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[2000] WASCA 31
Court of Appeal (WA)
2000-02-22
Malcolm CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : R -v- TOGNINI & MCGUIRE [2000] WASCA 31
Criminal law and procedure - Sentencing - Guideline Judgment - Crown appeals against spent conviction orders - Discussion of principles to be applied by sentencing courts
Sentencing Act 1995 (WA) s 45
CCA 221 of 1999 - Appeal allowed - Spent conviction order set aside
Griffiths v The Queen [1977] HCA 44; (1996-1997) 137 CLR 293
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998
1 MALCOLM CJ: These two Crown appeals were both heard on 10 December 1999. In the case of The Queen v Tognini, the Court was unanimously of the opinion that the appeal should be dismissed and so ordered. It was then indicated that reasons would be published later.
2 In the case of The Queen v McGuire, the Court reserved its decision. In my opinion, the appeal should be allowed and the spent conviction order set aside for the reasons to be published by Murray J with which I agree.
3 WALLWORK J: I agree with the reasons for judgment of Murray J. There is nothing I wish to add.
4 MURRAY J: These two Crown appeals were heard on the same day. They both raise for consideration the proper operation of the Sentencing Act 1995 (WA), s 45(1) which 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."
5 Section 45(2) and (3) provide that when a spent conviction order is made the conviction becomes a spent conviction for the purposes of the application of the Spent Convictions Act 1988 (WA). Generally under the provisions of that Act it will then be unlawful to discriminate against a person on the ground of a spent conviction in respect of matters of employment and the like, or the membership of professional and trade organisations. By s 25 of the Spent Convictions Act the conviction would not be a matter of disqualification for any purpose. By s 26 it could not be taken into account in determining good character, fitness, propriety or the like as a qualification for office and by s 27 the spent conviction would not be required to be disclosed for any purpose. Under the Sentencing Act, s 39(2)(a) - (d), a spent conviction order may be made by a sentencing court where the offender is released without sentence under s 46 of the Act, where a conditional release order is made, where a community based order is made, and where the offender is fined.
6 Section 45(4) of the Act provides that a spent conviction order is to be taken as part of the sentence imposed, thereby securing rights of appeal, in this case to the Crown pursuant to the Criminal Code (WA), s 688(2)(d). Such an appeal by the Crown against the making of a spent conviction order will in my opinion be governed in the ordinary way by the considerations applicable to Crown appeals, and by the fact that such an appeal involves an element of double jeopardy in that it exposes the respondent to the loss of a favourable order or to a sentencing disposition which is less favourable than that made at first instance. The application of those principles was recently discussed in R v Leucus (1995) 78 A Crim R 40 and, apart from having in mind their application in these cases, what was said in that and earlier decisions of this Court need not be repeated here.
7 The respondent Tognini was convicted by a jury in the District Court on 17 September 1999 of an offence committed about 9 years ago in December 1990 of obtaining a cheque for $7,355.54 from the Australian Mutual Provident Society by a false pretence with intent to defraud the AMP Society, contrary to the Criminal Code, s 409(1) as it was then worded. He was fined $2,000 and a spent conviction order was made. That was therefore a "lesser conviction" within the meaning of the Spent Convictions Act, s 10. Had the matter of the spent conviction been dealt with entirely under that Act, by s 7 the conviction would become spent upon application to the Commissioner of Police for a certificate to that effect, which application may be made after the prescribed period under s 11 - in the circumstances of this case, a period of 10 years.
8 Mr Tognini was an insurance agent for the AMP. He was also a substantial shareholder in a mining company which with other companies owed $16,000 to a company of which a Mr Williamson was the director. It was agreed that the debtor companies would repay the debt to Mr Williamson's company by paying the premiums of $1,333 per month for the first 12 months of an investment policy taken out with the AMP in the name of Mr Williamson and Mr Tognini. Part of the process of obtaining the issue of the policy involved the submission to the AMP of a document declaring that Messrs Williamson and Tognini had an insurable interest in the form of a joint pecuniary interest in the proceeds of the policy. It appears that Mr Tognini signed Mr Williamson's name on that form. The policy was issued and premiums commenced to be paid. Mr Tognini was credited with a commission of $3,199 in respect of the issue of the policy.
9 It was written in such a form that it acquired no cash value to the investors, in reality to Mr Williamson, until a certain amount of premium income had been paid. Non-payment of a premium prior to that time would result in the policy lapsing and the money paid into it being retained by the AMP unless outstanding premiums were paid and the payment of premiums resumed, in which case the policy would be reinstated. Upon the lapse of the policy Mr Tognini would forfeit his commission. If the policy was reinstated, that would again be credited to him.
10 After some premiums were paid the policy was allowed to lapse, but in December 1990 Mr Tognini paid sufficient premiums to reinstate the policy and give it a cash value. At the same time the policy was cashed in. A discharge was required to be provided to the AMP by the policyholders. Mr Tognini signed the document in his name and in the name of Mr Williamson. Not to put too fine a point on it, he forged Williamson's signature. A cheque was issued to him in the sum of $7,355.54 and his commission was again credited to him.
11 It was effectively the representation by the discharge document that, the policy having been reinstated, it was to be cashed in by both policyholders acting jointly, which constituted the false pretence as a result of which the cheque was obtained and the AMP defrauded. But it emerged that although the dishonesty is patent, the commission of the offence occurred in circumstances which the learned trial Judge in the District Court justifiably described as bizarre.
12 It appeared that in December 1990 Mr Tognini had been approached by a Mr Dyson, a senior officer with the AMP and Tognini's superior. As apparently happened from time to time, Dyson asked Tognini to reinstate the policy so that at the end of the year that would improve the figures of the business negotiated, both for Tognini as an individual and for the particular section of the AMP. Tognini agreed and he withdrew the funds required from an account he maintained which had an overdraft facility. Because the account was then overdrawn, shortly after the money had been paid by way of premium it was necessary for Tognini to withdraw it. He was actually unable to withdraw all the money he had paid in. Further, as, inevitably in the circumstances, the premium payments were not kept up, the policy lapsed again in early 1991 and Tognini finally lost the credit of $3,199 by way of commission.
13 The learned trial Judge was aware of the long period of time between the commission of the offence and conviction and he was aware that although the respondent, Mr Tognini, continued to work part time as an insurance agent, he was not employed by the AMP Society, and he had suffered loss as a result of his misguided and dishonest conduct. The learned trial Judge thought that the imposition of a fine was sufficient punishment and he went on to consider the question of the making of a spent conviction order, saying that as the respondent had no previous convictions of this kind and as there had been no further offending of this character in the 9 years since the commission of the offence before him, he considered it unlikely that the respondent would commit such an offence again.
14 His Honour did not consider that the offence was trivial because of the dishonesty involved in the form of the forgery of the discharge document, but he took the view that having regard to the respondent's previous good character which, as the references before the court testified, was recovered after the commission of the offence, the respondent should be relieved immediately of the adverse affect of the conviction and he made the order. Having heard the appellant argue this appeal, this Court was unanimously of the view that the appeal should be dismissed and it made that order. I shall return briefly later to my reasons for joining in that order.
15 The respondent McGuire was convicted by a jury in the District Court on 8 October 1999 of an offence of indecent assault committed on 27 July 1997 contrary to the Criminal Code, s 323, the offence being punishable by 5 years imprisonment. A conditional release order for a period of 12 months was made by the trial Judge, who added a spent conviction order. Again, that being the case, had the matter of spent conviction been dealt with entirely within the Spent Convictions Act, this would have constituted a "lesser conviction" within the meaning of that Act and it would have become spent on application made after the expiration of the prescribed period of 10 years.
16 The offence occurred while the complainant was a resident at the Alcohol and Drug Rehabilitation Centre conducted by the Salvation Army, known as "Bridge House". She was an alcoholic endeavouring to detoxify and to combat that illness. Mr McGuire was a member of the Salvation Army employed at that place in a senior position. One evening the complainant could not sleep. Dressed only in a nightdress, she went outside to smoke a cigarette. The respondent came to where she was, talked to her and over a period of some minutes, commenced to massage her whilst, although she stiffened, she remained still and unresponsive. His massage activity became more intimate until finally he started to massage her breasts.
17 The complainant gave evidence that she had commenced drinking to excess following an incident in which, as a result of a rape, she became pregnant. She said this experience made it impossible for her to move or speak when the respondent commenced to interfere with her. On the other hand Mr McGuire, although he did not suggest that the complainant did consent, said that he was not criminally responsible for the assault because he honestly and reasonably believed from her inaction that she was consenting: Criminal Code, s 24. The jury's verdict of guilty necessarily implies at least that if Mr McGuire held such a belief, he did not do so upon reasonable grounds. Perhaps they thought it was the case, as the respondent said in evidence, that his "hormones" took over and disturbed his judgment.
18 However that may be, the case was clearly one which warranted a lenient disposition and the Crown does not appeal against the making of the conditional release order. Mr McGuire was a person who had devoted himself to the Salvation Army, and although he had held leadership positions, he relinquished them, sought counselling, and resigned from the staff of Bridge House. The learned trial Judge considered that his conduct did demonstrate remorse about what had occurred and his Honour accepted that the respondent was ashamed and had suffered much embarrassment and humiliation as a result of what he had done. However, his Honour also commented that the respondent knew that his conduct in having physical contact of an intimate kind with a patient was against the rules or code of ethics which applied at Bridge House and would have led to his dismissal from the staff if he had not resigned. Since then he had been working as a subcontract courier.
19 As to the spent conviction order, again the learned sentencing Judge addressed the pre-conditions for the making of the order set out in the Sentencing Act, s 45(1). He pronounced himself to be satisfied that it was unlikely that the respondent would commit such an offence again, particularly because the respondent had admitted what he had done and had voluntarily sought counselling in an effort to address the cause of his behaviour. Although his Honour expressed the view that the offence was certainly not trivial, he considered that the prior good character of the respondent "does warrant giving you the opportunity to have a clean record". His Honour thereupon made the order.
20 The power conferred on a sentencing Judge by s 45 of the Sentencing Act bears a very particular character. Ordinarily of course, a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Convictions Act to which I have referred above are clearly based on the proposition that after conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the ways described in the Act so that the offender may put the offence behind them and function in the future without the need to disclose the conviction.
21 Under that Act the convictions which may become spent are divided into two kinds. Because of the way in which they were disposed of in the District Court, as I have already indicated, these were lesser convictions within the meaning of s 10 of the Spent Convictions Act. In that case, after a minimum period of 10 years, under s 11, an application may be made to the Commissioner of Police under s 7 for a certificate that the conviction is spent. Under that section the Commissioner does not have a discretion in respect of the issue of the certificate, but must do so.
22 On the other hand a "serious conviction" within the meaning of the Act is one in respect of which imprisonment for more than a year or for an indeterminate period, or a fine of $15,000 or more, is imposed (s 9). Under s 6 of the Act, in that event, after a minimum period of 10 years following the conviction, the applicant may apply to a District Court Judge for an order declaring that the conviction is spent. In that case the power of the court is discretionary in character. The matters enumerated in s 6(4) as being those to which the Judge shall have regard in exercising the discretion, are concerned with the seriousness of the offence, its nature, the circumstances surrounding its commission, the length of time since the conviction was incurred, the length and kind of sentence imposed - all matters concerned with the seriousness of the offence. In addition, the circumstances of the applicant are to be considered, both as at the time of the commission of the offence and at the time of the application.
23 Further, the court is to have regard to whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business or in particular employment. These are considerations concerned with the establishment of some affirmative reason why the conviction should be declared to be spent. Finally the court is to have regard to "whether there is any public interest to be served in not making an order." So the court is directed, in other words, to look to the interest of other persons in the community with whom the applicant may come into contact or with whom he or she may have dealings, in knowing the applicant's history.
24 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.
25 The Second Reading Speech of the Hon Attorney General introducing the Sentencing Bill into the Parliament shows, I think, that that was the intention of the legislature. Hansard for 25 May 1995, p 4258 records the Minister as saying:
"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."
26 There is legislation of the same kind as the Spent Convictions Act in other Australian jurisdictions - the Crimes Act 1914 (Cth), Part VIIC (added in 1989), the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) and the Criminal Records Act 1991 (NSW), but I have been unable to locate any provision in any other Australian jurisdiction which has an operation anything like s 45 of the Sentencing Act. As to that section, in this State, there appear to be only three decisions, all of single Judges: Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997 (Wheeler J), Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 (Parker J), and Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 23 July 1998 (Murray J). The utility of those cases for present purposes is reduced by the fact that in each of them the appeal was against the refusal to make a spent conviction order and the contention was that the court erred in failing to find the pre-conditions for the making of an order to be satisfied as well as in failing to make the order.
27 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.
28 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.
29 Approaching the matter in that way led me to the view that it could not be said that the sentencing Judge who dealt with the respondent Tognini erred in his exercise of discretion in that case. The offence was long ago. Whilst it was serious enough in itself, it was undoubtedly committed in rather bizarre circumstances. The dishonesty was patent, but in fact no harm appears to have been done to the AMP Society or the creditor represented by Mr Williamson. Indeed the only person who appears to have suffered financial loss was Mr Tognini himself. He had shown in the 9 years which had elapsed every indication that he had resumed his former good character and there was evidence to suggest that, apart from his loss of reputation as a result of the commission of the offence, the fact of conviction would add a further impediment to Mr Tognini continuing as an insurance agent. For those reasons I joined in the order dismissing the appeal in his case.
30 I would, however, take a different view of the case of the respondent McGuire. Again the offence was serious in the circumstances of its commission. The complainant was in a vulnerable position and Mr McGuire was supposedly one of those who was caring for her and assisting her in her battle against alcoholism. The commission of the offence arose out of the function that he was performing at Bridge House because that gave him the opportunity to commit it. Remorseful he undoubtedly was, and he was making determined efforts to better understand why he committed the offence so that he might not do it again. But he knowingly breached the rules applicable to his employment at Bridge House and there was nothing in my view to indicate that the best interests of the community were not served in the ordinary way by having knowledge of the conviction rather than by allowing the fact of the commission of the offence to be generally concealed.
31 The respondent had certainly left his former employment to be a courier, but there was nothing to prevent him again seeking employment in a field in which he had considerable experience, in a drug rehabilitation centre or the like. The public interest I think remained one where he would be obliged to declare the fact of his conviction if called upon to do so. There was no particular impediment to following a career or occupation pressed upon the court in aid of the proposition that a spent conviction order should be made. I think the exercise of discretion in this case, miscarried. I would allow this appeal and in the case of the respondent McGuire, I would set aside the spent conviction order.
# R
Tognini & Mcguire \[2000\] WASCA 31