WILLENBERG -v- DOWNEY [2015] WASC 282 (27 July 2015)

3 For the reasons which follow, I am not persuaded that leave to appeal should be granted in respect of any of the grounds of appeal.

4 In these reasons for decision, I deal with the following matters:

1. The factual background;
2. The Magistrate's decision to refuse to grant a spent conviction order;
3. The application to adduce further evidence;
4. The requirement for leave to appeal; and
5. Why each of the grounds of appeal do not warrant the grant of leave to appeal.

5 On Saturday, 14 February 2015, the applicant was subjected to a roadside random breath test, where he was found to have a blood alcohol content of 0.143 g of alcohol per 100 ml of blood.

6 In his plea in mitigation,[2] the applicant's counsel told the Magistrate that, on the night in question, the applicant went to a friend's house and 'had a few beers'. The applicant then went and drank at a 'couple of pubs in Fremantle'. After drinking a 'couple of jugs of beer', he went back to his friend's house by taxi at approximately 11.00 pm and went to sleep on his friend's couch for 'an hour or so'. When the applicant woke up, he was concerned about the fact that he had to work at 8.00 am the next morning and he decided to drive the '20minute journey' to his house. It was during that journey that he was subjected to the random breath test.

2. The learned Magistrate's decision to refuse to grant a spent conviction order

7 The Magistrate refused to grant a spent conviction order under s 45 of the Sentencing Act.

8 Section 45(1) requires a sentencing judge to first determine, under s 45(1)(a), whether it is unlikely that the offender will commit the offence again, and, under s 45(1)(b), whether the offence is trivial, or alternatively, whether the offender is of previous good character.

9 Only after these preconditions have been determined in the affirmative is the discretion enlivened so that a judicial officer may grant a spent conviction order if he or she considers that the offender should be immediately relieved of the adverse effects of a conviction. It is not the case that a sentencing judge or magistrate must grant a spent conviction order once it is determined that the preconditions are satisfied.[3] In the exercise of the discretion, a judge or magistrate may take into account considerations extraneous to those referred to in s 45(1)(a) and (b) of the Sentencing Act.[4]

10 The principles in relation to the exercise of discretion under s 45(1) can be summarised as follows.

11 First, the fact that a conviction will be a matter of record with all the consequences that may entail should be taken as the ordinary rule.[5]

12 Secondly, the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case.[6]

13 Thirdly, the discretion involves a consideration of the seriousness of the offence, the circumstances of its commission, and the circumstances personal to the offender.[7] The seriousness of the offence should not be assessed by reference to the class of offence involved.[8]

14 Fourthly, the exercise of the discretion also involves consideration of the interests of the offender and the public interest.[9] The public interest includes general deterrence,[10] as well as the protection of the community.[11] The public interest can also include the interests of an employer or a potential employer being aware of the conviction insofar as it may be relevant to assessing the person's reliability or suitability for a particular type of work.[12] The public interest may coincide with the interests of the offender where relieving him or her of the consequences of a conviction would positively aid the offender's rehabilitation, and in that sense would also be in the best interests of the community.[13] Rehabilitative effects may include the impact on the offender's employment (present or future)[14] and the avoidance of exceptional hardship to the offender or his or her family.[15]

15 The learned Magistrate considered whether the applicant was unlikely to commit the offence again and was satisfied that this precondition was met. The Magistrate was also satisfied that the applicant was a person of previous good character.

16 The learned Magistrate then turned to the exercise of his discretion. His Honour was not persuaded that he should exercise his discretion to grant a spent conviction order. In his reasons, the Magistrate noted the fact that spent conviction orders under s 45 of the Sentencing Act should be made sparingly in a clear case and for good reason.[16] His Honour then noted the matters which he should consider in the exercise of the discretion: the nature and seriousness of the offence and its commission, the applicant's personal circumstances, the rehabilitative effect of an immediate removal of conviction, and the public interest, including any employer or potential employer being aware of any conviction, and the need for personal and general deterrence in relation to drink driving offences.

17 The learned Magistrate explained how he took these matters into account and concluded that the application for a spent conviction order should be refused. His Honour said:[17]

It does seem to me that this offence ... [is] towards the upper range of the 0.08, so there is some level of seriousness about that, and I have to take into account the risk that was posed to the public by this driving. I accept that if there are two equally qualified candidates that may present in the future, one with this conviction and one without, then you are at a disadvantage and, to that extent, if a spent conviction order was made, then there would be a rehabilitative effect. On the other hand, there is no job offer on the table, or there's no obvious employment impact if I fail to make an order today, and that's in circumstances where you really are at the stage of education, training for your work.

But I do take into account what I've just said about there being a disadvantage if there are two equally qualified people. In the end, I have determined though that the submission of the prosecutor is, in my view, a powerful one, and that is the need for what I've referred to as general deterrence, for people to understand that, particularly in relation to alcohol-related driving, on balance, when I weigh the factors to which I've referred in this case, the need for people in the community to understand the consequences does outweigh any rehabilitative effect to which I have been asked to consider, and I do consider. So, on balance, the application will be refused.

18 Various documents were placed before the learned Magistrate at the hearing. Copies of these documents were provided to the Court by the applicant's solicitors, and counsel for the respondent did not dispute that these were the documents which were before the Magistrate. These included a university letter, an employment reference, and details of the tertiary education course that the applicant is pursuing and intends to continue to pursue in the future.

19 At the hearing of the application for leave to appeal, counsel for the applicant sought to put before the Court material additional to that which was before the Magistrate. There were three documents involved in that application:

(1) An affidavit sworn by the applicant on 28 June 2015;

(2) A medical certificate indicating that the applicant was unfit for university for second semester in 2015 (the doctor's certificate); and

(3) A document entitled 'Epilepsy and the Workplace: A guide for workers and employers', written by Caitlin Baillie (the Guide).

20 Counsel for the applicant sought that these documents be received by the Court as further evidence for the purposes of the application for leave to appeal and clearly, if leave were granted, on the appeal itself. Counsel submitted that the documents should be received by the Court 'in the overall interests of fairness' and because the documents provided further substance to the matters raised before the learned Magistrate.

21 An appeal court can allow evidence not before the original court to be adduced on an appeal under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). That section simply provides that for the purposes of dealing with an appeal, an appeal court may admit any other evidence. The person seeking to adduce additional evidence must apply for leave to adduce that evidence.[18]

22 In the case of appeals under div 2 of pt 2 of the Criminal Appeals Act, it is not clear whether an application for leave to adduce additional evidence must be supported by an affidavit.[19] Ordinarily, an affidavit in support would be appropriate to ensure that the court has before it all of the information it may require to determine whether, in the exercise of its discretion, leave should be granted to adduce the additional evidence. No affidavit in support of the application to adduce additional evidence was provided in this case.

23 The respondent opposed the grant of leave to adduce additional evidence. Counsel for the respondent submitted that the new evidence was not relevant to the existing grounds of appeal, there being no ground that the decision of the Magistrate gave rise to a miscarriage of justice. He submitted that even if one of the grounds of the appeal had been that the decision gave rise to a miscarriage of justice, it was difficult to see how the additional evidence would assist in determining that ground.

The applicant's affidavit sworn 28 June 2015 and the doctor's certificate

24 Broadly speaking, the affidavit sworn by the applicant on 28 June 2015 deals with the following:

(1) An expanded explanation for why the applicant decided to drive home on the night of the offence;

(2) An opinion from the applicant's medical practitioner advising the applicant against commencing studies this semester given the applicant's medical situation at present; and

(3) The clarification of when the applicant first experienced epilepsy and his experience of that condition in recent years.

25 Having carefully considered the matters raised by the applicant's counsel, I have concluded that leave to rely upon the applicant's affidavit sworn 28 June 2015 should be refused for the following four reasons.

26 First, much of the content of the affidavit appears to be information which would have been available at the time of the hearing. Secondly, insofar as the affidavit seeks to explain in greater detail why the applicant decided to drive home on the night in question, it clearly seeks to provide a further and more sympathetic explanation for that decision. There was, however, no affidavit in support explaining why that explanation was not placed before the Magistrate. Thirdly, the affidavit contains hearsay as to the opinion of the applicant's doctor. Fourthly, and more significantly, the new evidence in the affidavit is of no assistance in dealing with the issues raised by the grounds of appeal, or particularly, for present purposes, the question of whether leave to appeal should be granted.[20]

27 The latter consideration also militates against the grant of leave to rely on the doctor's certificate, which simply confirms that the applicant is unfit to attend university for second semester this year.

28 The Guide is described as a paper from the ANU College of Law internship program, which appears to be intended as an introduction to the legal issues relating to epilepsy in employment, particularly legal options for those who feel they have been discriminated against or treated unfairly in the workplace.

29 The Guide professes to provide an easy-to-read introduction to the legal issues relating to epilepsy and employment. It includes information for workers with epilepsy and their rights and responsibilities in the workplace. It also explains the legal options available for people with epilepsy who feel they have been unfairly treated in employment matters. The Guide is written in very general terms, referring to the position in 'some jobs', or the view taken by 'some workers'. It outlines some of the statutory provisions which may be relevant to the employment of workers with epilepsy, such as the fair work legislation, occupational safety and health legislation, the disability discrimination legislation, and human rights legislation. It contains a couple of case studies.

30 Counsel for the applicant submitted that the Guide should be received as evidence of fact, as well as because it provided a guide to the law. I am not persuaded that the Guide should be received as additional evidence for the following three reasons.

31 First, to the extent that it contains opinion evidence, there is inadequate material to ascertain that the author is qualified to give opinion evidence. Secondly, insofar as it contains facts, including facts relied upon for the purpose of reaching the opinions set out in it, those facts are too vague to be given any weight in the present circumstances or to establish a proper foundation for the opinion evidence in the present context. Thirdly, insofar as it contains a summary of some legislation relevant to workers with epilepsy which may provide some rights for a person with that medical condition, or protections from discrimination or from unfair treatment in some circumstances, it adds nothing to what was already appreciated by the Magistrate. The learned Magistrate referred to the existence of such legislation, although he did not consider it to be relevant to the determination of the exercise of his discretion.

32 I digress to observe that, in his written submissions, counsel for the applicant submitted that the applicant was aware the conviction may prevent him from travelling to certain countries and from obtaining employment in those countries in the future. These matters were not addressed before the learned Magistrate. The written submissions included a statement of the requirements of Canadian law. This was also additional evidence which was not supported by an affidavit to indicate why it had not been placed before the learned Magistrate at the sentencing hearing. Nor was there any affidavit containing a statement of intention by the applicant that he intended to work in Canada. To the extent required, I would not grant leave to rely on this additional information for the reasons already set out in these reasons.

33 The application for leave to adduce the additional evidence is therefore refused.

34 The applicant's appeal is made under div 2 of pt 2 of the Criminal Appeals Act. Section 9 of the Act requires that the applicant first obtain leave to appeal. Leave is required for each ground of appeal and the court must not give leave unless it is satisfied that the ground has a reasonable prospect of success.

35 In Samuels v The State of Western Australia,[21] the Court of Appeal examined the words of s 9 in their context and concluded that a grant of leave under s 9 requires that each ground of appeal should have a rational and logical prospect of succeeding.

36 If leave to appeal is refused on each ground, the appeal is taken to be dismissed.[22]

37 The discretion given to the Court under s 9 does not relate to the appeal as a whole. Thus, it is inappropriate when considering a grant of leave to consider whether, notwithstanding that one or more grounds of appeal might succeed, the appeal should be dismissed because there has been no substantial miscarriage of justice. That decision is to be made at the hearing of the appeal.[23]

5. Why each of the grounds of appeal do not warrant the grant of leave to appeal

38 In the course of the hearing of the application, the applicant sought and was granted leave to amend the grounds of appeal to make clear that there are, in fact, three grounds of appeal. The grounds of appeal are in the following terms.

The learned Magistrate made errors in fact and law in failing to grant a spent conviction order, in particular:

1. Whether the Magistrate's comments demonstrated a perceived or actual prejudgment;
2. Whether the Magistrate's comments demonstrated a particular disregard to the circumstances of the case; and
3. Whether the Magistrate gave insufficient weight to the likely adverse effect of a conviction on the appellant's future employment.

39 I turn to consider why ground 1 of the amended grounds of appeal does not warrant the grant of leave to appeal.

40 Counsel for the applicant confirmed that ground 1 seeks to contend that the Magistrate's comments in the course of the hearing gave rise to a reasonable apprehension of bias or prejudgment. The test for discerning a reasonable apprehension of bias was set out in Johnson v Johnson in the High Court: [24]

[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

41 In Johnson, those in the plurality went on to observe:[25]

[T]he reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)

There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.

43 Counsel for the applicant pointed to three comments made by the Magistrate that he submitted gave rise to a reasonable apprehension that the learned Magistrate prejudged the matter. The first was the learned Magistrate's observations that:[27]

It's [that is, a spent conviction order] a little bit unusual in a traffic matter. There's no category where it's ruled out but I will hear what you have to say.

44 The second comment is an observation by the Magistrate in his reasons for decision on the application for the spent conviction order, where his Honour referred to the need for deterrence as an aspect of the public interest, and said:[28]

... I need to take into account that, when other people are thinking about getting in the car and driving after drinking, they need to understand that a spent conviction order won't necessarily follow from those if they take that assess that risk.

45 The third passage relied upon is a series of comments made by the Magistrate in relation to the applicant's epilepsy during the course of an exchange his Honour had with the applicant's counsel:[29]

What's the significance of that to me?

...

[I]f he was refused an employment opportunity because of epilepsy it would be unlawful discrimination.

...

But I don't want to go down that path, because I'm still struggling to see ...

...

Anyway, the epilepsy is a distraction.

46 Counsel for the applicant also submitted that a reasonable apprehension of prejudgment was supported by other aspects of the learned Magistrate's reason for decision, which I will discuss further in relation to ground 2 of the grounds of appeal.

47 In my view, no reasonable prospect of success in respect of ground 1 of the grounds of appeal exists for the following reasons.

48 First, the comments relied upon do not fairly reflect the totality of the learned Magistrate's observations. The learned Magistrate very clearly considered all of the matters raised by the applicant, or relied upon by the applicant. I accept the submissions made by counsel for the respondent in his written outline of submissions, namely that[30]

(a) the magistrate acknowledged that while it is 'unusual' for a spent conviction to be granted in a traffic matter, there is no category where it is ruled out and his Honour observed that he would hear what counsel for the applicant had to say (Ts, 2.8);

(b) after being handed a number of documents by counsel, the Magistrate stood the matter down so that he could consider all of the documentation and allow sufficient time 'to do justice' to [the applicant's] submissions (Ts, 5.5 5.9);

(c) the Magistrate acknowledged that he had read all of the documents handed up (Ts, 6.3);

(d) prior to making a decision, the Magistrate explained to counsel his understanding of the submission being made, and entered into a lengthy exchange with counsel in order to understand the gravamen of the [applicant's] submissions (Ts, 6.4 11.9); and

(e) following submissions his Honour gave an ex tempore decision setting out the matters he took into account in coming to his decision (Ts, 13.5 14.4).

49 In my view, looking at the totality of the Magistrate's comments, there is no reasonable prospect of success on the applicant's claim that his comments would give rise to a reasonable apprehension of bias in the form of prejudgment of the issues. Insofar as he can be said to have expressed any opinion, those opinions were clearly preliminary views which he expressed for the purpose of exploring the issues in question with counsel. It is clear that his Honour was open to the application, read all of the material before him, and sought to give the matter his careful consideration.

50 Secondly, insofar as the applicant's counsel sought to rely on observations made by the learned Magistrate in his Honour's reasons for decision as supporting the contention of an apprehension of bias arising from his comments in the course of the hearing, it is not permissible to do so. In Michael Wilson & Partners Ltd v Nicholls, Gummow ACJ, together with Hayne, Crennan and Bell JJ observed:[31]

An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

51 Accordingly, leave to appeal on ground 1 of the grounds of appeal is refused.

52 The applicant contends in ground 2 that the Magistrate failed to have regard to the circumstances of the case. In particular, the applicant contended that the learned Magistrate failed to take into account the applicant's epilepsy and the more difficult employment prospects he already faced by virtue of his epilepsy, quite apart from the effect on those prospects of a conviction. Counsel for the applicant relied upon the Magistrate's comments outlined above at [45].

53 Counsel for the applicant also pointed to the learned Magistrate's observation in his reasons for decision that there was[32]

no job offer on the table, or there is no obvious employment impact if I fail to make an order today, and that's in circumstances where you really are at a stage of education, training for your work.

54 Counsel for the applicant contended that these two comments indicated that the Magistrate did not properly take into account:

(1) the personal circumstances of the applicant, specifically his epilepsy;

(2) more particularly, the fact that the applicant's epilepsy was a preexisting hurdle to employment which he might have to disclose to prospective employers and that the conviction would be another matter requiring disclosure; and

(3) the fact that the conviction would have a real negative effect on his employment prospects, as supported by the evidence.

55 In my view, there is no reasonable prospect of success on ground 2 of the grounds of appeal.

56 There can be no doubt that the learned Magistrate took into account the fact of the applicant's epilepsy and the difficulties it may present for the applicant when he was seeking employment. Those matters were the subject of submissions by counsel for the applicant. The Magistrate expressly referred to the applicant's epilepsy in his reasons for decision.

57 To the extent that, in the course of his interchange with counsel, the learned Magistrate commented on the relevance of discrimination legislation and observed that 'the epilepsy is a distraction', in my view, what his Honour was intending to convey was that the existence of that legislation was liable to distract from the key issues which were before him. I say that because the learned Magistrate clearly appreciated that the applicant's epilepsy had already adversely impacted on his employment prospects. In his reasons for decision, the learned Magistrate referred to the fact that the epilepsy had necessitated a change in career for the applicant already.

58 Further, counsel for the applicant told the learned Magistrate that the significance of the applicant's epilepsy was that he was already faced with hurdles in his life that he had has to overcome. The Magistrate clearly accepted that a conviction was likely to adversely affect the applicant's employment prospects. It was for that reason that his Honour observed that if there were two equally qualified candidates for a job that might present in the future, one with this conviction and one without, then the applicant would be at a disadvantage. The fact that the Magistrate went on to note that there was 'no job offer on the table, or there's no obvious impact if I fail to make a [spent conviction order] today', does not mean that he did not take into account the impact of the conviction on the applicant's employment prospects. To the contrary, his Honour's observations simply reflected the factual position and went to the weight his Honour attributed to this consequence because, in an immediate sense, there was no employment prospect which was liable to be impacted upon by the conviction. Any impact on the applicant's employment would be at some stage into the future, after he completed his period of education.

59 It is true that in explaining how he reached his decision not to grant the spent conviction order, the learned Magistrate did not expressly refer to the applicant's epilepsy or to the effect that it had already had on his employment. Rather, his Honour referred to those matters in the course of confirming that he accepted that the preconditions for the discretion under s 45 of the Sentencing Act had been made out. But it is untenable to suggest that the Magistrate had not taken those matters into account at all in the exercise of his discretion. Those matters had been expressly raised in the submissions of counsel and were the primary basis for the application for the spent conviction order.

60 Underlying this ground of appeal was the implicit assertion that the Magistrate had not taken these considerations into account because his reasons, which dealt with the exercise of his discretion, did not address these considerations fully or in detail. However, it is well established that it is not necessary for a sentencing judge or magistrate to give a full and detailed statement of reasons in every case because this would give rise to an impractical burden, having regard to the busy workload of the criminal courts.[33]

61 Moreover, it is well recognised that the decisions of magistrates should not be pored over with a fine-tooth comb in an endeavour to identify appellable error, having regard to the circumstances in which reasons for decision are delivered, most often on an ex tempore basis, in a court with a very busy workload.[34]

62 Leave to appeal on ground 2 is therefore refused.

63 This ground of appeal is that the learned Magistrate gave insufficient weight to the likely adverse effect of a conviction on the applicant's future employment. The effect of the submission by counsel for the applicant was that the Magistrate failed to give adequate weight to the applicant's situation, in that his employment prospects were already adversely affected by his epilepsy, and so his situation would be further adversely effected if a spent conviction order were not granted.

64 Counsel for the applicant again relied particularly on the Magistrate's comments that there was 'no job offer on the table' at the date of sentencing or 'no obvious employment impact if [he] failed to make an order' on that date. Counsel for the applicant contended that he had provided evidence of the potential negative impact of a conviction on the applicant's future employment prospects sufficient to form the basis for the grant of a spent conviction order in this case.

65 Ground 3 seeks to challenge the Magistrate's exercise of discretion and, in particular, the weight attached by the Magistrate to particular considerations which he took into account. It is necessary at this point to bear in mind the circumstances in which an appeal court may set aside an exercise of discretion.

66 It is well established that an appeal court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently. The discretion given to the sentencing judge or magistrate is of vital importance to the system of criminal justice.[35] A sentence will involve an appellable error if the magistrate failed to exercise his discretion by acting upon a wrong principle, mistaking facts, or allowing irrelevant matters to affect the decision.[36] The question in an appeal of the present kind is not whether the magistrate had a sufficient reason to make a spent conviction order, but rather whether the magistrate's decision involved a material error of fact or law, revealed either by the reasons given, or by implication from the failure to make a spent conviction order.[37]

67 If, on the facts, the exercise of discretion is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court at first instance.[38]

68 If a ground of appeal contends that the decision under appeal resulted in a miscarriage of justice, that may be able to be established if, on the material before the appeal court, the court is satisfied that there would be a miscarriage of justice in failing to grant a spent conviction order.[39] As I have observed, a ground of appeal alleging a miscarriage of justice is not pursued in this case.

69 A ground of appeal alleging that sufficient regard was not paid to the facts will not generally be successful. It will only be successful if the facts referred to amount to a failure to, in fact, exercise the court's discretion.[40]

70 I am not persuaded that the applicant has demonstrated that he has reasonable prospects of success on ground 3 so as to warrant the grant of leave to appeal, for three reasons.

71 First, as I have already observed, it is clear that the learned Magistrate was aware of, and took into account, the personal circumstances of the applicant, including his epilepsy and the fact that his epilepsy had already had an impact on his employment (in that it had already necessitated a change in career).

72 Secondly, the learned Magistrate also took into account the fact that a conviction may make the applicant less desirable for employment compared to another equally qualified applicant. However, the learned Magistrate also took into account, and gave most weight to, the deterrent effect of a conviction. There is no doubt that that consideration can properly be taken into account in relation to the grant of spent conviction order.[41] The weight given to each of these factors by the Magistrate was a matter for him. An appeal court cannot intervene simply because it might have exercised the discretion differently. Ground 3, as expressed, is untenable on that basis.

73 Thirdly, the facts are not such as to establish that it is unreasonable or plainly unjust that the applicant be denied a spent conviction order so as to permit the Court to infer that in some way there was a failure to properly exercise the discretion which the law reposes in the court at first instance.

74 Those in our community who suffer medical conditions or have disabilities may, in some cases, experience hardship or even discrimination in the workforce which is not experienced by those without the same medical condition or disability. The existence of that prospect for the applicant does not, however, mean that it would necessarily or inevitably be plainly unjust if he were not to be relieved of the consequences of his criminal conviction in this case. The applicant's medical condition and its impact on his life were aspects of his personal antecedents to be weighed up with all other considerations bearing on the question whether a spent conviction order should be granted. The learned Magistrate did that. The question is not how this Court would have exercised the discretion. The question is whether the learned Magistrate erred in the exercise of his discretion.

75 There is no reasonable prospect of success on ground 3 of the appeal grounds. Accordingly, leave to appeal on that ground should be refused.

76 There is no reasonable prospect of success on any of the grounds of appeal advanced by the applicant. Accordingly, leave to appeal on each ground is refused and the appeal is dismissed.

[1] See Criminal Appeals Act 2004 (WA) s 9.

[3] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Neale v Sloan (1997) 27 MVR 246, 247; Brewer v Baynes [2002] WASCA 271; (2002) 26 WAR 510 [16]; Harper v Page [2004] WASCA 267 [15].

[4] Neale v Sloan (1997) 27 MVR 246, 247.

[5] Malhi v Richards-Scully [2014] WASC 410 [29]; Rule v Trudgill [2015] WASC 196 [13]; Harper v Page [2004] WASCA 267 [15].

[6] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Baynes [2002] WASCA 271; (2002) 26 WAR 510 [14]; Ennis v D'Andrilli [2007] WASC 263 [14]; M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511 [29]; Malhi v Richards-Scully [2014] WASC 410 [29]; Rule v Trudgill [2015] WASC 196 [13].

[7] R v Tognini [2000] WASCA 31 [27]; M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511 [29]; Malhi v Richards-Scully [2014] WASC 410 [29]; Rule v Trudgill [2015] WASC 196 [18].

[8] Harper v Page [2004] WASCA 267 [13]; Ennis v D'Andrilli [2007] WASC 263 [16].

[9] Malhi v Richards-Scully [2014] WASC 410 [30]; Rule v Trudgill [2015] WASC 196 [13].

[10] Brewer v Baynes [2002] WASCA 271; (2002) 26 WAR 510 [18]; Malhi v Richards-Scully [2014] WASC 410 [31]; Rule v Trudgill [2015] WASC 196 [13].

[11] Brewer v Baynes [2002] WASCA 271; (2002) 26 WAR 510 [17]; Neale v Sloan (1997) 27 MVR 246, 247.

[12] Harper v Page [2004] WASCA 267 [56] - [58]; Malhi v Richards-Scully [2014] WASC 410 [32]; Rule v Trudgill [2015] WASC 196 [13].

[13] R v Tognini [2000] WASCA 31 [27] - [28]; Waldock v Taylor [2003] WASCA 43; Rule v Trudgill [2015] WASC 196 [14].

[14] Harper v Page [2004] WASCA 267 [22], [52] ff; M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511 [30].

[15] M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511 [30].

[18] Sherwood v Western Australia [2007] WASCA 81.

[19] Cp Supreme Court (Court of Appeal) Rules 2005 (WA) r 52.

[20] There is no ground of appeal alleging that the denial of a spent conviction order gave rise to a miscarriage of justice. In any event, I am not persuaded that any of the information contained in the affidavit would constitute circumstances giving rise to a miscarriage of justice had such an appeal ground been pursued.

[21] Samuels v The State of Western Australia [2005] WASCA 193 [56].

[22] See Criminal Appeals Act 2004 (WA) s 9.

[23] Samuels v The State of Western Australia [2005] WASCA 193 [56].

[24] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[25] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [13] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[26] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [14] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[30] Respondent's written outline of submissions dated 13 July 2015 [24].

[31] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67] (Gummow ACJ, Hayne, Crennan & Bell JJ).

[33] Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Malcolm CJ).

[34] Harper v Page [2004] WASCA 267 [24] (Le Miere J).

[35] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672; Hull v Castledine [2005] WASC 252 [10]; Harper v Page [2004] WASCA 267 [17]; Wilson v The State of Western Australia [2010] WASCA 82 [2].

[36] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671; 'A' v Staples [2007] WASC 36 [18]; Wilson v The State of Western Australia [2010] WASCA 82 [1].

[37] Hull v Castledine [2005] WASC 252 [10].

[38] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [1].

[39] Rule v Trudgill [2015] WASC 196 [35].

[40] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Vagh v The State of Western Australia [2007] WASCA 17 [76]; McGregor v The State of Western Australia [2011] WASCA 88 [14].

[41] Brewer v Baynes [2002] WASCA 271; (2002) 26 WAR 510 [18]; Malhi v Richards-Scully [2014] WASC 410 [31]; Rule v Trudgill [2015] WASC 196 [13].