File No : JO 2457 of 2008, JO 2458 of 2008, JO 2459 of 2008, JO 2460 of 2008, JO 2461 of 2008, JO 2462 of 2008

Criminal law - Sentencing - Firearms offences - Application for spent conviction orders - Turns on own facts - Content of character references to be used in sentencing proceedings

Firearms Act 1973 (WA), s 19(1), s 23(9)(a), s 23(9)(d)(ii)

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

Spent Convictions Act 1988 (WA), s 39

1 This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Joondalup on 11 January 2008. The appeal is against the decision of the magistrate to refuse the accused (the appellant) spent conviction orders in respect to a number of firearm offences for which he was sentenced on that date.

2 The appellant was given leave to appeal on two amended grounds of appeal. They are:

1. The Learned Magistrates' discretion miscarried when he determined not to grant the Appellant spent convictions for each of the offences, given:

1. the appellant was of previous good character;
2. there was no likelihood he would re-offend.

1. The Learned Magistrate erred when he determined the Appellant was not of 'previous good character' and, accordingly, refused to grant the Appellant spent convictions for each of the offences.

3 In essence, the appellant says that the magistrate erred in finding that he was not of good character (ground 2). The appellant says that if I find that the magistrate so erred I should proceed to re-exercise the magistrate's discretion. In all the circumstances, the appellant submits that it would be appropriate to make spent conviction orders. Alternatively, if I am satisfied that the magistrate found that the appellant was of good character, I should find that his Honour erred in all the circumstances in failing to grant spent conviction orders (ground 1) and I should re-exercise the discretion so as to grant the spent conviction orders.

4 The respondent submits that the magistrate was at liberty to find that the appellant was not of good character and says further that no error is disclosed in the magistrate's reasoning.

5 The Prosecution Notice alleged six offences contrary to various provisions of the Firearms Act 1973 (WA) (Firearms Act). Each offence was said to have taken place on 16 August 2007 at the appellant's home in Kallaroo. A summary of the six offences is as follows:

1. Possession of a firearm, namely a BRNO.22 calibre rifle, without being the holder of the requisite licence or permit for such firearm, contrary to the Firearms Act s 19(1);
2. Custody or control of a BRNO.22 calibre rifle and a Greener 12 gauge shotgun and failure to take all reasonable precautions to ensure their safekeeping contrary to the Firearms Act s 23(9)(a);
3. Responsibility for the storage of firearms, namely a BRNO.22 calibre rifle and Greener 12 gauge double barrel shotgun, and failure to ensure that the prescribed requirements as to security for the said firearms were observed, contrary to the Firearms Act, s 23(9)(d)(ii);
4. Possession of ammunition, namely .22 calibre cartridges, without being the holder of the requisite licence or permit for such ammunition, contrary to the Firearms Act s 19(1);
5. Possession of ammunition, namely 410 shotgun cartridges, without being the holder of the requisite licence or permit for such ammunition, contrary to the Firearms Act s 19(1); and
6. Possession of ammunition, namely 50 Shot cartridges, without being the holder of the requisite licence or permit for such ammunition, contrary to the Firearms Act s 19(1).

6 The maximum penalty for each of the offences under s 19(1) was 5 years' imprisonment. The summary conviction penalty was 3 years' imprisonment or a fine of $12,000. The maximum penalty for each of the offences under s 23(9) was a fine of $2,000.

7 The appellant, who was represented by counsel, appeared before a magistrate on 11 January 2008 and entered pleas of guilty to each charge. The prosecutor then read out the facts. The facts as stated by the prosecutor were as follows:

On 16 August 2007, the Australian Federal Police attended [the appellant's residence] Kallaroo to conduct a search at the accused's residence. During the search located a Greener 12-guage double-barrel shotgun, serial number [serial number] and a BR (indistinct) 22 calibre rifle, serial number [serial number] underneath the accused's bed in his bedroom. The (indistinct) revealed he's not the licensed holder of the 12-guage shotgun. He was - sorry, the licence holder of the 12-guage shotgun but not the 22 calibre rifle.

...

... The [appellant] admitted knowing that the 22 rifle was not licensed and not been in his possession - and had been in his possession for a number of years. At 9.15 am, Hilary's Police attended his residence at the request of the Australian Federal Police. They were shown to a firearm storage cabinet in the lower garage of the residence belonging to him. The storage cabinet was not secured to either wall or floor and could be easily accessed or removed.

The [appellant] was spoken to in relation to this matter (indistinct) his requirements under the schedule 4 of the Firearms Regulations pertaining to anchoring and securing of the cabinet. He admitted knowing the cabinet did not meet the minimum requirements for storage of firearms and ammunition. On opening the firearms storage cabinet the police located nine rounds of 410 shotgun cartridges, 84 rounds of 22 calibre cartridges and 39 rounds of 50 shotgun cartridges. He is not licensed to hold this ammunition. He readily admitted the ammunition belonged to him and was not licensed to hold such items. All the firearms and ammunition were seized for safekeeping. The police advised he'd be summonsed. Request destruction of the firearms and ammunition, sir. There is no record.

8 The appellant's counsel then presented a plea in mitigation. Counsel told the magistrate that the facts were in accordance with his instructions. In respect to the appellant's personal circumstances, counsel advised the magistrate that the appellant was aged 60 and the father of two grown up children. He was the managing director of a publicly listed company and had been married to the same woman for 39 years. The magistrate was told that the appellant was living in Perth after being raised in Tasmania. He had previously lived in Kalgoorlie.

9 In respect to the charges, counsel advised the magistrate that the ammunition the subject of the charges was not for the shotgun for which the appellant held a licence.

10 Counsel told the magistrate that the BRNO.22 calibre rifle had been purchased in Tasmania by the appellant's father, when the appellant was a child. In about 1994 the appellant's father gave the gun and a sealed package to the appellant. The appellant had not opened the sealed package prior to the police search of his residence. Counsel said that the appellant did not know that the package contained a magazine for his father's gun. Although counsel said that the appellant was unaware of what was in the sealed package given to him by his father, he was apparently aware that it contained accessories for his father's gun as he kept the package in the firearms' cabinet.

11 Counsel said that when the appellant moved to Western Australia he believed that because of the then recent tightening up in firearms laws he could not get a licence for the BRNO.22 calibre rifle. Nevertheless, he decided to keep the gun for sentimental reasons.

12 Counsel told the magistrate that when the appellant resided in Kalgoorlie, the guns were secured in a properly secured cabinet. When the appellant moved to Perth, he initially resided in rental accommodation and the firearms, the sealed package and ammunition were kept in a firearms' cabinet, which was properly secured in his rental home. By the time of the offences, the appellant had moved out of the rental home and purchased a new home. He had moved the guns, ammunition, package given to him by his father and the firearms cabinet into the new home but had not decided where to secure the cabinet. The cabinet was left in the garage. Counsel said that the appellant was concerned that when the door to the garage was open it was possible to see the cabinet from the roadway. Consequently, he had taken the two firearms and placed them under his bed for safekeeping. He left the ammunition and the package from his father in the cabinet.

13 The appellant's counsel told the magistrate that the appellant was remorseful and that he realised the seriousness of the offences. Counsel also advised the magistrate that, as a consequence of subsequent conversations with the police, the appellant believed that he may be able to obtain a licence for the BRNO.22 calibre rifle, which was a semi-automatic rifle. The prosecutor disputed this assertion.

14 Counsel advised the magistrate that the cabinet had now been secured and fastened in accordance with the Firearms Act and that the police had the firearms pending the outcome of the prosecution.

15 The magistrate observed that the evil of the appellant having the rifle was that, even though he may not have used it, if someone had broken into his home and stolen it there would have been a firearm in the community which was untraceable because it was not licensed.

16 Counsel submitted that the appellant was a responsible member of the community and not a danger to society. He handed up two references, the contents of which I will refer to later in these reasons. It was acknowledged that both references were from solicitors with whom the appellant was involved with in commercial matters.

17 Counsel then requested the magistrate to exercise his discretion to make spent conviction orders in respect to the offences. Counsel, very briefly, listed the following matters in support of the application:

• the appellant's lack of any prior criminal convictions;
• the appellant's age;
• the nature and the circumstances surrounding the commission of the offences;
• the appellant's responsible position as the managing director of a publicly listed company;
• the appellant's remorse and his recognition of the seriousness of the offences; and
• the unlikelihood that the appellant would re-offend.

18 The magistrate queried the basis upon which he could grant spent convictions. His Honour said:

I mean he's had this rifle for a long time and he knows that it wasn't licensed and he retained it and kept it and he retained and kept the ammunition.

19 Counsel said that his client did not see the gun as a weapon because he did not have a magazine for it. I digress to note that the appellant was aware that he had a sealed package containing accessories for that firearm or some other firearm. If, as he claimed, he did know that he had the magazine for the rifle it was because he failed to take proper steps to ascertain what was in the package and for no other reason. The magistrate went on:

I understand all that but it's not a momentary lapse it's a deliberate act to retain a firearm in circumstances where he knew that he shouldn't or he may have had some sentimental attachment to it but that doesn't alter the fact ... Also the firearms were unsecured.

20 Counsel said the firearms had only been unsecured for approximately a month. The only other matter of relevance mentioned by the counsel was that the appellant appreciated when he came to Western Australia, in about 1998, that the BRNO.22 calibre rifle had to be licensed.

21 In response to the application for spent conviction orders, the prosecutor relied upon the matters already mentioned by the magistrate and otherwise left the determination of the application for the spent conviction orders to the discretion of the magistrate.

22 After discussion with the prosecutor about whether the firearms should be forfeited, the magistrate delivered his sentencing remarks.

23 Some of his Honour's remarks, as recorded, were indistinct but that has not seriously affected my understanding of the tenor of them, from reading the transcript. The magistrate repeated his comments about the purpose of the legislation being to make sure that people who are not entitled to guns do not obtain possession of them and that it was important that the law be upheld in that regard. The magistrate imposed the following penalties in respect to each of the offences:

1. $1,000 fine;
2. $300 fine;
3. $200 fine;
4. $200 fine;
5. $200 fine;
6. $200 fine.

24 The magistrate then went on to consider the application for spent convictions. The magistrate said:

In relation to the spent conviction application (indistinct) what your counsel has said and a spent conviction can only be given if the court considers the offender is unlikely to commit such an offence again and having regard to the facts of the offence it's (indistinct) in my view that it doesn't fall into that category or the previous good character of the offender. I accept that you are of previous good character, however, in relation, particularly to the possession of the .22 calibre rifle you've had it for a long period of time. So it's been an ongoing offence for a long period of time. You knew that you shouldn't have that rifle and you maintained it and kept it and, in my view, having regard to all of those circumstances there shouldn't be a spent conviction order.

25 The appellant's counsel then clarified that the magistrate's decision applied to all the charges and the matter was completed.

26 The appellant's counsel handed up two references to the magistrate. One was from Mr Neil Fearis, barrister and solicitor. The second reference dated 10 January 2008, was from an unnamed person from the firm of solicitors, Lawton Gillon.

27 The reference from Lawton Gillon was addressed to the appellant's solicitors and did not acknowledge the purpose for which the reference was to be used. Although the reference referred to the fact that the author knew that the appellant was facing a number of charges to be dealt with in the Joondalup Magistrates Court on Friday 11 January 2008, it did not identify the nature of those charges. The author stated that he had known the appellant for approximately two years in both a professional and social capacity, attested to his high moral standards and opined that it was out of character for the appellant to commit any offence.

28 The copy of Mr Fearis' reference which has been provided to me was addressed to 'to whom it may concern', and was undated. The reference did not acknowledge that Mr Fearis was aware that the appellant had been charged or the purpose for which the reference was to be used. It stated that Mr Fearis had known the appellant for approximately four months in a professional capacity.

29 I do not criticise the referees because I have not heard from them, but I am surprised and disappointed that a legal practitioner would present such references to a court. I expect all practitioners to be aware that references used in sentencing proceedings are to be dated, to be addressed to the presiding judicial officer in the court to which the reference is to be presented, to acknowledge that the author knows the precise nature of the offences faced by the accused, to include the full name, address and occupation of the referee and to be signed by the referee. These two references, in different respects, fell far short of that standard. I acknowledge that, every day, courts in Western Australia accept references which do not meet the required standard but those references have usually been prepared by lay persons who may not understand the requirements for such documents. If practitioners are unaware of the format and content of character references used in sentencing proceedings then they need only to go to the website of Legal Aid Western Australia which contains a useful summary of these matters.

30 The first question for me is to determine whether the magistrate erred in concluding that the appellant was not of good character.

31 In my opinion, on a fair reading of the magistrate's comments, the magistrate found that the appellant was of good character. Some of his Honour's comments were not fully transcribed but I base my finding on the magistrate's clear words where he said 'I accept that you are of previous good character'.

32 The transcriber has put a comma after the word 'character', rather than a full stop. The magistrate's remarks are more easily understood if the sentence concludes with the word 'character' and a new sentence begins with the word 'however'.

33 Having come to the view that the magistrate found that the appellant was of good character, it is unnecessary for me to consider the respondent's submissions that it was open to the magistrate to conclude that the appellant was not of good character.

34 The next issue for my consideration is whether the magistrate erred in failing to grant spent convictions, given his conclusion that the appellant was of good character.

35 The Sentencing Act 1995 (WA) s 39(2) provides that a court sentencing an offender may, with or without making a spent conviction order, fine an offender. Section 45 of that Act states that 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.

36 A spent conviction order made under s 39 is an order that the conviction to which it relates is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA). When a conviction becomes a spent conviction for the purposes of the Spent Convictions Act it is unlawful for a person to discriminate against the offender on the ground of that spent conviction.

37 Examples of unlawful discrimination on the grounds of a spent conviction order include discrimination by an employer in respect to determining who should be offered employment, discrimination by an authority that is empowered to confer or renew an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in an occupation and discrimination by a principal against a contract worker. If a person has been granted a spent conviction order then, even where a written law requires a person to disclose or acknowledge matters relating to convictions, they do not have to disclose or acknowledge a spent conviction or the charge to which the spent conviction relates. There are other protections granted to persons who have been given a spent conviction order. A spent conviction order does not prevent the Commissioner of Police taking a spent conviction into account for purposes related to the granting of a firearms licence.

38 The principles relating to the granting of spent conviction orders are well known as they have been set out in a number of cases; most recently in Riggall v The State of Western Australia [2008] WASCA 69. I will refer to the principles as they were enunciated by the Full Court in Brewer v Bayens (2002) 26 WAR 510, in which Burchett AUJ gave the leading judgment (Wallwork and Wheeler JJ agreeing). Burchett AUJ said [11]:

It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied.

Bearing in mind the special nature of the jurisdiction to grant this relief, and the clear case the Full Court has said must be shown, it is to be expected that generally those who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence.

40 In respect to the exercise of the court's discretion, if the prerequisites in s 45 have been met, Burchett AUJ referred to the need to consider the public interest when deciding whether to grant a spent conviction order. His Honour said [18] - [19]:

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.'

Another aspect of the problem is the effect an order under s 39 of the Sentencing Act may have on those who may legitimately require to take account of the conviction or the charge to which it relates. In the present case, the appellant's research, or the pursuit of his profession, may bring him into close contact with the impressionable minds of the very young. That is why the committees to which reference has been made may be concerned to consider his conduct. I cannot think it to be in the public interest, in the circumstances of this case, to make an order the object of which would be to ensure that they did so wearing blinkers.

41 It is also appropriate that I refer to the decision of R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 in which Murray J gave the leading judgment, (Malcolm CJ and Wallwork J agreeing). His Honour said that the matters enumerated in s 45(1) were merely pre-conditions for the exercise of the power to grant a spent conviction order, 'not matters, which if they are found to be present, will automatically lead to the exercise of the power' [24]. His Honour then said [27] - [28]:

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.

42 It is not possible to tell from the incomplete transcription of the magistrate's remarks whether his Honour found that the appellant was unlikely to commit such offences again or that the offences were trivial. However, the parties were content to argue the appeal on the basis that the magistrate had found that the offender was unlikely to commit such offences again but that the offences were not trivial. As the magistrate found that the appellant was of previous good character, the only issue that remained for the magistrate was whether the appellant ought to be relieved immediately of the adverse effect the convictions may have on him.

43 The reasons the magistrate gave for exercising his discretion not to grant spent conviction orders were that the appellant possessed the BRNO.22 calibre rifle for a significant period of time, knew that he should not have possessed the rifle without a licence and yet had kept it. The facts were that the appellant had kept the rifle for some 10 years with that knowledge.

44 The appellant says that the magistrate placed too much weight on these matters and failed to place sufficient weight on matters personal to the appellant.

45 Although it is not entirely clear, I am of the view that the magistrate said that he had taken into account what the appellant's counsel had said in support of the application for spent conviction orders, including matters personal to the appellant. It is evident to me that the magistrate concluded that the seriousness of the offences prevented him from exercising his discretion to grant the spent convictions orders.

46 During the hearing of the appeal I asked the appellant's senior counsel (who did not appear for the appellant in the magistrates court) what it was that was special or exceptional about the appellant's case that warranted the magistrate exercising his discretion to grant the spent conviction orders. Senior counsel said that it was a combination of matters personal to the appellant being his age, position as the managing director of a publicly listed company, his good character and his lack of any prior convictions. Senior counsel identified that at one end of the age spectrum there were young people, at the start of their working lives, who courts recognised warranted the making of spent conviction orders so that they be relieved of the consequences of convictions. Senior counsel suggested that, at the other end of the age spectrum, there were people like the appellant who had lived blameless lives and, other than the offences for which they were then being dealt with, would probably continue to live blameless lives. They should be treated exceptionally leniently. Senior counsel also referred to the possible adverse consequences for the appellant of the convictions although he acknowledged that there was no evidence, and he was not instructed to submit, that the convictions would either prevent the appellant from continuing to occupy his professional position or from travelling in the course of it.

47 Senior counsel also submitted that this was not a case where there was a public interest in the convictions being a matter of public record as there were unlikely to be circumstances where the convictions would be relevant to any job or public duty that the appellant sought to discharge.

48 The exercise of the discretion to make spent conviction orders requires the relevant judicial officer to consider the seriousness of the offences in the circumstances of their commission, and to consider the matters personal to the offender. It is also necessary for the judicial officer to decide whether there is anything special or exceptional about the particular case that would warrant the grant of spent conviction orders.

49 In AR v Wood [2008] WASC 119 [39] Heenan J said that he was 'not prepared to consider that, in every case, the making of a spent conviction order must be regarded as an "exceptional" course because to do so would involve placing a gloss upon the requirements' of the Act.

50 In my view I am bound by cases such as Brewer v Bayens and Tognini to find that there is something special or exceptional in a matter before making a spent conviction order. I am reinforced in this view by the approach of the Court of Appeal in Riggall [51], [63] and [79] in which it was implicitly assumed that the case had to be exceptional in order to justify the making of a spent conviction order.

51 After considering all the matters raised by the appellant's counsel before the magistrate and by senior counsel on appeal, I am not persuaded that the magistrate made an error. In certain circumstances a person's mature age, their blameless life and the contribution he or she has made to society may justify the grant of spent conviction orders. However, those personal circumstances must be weighed and considered against the nature and seriousness of the offending. The magistrate was entitled to consider that the length of time that the appellant had possessed the rifle and ammunition, knowing that it was against the law to so possess them, were matters which told against a finding that the appellant should be relieved immediately of the possible adverse effect the convictions might have on him. If, for example, the appellant had only possessed the rifle and ammunition for a short period of time then the decision may well have been different. Similarly, if the appellant had at all times kept the rifle and ammunition secured according to law, the decision might have been different.

52 I acknowledge the correctness of the appellant's counsel's submission that it is unlikely that circumstances will arise where a person may be legitimately required to take account of these convictions. However, that does not mean that there is no public interest in the convictions being on the appellant's record. As Burchett AUJ said in Brewer v Bayens, part of the public interest is the effect of a conviction on general deterrence. The appellant is as appropriate a vehicle for general deterrence as most offenders.