JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CIVIL 

CITATION	:	THOMPSON -v- MACKAY [2008] WASC 270 

CORAM	:	HASLUCK J 

HEARD	:	30 OCTOBER 2008 

DELIVERED	:	30 OCTOBER 2008 

FILE NO/S	:	SJA 1052 of 2008 

BETWEEN	:	NICHOLAS DAVID THOMPSON
Appellant
 
AND
 
DEAN REECE MACKAY
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA 
Coram	:	MAGISTRATE P M HEANEY 
File No	:	PE 33505 of 2008 

Catchwords:
Criminal law - Appeal - Whether magistrate erred in refusing to grant a spent conviction order - Principles to be considered in appeal against spent conviction order - Held that having regard to seriousness of offences and circumstances no error of fact or law made by magistrate - Appeal dismissed - Turns on own facts 
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 74A(2)(a), s 172(2), s 313(1)(b)
Sentencing Act 1995 (WA), s 45(1)
Spent Convictions Act 1988 (WA) 
Result:
Appeal dismissed 
Category:    B 

Representation:
Counsel:
Appellant	:	Mr P N Bevilacqua
Respondent	:	Mr J G Nicholls 
Solicitors:
Appellant	:	Butcher Paull & Calder
Respondent	:	Director of Public Prosecutions (WA) 

Case(s) referred to in judgment(s):

Ennis v D'Andrilli [2007] WASC 263
House v The Queen (1936) 55 CLR 499
Hull v Castledine [2005] WASC 252
Lowndes v The Queen (1999) 195 CLR 665
Nevermann (1989) 43 A Crim R 347
R v Tognini (2000) 22 WAR 291; (2000) 109 A Crim R 411
Scanlon v Bove [2008] WASC 213
Skerritt v O'Keefe [1999] WASCA 183

HASLUCK J:  
Introduction
1		The appellant, Nicholas David Thompson, obtained leave to appeal in respect of certain sentences that were imposed in the Magistrates Court at Perth on 19 June 2008.  
2		The question raised in this appeal is whether the learned magistrate erred in failing to grant a spent conviction order pursuant to s 45 of the Sentencing Act 1995 (WA) in respect of the offences in question.
Background
3		It appears from a transcript of the hearing before the learned magistrate that the appellant pleaded guilty to each of the following three offences, namely, common assault contrary to s 313(1)(b) of the Criminal Code (WA); disorderly behaviour in public contrary to s 74A(2)(a) of the Criminal Code; and obstructing a public officer contrary to s 172(2) of the Criminal Code.
4		There was some debate at the commencement of the hearing before the magistrate as to whether the appellant was prepared to accept all aspects of the material facts that were to be put to the court by the prosecutor.  However, in the end, counsel for the appellant was instructed to convey to the court that his client was prepared to plead guilty to the facts as alleged.
5		The facts in summary were that on the evening of 16 May 2008, the appellant attended a social function for law students at the Sheraton Hotel in the company of a female partner.  At some time during the evening the appellant was involved in an argument with his partner over an unknown matter.  
6		At about 11 pm the complainant was in the men's toilet adjusting his tie when he was challenged by the appellant about a prior incident at a law camp, supposedly involving the appellant's girlfriend.  This led to the appellant grabbing the complainant and pushing him against the bathroom wall.  
7		Shortly afterwards, by which time the complainant had left the toilet, the appellant approached the complainant again and threatened him.  This led to a member of the hotel staff requesting the appellant to move along.  The complainant said later that he had never seen or met the appellant and his girlfriend before.
8		It seems that after this incident the appellant was sleeping on a couch in the foyer of the hotel when he was approached by the hotel manager and asked if a taxi could be arranged for him.  The appellant commenced to abuse the manager verbally in an insulting and obscene manner.  
9		The appellant endeavoured to return to the Golden Ballroom where the function was being held but the manager refused him entry because of his aggressive manner.
10		The appellant then became more aggressive and continued his barrage of obscene and insulting words.  He refused to leave the premises and became more aggressive.  This led to the police being called in.  The appellant was asked to leave but refused to do so and uttered further obscenities.  He was eventually removed from the premises.
Plea in mitigation
11		In the course of a plea in mitigation, counsel for the appellant conveyed to the court that the appellant was employed as a plumber's apprentice and was 19 years of age.  He had no prior convictions.  It was said that he had consumed a significant quantity of alcohol on the night in question and he genuinely believed that his girlfriend had been involved in a prior incident with the complainant which had led to her humiliation.  It was this plus the alcohol which led to the appellant acting in a manner that was entirely out of character.  
12		Counsel submitted that the matter should be treated in a lenient manner and he applied also for a spent conviction upon the basis that the appellant had no prior convictions or history of violent or abusive behaviour.  Further, he was only 19 years of age and had shown remorse for his actions.
13		Further, counsel submitted, the appellant was required to have a police clearance to work at most of the worksites he attended and thus his employment would be adversely affected if he could not obtain police clearance, which might possibly lead to termination of his services.  A letter bearing upon these matters was read aloud to the court.  
14		The subject letter, which has been included in the evidentiary materials before me is in these terms (omitting the inessential or identifying details):
This letter is to confirm that [T] is employed with this company as an apprentice plumber and gas fitter since 13 December.  Please be advised that due to the clients that the company has, Department of Housing and Works, Tungsten for all present sites, Multiplex, Spotless, for all Department of Defence sites, it is a requirement that our employees require a police clearance so that work can be completed on these sites.  
As these are our major clients, it is of the utmost importance that a police clearance can be obtained.  I would also like to take this opportunity to advise that I, as the manager of the subject company, have known [T] since 2005 and have found that [T] is a very diligent worker, he is a very trustworthy person and well-mannered, and he is a valued employee of our company, and I have no hesitation in giving [T] a personal reference if required. 
Reasons for decision
15		In his short reasons for decision the learned magistrate imposed a fine of $750 in respect to the common assault conviction, a fine of $500 in respect of the disorderly behaviour conviction, a fine of $500 in respect of the obstructing a public officer conviction.  
16		His Honour went on to make these observations:
I don't think it's appropriate for there to be a spent conviction.  You very rarely get spent convictions for assault charges, and the circumstances of this are prolonged.  The only justification or excuse seems to be that you were extremely drunk.  That's no justification for getting spent conviction orders.  People have their responsibility to make sure that they don't get drunk and behave in a manner that's inconsistent with their usual demeanour.  That's your responsibility.
Appeal notice
17		An appeal notice dated 9 July 2008 was filed by the appellant containing grounds of appeal against sentence as follows:
(1)	The learned Magistrate erred in fact and law by refusing to grant a spent conviction order pursuant to section 45 of the Sentencing Act 1995 WA, in that the learned Magistrate failed to give sufficient regard to the following facts:  
(a)	The appellant was unlikely to reoffend, 
(b)	The appellant was of previous good character, 
(c)	The appellant required a police clearance for much of his work, 
(d)	The appellant was young.
(2)	By reason of the matters referred to in ground 1, the learned Magistrate imposed a sentence that was excessive.
18		By an order dated 30 July 2008, McKechnie J ordered that leave to appeal be granted in respect of ground 1 of the appeal but refused leave in respect of ground 2 as the ground was otiose.  
19		I have before me also a request for hearing dated 18 August 2008, whereby the appellant requests a hearing of the matter decided provisionally by McKechnie J on 30 July 2008 in this appeal.
20		I take this request to be directed to a desire on the part of the appellant to be able to argue ground 2 of the proposed appeal, notwithstanding the ruling reflected in the order made by McKechnie J on 30 July 2008.  
21		To my mind, the proposed ground 2 lacks particularity and adds nothing of substance to the previous ground.  I agree that leave to appeal on ground 2 should be refused.  I am therefore concerned only with the ground of appeal set out in ground 1.  
22		Let me now turn to the statutory provisions and legal principles bearing upon an appeal of this kind.  
Statutory provisions and principles
23		By s 14 of the Criminal Appeals Act 2004 (WA) the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing.  Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
24		By s 39 of the Act, an appeal must be decided on the evidence and the material that were before the lower court but this does not prevent consideration of any evidence that the court refused to admit.  By s 40 an appeal court may admit other evidence.  
25		The principles on which an appellate court must act when considering an appeal against sentence are well established.
26		In House v The Queen (1936) 55 CLR 499 the High Court held that if a 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 then exercise its own discretion in substitution for his if it has the materials for doing so.
27		It appears from Lowndes v The Queen (1999) 195 CLR 665 at 671 that an appellate court may not substitute its own opinion merely because the appellate court would have exercised its discretion in a manner different from the sentencing court.  It must be shown by the appellant that the court at first instance failed to properly exercise its discretion by acting upon wrong principles, mistaking the facts or allowing irrelevant matters to affect the decision.
28		The Spent Convictions Act 1988 (WA) facilitates rehabilitation by limiting the effects of the conviction.  The thrust of the statutory provisions is to make it unlawful to discriminate against a person on the ground of a spent conviction.  Accordingly, questions put to a convicted person about his past should not be taken to relate to a spent conviction or the charge to which the conviction relates.  Nonetheless, a court may take account of spent convictions in fixing a punishment for some further offence.  
29		The statutory provisions and related cases establish that a spent conviction order cannot be made unless the preconditions or prerequisites set out in s 45(1) of the Sentencing Act are met.  
30		Put shortly, the court is not to make a spent conviction order unless it considers the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial, or because of the previous good character of the offender, it considers the offender should be relieved immediately of the adverse effect that conviction may have on the offender.
31		The decided cases indicate that the offender does not have to satisfy both criteria in s 45(1)(b).  It will be sufficient to show that the offender is unlikely to commit such an offence again and that he should be relieved of the adverse effect of the conviction having regard either to the fact that the offence is trivial or to his previous good character.
32		However, a spent conviction order will not necessarily be made simply because the relevant criteria are satisfied.  The crucial question is whether the appellant has demonstrated that the power under s 45(1), which is to be exercised sparingly, should be exercised in his favour so as to relieve him of the adverse effects of the conviction.
33		In Ennis v D'Andrilli [2007] WASC 263 Johnson J considered that certain propositions could be distilled from the decided cases.  First, the power is discretionary.  Second, the power is of an exceptional character and should be exercised sparingly.  Third, certain prerequisites must be satisfied; namely, that the offender is unlikely to commit such an offence again, that either the offence must be shown to be trivial or the offender must be shown to have been of previous good character, that the court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her.  
34		Fourth, once the prerequisites are met, the court must consider the seriousness of the offence, the circumstances of its commission and the personal circumstances of the offender.  Fifth, there should be clear and cogent reasons underlying the exercise of the power; that is, the appellant must be able to point to some particular circumstance to show that it would be desirable for the adverse effect of the conviction to be immediately set aside.
35		The decided cases establish that it does not automatically follow from a lack of prior convictions that an offender is unlikely to re‑offend.  Scanlon v Bove [2008] WASC 213.  The failure by a decision-maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered.  It is to be assumed that the magistrate has complied with the duties imposed by the legislation and taken relevant matters into account.
36		It emerges from earlier discussion that it is necessary for the appellant to satisfy the court that the ruling made by the learned magistrate involved a material error of fact or law or he allowed extraneous or irrelevant considerations to guide or affect his decision.  
Discussion
37		It is apparent from the learned magistrate's reasons for decision in the present case that the spent conviction issue had been raised with him expressly by counsel for the appellant, and he gave attention to it.  It cannot be said that his Honour simply overlooked the matter or failed to address the issue at all.  The crucial question is whether he gave sufficient attention to the criteria specified in the statutory provisions and the principles emerging from the previously decided cases.  
38		I note in passing that the magistrate did not refer explicitly to the criteria in s 45(1) of the Sentencing Act, however, the appeal courts have recognised, as I indicated in earlier discussion, that in the case of a busy Magistrates Court it is not always practicable or necessary for a full or detailed statement of reasons to be given in every case: Nevermann (1989) 43 A Crim R 347 at 350, see also Skerritt v O'Keefe [1999] WASCA 183 at [146].  
39		Counsel for the appellant in the present case submitted that the learned magistrate ought to have found that the appellant was unlikely to commit such an offence again and was of previous good character.  It was said also that the consequences of the convictions were central to the consideration of the exercise of the discretion to make a spent conviction order having regard to the matters mentioned in the employer's letter.
40		Further, it was said that the learned magistrate ought to have found that the appellant should be relieved immediately of the adverse effect of the conviction.  
41		With respect to all three charges it was submitted on behalf of the appellant that the offending behaviour ought to be regarded as being at the lower end of offending behaviour of this type.  No person was physically harmed and neither did the appellant attempt to physically harm anyone.  
42		There were said to be exceptional circumstances in that the appellant was young, the incident was out of character, the appellant had shown remorse.  The making of a spent conviction order would permit the appellant to remain gainfully employed in his chosen career.  The offences did not arise from conduct that was serious enough to warrant a concern for public welfare.  
43		It was submitted that in all the circumstances the interests of the appellant and the community would best be served by relieving the appellant of the adverse consequences of his conviction.  
Further discussion
44		It emerges from the decided cases that a threshold question under s 45 of the Sentencing Act is whether the court considers that the offender is unlikely to commit such an offence again.  
45		In the present case there was limited evidence before the learned magistrate upon which a determination of that nature could be made.  However, the nature of the offences and the persistence of the appellant's misconduct in the face of various warnings and remonstrations, tend to suggest that the appellant was not then and may not in the future be inclined to moderate his behaviour.  The indications are that the magistrate saw the matter in that light.  This view of the matter is certainly implicit in the magistrate's observation and it appears to be justified by the evidence.  The magistrate noted that the case before him was in the category of assault charges and in this case the circumstances were 'prolonged'.
46		There was evidence before the court that the appellant was of previous good character and had no prior convictions.  However, it is apparent from the decided cases that it does not automatically follow from a lack of prior convictions that an offender is unlikely to reoffend, especially where, as the magistrate held, his offending behaviour could be described as prolonged.
47		To my mind, the learned magistrate, by implication, was not prepared to hold that the offender was unlikely to commit offences of this kind again, and he had a basis for arriving at this conclusion.  Thus, the first prerequisite prescribed by the provision was not thought to be satisfied.  This of itself was sufficient to preclude relief pursuant to s 45(1) of the Sentencing Act by way of a spent conviction order.
48		However, in the circumstances of the present case, even if it be thought that the appellant was unlikely to re‑offend and was of previous good character, in my view, the evidence was not sufficient to establish that a failure to grant a spent conviction order would adversely affect the appellant's employment or career.
49		This was largely a matter of speculation and clear and cogent evidence is generally required before a court can be satisfied about the adverse effect of the convictions.  In my view, the evidence in the present case was not of that order.  The employer's letter indicated only that a person with a court record may have difficulty in getting police clearance in respect of work on certain sites.  The nature of the police assessment was not made clear.  
50		There was no specific evidence before the magistrate or before me on this appeal sufficient to establish that convictions of these offences will lead to a withholding of police clearance or an inability to obtain employment of the kind the appellant has been in.  
51		To my mind, the observations I have just made weigh against the appeal being allowed because I am not satisfied that the criteria specified in s 45(1) of the Act have been met.  
52		Further, it emerges from the decided cases that the discretionary power to grant the relief by way of a spent conviction order is a power that is of an exceptional character and should be exercised sparingly.  In other words, as Murray J indicated in R v Tognini (2000) 22 WAR 291; (2000) 109 A Crim R 411 the notion that the offender should be relieved of the adverse effect of conviction brings with it a consideration of the public interest.
53		This in turn brings with it a need to consider the seriousness of the offences and the public interest in general deterrence including the fact that information available for public scrutiny and publication of sentencing details may often support and enhance the process of deterrence.  It can be said that a spent conviction order to some degree diminishes the prospects of public scrutiny.  This diminution is likely to be of particular importance in the deterrence of offences against public order and assault offences.
54		To my mind, the magistrate's reference to assault charges in the present case bears upon this view of the matter.  It is true that a spent conviction order is available in respect of charges of all kinds, including assault charges.  However, I do not consider that the magistrate was attempting to contest or cast doubt upon that view of the matter.  He was simply noting, having regard to the considerations I mentioned earlier, including the need for public scrutiny of sentencing decisions where deterrence is an important factor, that care must be exercised in determining whether a spent conviction order should be made in respect of assault charges.  He cannot be said to have erred in making such observations.  
55		In that regard see also Hull v Castledine [2005] WASC 252 where a spent conviction order was refused in the case of offences and conduct resembling the circumstances of the present case.
Conclusion
56		The appellant was admittedly of previous good character and only 19 years of age.  However, the material facts in the present case demonstrate that the appellant persisted in a wilful and potentially harmful course of conduct which gave rise to the offences of which he was subsequent convicted.  His conduct involved an assault and the prolonged use of threatening and obscene language without moderation, notwithstanding the warnings given to him.
57		For these reasons, having regard to the seriousness of the offences and of the circumstances, I am not satisfied that the learned magistrate made an error of fact or law that entitles this court to set aside the decision of the magistrate and to exercise the discretion to make a spent conviction order.  It follows that the appeal will be dismissed.