Azy v McIntosh - [2021] WASC 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   AZY -v- McINTOSH [2021] WASC 34
CORAM:   TOTTLE J
HEARD:   28 JANUARY 2021
DELIVERED          :   16 FEBRUARY 2021
FILE NO/S:   SJA 1084 of 2020
BETWEEN:   AZY
Appellant
AND
BLAIR GEORGE McINTOSH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE N LEMMON
File Number            :   JO 8097 of 2019

Catchwords:

Criminal law - Appeal against sentence - Extension of time required - Exceptional circumstances - Miscarriage of justice if leave to appeal not granted - Extension of time granted

Spent conviction order - Whether failure to make spent conviction order a miscarriage of justice - Criteria for grant of spent conviction order satisfied - Discretion exercised in favour of granting spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 9, s 10, s 14, s 39, s 40
Family Court Act 1997 (WA), s 202H
Restraining Orders Act 1977 (WA), s 61
Sentencing Act 1995 (WA), s 45
Spent Convictions Act 1988 (WA), s 14, s 25, s 26, s 27

Result:

Application for extension of time granted
Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters & Mr C Woodhouse
Respondent	:	Mr C Payne

Solicitors:

Appellant	:	Robertson Hayles Lawyers
Respondent	:	State Solicitor for Western Australia

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Caseley v Zampogna [2006] WASC 259
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Frewen v Dalgreen [2014] WASC 407
HJT v Reichelt [2017] WASC 301
M v O’Neill [2013] WASC 187
M v Seidner [2013] WASC 395
Mieli v Beros [2006] WASC 294
Mohamed v Wellinger [2012] WASC 470
Papas v Godwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Redding v Robinson [2009] WASC 403
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scanlon v Bove [2008] WASC 213
Sharpe v Vinning [2020] WASCA 79
Wheeler v The Queen [No 2] [2010] WASCA 105
Wimbridge v The State of Western Australia [2009] WASCA 196
Wood v Marsh [2003] WASCA 95
Wright v McMurchy [2012] WASCA 257

TOTTLE J:

Introduction

On 26 July 2019 the appellant was convicted on his plea of a charge of breaching an interim family violence restraining order (the FVRO). The appellant was fined $150 and ordered to pay costs of $118.50. The appellant seeks leave to appeal against his sentence on the ground that the magistrate should have made a spent conviction order. The appellant's counsel did not apply for such an order at the sentencing hearing.

The facts and the sentencing hearing

The complainant (the person protected by the FVRO) was the appellant's former wife. They have since divorced. The breach of the FVRO was that the appellant sent an email attaching some court documents relating to a family court dispute to the complainant. He did so on advice from a solicitor who had been providing him with assistance, but who at the time of providing the advice had ceased acting for him.
It was not in dispute that the email was neither threatening nor intimidating.
It is helpful to depart from this chronological account and record that some months after the sentence had been imposed, at the instigation of the Rapid Resolution Team of the Legal Profession Complaints Committee (LPCC), the solicitor (who had given the appellant the advice that he could send the complainant an email) provided the appellant with an apology containing the following candid account of her involvement in the matter:
I received a very limited Grant of Legal Aid to assist in drafting some amended court documents in relation to the children's matters. You also asked for advice on property aspects and I was happy to oblige with some preliminary thoughts in the hope that it would clarify matters for you and make the situation less stressful.
We both worked quickly in me providing you with advice, you responding to my correspondence with your thoughts and views and us both finalising your documents to be filed. There was a short period of time between when you attended for your initial appointment and your next court date. My focus, at that time, was to try and have your documents filed and served on your ex-wife so she knew your position. I did not have any funding to go to Court with you - and Legal Aid had indicated that no further funding would likely be extended. I therefore wanted to ensure that when you attended Court, not only would the court have your documents, which contained your evidence and your position, but that your ex-wife would have this also. I did not want to see you in a situation where your ex-wife attended and said she had not received your documents - meaning your matter would be adjourned to much later date so she could consider the documents and no orders made for you to have contact. I wanted to give you the best opportunity possible to have the matter dealt with when you were in court - to hopefully get some orders in place for you to see your daughters.
It was an oversight on my part when I said that you should serve the documents by email on your ex-partner. I was not on the record for you at the time. I therefore, incorrectly, considered that you should serve them. It was an oversight by me at the time, in trying to work to a strict timeline given the impending court date, that I did not consider the Family Violence Restraining Order that was in place.
At the hearing on 26 July 2019 after the appellant entered his guilty plea the prosecutor informed the magistrate that: the appellant had no criminal record; the breach of the FVRO involved the sending of an email to the complainant; and the appellant was under the impression that he could contact the complainant in that way.
The appellant was represented by duty counsel and the following exchange took place between counsel and the magistrate:
COUNSEL: ... The breach was that there's been protected Family Court matter in this - [the appellant] and the complainant's - the victim's case [sic] and [the appellant] was advised by his Family Court lawyer at the time, because she had ceased acting for him, that he can send an email to the other party.
HIS HONOUR: Well - - -
COUNSEL: And based on that advice - and he accepts, your Honour, that he should have known - - -
HIS HONOUR: Well, he got bad advice, didn't he?
COUNSEL: He did. But the terms of the restraining order are pretty clear and he accepts that he should have followed the terms of the restraining order.
HIS HONOUR: All right
COUNSEL: So on that basis he has made the mistake.
HIS HONOUR: All right. Well, I will just impose a relatively modest [fine].
COUNSEL: Thank you, your Honour.
There was no further discussion of the offence with which this application is concerned. Counsel addressed the magistrate in relation to other offences with which the appellant had been charged and to which I refer in more detail below.

The appellant's personal circumstances

The appellant was 46 years of age at the time of the offence. He was married to the complainant with whom he had two daughters. The appellant and complainant were separated at the time of the offence and in July 2020 they were divorced.
The appellant has a degree in architecture which he obtained in 2005. He was employed as a building supervisor and builder for some 14 years. His employer ceased to trade in 2017 and he has been unemployed since then.
In 2018 the complainant obtained the FVRO, the breach of which resulted in the sentence which is the subject of this appeal. There has not been a final hearing in the restraining order proceedings.
The appellant and the complainant have been involved in disputes in the Family Court over custody of their children and other matters. Those proceedings are ongoing.
In late 2018 or early 2019 the appellant was charged with 11 offences of a sexual nature. The complainants are the appellant's daughters. The appellant has pleaded not guilty to the charges and they are listed for trial in the District Court in November 2021.
When sentenced on 26 July 2019 the appellant had no criminal record. When the present application was heard, the appellant's only conviction was the conviction for breaching the FVRO.

The delay in commencing the application

An appeal from a court of summary jurisdiction to this court cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless otherwise ordered by this court.[1]
[1] Criminal Appeals Act 2004 (WA) s 10(3).
The last date for appealing was 23 August 2019. The application for leave to appeal was made on 19 October 2020. The application was accompanied by an affidavit sworn by the appellant in which he explained the reasons for the delay in making the application.
In summary the appellant's explanation for the delay was as follows. In August 2019 he learned from a Family Court lawyer that an application for a spent conviction order could have been made on his behalf. He made a complaint to Legal Aid about the advice he had received to the effect that he could send an email to the complainant. He was advised that he could make a complaint to the LPCC, which he did. Legal Aid offered funding to seek advice from a lawyer in private practice about the possibility of making a claim for damages. He consulted a lawyer in private practice about such a claim. In February 2020, as a result of the LPCC's intervention, the appellant received the apology from his former lawyer to which I have referred above. In July 2020 Legal Aid offered further assistance for advice from a practitioner in private practice. On 31 July 2020 the appellant received a grant of legal aid to obtain advice in relation to the merits of an appeal to this court. For reasons not disclosed no advice was received pursuant to that grant. On 29 September 2020 the appellant received a grant of legal aid to obtain advice from his present counsel who provided him with advice in relation to the merits of an application for leave to appeal.
I infer from the history set out in the preceding paragraph that it was not until July 2020 that the appellant was aware of the possibility of an appeal and it was not until October 2020 that he received advice about the merits of an appeal.

Extension of time to commence the appeal

An extension of time to appeal will be granted if it is in the interests of justice to do so.[2]
[2] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA).
In Duckworth v The State of Western Australia [No 4] the principles applicable to granting an extension of time following a lengthy delay were restated by Martin CJ (with whom Buss P and Mazza JA agreed):[3]
The principles applied by this court in deciding whether to grant an extension of time within which to commence a criminal appeal in cases involving lengthy delay are well settled:
Where there has been a lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
In Wimbridge v The State of Western Australia, Buss JA identified the five principle factors generally considered in deciding whether to exercise the discretion to extend time:
First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merits. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors. (footnotes omitted)
[3] Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] – [25].
I consider that the appellant's time for commencing the application should be granted for two reasons. First, the appellant has demonstrated exceptional circumstances. Those circumstances are that the appellant sought legal assistance from a variety of sources. Unfortunately, until at the earliest July 2020, none of the lawyers from whom the appellant sought assistance advised him about the possibility of making the present application. Rather, their focus was on other avenues of redress. On the evidence it appears that no one gave consideration to seeking leave to appeal from the magistrate's decision. With respect, this is a well-recognised option and, compared to taking an action for damages, a relatively straightforward one. There are a number of instances of successful appeals in similar circumstances.[4] This is not a case in which the appellant's delay in commencing the application was due to a difficulty in obtaining legal advice. The delay was due to the right advice not being given. The appellant was not well-served by the legal profession: he received incorrect advice about being permitted to send an email to the complainant, his counsel did not apply for a spent conviction order in circumstances in which such an application was called for, and, he was not advised about the possibility of an appeal until some 12 months after the sentence had been imposed.
[4] Wood v Marsh [2003] WASCA 95; M v O’Neill [2013] WASC 187; Papas v Godwin [2010] WASC 226; Redding v Robinson [2009] WASC 403; M v Seidner [2013] WASC 395; Mieli v Beros [2006] WASC 294; Caseley v Zampogna [2006] WASC 259.
The second reason why I consider that an extension of time should be granted is because, for the reasons developed below, I consider that there will be a miscarriage of justice if leave is not granted.

Ground of appeal

The appellant relies on one ground of appeal (amended by leave granted at the hearing of the application) formulated as follows:
A miscarriage of justice occurred when the attention of the learned Magistrate was not drawn to granting the appellant a spent conviction and the magistrate failed to consider the possibility of making a spent conviction order when, in all the circumstances, there was a reasonable prospect that had it been such an order would have been granted:
Particulars of Circumstances:
1.The appellant's previous good character;
2.The triviality of the offence;
3.The circumstances of the offending itself;
4. The adverse effect of the conviction.

Leave to appeal

As an appeal under part 2 of the Criminal Appeals Act 2004 (WA), the appellant requires leave to appeal.[5] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[6] To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[7] If leave to appeal is refused, the appeal is taken to be dismissed.[8]
[5] Criminal Appeals Act 2004 (WA) s 9(1).
[6] Criminal Appeals Act s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[8] Criminal Appeals Act s 9(3).

A jurisdictional issue

Under s 7(1) of the Criminal Appeals Act a person aggrieved by a decision of a court of summary jurisdiction may appeal to this court.
The term 'decision' used in s 7(1) is defined in s 6 of the Criminal Appeals Act to include: [9]
…
(f)a sentence imposed, or order made, as a result of a conviction or acquittal.
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
[9] Criminal Appeals Act s 6(f) and (g).
The respondent acknowledges that there have been successful appeals against sentencing decisions of magistrates where spent conviction orders have not been sought or made. The respondent argues that none of those decisions considered the issue of whether, if an application for a spent conviction order is not made to the magistrate, can it be said that there has been a decision within the meaning of s 7(1) of the Criminal Appeals Act. The respondent contends that if there has been no application for a spent conviction order it cannot be said that there has been a refusal to make 'an order that might be made' for the purposes of s 6(g) of the Criminal Appeals Act.
The respondent further contends that the 'non‑making' of a spent conviction order is neither 'an order made' nor part of 'a sentence imposed' for the purposes of s 6(f).
I do not accept the respondent's contention as to jurisdiction. An appeal from a sentence necessarily involves the proposition that a different sentence should have been imposed.
Section 39(2)(c) of the Sentencing Act 1995 (WA) empowers a court sentencing an offender to impose a fine with or without making a spent conviction order. This means that when imposing a fine the Court must consider whether the particular sentencing option should be accompanied by a spent conviction.[10]
[10] Mohamed v Wellinger [2012] WASC 470 [35] (Edelman J); Scanlon v Bove [2008] WASC 213 [13] (Johnson J).
While it may be accepted that a sentence imposed is limited to the sentencing disposition for which provision is expressly made, this does not prevent a person aggrieved by the sentence, from contending on appeal that the sentencing disposition occasioned a miscarriage of justice because properly considered a spent conviction ought to have been granted.

Did the magistrate consider making a spent conviction order?

The respondent contends that it is not apparent from the transcript of the sentencing hearing that the magistrate failed to consider making a spent conviction order and points to the fact that if an offender represented by counsel does not seek a spent conviction order it would not be expected that the magistrate would expressly address the question.
A failure expressly to mention a sentencing option does not necessarily mean that it was not considered, even where the sentencing option was not suggested to the magistrate.[11]
[11] See Mohamed v Wellinger [36]; HJT v Reichelt [2017] WASC 301 [20] (Smith AJ).
It may be accepted that ex tempore reasons of magistrates are to be construed generously. The brevity of the exchange that constituted the sentencing disposition persuades me that his Honour did not give consideration to the possibility of making a spent conviction order. This is not to criticise the magistrate. It was, of course, counsel's responsibility to apply for a spent conviction order and busy magistrates cannot be expected to address matters that may or may not be oversights on the part of counsel.

The merits

The evidence

In his affidavit of 19 October 2020 the appellant set out the circumstances that he contends justify the making of a spent conviction order. Generally an appeal court must decide an appeal solely on the evidence and material that was available to the primary court.[12] The appellant wants to rely upon his affidavit evidence to establish that, had the evidence been available to the sentencing magistrate, a spent conviction order would have been granted.
[12] Criminal Appeals Act 2004 (WA) s 39(1).
Under s 40(1)(e) of the Criminal Appeals Act an appellate court has a broad power to 'admit any other evidence', however this power is limited to new or fresh evidence that, had it been before the sentencing judge, would have led to a different sentence being imposed.[13]
[13] Wheeler v The Queen [No 2] [2010] WASCA 105 [53].
Under s 14(5) of the Criminal Appeals Act a court hearing a sentencing appeal may have regard to relevant matters that have occurred between when the appellant was convicted and when the appeal was heard. This power has generally been applied liberally.[14]
[14] Redding v Robinson [2009] WASC 403 [13] (Hall J).
The relevant paragraphs of the appellant's affidavit constitutes new evidence. Had the evidence been before the magistrate I consider that it would have led to a different sentence being imposed and I will give the appellant leave to rely on his affidavit evidence.

The criteria for the grant of a spent conviction order and the relevant principles

The Sentencing Act 1995 (WA) sets out the criteria for the grant of a spent conviction order in s 45(1) as follows:
(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,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The test for whether an offence was trivial was relevantly set out in the case of Sharpe v Vinning:[15]
The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act directs attention primarily to the type or nature of the offence in question, including the inherent seriousness of the offence and the maximum penalty, having regard to the spectrum of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.
As we have mentioned, the term 'offence' in s 45(1) refers to the acts or omissions (that is, the factual ingredients or elements) under a written law in respect of which the offender is to be sentenced in accordance with the Sentencing Act and the written law which imposed the criminal penalty for the relevant acts or omissions. It is apparent, therefore, that the material facts establishing guilt, which are the specific acts or omissions which establish the particular offender's criminal responsibility under the written law, must also be taken into account in determining whether the offence is 'trivial', within s 45(1)(b)(i). However, the relevant factors to be taken into account in determining whether an offence is trivial do not extend beyond the material facts establishing guilt, so as to include such matters as mitigating factors that are not part of the material facts establishing the offender's guilt or the objective and subjective personal circumstances of the offender.

The pre-conditions to the exercise of the discretion to grant a spent conviction order

Is the appellant unlikely to commit such an offence again?

[15] Sharpe v Vinning [2020] WASCA 79 [110] - [111].

Given the circumstances within which the breach occurred, it is unlikely that the appellant would commit such an offence again.

Was the offence trivial?

Under s 61(1) of the Restraining Orders Act 1997 (WA) it is an offence to breach an FVRO. The penalty for this offence is a fine of $10,000 or 2 years imprisonment, or both.
Objectively, while this offence might not fall at the more serious end of the spectrum of offences, it cannot be characterised as an inherently trivial offence. Further, the fact that the communication was not threatening or intimidating does not of itself establish triviality in the context of a breach of an FVRO.
I am not persuaded that the offence was trivial.

Did the appellant have a previous good character

The appellant had no criminal record. He had a tertiary qualification and a good employment record. When he appeared before the magistrate on 26 July 2019 he was of good character.

Spent conviction order if pre-conditions have been satisfied

The making of a spent conviction order does not automatically flow once the criteria in s 45(1)(a), (b)(i) or (ii) of the Sentencing Act are satisfied.
The nature of the discretionary power to make a spent conviction order under s 45 was described by Murray J (with whom Malcom CJ and Wallwork J agreed) in R v Tognini as follows:[16]
[T]he 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 of the consequences it 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, practicing 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 would positively aide 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.
[16] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] - [28].
In considering whether to grant a spent conviction order it is also important to consider aspects of public interest, the principles surrounding which were summarised by Beech J in Frewen v Dalgreen as follows:[17]
[17] Frewen v Dalgreen [2014] WASC 407 [18] - [21].
Among others, the following propositions emerge from these cases:
(a)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;
(b)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; and
(c)in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstances of its commission and the circumstances personal to the offender.
In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender, but also to the public interest.[18]
One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect.[19]
Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the person's reliability or suitability for a particular type of work.[20]
[18] Tognini [27] - [28]; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [16] - [18]; Wright v McMurchy [2012] WASCA 257 [59].
[19] Brewer v Bayens [18].
[20] Brewer v Bayens [17].
The appellant contends that he should be granted a spent conviction order because, if not granted, the conviction will adversely affect him in his Family Court proceedings with the complainant and in his forthcoming District Court trial. It appears that the appellant considers that the existence of a spent conviction order would have the effect of preventing evidence of the breach of the FVRO and of the conviction itself being adduced in those two sets of proceedings.
I am not persuaded that the making of a spent conviction order would prevent the disclosure of the conviction in either proceedings. This is because s 14(1)(a) of the Spent Convictions Act 1988 (WA) expressly provides that the exemptions afforded to a spent conviction under s 25 -27 are not applicable when evidence is being adduced in the course of court proceedings under the laws of evidence.
This means that the grant of a spent conviction order would not, of itself, prevent the existence of the conviction being disclosed in the District Court trial.
It is possible that certain Family Court proceedings will not constitute court proceedings that apply the laws of evidence, because under s 202H(1) of the Family Court Act 1997 (WA), certain excluded rules of evidence expressly do not apply to child related proceedings, except in exceptional circumstances.[21]
[21] Family Court Act 1997 (WA), s 202H(3).
In this case, child related proceedings would not be affected by the operation of s 14 of the Spent Convictions Act, unless there are exceptional circumstances.
In a situation where s 14 does not operate, then the protections afforded by s 25 - 27 of the Spent Convictions Act might benefit the appellant, were he granted a spent conviction order.
The respondent submits, however, that even if no exceptional circumstances were found so that the appellant’s family law proceedings did fall outside the operation of s 14, the fact of the existence of the FVRO and the fact that the appellant breached the FVRO would both be relevant and would be adduced at the hearing irrespective of the inability to adduce evidence of the conviction itself.
I accept the respondent's submission. Granting a spent conviction order is unlikely to prevent the breach of the FVRO from being raised in the course of his Family Court proceedings.
I consider, however, that from the appellant's perspective there is a material difference between having a conviction in respect of which a spent conviction order has been made and, having a conviction for an offence for which there is no spent conviction, even if his moral culpability in respect of the offence is attenuated by the fact that the appellant acted on the basis of incorrect legal advice.
In my view, there is the potential for the appellant to suffer forensic prejudice in both sets of proceedings. And, while he may be able to adduce evidence as to the circumstances in which the offence was committed in an effort to persuade a judge or a jury that his moral culpability was attenuated by the incorrect legal advice, having to take this step imposes a forensic burden on him that may disadvantage him. My concern is about a potential forensic prejudice but, in my view, given that had the appellant received the correct advice from his family law solicitor he would not be in his present position, that is a sufficient reason why the adverse effect of the conviction should be immediately set aside.
In this case public interest considerations of the nature described by Beech J do not weigh against the making of the spent conviction order.

Miscarriage of justice

For the reasons stated I am satisfied that the appellant has established that a spent conviction order should have been made and consequently there has been a miscarriage of justice.

Outcome

I will grant the appellant leave to appeal and allow the appeal. I will not set aside the sentence imposed by the magistrate but will make an order under s 45(1) of the Sentencing Act that the appellant's conviction will be spent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
16 FEBRUARY 2021