Bertolino v Director of Public Prosecutions for Western Australia

Bertolino v Director of Public Prosecutions for Western Australia involved an appeal against the refusal of the Magistrates Court to make a spent conviction order for the appellant, Lara Brandle Bertolino, who had been convicted of dangerous driving occasioning grievous bodily harm. The appellant's application for a spent conviction order had been adjourned and subsequently withdrawn, leading to the question of whether the magistrate's failure to make such an order constituted a decision that could be appealed. The court found the appeal competent, as the failure to make a spent conviction order could be considered a refusal, analogous to previous cases. The appellant sought to adduce additional evidence, including affidavits and an email, to support her case for a spent conviction order, but the court ruled some of this evidence irrelevant and inadmissible.

The legal issues in the case revolved around the statutory framework governing spent conviction orders, the discretion of the court in making such orders, and the criteria for determining whether a miscarriage of justice had occurred. The court examined whether the appellant met the preconditions for a spent conviction order under the Sentencing Act 1995 (WA), specifically whether she was unlikely to commit another offence and whether the offence was trivial or she had a good character. The court also assessed the impact of the conviction on the appellant's future employment and the public interest in maintaining confidence in the judicial system.

The court concluded that the appellant's conviction, while serious, was towards the lower end of the spectrum for such offences and the appellant was of good character. However, the court found that the appellant had not demonstrated how the inability to obtain a Passenger Transport Driver Authorisation (PTD) would significantly impact her current business or her ability to practice as a clinical psychologist. The court emphasised that the statutory regime for regulating passenger transport was designed to ensure high standards for those transporting passengers for hire or reward, and the legislature had decided that those convicted of serious driving offences should not be readily relieved of the consequences of their actions. Given these considerations, the court found no miscarriage of justice in the magistrate's failure to make a spent conviction order and refused the appellant's application for an extension of time to appeal, as well as her leave to appeal. The appeal was dismissed.