFE and subsequently at Murdoch University to study accounting. The appellant obtained his driver's licence in Zambia at the age of 16. He still holds his Zambia driver's licence and says that as he is a student his licence is valid for use until his student visa expires.

5 In 2012 the appellant was stopped by police at a booze bus where he was informed that he was driving under licence suspension. He was not aware that he was under point suspension at the time. He had not been informed that he had accumulated the maximum demerit points. The appellant had never previously driven under a demerit point system and assumed that it would be brought to his attention if his licence had been suspended. As a result he was charged with driving without authority and his licence was suspended for nine months.

6 On 26 December 2012 the appellant decided to go to Carousel Shopping Centre to purchase medication. The shopping centre is a five minute drive from his house. He was stopped by police when he was about two minutes away from the shopping centre. He was asked for identification by one of the police officers. He replied that his name was Michael Patel. In his affidavit the appellant says that he did so as he was scared because he was aware that he was not allowed to drive. The statement of material facts presented to the Magistrates Court, and adopted by duty counsel representing the appellant, stated that he gave the false name because he was scared of losing his vehicle and panicked. The police officers did not believe the appellant and accompanied him to his house and confirmed with the appellant's housemate that he was not Michael Patel. The appellant admitted to the police that he had lied because he was scared and that he had made up the name he had given them.

7 Duty counsel presented a plea in mitigation and applied for a spent conviction order in relation to the false name charge. Counsel's submission was to the following effect. The appellant is in his last semester of study and is hoping to gain employment as an accountant. A conviction of this nature, that is an offence of dishonesty, on his record would have serious repercussions for the appellant in his chosen profession of accountancy. The appellant has traffic offences but no criminal offence and is a person of good character. The appellant is unlikely to commit this offence again. It was a spur of the moment decision and he is apologetic. The appellant understands the inconvenience that he has caused to the police and the courts. Counsel handed up the character reference from Mr Patel.

8 The prosecutor before the magistrate submitted that 'it's not a criminal matter ... it's a traffic matter ... it just depends on your Honour's view on that particular point'.

9 The magistrate stated his reasons for refusing a spent conviction order as follows:

I don't know how precious accountants get, but the point I'm making is that on Mr Naik's record, you'd have two offences for driving under suspension that occurred very quickly and I would have thought you'd have more explaining to do about that than you would about the fact that on one of the occasions you gave a false name.

I mean, obviously there's always this concept, 'I panicked, so I gave a false name,' whatever, but the real issue which will be there on the record for everybody to see is that Mr Naik has had these laws to abide by and within a very short period of time he got caught on 1 September and then again on 26 December and, yes, the only reason he has done it is to say that, you know, 'I was worried about losing my car.' Forget the fact he's not meant to be driving around, he's mainly concerned about his vehicle.

So it's not a good look as far as I'm concerned and, yes, I wouldn't be prepared to make a spent conviction order ...

1. The learned Magistrate erred in fact and in law in his decision not to grant a spent conviction;
2. The Learned Magistrates decision not to grant a spent conviction resulted in an unjust decision in light of the circumstances of the accused;
3. The failure of the learned Magistrate to grant a spent conviction has resulted in a miscarriage of justice.

11 The power to make a spent conviction order is found in s 39(2)(a) (d) of the Sentencing Act 1995 (WA). No criteria, however, are given in that section for the making of the order. Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order and other provisions relating to a spent conviction order. Section 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

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

(2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.

(3) The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

(4) A spent conviction order is to be taken as part of the sentence imposed.

12 In AR v Wood [2008] WASC 119 EM Heenan J said:

Therefore, the statutory criteria conditioning the making of a spent conviction order are that the offender is unlikely to commit such an offence again (meaning the particular category of offence or offences with which he has been charged) and also that there be one, or both, of two subsequent conditions simultaneously satisfied: namely, that the court considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender, having regard to the fact that the offence is trivial or to the previous good character of the offender [30].

13 If the conditions for making a spent conviction order are satisfied, the court may have regard to any relevant consideration in exercising its discretion to make an order. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Murray J, with whom Malcolm CJ and Wallwork J agreed, said the following in relation to the making of a spent conviction order:

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 [27] - [28].

Of course, that is not an exhaustive list of relevant considerations.

14 The sentencing magistrate did not consider whether the conditions for making a spent conviction order are satisfied. The magistrate refused to make a spent conviction order for two reasons. The first reason is that it would not be appropriate to make a spent conviction order in relation to the false name charge because the convictions for driving under suspension would remain on the appellant's record and that would be more of an impediment to the appellant pursuing a career as an accountant than a conviction for giving a false name remaining on his record.

15 The second reason is that the magistrate found that the appellant gave a false name because he was worried about losing his car which reflects badly on the appellant in circumstances where he had driven under suspension twice within a few months.

16 The question for the appeal court on an appeal seeking the making of a spent conviction order is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing magistrate or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order or whether there has been a miscarriage of justice. The question is not whether the magistrate had a sufficient reason not to make a spent conviction order. A court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a different manner: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672.

17 The magistrate's sentencing remarks were brief. They disclose no error of fact. The appellant did not allege that they do. The magistrate said that the only reason the appellant had given a false name was that he was worried about losing his car. In his affidavit of 12 August 2013 the appellant says that is not correct, he was just scared. The statement of material facts before the magistrate said that the appellant gave a false name because he was scared of losing his vehicle and panicked. In his plea in mitigation, in the presence of the appellant, counsel for the appellant repeated that statement. The magistrate made no error in stating that the reason the appellant gave a false name was because he was worried about losing his car.

18 The appellant submits that the magistrate erred in failing to consider whether the appellant was unlikely to commit such an offence again or whether the appellant was of previous good character and in doing so failed to properly take into account any of the preconditions in s 45(1) of the Sentencing Act for making a spent conviction order.

19 The respondent concedes that it was open to the magistrate to conclude that the appellant was of previous good character on the basis of the appellant's lack of record of prior criminal convictions and the positive character references which were before the sentencing magistrate. However, the respondent submits that there was no cogent evidence that the appellant would be unlikely to commit the offence again. The magistrate acknowledged that the offence of giving a false name was a spur of the moment offence triggered by the offence of driving under suspension. However, counsel for the respondent submitted that there was nothing in the plea in mitigation that set up an assurance either that the appellant would not again drive under suspension or that the appellant's propensity to lie when caught driving under suspension had been broken. Counsel submitted that in those circumstances and in light of the evidence before the magistrate that the appellant continued to commit the offence of driving under suspension, it was open to the magistrate to proceed on the basis that there was inadequate evidence to satisfy him that the appellant would be unlikely to commit an offence of giving a false name to police in contravention of s 53(4) of the Road Traffic Act 1974 (WA).

20 In my view the magistrate did not consider whether the preconditions for the making of a spent conviction order had been satisfied. The magistrate refused the spent conviction order in the exercise of his discretion. The magistrate should have considered whether the preconditions for the making of a spent conviction order were satisfied before he considered the exercise of his discretion to make an order. However, the failure of the magistrate to consider whether the preconditions for the making of a spent conviction order were satisfied does not disclose a material error because if the magistrate had decided that the preconditions for the making of an order were satisfied that would have enlivened his discretion and he determined that his discretion should be exercised by refusing the order. Failing to consider whether the preconditions for the making of an order were satisfied did not affect the exercise of the magistrate's discretion.

21 The appellant submits that the failure of the magistrate to grant a spent conviction order has resulted in a miscarriage of justice. The appellant submits that he is unlikely to commit such an offence again and he was of previous good character so that the preconditions for the making of an order are satisfied. The appellant submitted that he should immediately be relieved of the adverse effects of the conviction for two reasons. The first is that he was not scared of losing his car as stated in the statement of material facts and by the magistrate in his reasons. He was merely scared. The second reason is that the adverse effect of the conviction should be set aside immediately as the appellant had just completed his Bachelor of Commerce (majoring in accounting). The appellant's counsel submitted that the appellant is at the infancy of his professional career and a dishonesty offence of this nature on his record would restrict his opportunities for employment significantly and create undue hardship for him.

22 If the preconditions to the making of a spent conviction order are satisfied the court should go on to have regard to the seriousness of the offence in the circumstances of its commission and the circumstances personal to the offender. The court should look to some particular circumstance to show that it would be desirable, not only from the point of view of the offender, but also from the point of view of the community, why the adverse effect of the conviction should be immediately set aside: Tognini [27], [28].

23 The community has an interest in the appellant gaining employment. The applicant for a spent conviction order who relies upon the conviction being an impediment to following a particular career should present evidence to support that contention. There was no such evidence before the magistrate. The only evidence placed before this court is a copy of an uncompleted application for membership of CPA Australia. One of the questions on the form is:

Have you ever been convicted in the past of a criminal offence or are there any charges pending against you?

A note to the question says that there is no requirement to reveal a spent conviction. The form states that if you answered yes to that question you should provide more information about the nature of your situation on a separate sheet and any related official documentation to support your application and your application will be considered individually on its merits and may take longer to process. There is no evidence that a conviction and fine for giving a false name in contravention of s 53(4) of the Road Traffic Act is a bar to becoming a member of CPA Australia or obtaining employment as an accountant. I take judicial notice that such a conviction would make it more difficult to obtain employment as an accountant but there is no evidence of the extent of that impediment. The applicant has not applied for employment. There is no evidence from prospective employers or from CPA Australia or any other body or person with knowledge or experience of the extent to which a criminal conviction for giving a false name is an impediment to obtaining employment as an accountant.

24 The court must weigh the community interest in a spent conviction order facilitating the applicant pursuing a career in accounting against the countervailing public interest in disclosure of his conviction. In Brewer v Bayens (2002) 26 WAR 510 Burchett AUJ, with whom Wallwork and Wheeler JJ agreed said:

One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. 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 responses to enquiries, and placing a legal impediment in the way of some enquiries. 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: R v Tait and Bartley (1979) 24 ALR 473 at 487, per Brennan, Deane and Gallop JJ. As their Honours also said (ibid):

'To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction'[18].

25 The appellant has not established that the circumstances favouring the making of a spent conviction order are sufficiently strong that the failure to make a spent conviction order is a miscarriage of justice. There is no evidence that a conviction for giving a false name is a bar to becoming a member of CPA Australia or obtaining employment as an accountant. There is no evidence of the extent to which such a conviction will make it more difficult for the appellant to obtain employment as an accountant. If the appellant obtained a spent conviction order in relation to the false name offence he would still be obliged to disclose to prospective employers his convictions for driving whilst under suspension. Those convictions, like the conviction for giving a false name, are convictions for offences under the Road Traffic Act. They are more serious offences. A first conviction for the offence of giving a false name has a penalty of six penalty units. An offence of driving whilst under suspension has a penalty for a first offence of a fine of not less than eight penalty units or more than forty penalty units and imprisonment for not more than 12 months. The penalty for a subsequent offence is a fine of not less than 20 penalty units or more than 80 penalty units and imprisonment for not more than 18 months. The magistrate considered that a future employer might look more adversely upon convictions for two offences for driving under suspension that occurred close together than upon a conviction for giving a false name. There is no evidence that, or from which it may be inferred that, the magistrate made an error in forming that opinion. The magistrate was entitled to find, in effect, that disclosing the false name conviction to prospective employers was not likely to further harm his prospects of obtaining employment because of the driving under suspension convictions.

26 If I was determining afresh whether a spent conviction order should be made I might grant it. However, that does not establish that there has been a miscarriage of justice. The appellant must show that there was sufficiently cogent reasons for making a spent conviction order that the failure of the magistrate to make an order is a miscarriage of justice. The appellant has failed to establish that. The appellant has not shown that there has been a miscarriage of justice. Leave to appeal will be refused.