Appeal by leave from refusal by a magistrate to make a spent conviction order - Whether error in approach to Sentencing Act s 45(1)(a) on enlivening of discretion to make order - Standard of proof of matters in s 45(1)(a) - Whether no substantial miscarriage of justice had occurred - Principles for exercise of discretion to make spent conviction order under s 45

Criminal Appeals Act 2004 (WA), s 14

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

1 This is an appeal against sentence. The basis for the appeal is that the learned sentencing Magistrate erred in refusing to make a spent conviction order under Sentencing Act 1995 (WA) s 39 read with s 45.

2 In these reasons I first describe the background to that refusal and this appeal. I then set out the relevant statutory provisions, before considering whether or not the learned magistrate erred. As I consider that the appellant has made out error, I then turn to the application of Criminal Appeals Act 2004 (WA) s 14(2). The final section of these reasons is my conclusions and orders.

3 The following is not in contest between the parties to the appeal.

4 On 12 February 2008 in Perth Magistrates Court the appellant entered a plea of guilty to a charge of indecent assault contrary to Criminal Code (WA) s 323.

5 The circumstances of the offending were that the appellant had touched a young woman over her clothing from behind when she was bending over to look at some clothing on a rack in a shop. He had apologised to the victim immediately when he was confronted and he had co-operated with the police, making admissions in relation to the offence.

6 The appellant was 25 years old at the time of the offending. He had only two previous convictions, for traffic matters, on his record.

7 At the time of sentencing, the appellant, who has a mild intellectual disability, was enrolled in the Intellectual Disability Diversion Program (the IDDP) of the Perth Magistrates Court. At the time of sentencing the appellant the learned magistrate was sitting as the 'constant' magistrate for the IDDP. The appellant had appeared before his Honour on previous occasions to enable his Honour to measure the appellant's progress.

8 On 22 July 2008 in the Perth Magistrates Court his Honour sentenced the appellant to a 12 month community based order with programme and supervision requirements.

9 Submissions had been made on behalf of the appellant that a spent conviction order should be made in respect of the sentence, but his Honour declined to make that order.

10 His Honour's remarks as transcribed concerning the matter of whether or not to make a spent conviction order appear in two places in the transcript.

11 First, there was an exchange between his Honour and counsel for the appellant on that occasion, Ms Gibbs, and the person who had charge of the appellant under the IDDP and who was shown in the transcript as a Ms Skelinski, but who I was told was a Ms Perlinski (22 July 2008, ts 2 - 4), the exchange beginning with Ms Gibbs:

I am instructed, your Honour, to ask the court to consider granting a spent conviction to [SA]. It's a serious offence. [SA] acknowledges that. I would point to the fact through, your Honour, that it was spur of the moment and [SA] realised immediately that he had done the wrong thing. Everything he has done since that point in time indicates that he acknowledges responsibility for it and indicates his remorse, to the end that he is continuing with his counselling.

Perhaps your Honour could use that to be satisfied that he is unlikely to commit this offence again. Certainly having gone through this process has been a significant wake up call for [SA] and his progress has been not much short of remarkable. Because he does hope to get into to open employment, clearly a conviction like this could significantly impair that progress. Those are my submissions, your Honour.

HIS HONOUR: Yes. This court doesn't seem to worry - concern itself with spent conviction orders because it has got a more - a bigger role to play than worry about spent convictions. That's my concern. I'm not worrying about whether someone has got a conviction or not but whether we getting them back on the straight and narrow again. Giving them some benefits which we are here.

GIBBS, MS: That's certainly the case and [SA] has made significant progress but having gone on the IDD program, in my submission, that should not prevent the court from considering a spent conviction.

HIS HONOUR: Well, I suppose everyone who comes through this court isn't - if you're a talker, you would say they are entitled to a spent conviction.

GIBBS, MS: No absolutely not, your Honour. I wouldn't say that they're entitled to it. I wouldn't say it has to be considered on an individual basis.

HIS HONOUR: Well, Ms Skelinski, what do you think? Is it going to be of any significance to [SA]?

SKELINSKI, MS: Well, I do think it is of significance and I would agree with my friend that indeed if he is going to obtain open employment and that is part of getting back on the straight and narrow that a spent conviction would indeed be of great benefit to him and I think it is my hope that when people leave this court, we don't leave them in a worse position had they gone through the normal court process.

HIS HONOUR: For this sort of offence here, we have got to be very, very careful. We have got to be absolutely 100 per cent certain that it's not going to happen again because we wouldn't want a situation to occur where he did get a job somewhere, it did happen again, and it was ascertained that he had a conviction that the system had hidden if you like.

SKELINSKI, MS: Yes, well I certainly agree with that, your Honour, and I think that is the decision that needs to be made and I don't think it really matters whether it is made in this court or any other court and I think the same questions need to be addressed.

PROSECUTOR: If it pleases your Honour, the prosecution would be opposed to a spent conviction with relation to this matter. If I could refer specifically to part of the statement of material facts. After the accused has actually committed the offence, some 20 minutes later he was located near the ladies fitting room and that in itself whilst, yes, he has apologised to the victim at the time of committing the offence, one really wonder as to what his intent was that 20 minutes later hanging around the ladies fitting room.

HIS HONOUR: Yes.

PROSECUTOR: It is a serious offence.

12 Subsequently his Honour sentenced the appellant as I have indicated, and, after he had announced that sentence, there was the following exchange between him and Ms Gibbs (22 July 2008, ts 6):

GIBBS, MS: I don't believe I heard your Honour mention about whether or not you considered the spent conviction.

HIS HONOUR: Well, I'm not going to make a spent conviction order. That is not a reflection on [SA], it's just a reflection on the nature of the offence. I don't give spent convictions for those sort of offences for obvious reasons.

13 By appeal notice dated 2 September 2008 the appellant sought leave to appeal on the following ground:

1. The learned sentencing Magistrate erred in refusing to grant a spent conviction order in that

(a) he failed to consider the individual circumstances of the case, and

(b) he failed to consider the applicant's particular circumstances, and in particular

(i) his intellectual disability

(ii) his involvement in diversionary and rehabilitative measures prior to sentence, and

(iii) his remorse.

14 By orders dated 18 September 2008 McKechnie J granted leave to appeal on that ground and made certain programming orders.

The relevant statutory provisions as to the making a spent conviction order

15 Sentencing Act s 39(2)(a) - (d) provides as follows:

(2) Subject to sections 41 to 45, a court sentencing an offender may -

(a) with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender;

(b) with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender;

(c) with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made);

(d) with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender;

16 It may be seen that the learned magistrate's refusal was to sentence the appellant under s 39(2)(d) with a spent conviction order.

17 Sentencing Act s 45(1) - (4) says this as to the making of spent conviction orders:

(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

(b) having regard to -

(i) the fact that the offence is trivial; or

(ii) the previous good character of the offender,

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

(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.

18 It was common ground before me that, if a court considers Sentencing Act s 45(1)(a) and (b) ((i) or (ii)) to be satisfied, the court has a discretion whether or not to make a spent conviction order. This is well established law at least since Neale v Sloan (1997) 27 MVR 246, 247 (Wheeler J).

19 Before me, counsel for the parties proceeded on the basis that the following two issues were raised in this appeal.

20 First, had his Honour erred in proceeding, as he appeared to have done, on the basis the discretion to make a spent conviction order was not enlivened? It appears to have been common ground that this issue is what the ground of appeal addressed. I note in any event that his Honour did not in the context of the discretion under s 45 address the matters to which the ground of appeal refers. For the reasons set out below, I consider that his Honour did not address those matters in that context in view of what appears to have been his conclusion as to the unlikelihood of the appellant committing such an offence again.

21 Second, if his Honour had so erred, was this a case for the application of the proviso in Criminal Appeals Act s 14(2)? I reproduce that provision below.

Did his Honour err as to whether or not the discretion was enlivened?

23 It was not in contest before me that for the purposes of Sentencing Act s 45(1)(b)(i) the appellant's offence was not a 'trivial' one.

24 However, it was also not in contest before me that for the purposes of Sentencing Act s 45(1)(b)(ii) the appellant was of 'previous good character'. I agree: see Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18 [28] (Le Miere J); see also JJA v Yow [2008] WASC 69 [36] (McKechnie J).

25 The remaining question is then, as the parties accepted, that under Sentencing Act s 45(1)(a) of whether or not his Honour erred in his approach to the question whether the 'the offender is unlikely to commit such an offence again'.

26 The matter of such an unlikelihood had been put to him by counsel for the appellant as follows (22 July 2008, ts 2 - 3), forming part of the larger quotation from that part of the transcript above, but repeated here for ease of reference, with his Honour's response:

GIBBS, MS: I am instructed, your Honour, to ask the court to consider granting a spent conviction to [SA]. It's a serious offence. [SA] acknowledges that. I would point to the fact through, your Honour, that it was spur of the moment and [SA] realised immediately that he had done the wrong thing. Everything he has done since that point in time indicates that he acknowledges responsibility for it and indicates his remorse, to the end that he is continuing with his counselling.

Perhaps your Honour could use that to be satisfied that he is unlikely to commit this offence again. Certainly having gone through this process has been a significant wake up call for [SA] and his progress has been not much short of remarkable. Because he does hope to get into to open employment, clearly a conviction like this could significantly impair that progress. Those are my submissions, your Honour.

27 In my view his Honour's response does not go clearly to the matter so put to him by counsel for the appellant. However, in his Honour's exchange with Ms Perlinski (wrongly referred to as Ms Skelinski in the transcript) concerning the making of a spent conviction order not long afterwards the following appears, which in my view was his Honour's clear response to the submission from counsel for the appellant (22 July 2008, ts 3, forming part of the larger quotation from that part of the transcript above, but repeated here for ease of reference):

HIS HONOUR: For this sort of offence here, we have got to be very, very careful. We have got to be absolutely 100 per cent certain that it's not going to happen again because we wouldn't want a situation to occur where he did get a job somewhere, it did happen again, and it was ascertained that he had a conviction that the system had hidden if you like.

28 Although no authority was cited to me in this respect, I consider that the adoption of that approach to the question raised by Sentencing Act s 45(1)(a) was an error. On the approach adopted by the courts to proof of matters of mitigation and the ordinary meaning of that provision, it seems to me that approach sets a standard higher than the one the provision sets, generally or in respect of offences of the present kind. The standard is in my view one of whether on the balance of probabilities the offender had been shown to be 'unlikely to commit such an offence again'. I refer to the approach to proof of matters in mitigation of sentence in Marker v The Queen [2002] WASCA 282 [22] (Murray J) and authorities there cited. There is nothing in the ordinary meaning of Sentencing Act s 45(1)(a) to suggest that a higher standard of proof is being set there.

29 It may be accepted that in view of the seriousness of the offending the court should be careful to reach its conclusion on clear and convincing evidence: Brewer v Bayens [2002] WASCA 271 [14] (Burchett AUJ), [1], [2] (Wallwork J) and [3] (Wheeler J), referring to the expectation that 'generally' those 'who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence'. However, in my view a standard as high as that set by the learned magistrate, is too high. Its effect approaches, even if that effect does not clearly produce, the exclusion of the discretion in Sentencing Act s 45 for such offences. It is established law that the discretion under s 45 is not so excluded: Tambyrajah [16], [17] (Le Miere J), on drug offences.

30 Counsel for the respondent reminded me of the learned magistrate's exposure to the appellant through prior reviews of his progress under the IDDP, and also directed my attention to Ms Perlinski (wrongly named as Ms Skelinski) putting a 'certificate' to his Honour and the ensuing exchange between his Honour and the appellant as follows (22 July 2008, ts 5 - 6):

SKELINSKI, MS: We also have a certificate for [SA], seeing as how he has done so well.

HIS HONOUR: There is a certificate for you there, [SA], and that reflects the fact that while you have been on this program so far you have done very well. Very well. There are things like taking your medicine has got to be sorted out. You have got to keep taking that.

[SA]: Yes.

HIS HONOUR: That certificate shows that you're capable of doing the right thing and staying out of trouble.

[SA]: Yes.

HIS HONOUR: So make sure that continues for the next 12 months while you're on this program.

[SA]: Thank you.

HIS HONOUR: All right?

[SA]: Yes.

31 I consider that these passages taken together indicate his Honour was of the view the appellant needed to be addressed by way of a reminder to 'stay out of trouble'. Such a reminder would, it seems to me, not have been given if his Honour considered it was unnecessary. I also accept what counsel for the respondent appeared to put to me, that his Honour considered, with the advantage of his informed position, even with the reminder his Honour was giving, that he could not be satisfied on the matter in Sentencing Act s 45(1)(a). There is, of course, as counsel for the respondent put to me, a difference between a capacity in the appellant in that regard and the use of that capacity.

32 However that may be, I do not consider on the material before me his Honour had used that background as the proper approach to Sentencing Act s 45(1)(a) required.

33 It follows I consider the ground of appeal has been made out.

34 That conclusion takes me to the question arising out of Criminal Appeals Act s 14(2).

The proviso in Criminal Appeals Act s 14(2)

35 Criminal Appeals Act s 14(1)(b) and (2) read as follows:

(1) In deciding an appeal, the Supreme Court may do one or more of the following -

...

(b) allow the appeal;

...

(2) Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

36 In approaching the application of s 14(2) I consider I am required to consider whether or not on my own independent assessment of the evidence, after making due allowance for the natural limitations of the appellate court proceeding wholly on the record, the appellant's conviction should not have been the subject of a spent convictions order: see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

37 In this case, this requires me to address two matters. One is whether the discretion to make such an order was not enlivened, which it was accepted by both counsel reduces to the question whether I consider it had not been shown the offender was unlikely to commit such an offence as the present again.

38 The other matter, which arises if my answer on the first is no, is whether it had not been shown the appellant's conviction was one for which a spent conviction order should be made, that is, it had not been shown that the discretion so enlivened under Sentencing Act s 45 should be so exercised.

39 In my view the answer on the first matter is indeed no. I so consider because of the matters as to the appellant's attitude to his offending and his history as put to the learned magistrate by counsel for the appellant, Ms Gibbs, as quoted in the section headed Background above (22 July 2008, ts 2 - 3). I also note the 'certificate' from Ms Perlinski as referred to by his Honour in the quotation last appearing in the previous section of these reasons (22 July 2008, ts 5 - 6).

40 True it is that the account of the appellant so provided needs also to be viewed with the following, put by the prosecutor to the learned magistrate as going against the making of a spent conviction order (22 July 2008, ts 4, forming part of the former quotation, but repeated here for ease of reference):

PROSECUTOR: If it pleases your Honour, the prosecution would be opposed to a spent conviction with relation to this matter. If I could refer specifically to part of the statement of material facts. After the accused has actually committed the offence, some 20 minutes later he was located near the ladies fitting room and that in itself whilst, yes, he has apologised to the victim at the time of committing the offence, one really wonder as to what his intent was that 20 minutes later hanging around the ladies fitting room.

41 However, in my view this matter is too equivocal to qualify the other matter in any substantial way.

42 I turn then to the matter of the exercise of the discretion in Sentencing Act s 45.

43 The principles of particular relevance to the exercise of the discretion in this case are in my respectful view conveniently to be taken from Tambyrajah [32] - [34] (Le Miere J), referring to the authority often cited in a connection such as this one, R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, as follows:

The Court has a discretion whether to make a spent conviction order. In exercising that discretion, the Court may have regard to any relevant consideration. The Court is not confined to the matters referred to in par (a) and par (b) of s 45(1) of the Sentencing Act.

In Tognini, at [27] and [28], Murray J said:

'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 preconditions are satisfied, 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.'

The Second Reading Speech of the Honourable Attorney-General introducing the Sentencing Bill into the Parliament shows that the detrimental effect that a conviction may have on an offender's employment prospects was intended by the Legislature to be a circumstance that may justify the making of a spent conviction order. Hansard for 25 May 1995, page 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 Pt 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.'

44 See also JJA [17], [18] (McKechnie J); and Riggall v State of Western Australia [2008] WASCA 69 [72] - [74] (Wheeler JA), [80] (Buss JA) and [81] (Miller JA).

45 I note in particular from Riggall, a case involving an offender who was 22 years old at the time of the offending, which involved a sexual dealing with a child of 14, [73] - [74] (Wheeler JA), referring initially to the last matter mentioned in the quotation from Tognini above:

Taking the last matter first, it seems to me there is no pressing public interest in persons generally being able to continue to have access to the fact of the appellant's conviction, since there is nothing to indicate that the community requires protection from the appellant. It is also, in my view, relevant in the present case to consider the very serious stigma which attaches, rightly, to a conviction for a sexual offence against a child. The stigma is so great that any person who becomes aware of the mere fact of the appellant's conviction will often be uninterested in staying to learn the detailed circumstances and will be prepared, without more, to regard the appellant as a person of thoroughly reprehensible character.

Particularly in relation to a young person who is, in practical terms, at the beginning of his working life and who, although currently working as a barista, may well at some stage seek alternative employment in other fields, the mere fact of conviction of these offences would be likely to have a detrimental and long-lasting impact upon the appellant. In those circumstances, in my view, it is appropriate that he be relieved immediately of the effects of the conviction and I would make a spent conviction order.

46 I also note from JJA, a case involving an offender who was 20 years old at the time of the offending, which involved a number of drug-related matters, [37] (McKechnie J), where his Honour also referred to Riggall [74], the following:

The fact that the appellant satisfies the criteria under s 45 merely enlivens the discretion. However, in this case I conclude that a miscarriage of justice arose because a spent conviction order ought to have been made. The appellant is young, and, on the available material, seems highly motivated to overcome his drug addiction and live as a worthwhile member of the community. I am inclined to that view partly for the reasons expressed by Wheeler JA in Riggall [quoting [74], as above].

47 The appellant here, while not as young as the offenders in Riggall and JJA, was not significantly older, and appeared to be at an equivalent point in his employment history to that of those offenders. Further, on the material put before the learned magistrate (the 'certificate') the appellant appeared to have displayed the kind of motivation to address the possibility of re-offending in JJA.

48 For the respondent, it was put to me that the appellant's personal circumstances were not shown to be 'so unique that would justify' the exercise of the discretion.

49 However, I consider this may put the matter too high. The test from Tognini [27] as quoted above is that of whether or not there is some 'particular circumstance' as described there such as to warrant making a spent conviction order.

50 The power to make such an order thus described has been described as of an 'exceptional character' to be used 'sparingly': see Thompson v Mackay [2008] WASC 270 [52] (Hasluck J: source of quotation); see also McKenzie v Daly [2008] WASC 284 [19], [20] (Blaxell J) and Brewer [14], [16], [19] (Burchett AUJ).

51 However, it does not seem to me this entails the approach the respondent's submission commends to me, at least in this case. I say this for the following reasons.

52 At the least it seems to me there is not the same requirement for general deterrence in respect of the offence in this case, serious as it was, as in the case of the offence against public order involving assault in Thompson (see [3] - [10], and [53], Hasluck J). Nor is there the ground for the concern that a person like the appellant with such a conviction as in this case might be in a position as part of his future employment to work in close contact with the impressionable minds of the very young, as weighed with the court in Brewer (see [19], Burchett AUJ). Nor was the appellant shown to be a person with a condition raising other safety concerns in the employment he was likely to consider as weighed with the court in McKenzie (see [29], Blaxell J).

53 Further, in my view JJA and Riggall both indicate that youth, attitude to offending and the likely effect of a conviction of the sort in question on the offender's future employment that would assist with his rehabilitation may in combination cause the court to exercise the power to make a spent conviction order.

54 However, in this case counsel for the respondent put to me that the fact the appellant was at the time of sentencing working with Activ showed it could not be said his conviction prevented him from entering employment that might assist him with his rehabilitation. I disagree. The offender in Riggall was so far as I can determine from the report of the case in employment at the time of sentencing. In that case the court accepted that the convictions for the offending would 'be likely to have a detrimental and long-lasting impact upon the appellant' ([74], Wheeler J).

55 It may be accepted that the offending in that case was of an even more serious character than that in this case. However, in this case, there was, as in Tambyrajah (see [39]), evidence from the professional (Ms Perlinski) involved in treating the appellant of the following kind (22 July 2008, ts 3, wrongly naming her as Ms Skelinski):

SKELINSKI, MS: Well, I do think it is of significance and I would agree with my friend that indeed if he is going to obtain open employment and that is part of getting back on the straight and narrow that a spent conviction would indeed be of great benefit to him and I think it is my hope that when people leave this court, we don't leave them in a worse position had they gone through the normal court process.

56 In all the circumstances, I consider this was a case where it had been shown a spent conviction order should have been made.

57 For the foregoing reasons, I consider the appeal should be allowed, and I further consider that I should make a spent conviction order.

58 I will hear from the parties as to the orders I should make to give effect to those conclusions.