Misuse of Drugs Act 1981, s 5, s 6(2)

Sentencing Act 1995

Chan v The Queen (1989) 38 A Crim R 337

Garrett v Nicholson [1999] WASCA 32

Lloyd v Faraone [1989] WAR 154

Nevermann v R (1989) 43 A Crim R 347

Pallot & Ors v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995

1 HASLUCK J: The appellant, Derek Tilbrook, obtained leave to appeal from a sentencing decision of Mr C Zempilas SM in respect of two charges arising under the provisions of the Misuse of Drugs Act 1981.

2 The first matter was the complaint of Police Constable Philip Cole that on 25 August 1999 at Mosman Park, the appellant had in his possession a metal pipe for use in connection with the smoking of a prohibited drug, such pipe having detectable traces of a prohibited drug, namely, tetrahydracannbinols, contrary to s 5 of the Misuse of Drugs Act.

3 The second matter was the complaint of Police Constable Cole that on 25 August 1999 at Mosman Park, the appellant had in his possession a prohibited drug, namely, cannabis, contrary to s 6(2) of the Misuse of Drugs Act.

4 These matters were brought on for hearing before Mr Zempilas SM at the Court of Petty Sessions in Perth on 23 September 1999. A transcript of the proceedings was brought into existence by Verbatim Reporters and that transcript forms part of the evidentiary materials included in the appeal book.

5 I am satisfied by other evidentiary materials in the appeal book that prior to the hearing the appellant conferred briefly with a Legal Aid duty lawyer at the Court of Petty Sessions and obtained some advice concerning his plea.

6 The nature of the discussion between the appellant and the duty lawyer is reflected on the duty lawyer's instruction sheet. That sheet includes an instruction to plead guilty signed by the appellant. I pause to note that in the course of the hearing before me, the appellant did not dispute that he had provided a written instruction for a plea of guilty to be entered on his behalf in respect of the charges referred to on the sheet, that is to say, possession of cannabis and an implement.

7 The duty lawyer's instruction sheet also reflects the instructions given to the duty lawyer concerning the personal circumstances of the appellant and is indicative of the kinds of matters that were to be raised with the Court. The duty lawyer's note suggests that the appellant had no prior record. The implement was inoperable and was an item "someone had left". The cannabis was less than 1 gram being for occasional use to relax. The appellant was 27 years of age and a full-time post-graduate student of oil and gas engineering at the University of Western Australia. He was also working part-time at the Blue Duck Cafe and had capacity to pay a fine.

8 The notes contain an indorsement "seek SCO" and include a reference to the nature of the oil and gas industry requiring work overseas or a prospect of post-graduate studies overseas.

9 The appellant submitted that he was not fully conversant with the implications of a plea of guilty or not guilty. His understanding was that in the case of a comparatively minor transgression there was a prospect of obtaining a spent conviction order which would mean that no conviction was recorded against his name, with the result that his career prospects would not be prejudiced. He raised these matters with the duty lawyer and his understanding that a plea to this effect would be placed before the Court. It appears from my summary of the duty lawyer's notes that the notes are consistent with a discussion of this kind having taken place.

10 The transcript of the hearing before Mr Zempilas SM reveals that the hearing proceeded very quickly. The duty lawyer entered a plea of guilty to the two charges and the prosecuting sergeant presented a brief statement of material facts to the effect that the police attended at 568 Stirling Highway, Mosman Park to execute a search warrant. During the search, they located a metal smoking pipe in the lounge room with distinctive traces. The transcript continues "admitted it was going to be used, a continuation of smoking cannabis." His Worship then ascertained that the amount of cannabis was less than 1 gram. Before he was interrupted, the prosecutor commenced to say "there is a prior ... ", but the phrase was left unfinished.

11 The duty lawyer said that the facts on the record were admitted and proceeded to hand up references. I will come back to the contents of these references, but, for the moment, I note in passing that it is not clear from the transcript as to what use was made of the references. Some further comments made by the learned Magistrate concerning the "gas and engineering industry" suggest that he had taken account of matters mentioned in the references, confirming that the appellant was enrolled in the graduate diploma in oil and gas engineering at the University of Western Australia.

12 The learned Magistrate invited the duty lawyer to address the Court. The duty lawyer was allowed time to say that the appellant had used cannabis in the past to relax and had not thought of the repercussions. He referred briefly to the fact that the appellant resided with other people and went on to say that "certainly his record indicates he has never come before the court before".

13 The transcript suggests that before the duty lawyer could raise the possibility of a spent conviction order, the learned Magistrate anticipated that a plea of this kind was about to be raised. He intervened quickly to say that the appellant "has to get a conviction because this is spot on with that other case, isn't it, because he had less than a gram. He was 18 years old and Parker J in Riley v Gill said he had to get a conviction."

14 The duty lawyer endeavoured to debate this point, but was cut off by the learned Magistrate who proceeded to pass sentence in these terms:

"Because it's in the very same industry. So anybody working in the gas and engineering industry is entitled to know if any of the employees have convictions for cannabis. So I can't give you a spent conviction based on the authority of the Supreme Court. On the cannabis Mr Tilbrook - just stand up - you'll be fined $100, $147.70 costs. The implement $80; $57.70 costs. It's unfortunate but that's what the Supreme Court says, that in certain types of industries you don't get a spent conviction because it's in the public interest for the employers to know. Collect the slip."

15 The appellant subsequently applied for leave to appeal and was granted leave to appeal on the grounds that the learned Magistrate erred in law in:

"(a) failing to properly consider the application or submission that there should be a spent conviction order;

(b) declining to grant a spent conviction order in the circumstances of the case."

16 I digress briefly to note that according to the appellant two references were handed up. The first reference was a letter dated 6 September 1999 from the Director of the Centre for Oil and Gas Engineering. This reference confirmed that the appellant was currently enrolled full-time in the graduate diploma in oil and gas engineering at the University of Western Australia. It confirmed that the centre expected the appellant to complete the course satisfactorily. It described his out-of-class study efforts as conscientious and said that he had a quiet and thoughtful manner.

17 The second reference was a letter dated 1 September 1999 from a family friend, Rosemary Freney. She said that the appellant was diligent and responsible as a child and had gone on to complete school and then the Bachelor of Industrial Design at the University of South Australia. He worked to support himself whilst he studied and worked as a process worker in a foundry during the long summer vacations. She described him as a young man who had shown both courage and perseverance and confirmed that he had recently commenced post-graduate studies in order to improve his career prospects.

18 In the course of the hearing before me, the appellant contended that the transcript was not complete and possibly misleading. He made a number of speculative submissions about the way in which the charges against him were handled. I have to say that I was not persuaded that there was any substance in these matters and I place no reliance upon them. I will proceed upon the basis that the duty lawyer's notes and the transcript of the hearing constitute a fair reflection of what took place immediately before and at the hearing.

19 It follows from these observations and from the grounds of appeal the subject of the leave to appeal that I am not concerned with any question of whether it was open to the learned Magistrate to convict the appellant. He was represented in court by a legal practitioner and prior to entering the court he had provided the practitioner in question with written instructions to plead guilty. I am concerned only with the sentencing issues raised by the grounds of appeal, although, of course, I recognise that it was appropriate for the solicitor representing the appellant to raise matters bearing upon the culpability of the appellant, including reference to the fact that he was sharing the premises where the items were found with other occupants.

20 In order to appreciate the effect of the learned Magistrate's reasoning, it will be useful to refer briefly to various statutory provisions concerning spent convictions.

21 The long title to the Spent Convictions Act 1988 reveals that it is an Act to make provision for a person who has been convicted of an offence to be rehabilitated by limiting the effects of the conviction. By s 3 a "spent conviction" means a conviction that is spent under s 6, s 7 or s 8 of the Act or that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act 1939. It is apparent from subsequent provisions of the Act that generally a reference to a conviction of a person for an offence does not include a reference to a spent conviction. Questions about a convicted person put to that person, or any other person, should not be taken to relate to a spent conviction or the charge to which the conviction relates. Further, it is unlawful to discriminate against a person on the ground of a spent conviction.

22 Section 39(2) of the Sentencing Act provides that subject to s 41 to s 45, a court sentencing an offender may, with or without making a spent conviction order, impose no sentence and order the release of the offender; impose a conditional release order, or CRO, and order the release of the offender; impose a fine and order the release of the offender; impose a community-based order, or CBO, and order the release of the offender. Importantly, by s 39(3) a court must not use a sentencing option of the kind just mentioned unless satisfied, having regard to the sentencing principles set out in Div 1 of Part 2 of the Sentencing Act, that it is "not appropriate to use any of the options listed before that option."

23 Section 45(1) of the Sentencing Act is in these terms:

"(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."

24 The appellant applied for leave to appeal the decision pursuant to s 186 of the Justices Act 1902. That provision allows for leave to appeal on the grounds that a Magistrate made an error of law or fact (or of both law and fact), acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there is some other reason that is sufficient to justify a review of the decision. Leave was obtained on the basis that the appeal was to be heard by a single Judge.

25 The effect of s 186 is that the appeal shall be determined on the material that was before the Magistrate and on such further evidence as the Court thinks fit to receive. The powers of the Court upon the hearing of an appeal are set out in s 199 and include powers to dismiss the appeal, or set aside, quash or vary the decision of the Magistrate and to substitute a decision that ought to have been made. There is also power to remit the case for rehearing by the Magistrate with or without any direction to him.

26 The Court is not required to set aside, quash or vary a decision because the Magistrate omitted to make any necessary finding if the facts or evidence in substance support the decision or justify the finding.

27 It will also be useful to look briefly at a number of principles relevant to the sentencing process before turning to the grounds of appeal and circumstances of the present case.

28 The Sentencing Act 1995 is described as an Act to consolidate and amend the law relating to the sentencing of offenders. I have already noticed that various sentencing principles are reflected in Div 1 Part 2 of the Act. More specifically, s 6(1) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given by the Full Court of the Supreme Court or the Court of Criminal Appeal containing guidelines to be taken into account by courts sentencing offenders.

29 Aggravating factors are referred to in greater detail in s 7 of the Act being factors which, in the court's opinion, increase the culpability of the offender. Section 8 provides that mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which he or she should be punished. Such factors include a plea of guilty upon the basis that the earlier in proceedings it is made, the greater the mitigation. By s 9, if the statutory penalty for an offence specifies a maximum penalty, the penalty to be imposed must be not more than that maximum. By s 12 the jurisdiction at common law to require an offender to enter into a bond, a recognisance, or a surety, to be of good behaviour or to keep the peace, or to appear for sentence when called upon, is abolished.

30 Academic commentators have observed that sentencing provisions often reflect a degree of tension between a sentence reflecting the offender's culpability, which may act as a general deterrent, and measures designed to assist the offender to regulate his behaviour in the future, although measures of this latter kind may sometimes be thought to diminish the gravity of the offence and weaken the deterrent effect of the law on potential offenders.

31 A number of decided cases deal with the manner in which an appeal court should review the exercise of a discretion as to sentence in the court below. In House v The King [1936] HCA 40; (1936) 55 CLR 499 a majority of the High Court indicated that it is not enough that the Judges composing the appellate court consider that they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. Further, in some cases, although the nature of the error may not be discoverable, the appellate court may infer that there has been a failure properly to exercise the discretion if the result is unreasonable or plainly unjust.

32 More recently, in Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007, a case in which the provisions of the Sentencing Act 1995 (WA) were under consideration in regard to the conviction of an offender for indecent dealing in the District Court, the High Court held that a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. Accordingly, as the reasoning of the Court of Criminal Appeal in this State had identified no failure on the part of the sentencing Judge to advert to any material consideration, no taking into account of any immaterial consideration, and no error on the part of the sentencing Judge which justified setting aside his exercise of discretionary judgment, an appeal against the ruling of the Court of Criminal Appeal should be allowed.

33 I note also that these precepts concerning the way in which an appeal court should proceed have recently been approved by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538. That was a case concerning s 76 of the Sentencing Act 1995 and the concept of suspended imprisonment.

34 Kirby J noted that the necessity to show error is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.

35 Kirby J went on to say that as in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.

36 One finds in the passage I have just referred to an echo of the reasoning of the Federal Court in Queen v Tait (1979) 46 FLR 386 where it was said that the appellate court only interfered if it was shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient features of the evidence. However, there would be few cases where the appellate court would interfere if the Crown had not done what was reasonably required to assist the sentencing Judge to avoid error.

37 In Nevermann (1989) 43 A Crim R the Court of Criminal Appeal in Western Australia noted that the proper discharge of judicial responsibility requires that a Judge should state his reasons for sentence. Those reasons must enable an appellate court to determine whether the judgment is erroneous and are a reference point for the Parole Board.

38 These precepts, however, have to be read in the light of the statutory provisions governing the particular appeal. It is apparent from various decided cases that in circumstances where sentences imposed for summary offences are to be reviewed by way of rehearing, the error principle will not necessarily be decisive: see Fox & Freiberg: Sentencing (2nd ed par 13.105). In the present case, however, the provisions of the Justices Act, although allowing broad powers to the appeal court upon the hearing of the appeal to substitute a decision that ought to have been made by the Magistrate in the court below, clearly contemplate that the appeal can only be prosecuted where an identifiable error has been made.

39 It is true that O 63 r 2 and O 65 r 10 of the Supreme Court Rules indicate that appeals to the Supreme Court are by way of rehearing. Indeed, it is for this reason, presumably, that under O 65A r 3 there is power to admit further evidence. Nonetheless, s 186 of the Justices Act, which requires that leave to appeal can only be obtained upon specified grounds, suggests that where the matter is referred to a single Judge, as in the circumstances of the present case, the appeal should only be allowed where an error in the exercise of the Magistrate's discretion has been identified: Neale v Sloan (1997) 27 MVR 246.

40 The respective parties also made submissions concerning spent conviction orders. Section 45 of the Sentencing Act, in contrast to provisions of the Spent Convictions Act 1988, is aimed at relieving the offender of the adverse effect immediately following the conviction. It follows from the nature of the power, and the extent to which it interferes with the ordinary operation of the Spent Convictions Act 1988, that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.

41 A spent conviction order cannot be made unless the preconditions set out in s 45 of the Sentencing Act are met. However, that is not the end of the matter. In R v Tognini [2000] WASCA 31, Murray J summarised the considerations, additional to the preconditions in s 45 of the Sentencing Act, which should be taken into account in determining whether a spent conviction order should be made. Put shortly, the court should have regard to the seriousness of the offence, to the circumstances of its commission and to the circumstances personal to the offender. Ordinarily, a conviction will be a matter of record. The court should see whether there is some particular circumstance to show that it would be desirable, from the point of view of the offender, and of the community, why the adverse effect of the conviction should be immediately set aside. The court may be aided to reach this conclusion if it thinks that there is no pressing public interest in being able to have access to the fact of conviction as part of the process of securing the protection of the community.

42 It will be useful to set out precisely what Murray J had to say at par 27 and par 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."

43 It is material to note that in Tognini an insurance salesman was convicted by a jury in the District Court with obtaining a cheque for $7,355.44 from an insurance company by a false pretence. The sentencing Judge did not consider the offence was "trivial" within the meaning of s 45(1) of the Sentencing Act but he took the view that having regard to the accused's previous good character and as there had been no further offending in the nine years since commission of the offence the accused should be relieved of the adverse effect of the conviction, and this view was upheld by the Court of Criminal Appeal.

44 Tognini therefore stands as an authority for the proposition that the offender does not have to satisfy both criteria in s 45(1)(b). They are to be regarded as alternatives. Put shortly, the applicant for a spent conviction order must satisfy the court that he is unlikely to commit such an offence again and that he should be relieved of the adverse effect of the conviction having regard to the fact that the offence is trivial or to his previous good character. (I note in passing that s 45(1) stands in contradistinction to the next following provision, s 46, concerning release without sentence, where it is one of two essential requirements that the circumstances of the offence be trivial.)

45 This brings me to the decision specifically mentioned by the learned Magistrate in the present case, namely, Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997.

46 That case was an appeal by leave from sentences imposed by a Stipendiary Magistrate in the Court of Petty Sessions at Perth in respect of two convictions of the appellant on his own plea of guilty for offences of possession of cannabis and possession of an implement for the smoking of cannabis. He was sentenced to a fine of $125 on each charge and costs of $102 were also ordered in respect of the two complaints.

47 The facts as placed before the learned Magistrate indicated that the appellant worked as a shot firer, leading hand, at a mine site out of Port Hedland and he lived at the mine site in accommodation provided to him by his employer. Police searched the premises in which he lived. They found, on his actually producing it to them, a quantity of cannabis in the order of 1 gram and the smoking implement. The appellant accepted readily to the police that they were his and they were there for his own use. The smoking implement had been used for its normal purpose.

48 The appellant submitted to the learned Magistrate that he should either release the offender without imposing a penalty under s 46 of the Sentencing Act 1995 or that he should make a spent conviction order pursuant to s 45 of that Act. The learned Stipendiary Magistrate declined to do either of those things.

49 In disposing of the appeal against the Stipendiary Magistrate's ruling, Parker J held that for the purpose of s 46 concerning release without conviction the circumstances of the offence could not be regarded as trivial. While the actual quantity of cannabis was not significant, it was clear the appellant had made a conscious decision to have it in his personal living quarters at the mine site where he worked for his own use. As a finding of triviality was an essential requirement under s 46 the appeal was dismissed in regard to this issue.

50 Parker J then turned to the essential requirements of s 45(1) concerning spent convictions. He said that in form it is a prohibition on the exercise of the power to make a spent conviction order, a power which is conferred by s 39(2). It is a prohibition on the exercise of that power unless the court is satisfied of two distinct matters. The first matter of which the court must be satisfied is that the offender is unlikely to commit such an offence again; s 45(1)(a). The second of the distinct matters of which the court must be satisfied is that the court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on the offender, and in deciding whether that is the position the court is required by s 45(1)(b) to have regard to two matters, either one of which may support the conclusion that the offender should be relieved of the effects of conviction. The first of those is that the offence is trivial and the second is the previous good character of the offender.

51 His Honour said that the power to make a spent conviction order does not arise for exercise unless each one of those two distinct criteria are satisfied. As was observed by Wheeler J in Neale v Sloan, unreported; SCt of WA (Wheeler J); Library No 970729; 6 August 1997, at 4:

"Section 45 of the Sentencing Act provides that a Court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied, and consideration must be given to all of the circumstances of the case and of the offender - an indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in s 45 are not thereby rendered irrelevant."

52 Parker J in Riley v Gill went on to note that because the circumstances of the offence could not be described as trivial the Court had to be satisfied pursuant to s 45(1)(b)(ii) that the offender should be relieved immediately of the adverse effect that the conviction might have on him having regard to his previous good character. His Honour seemed to accept that the appellant was a person of previous good character but, consistently with the reasoning of Wheeler J in Neale v Sloan that of itself was not enough. Regard had to be had to the whole of the circumstances including public interest considerations before the Court could exercise its discretion in favour of the appellant. His Honour noted that the appellant's occupation involved considerable responsibility for safety and observed that there was a public interest in any employer or potential employer "being aware of the appellant's conduct of the nature demonstrated by these offences because that conduct had clear relevance in assessing his reliability and suitability for the type of work he pursues". On balance, Parker J came to the same view as the Magistrate, namely, that a spent conviction should not be made.

53 The learned Magistrate in the present case seems to have transformed the reasoning of Parker J as applied to the particular circumstances in Riley v Gill into a general rule of the kind implicit in his sentencing remarks in the present case: "So anybody working in the gas and engineering industry is entitled to know if any of the employees have convictions for cannabis." With respect, this overstates the position. There is little in the reasoning of Parker J to suggest that he was attempting to formulate a general rule. It is apparent from the tenor of his reasoning that in the exercise of its discretion a court is obliged to take account of the circumstances of the particular case.

54 When one looks at the circumstances of the present case it is important to note that the appellant was a student and had not yet taken up a position in the gas and engineering industry, although that was his eventual goal. Unlike the appellant in Riley v Gill he was not working on a mine site or responsible for the safety of others. It is apparent from the learned Magistrate's sentencing remarks that he failed to give proper weight to these and other points of distinction before he purported to apply the reasoning in Riley v Gill to the case before him, and that he also failed to hear submissions or to make any finding as to one of the essential requirements of a spent conviction order, namely, whether the offender was unlikely to commit such an offence again.

55 It is clear from the sentencing remarks that the question of whether a spent conviction order should be made was before the Court as an issue. It was open to the Magistrate to hold on the authority of Riley v Gill that the circumstances of the offence were not trivial, notwithstanding the small amount of cannabis involved. Nonetheless, if time had been allowed for a full plea, the appellant had some prospect of persuading the Court by defence counsel that the essential requirements of s 46(1) had been satisfied - that he was unlikely to commit such an offence again and that he should be relieved immediately of the adverse effect of the conviction having regard to his previous good character - and that the Court's discretion to make a spent conviction order should be made in his favour. Murray J in Tognini has noted that such an order might be appropriate where a conviction "might be a particular impediment to the offender following a particular career". These observations were arguably applicable to a person such as the applicant who is about to embark upon a professional career that might lead to employment overseas in which respect the nature of his previous record would inevitably be a matter of interest.

56 The appellant was denied an opportunity to present his case and, importantly, as I have already noted, the learned Magistrate failed to address and make findings as to two crucial issues, that is to say, whether the appellant was likely to commit such an offence again and whether he should be relieved of the effect of the conviction. In so far as the Magistrate purported to address the second issue by applying the reasoning in Riley v Gill to the case before him, to my mind, he did so incorrectly because he gave an undue and rather peremptory emphasis to certain features of the earlier case which were not necessarily consonant with the facts of the case before him. Accordingly, I consider that the Magistrate erred in law and that the appeal should be allowed on the grounds relied upon by the appellant.

57 I have given careful consideration to the form of relief. It follows from what I have said that findings are required in respect of the essential requirements prescribed by s 46(1) before a spent conviction order could be made. The evidentiary materials before me are not sufficient to allow such a finding to be made and it may be that the appellant, who was unrepresented on the appeal before me, will wish to obtain legal assistance by duty counsel or otherwise in submitting his plea to the Court. Accordingly, pursuant to the powers allowed to the Supreme Court on appeal by s 199 I will remit to the Court of Petty Sessions for rehearing the specific question of whether a spent conviction order should be made in favour of the appellant. Subject to that direction, the orders previously made will continue to apply. I will hear from the parties as to whether any further orders are required.