Allen v Powell
[2000] WASCA 65
•17 MARCH 2000
ALLEN -v- POWELL [2000] WASCA 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 65 | |
| Case No: | SJA:1203/1999 | 25 FEBRUARY 2000 | |
| Coram: | SCOTT J | 17/03/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| PDF Version |
| Parties: | CARLY LOUISE ALLEN HEATH JOHN POWELL |
Catchwords: | Appeal against refusal to make a spent conviction order and fine Sentencing Act 1995, s 45(1) Appellant convicted of stealing Appellant pleaded guilty at first opportunity No prior record Sentence manifestly excessive Appellant seeks work in child care Police clearance required R v Tognini & McGuire [2000] WASCA 31 Appellant unrepresented in lower court Sparingly exercised power Marginal case Magistrate not in error Appellant unlikely to re-offend |
Legislation: | Sentencing Act 1995 s 45(1) Spent Convictions Act 1988 |
Case References: | R v Tognini & McGuire [2000] WASCA 31 Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 January 1998 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 Teede v Wright [1999] WASCA 121 Wilson v Crock [1999] WASCA 251 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HEATH JOHN POWELL
Respondent
Catchwords:
Appeal against refusal to make a spent conviction order and fine - Sentencing Act 1995, s 45(1) - Appellant convicted of stealing - Appellant pleaded guilty at first opportunity - No prior record - Sentence manifestly excessive - Appellant seeks work in child care - Police clearance required - R v Tognini & McGuire [2000] WASCA 31 - Appellant unrepresented in lower court - Sparingly exercised power - Marginal case - Magistrate not in error - Appellant unlikely to re-offend
Legislation:
Sentencing Act 1995 s 45(1)
Spent Convictions Act 1988
Result:
Appeal allowed in part
(Page 2)
Representation:
Counsel:
Appellant : Mr B R Jackson
Respondent : Mrs H L Porter
Solicitors:
Appellant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Tognini & McGuire [2000] WASCA 31
Case(s) also cited:
Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 January 1998
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Teede v Wright [1999] WASCA 121
Wilson v Crock [1999] WASCA 251
(Page 3)
1 SCOTT J: The appellant was granted leave to appeal by Miller J on 19 November 1999.
2 The appellant was convicted in the Court of Petty Sessions at Fremantle on two counts of stealing as a servant. The offences are alleged to have occurred on consecutive days, namely, 23 and 24 September 1998 at the appellant's then place of employment, the Hislop Road Deli in Attadale.
3 The appellant was fined $200 on each complaint with $57.50 costs on each. In addition, she was ordered to reimburse the complainant the balance of the stolen money being $30.
4 The appeal challenges both the amount of the fine and the learned Magistrate's failure to make a spent conviction order. As the argument was developed by counsel for the appellant, the challenge to the penalty focussed upon the failure to make a spent convictions order, rather than on the amount of the fine and costs.
5 The facts surrounding the offences as outlined to the learned Magistrate were that on 23 September 1998 the appellant was working at the Hislop Road Deli in Attadale. At about 1.18 pm on that day, she went to the cash register and took $30, which she placed in her sock. Her conduct was recorded by the in-store video camera.
6 On 24 September, that is the following day, the appellant was working at the same delicatessen and shortly before 11.00 am she went to the cash register and took $20, which she placed into her right sock. Again, the stealing was recorded on the in-store video camera. A short time after the second taking, the police arrived and spoke to the appellant, who removed the $20 from her sock and admitted both of the offences. The appellant was later interviewed on video and admitted each of the thefts. When asked her reason for stealing the money, she said, "I honestly don't know why".
7 The appellant pleaded guilty in the Fremantle Court of Petty Sessions at the first available opportunity and on that occasion was not represented. The appellant had turned 18 on 23 September 1998, the date upon which the first of the two offences was committed and had no prior record.
8 In sentencing the appellant, his Worship said to her:
"Well, it looks like you have rearranged your personal circumstances and that might hopefully work out better. In my
(Page 4)
- view, although each offence does carry up to 2 years' imprisonment in this court, or a fine of up to $8,000, that a fine is appropriate and you can pay that off in time. I'm not prepared to, in the circumstances, make a spent conviction because employers seeking to employ (sic) you are entitled to know that there is a prior conviction for this sort of thing so that's a punishment in itself."
9 The grounds of appeal are that the learned Magistrate imposed a sentence that was manifestly excessive and/or erred in the exercise of his discretion in failing to impose a spent conviction order. The particulars are that:
"the learned Magistrate failed to give sufficient weight to:
(a) the small amount of money stolen;
(b) the previous good character of the applicant;
(c) the absence of any criminal record;
(d) the fact that the applicant had repaid some of the money stolen at the time of sentencing;
(e) the plea of guilty at the earliest possible occasion."
10 In many respects, it is unfortunate that the appellant was not represented at the hearing at which she pleaded guilty. There was much that could have been said on her behalf. An affidavit of her father indicates that some time prior to these offences the appellant had ceased residing with her parents at a time in her life when she was going through difficulties. It would appear that she had become involved with people in the drug trade. She left home and moved in with friends but was unable to meet her living expenses. Eventually she stayed with her grandparents for a short period of time. Because of the antipathy between the appellant and her parents, they were not aware of these offences and so unable to arrange legal representation for her.
11 There is evidence produced on appeal to show that the appellant now seeks to work in the child care industry and that having a conviction is an impediment to her progress in that vocation. The reason is that a police clearance is required before the appellant will be permitted to undertake a traineeship.
(Page 5)
12 This is another of those many cases where a young person going through a difficult time in her life, has transgressed the law in what, on the face of it, would appear to be a brief aberration in her life. The issue for this Court is whether the Spent Convictions Act1988 ("the Spent Convictions Act") should apply so as to relieve the appellant of the consequences of these two convictions.
13 Shortly before this appeal was argued, the Court of Criminal Appeal in Western Australia delivered a guideline judgment on the operation of the Spent Convictions Act in R v Tognini& McGuire [2000] WASCA 31 where Murray J, with whom Malcolm CJ and Wallwork J agreed in the unreported decision said at 9 [20]:
"The power conferred on a sentencing Judge by s 45 of the Sentencing Act bears a very particular character. Ordinarily of course, a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Convictions Act to which I have referred above are clearly based on the proposition that after conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the ways described in the Act so that the offender may put the offence behind them and function in the future without the need to disclose the conviction."
14 His Honour later said at 10 [24]:
"Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable."
15 Section 45(1) of the Sentencing Act 1995 (WA) provides:
"(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(Page 6)
- (a) it considers that the offender is unlikely to commit such an offence again; and
(b) having regard to -
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender, it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."
17 The question for consideration by this Court is whether the appellant has demonstrated that the "sparing exercise" of the power in s 45 should be invoked, so as to relieve her of the adverse effects of the convictions.
18 In the guideline judgment of Tognini, to which I have earlier referred, Murray J also said at 11 [27, 28]:
"In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exception 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.
(Page 7)
- That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."
19 As I have already indicated, in my view it is unfortunate that the appellant was unrepresented in the court below. There was much to be said for her that was not put before the Magistrate for his consideration.
20 In my opinion, the appellant has now demonstrated circumstances which are sufficiently exceptional to justify the making of a spent conviction order.
21 In some respects this is a marginal case and I should make it clear that in my view stealing as a servant involves a fundamental breach of trust, which in the eyes of the law is of particular seriousness. In that respect the sum of money stolen is not of significance. It is the breach of trust that constitutes the gravamen of the offence. In addition, in this case, the fact that there were two offences also makes this a marginal case. On the other hand, the fact that the appellant was just 18 years of age when the offences occurred, and her personal circumstances including her prospective work prospects, have persuaded me, but only just, that this is a case where a spent conviction order should be made.
22 I am of the view that the appellant is unlikely to commit such an offence again, having regard to her previous good character and I consider that she should be relieved immediately of the adverse effects of the convictions (s 45(1) of the Sentencing Act 1995).
23 I would emphasis that in my view the learned Magistrate in the court below did not fall into error. As I have said, the appellant was unrepresented and many of the factors to which I have referred in these
(Page 8)
- reasons were not put before his Worship for consideration. Had they been, a different outcome may well have been arrived at.
24 In all of the circumstances, therefore, the appeal will be allowed and a spent convictions order will be made under s 45(1) of the Sentencing Act 1995. I am not, however, persuaded that there should be any adjustment to the fine or costs.
10
2
2