Court of Appeal (WA)|2002-06-26|Before: Mr J, Parker J

Yam v Richardson [2002] WASCA 177 (26 June 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : YAM -v- RICHARDSON [2002] WASCA 177

Appeal - Penalty - Government grant - False and misleading application - Spent conviction order refused - No error

Dempster v National Companies and Securities Commission (1993) 9 WAR 215

Riley v Gill, unreported; SCt of WA; (Parker J); Library No 970731; 8 December 1997

1 PARKER J: This is an application for leave to appeal in respect of a sentence imposed upon the applicant in the Court of Petty Sessions at Perth on 6 February 2002. The applicant had been convicted on his plea of guilty of providing information to the Commissioner of State Revenue knowing that information to be false and misleading in a material particular, contrary to s 47 of the First Home Owner Grant Act 2000. The applicant was fined $1,000 and ordered to pay costs of $497.70 to the respondent. The learned Stipendiary Magistrate Mr D Jones SM refused to make a spent conviction order pursuant to s 45(1) of the Sentencing Act 1995. The application for leave to appeal is in respect of that refusal.

2 The applicant, with the consent of the respondent, sought to have both the application for leave and the full merits of the appeal heard together pursuant to s 190(1) of the Justices Act 1902. In my view, there having been sufficient notice, it was in the interests of justice in this case to deal with the merits at the same time as the application for leave. There was also a delay of a few days beyond the period within which leave to appeal should be sought. The time limited will be extended to overcome this.

3 Originally there were three proposed grounds of appeal, but only two are pursued, namely:

"(1) the learned Magistrate erred in fact and in law in having found that the applicant did not engage in a deliberate deception refused to make a spent conviction order;

(2) the learned Magistrate erred in fact and in law in giving excessive weight to the principle of general deterrence having found that the applicant was a person of honesty and of general good character and was unlikely to re-offend."

4 On 11 December 2000 the defendant completed an application form for a grant of $7,000 under the First Home Owner Grant Scheme. The application was a joint application completed by the applicant and his then fiancée, Ms Anthony. The applicant and Ms Anthony have since married.

5 The applicant and Ms Anthony had commenced construction of a home in East Perth. In the application form the answer "yes" was given to the question: Is each applicant a person who "has never owned a home separately or with some other person" before 1 July 2000 in any State or Territory of Australia? The applicant was previously a registered proprietor of two homes. This was during an earlier marriage and those homes had been disposed of in November 1996 and April 1993 respectively.

6 When interviewed by officers of the State Revenue Department it was explained by the applicant that he and Ms Anthony had used the services of a mortgage broker. At the request of the mortgage broker they had signed the application form in blank. The mortgage broker was to investigate their eligibility to receive a grant under the statutory scheme and it was left to the mortgage broker to complete the form if they were eligible. The mortgage broker had been aware that the applicant had previously bought and sold a vacant block of land. This did not affect the applicant's eligibility for the grant, however, because it was not a home. The applicant had not told the mortgage broker that he had previously owned the two homes.

7 It was submitted to the learned Magistrate that the couple thought they might be eligible because Ms Anthony had not previously owned a home and that the applicant expected that the mortgage broker would make any necessary enquiries as to the applicants' eligibility, including determining, if necessary, whether the applicant had previously owned any homes. It was in these circumstances that the critical question was wrongly answered by the mortgage broker without the knowledge of the applicant or Ms Anthony.

8 The application was not successful as the State Revenue Department became aware of the applicant's previous ownership of two houses in the course of checking the application.

9 It was expressly submitted to the learned Magistrate by counsel appearing for the applicant that the applicant accepted that the application had been mistakenly completed, but in this respect while the applicant had acted honestly he had not acted reasonably so that he did not seek to avoid responsibility under the statute for what had occurred. It was submitted by his counsel that the applicant had acted unreasonably in letting the mortgage broker make all the enquiries and fill out the form which the applicant had previously signed in blank.

10 No complaint is made about the fine of $1,000 which was imposed. The statute provides for a maximum penalty of a fine of $20,000 for the offence. The only issue raised is the refusal to make a spent conviction order. By s 45(1) of the Sentencing Act 1995 a court may only make a spent conviction order where:

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

(b) having regard to -

(i) the fact the offence is trivial; or

(ii) the previous good character of the offender,

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

11 In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 at 297 - 298 Murray J, Malcolm CJ and Wallwork J agreeing, said of this provision:

"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 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."

12 It is clear that the decision whether or not to make a spent conviction order is discretionary. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 it was said that:

" ... a Court of Criminal Appeal may not substitute its own opinion for that of the 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 ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

Further, in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 it was explained:

"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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324 - 325:

13 Having reserved his decision on sentence, the learned Magistrate on 6 February 2002 set out the factual circumstances relevant to the offence and the personal circumstances of the applicant in some detail. No objection is taken to these and it is not submitted that any material matter has been overlooked. The learned Magistrate accepted that the applicant did not engage in deliberate deception. He observed that while the defendant's explanation indicated an absence of deliberate deception, his conduct in signing the form without reading it and allowing the mortgage broker to complete the answers "was extremely careless". He went on to observe that the defendant in fact signed what was a declaration which included the words "I have completed and submitted the application form ...". The form itself contained warnings of penalties for false and misleading statements in the application.

14 The learned Magistrate noted that the applicant had cooperated with the investigators and had entered a plea of guilty at the earliest opportunity. It can be accepted in these circumstances that the plea of guilty was an indication of genuine remorse. The applicant had no previous criminal record and a number of testimonials attesting to his good character, which had been given in knowledge of the charge, were submitted to the Court in support of the plea in mitigation. The reasons of the learned Magistrate continued:

"While I am satisfied that the defendant is unlikely to commit such an offence again, and personal deterrence is unnecessary, the offence is one in respect to which general deterrence is extremely important. It is an offence easily committed and involves the appropriation of significant amounts of public moneys.

...

In my view, general deterrence from careless completion of applications for the grant is no less important than deterrence from deliberate deception. And notwithstanding the unlikelihood of the commission of a further offence of this kind and the defendant's previous good character, in the absence of some other particular circumstance of the kind referred to in Tognini, I am not persuaded that it is appropriate to make a spent conviction order in this case."

The learned Magistrate had earlier directed himself correctly in accordance with the principles indicated in the decision in R v Tognini which are set out in these reasons.

15 It can be accepted in this case, as is effectively conceded by the respondent on this appeal, that the statutory pre-conditions in s 45(1) to the making of a spent conviction order are satisfied. As the learned Magistrate indicated the offender is unlikely to commit such an offence again and, while the offence is not trivial, the applicant is of previous good character. The issue then is whether the Magistrate ought to have been persuaded that the applicant should be relieved immediately of the adverse effect that the conviction might have on him.

16 It is clear from the decision in Tognini that the making of a spent conviction order is to be regarded as of an exceptional character and that the ordinary rule is that a conviction will be a matter of record with all the consequences that may entail into the future. As was indicated in Tognini it is therefore necessary to see whether there is some particular circumstance why from the point of view of the offender and of the community the adverse effect of the conviction should be immediately set aside.

17 In this respect, three matters are now advanced for the applicant. It is submitted, first, that as the particular circumstances of this case place the offence at the bottom end of the scale of seriousness there is only a low public interest in the conviction being a matter of ongoing public record. Secondly, the applicant has relatives overseas and in time may wish to work overseas, so that a conviction may give rise to some impediment about his entry into overseas countries. Thirdly, it is stressed that the applicant may be impeded in his future employment by the fact of a conviction. In this last regard the applicant has been in the same employment for some years as a computer support analyist, he holding a degree in Information Science and Applied Science.

18 It appears to me that there is not a particularly compelling justification in the public interest for the conviction to be a matter of permanent public record although it must be noted, as indicated in Tognini, that the ordinary rule is that it will be a matter of permanent public record. What is required is some particular circumstance which would justify a different result. There is nothing in the materials which would support the view that a conviction of this nature, which resulted in a fine of $1,000, is likely to present the applicant with any real impediment in the way of overseas travel. The applicant is well established in his employment and it is not shown to be the case that he would be impeded in that employment, or in his advancement, by virtue of this conviction, or that any exceptional hardship is to be anticipated. In short, there is nothing advanced which is of any particular significance which tells against the ordinary rule continuing to apply in this case by which the conviction should remain as a matter of public record.

19 As I have indicated there is no particular pressing public interest in that being the case. In the absence of some particular circumstance to commend the opposite view, however, it is difficult to see any justification on appeal for setting aside the discretionary decision of the Magistrate in this case.

20 The learned Magistrate accepted that this was not a case of deliberate deception and that the applicant is normally of good character and is unlikely to re-offend. He is in stable employment and a man who is now in his mid thirties. He has established himself in married life with Ms Anthony. Creditable as those matters are, they alone do not require or compel the view that a spent conviction order should be made. They are matters which the learned Magistrate might properly take into account, but their existence does not require that his discretion should be exercised in the applicant's favour. Further, I am not persuaded that there is any error of principle in the Magistrate's concern for general deterrence in this case. The offence is in the context of a statutory scheme pursuant to which applicants can secure significant financial advantage from the State. There is much to be said, in the public interest, for it being clear that a failure to take care in the way applications are completed and declarations made will be treated with some seriousness by the courts. The Magistrate was dealing with the issue of general deterrence, not personal deterrence. I am not persuaded that his view was in any way misplaced in this respect.

21 As has been made clear from the decided cases the issue is not whether I would be persuaded that a spent conviction order should be made were I dealing with the question of sentence of the applicant at first instance. The exercise of that discretionary decision was in the hands of the learned Magistrate. It has not been shown that there has been an error made in the exercise of that discretion. It is apparent that the learned Magistrate took some care to ensure he had an appropriate appreciation of the facts of the offence and the circumstances of the applicant, and in fact took a view quite favourable to the applicant in the determination of the actual penalty. I am unable to see that any material consideration has been overlooked or that some wrong principle or irrelevant matter has been allowed to weigh against the applicant. In my view, having regard to the principles set out in Tognini, it has not been demonstrated that the Magistrate should have been persuaded to grant a spent conviction order in this case.

22 I would grant leave to appeal but dismiss the appeal.

Home Owner Grant Act 2000

Yam v Richardson [2002] WASCA 177

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Judgment (41 paragraphs)

Yam v Richardson [2002] WASCA 177 (26 June 2002)

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