A v Ray
[2001] WASCA 340
•2 NOVEMBER 2001
"A" -v- RAY [2001] WASCA 340
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 340 | |
| Case No: | SJA:1109/2001 | 11 OCTOBER 2001 | |
| Coram: | HASLUCK J | 2/11/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER ANDREW JACK MATTHEW ROBERT RAY |
Catchwords: | Criminal law Sentencing Stealing as a servant Youthful offender Property of little value Whether spent conviction order appropriate Turns on own facts |
Legislation: | Criminal Code, s 378(7), s 426 Justices Act 1902, s 196, s 199 Sentencing Act 1995, s 6, s 39, s 45(1), s 76(3), s 87, s 89, s 93 Spent Convictions Act 1988 |
Case References: | Allen v Powell [2000] WASCA 65 Bacich v Illich [2000] WASCA 133 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Cunningham v Walsh [2000] WASCA 201 Dinsdale v The Queen (2000) 175 ALR 315 Etrelezis v The Queen [2001] WASCA 327 Griekspoor v Scott (2000) 23 WAR 530 Harling (1997) 94 A Crim R 437 Langridge v The Queen (1996) 17 WAR 346 Little v The Queen [2001] WASCA 87 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Neale v Sloan (1997) 27 MVR 246 Nebro v Duxbury [2000] WASCA 171 Nevermann (1989) 43 A Crim R 347 Pennings v Maryan [2000] WASCA 172 Pledge v Davey [2000] WASCA 20 Quach v The Queen [1999] WASCA 210 R v Gallagher (1991) 23 NSWLR 220 R v Grein [1989] WAR 178 R v Holder & Johnston (1983) 13 A Crim R 375 R v Liddington (1997) 18 WAR 394 R v Tognini [2000] WASCA 31 Radebe v The Queen [2001] WASCA 254 Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 Rowlands v Caporn [2001] WASCA 66 Shooter v R (1997) A Crim R 581 Smith v "C" [2001] WASCA 262 Swain v R (1989) 41 A Crim R 214 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Walden v Hensler (1987) 163 CLR 561 Wangawol (1998) 101 A Crim R 350 Wilkinson (1996) 85 A Crim R 353 Furtak v Timmers [2001] WASCA 65 Game v Whitehead [2000] WASCA 50 Wilson v Crock [1999] WASCA 251 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : "A" -v- RAY [2001] WASCA 340 CORAM : HASLUCK J HEARD : 11 OCTOBER 2001 DELIVERED : 2 NOVEMBER 2001 FILE NO/S : SJA 1109 of 2001 BETWEEN : "A"
- Appellant
AND
MATTHEW ROBERT RAY
Respondent
Catchwords:
Criminal law - Sentencing - Stealing as a servant - Youthful offender - Property of little value - Whether spent conviction order appropriate - Turns on own facts
Legislation:
Criminal Code, s 378(7), s 426
Justices Act 1902, s 196, s 199
Sentencing Act 1995, s 6, s 39, s 45(1), s 76(3), s 87, s 89, s 93
Spent Convictions Act 1988
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Ms J L Stassen
Respondent : Ms S M De Maio
Solicitors:
Appellant : Youth Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Allen v Powell [2000] WASCA 65
Bacich v Illich [2000] WASCA 133
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Cunningham v Walsh [2000] WASCA 201
Dinsdale v The Queen (2000) 175 ALR 315
Dukes v Barrett [2001] WASCA 338
Etrelezis v The Queen [2001] WASCA 327
Griekspoor v Scott (2000) 23 WAR 530
Harling (1997) 94 A Crim R 437
Langridge v The Queen (1996) 17 WAR 346
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Neale v Sloan (1997) 27 MVR 246
Nebro v Duxbury [2000] WASCA 171
Nevermann (1989) 43 A Crim R 347
Pennings v Maryan [2000] WASCA 172
Pledge v Davey [2000] WASCA 20
Quach v The Queen [1999] WASCA 210
R v Gallagher (1991) 23 NSWLR 220
R v Grein [1989] WAR 178
R v Holder & Johnston (1983) 13 A Crim R 375
R v Liddington (1997) 18 WAR 394
R v Tognini [2000] WASCA 31
Radebe v The Queen [2001] WASCA 254
(Page 3)
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Rowlands v Caporn [2001] WASCA 66
Shooter v R (1997) A Crim R 581
Smith v "C" [2001] WASCA 262
Swain v R (1989) 41 A Crim R 214
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Walden v Hensler (1987) 163 CLR 561
Wangawol (1998) 101 A Crim R 350
Wilkinson (1996) 85 A Crim R 353
Case(s) also cited:
Furtak v Timmers [2001] WASCA 65
Game v Whitehead [2000] WASCA 50
Wilson v Crock [1999] WASCA 251
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1 HASLUCK J: This is an appeal against sentence. The question is whether the sentencing Magistrate erred in failing to give proper consideration to the making of a spent conviction order.
2 The appellant, who I will call "A", was charged that on 30 December 2000 at Warwick, being a servant of Kmart Australia Ltd he stole four packets of cigarettes valued at $30.20, being the property of his employer. The charge was brought pursuant to s 378 subpar (7) of the Criminal Code.
3 Section 378 of the Code provides that any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.
4 This provision of the Code goes on to deal with punishment in special cases and provides, in subpar (7), that if the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years.
5 The matter came before the learned Magistrate initially on 24 January 2001, on which occasion the appellant was represented by counsel, Mr Christou. When the charge was put to him, the appellant pleaded guilty and elected summary jurisdiction.
6 The prosecutor placed before the court a statement of material facts to this effect. On the evening of Thursday, 28 December 2000, the defendant went to the stockroom of the Kmart store situated at Beach Road, Warwick, where he was then employed. He removed two cartons of cigarettes and concealed them in a box in another part of the store. Later, he removed four packets of cigarettes from the cartons and left the store on his lunch break without declaring or paying for the goods in his possession. He made his way to a nearby bus stop where he concealed the cigarettes behind some bushes.
7 On Saturday, 30 December 2000, in the early afternoon, the appellant was approached by the store manager and security staff. He subsequently admitted the offence to the police and led the police to the concealed property. He co-operated with the police inquiry. When asked for an explanation for his actions, he said that he was having money problems and was having difficulty paying off his debts.
8 On the occasion of this first appearance, counsel for the appellant put up a plea in mitigation on behalf of his client. He referred to the fact that
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- the appellant was 18 years of age and living with his parents. He had been through a period of depression and had become suicidal. He had managed to control his condition with the assistance of suitable medication. Reference was made to the fact that he had applied to, and been accepted for, a position at Notre Dame University and had in mind to go into journalism.
9 Counsel accepted that the appellant had been convicted of a serious breach of trust in relation to stealing the four packets of cigarettes as a servant. He went on to submit, however, that the appellant had come before the court as a person with no prior record other than a drink driving offence and requested the learned Magistrate "to give consideration to a spent conviction".
10 Having regard to the matters placed before him, the learned Magistrate resolved to adjourn the matter until 2 March 2001 so that a pre-sentence report could be obtained. It seems that the pre-sentence report was then obtained and was before the court when the matter was brought on for hearing again before the learned Magistrate on 2 March 2001. Mr Christou appeared for the appellant on that occasion also.
11 Counsel supplemented his previous observations by referring to some of the matters touched on in the pre-sentence report and went on to suggest that the stealing offence in respect of which a sentence had to be imposed took place on the spur of the moment and was not a planned offence. It could possibly be put down to the depressive state experienced by the appellant since leaving school. Counsel drew attention to the lack of any significant prior record and submitted that the appellant was not a person who would be at high risk of reoffending. He noted that the pre-sentence report recommended a community based order disposition.
12 In his sentencing remarks, the learned Magistrate pointed out that, as a rule, a person convicted of stealing as a servant can expect to go to prison unless there were exceptional reasons why such a sentence should not be imposed. He expressed the view that, as the value of the property taken in the case before him was small, and as the offender had no prior history of such offences, the offender could be dealt with other than by way of imprisonment. The learned Magistrate proceeded to sentence the appellant to a 6-month community based order with a condition requiring him to attend counselling and 50 hours' community work. Costs were ordered in the sum of $57.70.
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13 It appears from this narrative that, although the question of whether a spent conviction order should be made was raised at the initial hearing, there was no explicit reference to such a prospect at the subsequent hearing when the sentence was imposed. Nonetheless, in my view, bearing in mind the proposition put to the court at the second hearing that the appellant was not likely to reoffend, there was before the court, in essence, a reminder that consideration could be given to a spent conviction order. It is apparent from the transcript, however, that the learned Magistrate did not directly address the question of whether a spent conviction order should be made.
14 It was against this background that the appellant obtained leave to appeal on the ground that the learned Magistrate erred in the exercise of his discretion in not imposing a spent conviction order. The appellant contends that the learned Magistrate failed to give sufficient weight to the previous good character of the appellant, the unlikelihood of the appellant reoffending, the circumstances personal to the appellant in the commission of the offence, the youth of the appellant as a mitigating factor, and the effect a conviction would have upon the future employment prospects of the appellant.
15 The evidentiary materials in the appeal book included a copy of the appellant's criminal and traffic record, which establishes that his only prior conviction was in respect of driving in excess of 0.05 per cent. This resulted in a cancellation of his licence for a period of three months.
16 An affidavit of the appellant, sworn 24 July 2001, directed to the proposed grounds of appeal, asserted that having a criminal record arising out of the charge in question would have an effect on his future employment prospects. He confirmed that he intends to study journalism at Notre Dame University in 2002. He was previously accepted into this university in 2001, but chose to defer his enrolment to work in order to save money.
17 He went on to say in the affidavit that before the commission of the offence he had been suffering from depression and this had severe consequences. He then received treatment for his depression and was placed on Zoloft anti-depression medication and was still on that medication at the time of the commission of the offence.
18 I must take account of various principles and statutory provisions bearing upon the application before me.
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19 I begin by noting that by s 196 of the Justices Act 1902 the court shall determine the appeal on the material before the court below. There is power to receive further evidence as the court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the court below in regard to a sentencing issue. Rowlands v Caporn [2001] WASCA 66. In such a case a court must be astute to ensure that it has been given reliable information. R v Gallagher (1991) 23 NSWLR 220.
20 By s 199, the court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing.
21 The court is not required to set aside or quash if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.
22 A Magistrate must set out the facts and findings and the reasons for his or her decision. A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution. Harling (1997) 94 A Crim R 437.
23 It is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. Lowndes v The Queen (1999) 195 CLR 665.
24 An appeal against sentence by the Crown will be decided by the same general principles provided the Crown has done what was reasonably required to ensure the avoidance of error. R v Grein [1989] WAR 178.
25 Principles of sentencing in this State are reflected in s 6 of the Sentencing Act1995 and related provisions. The sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.
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26 In weighing up the appropriate penalty, courts are authorised to take into account not only a statement of facts read out by the prosecutor, but also the contents of a victim impact statement, subject to rulings on admissibility. If an inference is to be relied on adversely to an offender it must be either admitted or otherwise established beyond reasonable doubt. Langridge v The Queen (1996) 17 WAR 346.
27 Aggravating factors are factors increasing the culpability of the offender. Mitigating factors include assisting the police and entering a plea of guilty, with weight being given to an early plea. The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made.
28 The "fast-track system", for example, allows defendants to acknowledge their guilt at an early stage and to be committed to superior courts for sentence expeditiously without the formalities of a preliminary hearing or a full prosecution brief. The discounts for a fast-track plea of guilty fall between 25 per cent and 35 per cent of the penalty that would otherwise have been imposed, depending on the circumstances: Little v The Queen [2001] WASCA 87. The reduction will usually be at least 25 per cent: Radebe v The Queen [2001] WASCA 254.
29 Reasons for imprisonment must be given. They serve as a reference point for the Parole Board and so that an appeal court can review the reasons for error: Nevermann (1989) 43 A Crim R 347. By s 87 of the Sentencing Act, a court may take into account time spent in custody for the offence in question, and back date to the day when custody began. Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998.
30 It follows from these principles that the object of the sentencing provisions is to arrive at an appropriate sentence for the particular offence. The provisions allow for a balance to be struck between a sentence sufficient to reflect the offender's culpability, which may act as a general and/or personal deterrent, and measures directed to rehabilitation. The sentencing objectives of deterrence and protection of the community will often require that a court be firm with the offender. The prevalence of heroin use, for example, makes deterrence the principal consideration in heroin-related offences: Quach v The Queen[1999] WASCA 210,
31 Once a court sentences a person to a term of imprisonment, s 89 of the Sentencing Act requires that the question of eligibility for parole must be considered, save for terms of less than 12 months. The relevant factors
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- are set out in the statutory provision. They include reference to the seriousness and nature of the offence, the offender's antecedents, and circumstances relevant to the offender at the time he would be eligible for release on parole. Parole serves to mitigate punishment as well as provide an opportunity for rehabilitation. Cunningham v Walsh [2000] WASCA 201 at par 19.
32 A bias towards eligibility is indicated, although the discretion in that regard cannot be triggered unless there is something in the materials which points positively towards such an outcome: Wangawol (1998) 101 A Crim R 350. A first offender can rely on this rule, but a series of prior convictions for similar offences would tend to show that the offender was a poor parole risk. Swain v R (1989) 41 A Crim R 214; Nebro v Duxbury [2000] WASCA 171.
33 By s 93, an offender is eligible for release on parole upon serving one third of the term, if it be 6 years or less. The effect of parole, and the collateral consequences of offending while on parole, do not require a court to adjust or reduce an otherwise appropriate sentence. An offender serving a non-parole term is discharged after serving two thirds of the term.
34 The sentencing options for a natural person are set out in s 39 of the Sentencing Act. A court must not use a particular option unless it is satisfied, having regard to the principles of sentencing mentioned earlier, that it is not appropriate to use any of the options listed before that option.
35 Thus, with or without making a spent conviction order, a court may impose no sentence and order release of the offender; impose a conditional release order (or CRO) and order release; impose a fine and order release; impose a community based order (or CBO) and order release. The list of options then proceeds to the imposition of an intensive supervision order (or ISO) with release; suspended imprisonment with release; or a term of imprisonment.
36 A court need not refer explicitly to each option, for the conclusion that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate. Shooter v R (1997) A Crim R 581; Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998.
37 A court must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended. This was the sequence outlined by Kirby J in Dinsdale v The
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- Queen (2000) 175 ALR 315 which was later approved by this Court in Etrelezis v The Queen [2001] WASCA 327. It is wrong to assume, however, that the primary purpose of suspending the sentence is rehabilitative. The considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. cf R v Liddington (1997) 18 WAR 394.
38 It is permissible to give offenders a last chance by way of suspension of sentence: Bacich v Illich [2000] WASCA 133. By s 76(3) of the Sentencing Act1995, suspended imprisonment is not to be imposed if the offender was on parole at the relevant time: Griekspoor v Scott (2000) 23 WAR 530.
39 A fixed term of imprisonment is to be served concurrently with any other fixed term, unless the court directs that it be served cumulatively. It is necessary in such cases to identify the head sentence.
40 The totality principle requires a sentencing officer who has passed a series of sentences, each properly calculated in relation to the offence, to consider whether the aggregate is just and appropriate. Wilkinson (1996) 85 A Crim R 353.
41 This may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate: Mill v The Queen (1988) 166 CLR 59 at 63. The aggregate sentence must not be inappropriately long having regard to the course of criminal conduct viewed as a whole. Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999. The ultimate decision is arrived at by reference to the totality of the criminality involved in all of the offences. R v Holder & Johnston (1983) 13 A Crim R 375 at 389.
42 The Spent Convictions Act1988 facilitates rehabilitation by limiting the effects of the conviction. The effect of the Act is to make it unlawful to discriminate against a person on the ground of a spent conviction. Hence, 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: Smith v "C" [2001] WASCA 262.
43 A spent conviction order cannot be made unless the preconditions set out in s 45(1) of the Sentencing Act are met. The provision is in these terms:
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- "(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,
44 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 he 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.
45 The discretionary power is of an exceptional character and requires the court to determine whether there is some particular circumstance to show that it would be desirable why the adverse effect of the conviction should be immediately set aside. That may often be found in the fact that a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship. The power should be sparingly exercised: R v Tognini [2000] WASCA 31; Pennings v Maryan [2000] WASCA 172.
46 It follows that a spent conviction order will not necessarily be made simply because the criteria specified in s 45 of the Sentencing Act are satisfied. Consideration must be given to all of the circumstances of the case and of the offender, including the wider interests of the public: Neale v Sloan (1997) 27 MVR 246.
47 The crucial question is whether the appellant has demonstrated that the power in s 45(1), which is to be sparingly exercised, should be exercised in his favour, so as to relieve him of the adverse effects of the conviction.
48 These principles were applied in Allen v Powell [2000] WASCA 65. Scott J was prepared to make a spent conviction order in circumstances
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- where an 18-year-old offender was convicted of stealing small amounts from her employer on two separate occasions. The offender was fined $200 on each complaint.
49 The learned Judge emphasised that stealing as a servant involves a fundamental breach of trust and could therefore not be characterised as a trivial offence. This reflects the rule that in such cases a term of imprisonment is generally inevitable, save in exceptional circumstances or where the amount of money obtained is small. General deterrence to prevent breaches of trust is a major consideration: Wilkinson (supra); Bessell (supra). Nonetheless, Scott J was prepared to make the spent conviction order, having regard to the offender's previous good character and the unlikelihood she would commit such an offence again.
50 I have reviewed the statutory provisions and related principles at some length so that the matter before me can be viewed in context.
51 The object of the sentencing process is not to censure the wrongdoer for supposed flaws in his character or conduct, but to impose a just penalty for a particular offence. The sentencing rules indicate that a balance must be struck between various considerations. The sentencing options allow for a degree of flexibility in the exercise of the discretionary power. These precepts assist the process of identifying omissions or extraneous considerations, bearing in mind that an appeal court must not simply substitute its own opinion for that of the judicial officer in the court below.
52 It emerges from a review of the transcripts of the hearings on 24 January and 2 March 2001 that the learned Magistrate was invited to consider the question of whether a spent conviction order should be made. He did not address this issue directly. It follows from earlier discussion that this does not necessarily mean that he failed to take into account such an option. However, in my view, an apparent failure to weigh up the relevant considerations in a case such as this provides a basis for reviewing the determination in the court below: Walden v Hensler (1987) 163 CLR 561; Pledge v Davey [2000] WASCA 20.
53 It may be that the learned Magistrate was of the view that a determination as to whether a spent conviction order should be made was not open to him because of the seriousness of the offence. The decided cases clearly show that stealing as a servant involves a breach of trust and therefore must be regarded seriously.
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54 In that regard, I note in passing that s 378 of the Criminal Code appears to draw a distinction between the general offence of stealing for which an offender is liable to a term of imprisonment of 7 years and various more specific forms of stealing including stealing as a servant for which the penalties are higher. A distinction of the same sort is reflected in s 426 which makes provision for summary trial of stealing and like offences. In my view, the effect of the latter provision is to provide that where the value of the property in question does not exceed $10,000 or the charge can be dealt with adequately on a summary basis a person convicted of stealing as a servant is liable to imprisonment for 2 years or to a fine of $8,000. My reasoning as to this issue is set out at greater length in the recently decided case of Dukes v Barrett [2001] WASCA 338.
55 In the present case, the appellant contended on appeal that the Magistrate was required to give proper consideration to the relevant sentencing principles and the elements of s 45(1) of the Sentencing Act concerning spent convictions, but failed to do so.
56 The main submission was that he failed to give sufficient weight to the previous good character of the appellant, the unlikelihood of reoffending, circumstances personal to the appellant in the commission of the offence, the youth of the appellant as a mitigating factor and the effect a conviction will have upon the future prospects of the appellant.
57 When I turn to the preconditions of s 45(1), I am obliged to note immediately that the offence in question cannot be characterised as trivial. Stealing as a servant does involve a breach of trust and the decided cases show that it must be regarded seriously. Where the charge is dealt with summarily, the offender is liable to imprisonment for a term of 2 years or to a fine of $8,000, as I have just indicated. It is apparent from Tognini, however, that a spent conviction order can be made if the court considers that the offender is unlikely to commit such an offence again and considers the offender should be relieved of the adverse effect of a conviction, having regard to his previous good character.
58 At the time of the commission of the offences, the appellant was 18 years of age and, apart from one traffic offence, had no prior criminal convictions. His antecedents suggest that he would be unlikely to commit such an offence again. The four packets of cigarettes the subject of the stealing charge were of little value and seem to have been appropriated in a rather random way, and possibly as a result of the appellant's youth and
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- state of depression. These factors are sufficient to satisfy me that the offender is unlikely to commit such an offence again.
59 It is apparent from the decided cases that once the preconditions of the statutory provision have been satisfied, the court should also consider other factors, including the seriousness of the offence and circumstances personal to the offender. The court should look to see whether there was some particular circumstance making it desirable that the offender be relieved of the adverse effect of the conviction.
60 It does not appear that the learned Magistrate gave consideration to these matters. The failure to address the preconditions and to consider these further matters amounts to an error sufficient to allow me to give consideration to making an order that the conviction be spent.
61 The personal circumstances of the appellant at the time of the commission of the offence show that he was suffering from depression. The appellant's age at the time of the commission of the offence is a strong consideration when deciding if a conviction will be an impediment in the future. A conviction for stealing as a servant, by its very nature, will potentially have an adverse effect upon any employer, regardless of what form of employment the appellant undertakes eventually.
62 In this case, the appellant has been accepted for a position at university. He has in mind to become a journalist and has the potential, it seems, to pursue such a career. It therefore seems likely that the presence of a prior conviction in a field of employment requiring professional skills is likely to prejudice his future prospects. This can be regarded as a particular circumstance showing why the offender in this case should be relieved of the adverse effect of the conviction.
63 There is no suggestion in the present case that the sentence imposed should be overturned or reduced. A form of punishment has been imposed sufficient to act as both a general and a personal deterrent. It was urged upon me that the case of Allen v Powell (supra) is analogous to the present case and the line of reasoning reflected in that case should be applied to the present circumstances. I acknowledge the force of this submission.
64 Accordingly, having regard to the various considerations I have mentioned, I am of the view that, consistently with the reasoning in Tognini, a spent conviction order should be made in respect of the conviction in the present case. The preconditions of s 45(1) have been satisfied. In addition, the appellant has been able to demonstrate that this
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- is one of the exceptional cases in which such an order should be made. His youth and career prospects make it desirable, not only from the point of view of the offender, but also, having regard to his rehabilitation, from the point of view of the community, that the adverse effect of the conviction should be set aside.
65 I will therefore allow the appeal and vary the decision below by ordering that a spent conviction order be made in respect of the relevant conviction. I am not persuaded that there should be any other adjustment of the penalty and costs order previously imposed. I will hear from the parties as to whether any further orders or directions are required.
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