Byas v Foulkes
[2017] WASC 133
•16 MAY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BYAS -v- FOULKES [2017] WASC 133
CORAM: FIANNACA J
HEARD: 11 MAY 2017
DELIVERED : 16 MAY 2017
FILE NO/S: SJA 1106 of 2016
BETWEEN: JASON WILLIAM BYAS
Appellant
AND
PRUDENCE ANNE FOULKES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P MALONE
File No :AR 10455 of 2015, AR 10456 of 2015, AR 10457 of 2015, AR 10458 of 2015, AR 10459 of 2015
Catchwords:
Criminal law - Sentencing - Stealing as a servant - Whether a spent conviction order should have been made - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D J McKenzie
Respondent: Ms K Cook
Solicitors:
Appellant: McKenzie Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Cases referred to in judgment:
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Canale v Bayens [2001] WASCA 383
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hussaini v Szolnoski [2013] WASC 64
Koenig v Ryan [2001] WASCA 339
McLeod v The State of Western Australia [2009] WASCA 233
Neale v Sloane (1997) 27 MVR 246
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riley v Gill (Unreported; WASC; Library No 970731, 8 December 1997)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vagh v The State of Western Australia [2007] WASCA 17
FIANNACA J:
Introduction
On 1 September 2016, the appellant was convicted after a trial in the Magistrates Court at Armadale of five offences of stealing as a servant contrary to s 378(7) of the Criminal Code (WA).
The appellant was fined $7,000 and ordered to pay costs of $88.50. The appellant applied for a spent conviction order to be made in accordance with s 39(2)(c) and s 45 of the Sentencing Act 1995 (WA) in respect of each of his five convictions. The magistrate declined to make a spent conviction order.
The appellant now appeals against that decision. The sole ground of appeal alleges that the magistrate 'erred in law in all the circumstances of this matter by declining to grant a spent conviction order'.
The appeal is brought under s 7 of the Criminal Appeals Act 2004 (WA), which provides for an appeal against the decision of a court of summary jurisdiction. 'Decision' is defined in s 6 to include '(f) a sentence imposed … as a result of a conviction' and '(g) a refusal to make an order that might be made as a result of a conviction'. Although, as will appear later, a spent conviction order, when made, is part of the sentence, it seems to me that the decision against which the appeal is brought in this case comes within paragraph (g), rather than paragraph (f). However, the distinction makes no difference to the proper consideration of the appeal or the outcome.
By s 9 of the Criminal Appeals Act, the leave of the court is required in respect of the ground of appeal for the appeal to proceed. Leave will not be granted unless the court is satisfied the ground has a reasonable prospect of succeeding.[1] In the present case, the appellant also requires an extension of time in which to appeal. The appeal notice was filed on 28 December 2016, nearly three months after the last day of the period of 28 days in which the appeal could be commenced, being 29 September 2016.[2]
[1] Criminal Appeals Act 2004 (WA) s 9(2).
[2] Criminal Appeals Act 2004 (WA) s 10(3), erroneously identified as 22 September 2016 in the Appeal Notice and the Affidavit in Support of an Extension of Time.
The appellant's application for an extension of time in which to appeal and his application for leave to appeal were referred to the hearing of the appeal.
Application for an extension of time
The application for an extension of time is supported by an affidavit sworn on 22 December 2014 by the appellant's counsel, Mr David McKenzie. He states that, after the last date for appealing, the lawyer who represented the appellant in the Magistrates Court approached him for an opinion on the merit of appealing the magistrate's decision not to make a spent conviction order, but he was not able to give an opinion until 18 October 2016. He states he was asked to progress an appeal in late October 2016. He further states that he understood the other lawyer would swear an affidavit in support of the application for an extension of time, but was later instructed to prepare his own affidavit. He cites court commitments as the explanation for not preparing the affidavit before 22 December 2016.
It appears the affidavit is intended to explain why the appellant should not be held to be at fault for the delay. However, in my opinion, it does no such thing. There is no explanation for the initial delay before counsel was approached for an opinion. There is no explanation as to why the appellant or the other lawyer could not have lodged an appeal notice and sworn an affidavit as soon as counsel's opinion was provided. While the delay is not egregious, it is not insignificant.
The application for the extension of time is opposed by the respondent.
In my opinion, the delay is not adequately explained and it will be necessary for the appellant to establish that a miscarriage of justice would result if an extension is not granted.[3] That will require a consideration of the merits of the appeal.
[3] McLeod v The State of Western Australia [2009] WASCA 233 [79] (McLure P).
The proceedings in the Magistrates Court
It is convenient to commence with an outline of the proceedings in the Magistrates Court.
The charges
Each of the five charges on which the appellant was tried alleged that he stole a sum of money from Metecno Pty Ltd, trading as Bondor. Although the stealing of money can be established by proof that the person took or converted the money with the intention to use the money at his will, even though he may intend to afterwards repay the amount taken or converted,[4] the prosecution alleged that the appellant intended to permanently deprive his employer of the money,[5] and the case was litigated on that basis. The appellant did not deny that, by his actions, he had taken or converted funds belonging to his employer for his personal use. Ultimately, the issue was whether he intended to permanently deprive his employer of the money he took.
The facts established in the trial
[4] Criminal Code (WA) s 371(2)(f).
[5] Criminal Code (WA) s 378(2)(a).
In summary, the facts that were established by the evidence and found by the magistrate were as follows.
The appellant was, at the relevant times, employed as the Western Australian State Manager for Metecno Pty Ltd, trading as Bondor. On five occasions he arranged for works and services to be completed or provided at his home and to be invoiced to Bondor. In his capacity as State Manager, he then fraudulently authorised payment of the invoices by Bondor and for the costs to be allocated to client jobs or the company's general ledger account. The works and services were provided in the course of renovations the appellant was making to his home.
The first charge concerned the hire of a waste bin at his home on 21 November 2014 at a cost of $550. On his instruction, the cost was allocated to a client job.
The second charge concerned painting services provided at his home by a painting and decorating business, which he arranged on 4 January 2015, at a cost of $3,300. On his instruction, the cost was allocated to a Bondor general ledger account for office cleaning.
The third charge again concerned the hire of a waste bin at his home, this time on 15 March 2015, at a cost of $368.50. On his instruction, the cost was allocated to a client job.
The fourth charge concerned the purchase of treated pine and materials for his home on 9 April 2015 from a building supplies company at a cost of $413.22. On his instruction, the cost was allocated to a client job.
The last charge concerned the hire of a waste bin at his home again, this time on 30 April 2015, at a cost of $368.50. On his instruction, the cost was allocated to a Bondor general ledger for waste removal.
The waste bins were all hired from the same business. All of the businesses from which the appellant obtained the works or services were known to him through his position with Bondor and he dealt directly with persons in those businesses to obtain a discounted price.
In June or July 2015, a subordinate employee, who had acted on the appellant's instructions in processing the invoices and allocating the costs to particular jobs or the general ledger, brought the invoices to the attention of the visiting Business Development Manager. The discrepancies were reported to the police and the appellant's employment was terminated.
When the appellant's employment was terminated, Bondor deducted the total amount stolen, which was $4,966.72, from the appellant's termination payment. Therefore, the total sum of the money that was stolen was repaid, but it was not at the instigation of the appellant. Indeed, he had taken no steps to repay the money.
The appellant gave evidence at the trial and claimed that it had been his intention to repay the money after the renovations at his home were completed. In finding the appellant guilty of the offences, the magistrate was satisfied that the appellant had no intention of repaying the money that was stolen. He found that the appellant was not a credible witness.
The sentencing
Sentencing proceeded immediately after the magistrate convicted the appellant of the five charges. In his plea in mitigation, the appellant's counsel at first instance acknowledged that the offences were serious, involving a breach of trust, but informed the magistrate that the appellant had a good reputation in the industry (which, although it was never specified, appears to have been the heating, ventilation and air‑conditioning industry and/or the building industry) and was someone of prior good character. He did not have a criminal record. He had found other employment in the industry. However, he had not told his new employer of the charges he was facing. The appellant's counsel informed the magistrate that the appellant would be immediately terminated by his new employer if that employer was informed of the convictions.[6] Having taken instructions, he elaborated that circumstances in which he would have to make such disclosure would include if he was travelling overseas, which his role involved, and if he was to apply for any promotion.[7] There was then the following exchange between counsel and the magistrate before his Honour proceeded to sentence the appellant:[8]
COUNSEL: [The conviction] would have, in my respectful submission, an undue weight, a conviction of this kind. What he does in this industry, which is a small industry in Perth ‑ there's not that many big players ‑ would have an undue ‑ a disproportionate - - -
HIS HONOUR: Disproportionate, yes.
COUNSEL: - - - impact on this man's future. Those are my submissions.
HIS HONOUR: Yes. Okay. Yes.
[6] ts 56.
[7] ts 57.
[8] ts 62 - 63.
In sentencing the appellant, the magistrate took into account that the appellant was a person of previous good character, 44 years of age, married with two children, 'no sign of this incredibly self‑defeating behaviour', and the money had been recovered by the employer, which the magistrate considered to be 'very much to the appellant's advantage', even though he had not instigated the repayment.
Consideration of the application for spent conviction orders
Having decided to impose a global fine of $7,000 for all of the offences, his Honour went on to consider the submission that he should make a spent conviction order.[9] His Honour noted that it is an exceptional order and should only be made if the appellant made out the grounds for it. He accepted that the appellant was a person of good character. He was also 'happy to conclude' that the appellant was not likely to commit the same or a similar offence in the future, 'for obvious reasons'. Those 'reasons' appear to be an assumption that the appellant had 'learnt from his mistake', a matter mentioned by the magistrate in discussion with the appellant's counsel during the plea in mitigation.[10]
[9] ts 65.
[10] ts 55.
The magistrate took into account the appellant's personal circumstances, mentioned earlier, and the fact that he had worked for Bondor for nine years, a matter mentioned in evidence by the appellant.
His Honour considered that the fact the appellant had not told his new employer that he faced charges did not reflect well on him. It showed he had not been completely honest with the new employer. His Honour appears to have regarded the making of a spent conviction order in those circumstances as effectively endorsing what he considered to be the appellant's discreditable conduct towards his new employer, in that he would not have to disclose the convictions, having failed to disclose the charges.
His Honour, in the course of discussion with counsel, had noted that, in deciding whether to make a spent conviction order, he would need to be satisfied that there was 'no overarching … public interest in recording a conviction'.[11] His Honour noted that such public interest ‑[12]
… incorporates within it a consideration of the seriousness of the offence, and whether if you commit five offences of stealing … where the amount is sort of 4900-odd dollars … whether [that is] something that is regarded in itself as sort of being too serious to result in a spent conviction order.
[11] ts 55.
[12] ts 55.
In his reasons for refusing to make spent conviction orders, his Honour identified the seriousness of the offending as a significant factor. He referred to the fact that the appellant was the State manager of the company, who was 'meant to set an example to everybody',[13] and that the offending involved 'an enormous breach of trust'.[14] His Honour pointed out that when a person holds a position of trust 'at the top of the tree', as the appellant did, he 'will suffer significantly and appropriately by breach of trust'.[15]
[13] ts 65.
[14] ts 66.
[15] ts 66.
His Honour expressed his conclusion as follows:[16]
In all of the circumstances I'm not persuaded I should grant you a spent conviction order. The matter, very definitely, is serious. There may be some detriment there, but not necessarily out of proportion to the fact that you haven't made a clean breast of it with your present employer and those sorts of things.
[16] ts 66.
I understand his Honour to have been saying that, while he acknowledged there may be detriment to the appellant (which had been particularised by his counsel), it would not be disproportionate when one took into account the fact the appellant had not been honest with his new employer and the seriousness of the offending. It seems to me that 'those sorts of things' must have been intended to include the latter, as his Honour had just made mention of it.
Ground of appeal
As I noted earlier, the sole ground of appeal alleges that the magistrate 'erred in law in all the circumstances of this matter by declining to grant a spent conviction order'. The ground is not particularised and the appellant did not submit that the magistrate acted on any wrong principle. Indeed, it was accepted that his Honour correctly identified the legal principles. Rather, the ground relies on implied error, which is to say that the magistrate's discretion miscarried because the decision is unreasonable or plainly unjust.[17]
[17] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).
The appellant's submissions raised an alleged specific error, namely that 'the magistrate failed to take into account the detriment or exceptional hardship which might be suffered by the appellant if a spent conviction order was not made'. If the assertion is correct, the magistrate will have failed to take into account a material consideration (as will emerge from the discussion below of the principles concerning spent conviction orders), and that would constitute an error of law.[18]
[18] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).
In Samuels v The State of Western Australia, the Court of Appeal said that the consideration of the merits of a proposed ground of appeal, when leave is being considered, 'will be confined to the ground of appeal as particularised ‑ but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application.'[19] As the alleged specific error is capable of coming within the ambit of the ground of appeal in the Appeal Notice, I will consider the merits of that argument, as well as the submission that the sentence was unreasonable or plainly unjust.
[19] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [60] (the Court of Appeal).
Legal principles ‑ Spent conviction orders
The power to make a spent conviction order arose in this case because a fine was imposed. Section 39(2)(c) of the Sentencing Act provides that a court may impose a fine 'with or without making a spent conviction order'. A spent conviction order is to be taken as part of the sentence imposed.[20]
[20] Sentencing Act 1995 (WA) s 45(4).
Section 45(1) provides that 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.
Section 45(2) stipulates that 'a spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988', and s 45(3) provides that the Spent Convictions Act,[21] other than pt 2, 'applies to and in respect of' such a conviction. Section 3 of the Spent Convictions Act defines 'spent conviction' to include a conviction that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act. Part 2 of the Spent Convictions Act provides procedures for applications to be made, after the expiration of lengthy specified periods (relevantly 10 years for present purposes) and depending on the nature of the conviction, for a declaration from a District Court judge or a certificate from the Commissioner of Police that the conviction is spent. The effect of a spent conviction order made under s 39 of the Sentencing Act is to confer on the offender immediately the benefits that could only otherwise be obtained by an application under the Spent Convictions Act after the relevant period of time had elapsed. Those benefits were summarised by Burchett AUJ in Brewer v Bayens as follows:[22]
Upon a conviction becoming spent, the [Spent Convictions Act] provides the convicted person with a real measure of relief against its consequences; in particular, there are provisions offering protection against discrimination in respect of employment on the ground of a spent conviction, and s 25 to s 28 (inclusive) shield a convicted person against having to disclose a spent conviction and, to some extent, against enquiry into it.
[21] Spent Convictions Act 1988 (WA).
[22] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [9] (Burchett AUJ, Wallwork & Wheeler JJ agreeing).
The principles to be applied by a court in deciding whether to make a spent conviction order were explained in R v Tognini. In that case, Murray J noted that the power to make a spent conviction order is 'clearly a discretionary power and the matters enumerated in s 45(1) are merely preconditions 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'.[23]
[23] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24] (Murray J, Malcolm CJ & Wallwork J agreeing).
His Honour further stated that the power should be regarded as being of an exceptional character and it should be exercised only sparingly in a clear case where, for cogent reasons, its exercise is seen to be desirable.[24] His Honour went on to explain the proper approach as follows:[25]
If the necessary preconditions 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, that the adverse effect of the conviction should be immediately set aside.
[24] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24], [27] (Murray J).
[25] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] (Murray J).
In Brewer v Bayens, Burchett AUJ referred to a number of authorities[26] in support of the proposition that, apart from all of the circumstances of the case and of the offender, consideration must be given to the wider public interest. His Honour went on to say:[27]
One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from responses to enquiries, and placing a legal impediment in the way of some enquiries. The Court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, "the preservation of confidence in the judicial system" requires publicity: R v Tait and Bartley (1979) 24 ALR 473 at 487, per Brennan, Deane and Gallop JJ.
[26] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [17] referred to Neale v Sloane (1997) 27 MVR 246, 247 (Wheeler J); Riley v Gill (Unreported; WASC; Library No 970731, 8 December 1997) (Parker J); Koenig v Ryan [2001] WASCA 339 (Hasluck J); Canale v Bayens [2001] WASCA 383 (Pullin J).
[27] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [18] (Burchett AUJ).
Another aspect of the wider public interest identified by his Honour was the legitimate interest of certain persons or bodies to be able to take into account any conviction or the charge to which it relates that may affect the offender's suitability for a particular role or employment.[28] Such persons or bodies, of course, may include a current or prospective employer. It was a relevant consideration, in a different context, in the circumstances of that case, in which a university graduate with a high post‑graduate qualification, who was engaged in research with a view to obtaining a doctorate, was convicted of seeking another person to act as a prostitute. It was submitted that his career and his research, which was in the public interest, could be endangered if a spent conviction order was not made, because he would have to disclose the conviction to committees which had a role in determining the research he could do and his membership of a professional society. His Honour said:[29]
In the present case, the appellant's research, or the pursuit of his profession, may bring him into close contact with the impressionable minds of the very young. That is why the committees to which reference has been made may be concerned to consider his conduct. I cannot think it to be in the public interest, in the circumstances of this case, to make an order the object of which would be to ensure that they did so wearing blinkers.
[28] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [19] (Burchett AUJ).
[29] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [19] (Burchett AUJ).
Similarly, in Riley v Gill, in the context of a case in which a leading hand shot-firer had been convicted of possession of cannabis and a smoking implement, Parker J said:[30]
The occupation which the applicant pursues involves considerable responsibility for safety. There is a public interest in any employer or potential employer being aware of the appellant's conduct of the nature demonstrated by these offences because that conduct has a clear relevance in assessing his reliability and suitability for the work which he pursues.
[30] Riley v Gill (Unreported; WASC; Library No 970731, 8 December 1997) (Parker J).
Legal principles ‑ Appeal against discretionary judgment
As the decision whether to grant or refuse a spent conviction order involves an exercise of discretionary judgment, in order for the appeal to succeed, in the absence of specific error, the appellant must demonstrate that no other option was properly open to the magistrate than to make a spent conviction order.[31] If it was reasonably open for the magistrate to conclude that a spent conviction order was not appropriate, the ground must fail. An appeal court cannot intervene simply on the basis that it might have exercised the discretion differently.[32]
[31] Hussaini v Szolnoski[2013] WASC 64 [38] (Hall J).
[32] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).
If the appellant succeeded in establishing that the magistrate had made a specific error of principle, it would still be necessary for the appellant to show that it has resulted in a miscarriage of justice, so as to justify the granting of an extension of time in which to appeal.[33]
[33] McLeod v The State of Western Australia [2009] WASCA 233 [79] (McLure P).
The foundation for the exercise of discretion in this case
The magistrate accepted that the appellant was of previous good character. He was also prepared to accept that the appellant was unlikely to reoffend. In the circumstances of this case, he could not have proceeded to the exercise of discretion which he then undertook if he had not reached those conclusions.
The respondent submits that, in circumstances where the appellant was convicted after trial and had not, at any stage, demonstrated insight into or accepted responsibility for his offending, the magistrate's preparedness to accept that the appellant satisfied the first condition for the making of a spent conviction order, that is, that he was unlikely to commit such an offence again, was somewhat generous. I am inclined to agree. One might add as a relevant consideration the fact that the appellant had not disclosed the charges to his new employer.
In Brewer v Bayens, Burchett AUJ said:[34]
Bearing in mind the special nature of the jurisdiction to grant this relief, and the clear case the Full Court has said must be shown, it is to be expected that generally those who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence. The first condition, for which there is no substitute, is "that the offender is unlikely to commit such an offence again". Proof that the applicant for an order has this merit is itself the one essential statutory substitute for the evidence of the reality of reform sustained over time on which, by s 11 of the Spent Convictions Act, that Act relies in cases other than those falling within s 45 of the Sentencing Act.
[34] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14] (Burchett AUJ).
However, the respondent's submission in this case does not go so far as to suggest it was not open to the magistrate to consider that the appellant was unlikely to reoffend. The appeal was argued on the basis that the preconditions for the exercise of the discretionary power were met and the issue was whether the magistrate's exercise of discretion miscarried.
Evidence sought to be adduced by the appellant on the appeal
The appellant has sought to rely on a letter from one David Boobbyer addressed 'to whom it may concern' and dated 16 December 2016. It was attached to the appellant's submissions and the Affidavit of the appellant's counsel sworn 24 April 2017 (which also attached the transcript of the proceedings in the Magistrates Court). Its provenance is not explained in the affidavit or otherwise. Leave was not sought to rely on the letter. The manner in which the letter was put before the court is unsatisfactory.
Nevertheless, the appellant asks the court to admit the evidence under s 40(e) of the Criminal Appeals Act, which gives an appeal court a discretionary power to 'admit any other evidence'. The discretion must be exercised in accordance with established principles.
The letter was not before the magistrate. The appellant submits that if the letter had been before the magistrate, it might have 'tipped the scales' in favour of the making of a spent conviction order.
In the letter, Mr Boobbyer says that he has worked in the 'HVAC and building serviced industry's [sic] in Western Australia for over 30 years'. I was told by the appellant's counsel that 'HVAC' is an acronym for 'heating, ventilation and air conditioning', and I accept that to be the case. There is no information about Mr Boobbyer's role within either of the industries he refers to. Without any explanation as to how he is able to come to the opinion, he states that it is his 'professional opinion' that if a supplier or manufacturer within the HVAC industry became aware that one of their employees had been convicted of a criminal offence that questioned the honesty of that person, they would be terminated from their position regardless of their current status within the business or the industry. He also claims that the industry is 'small and highly networked' and expresses the opinion that it would be difficult for any person to rebuild their reputation within 'this peer group and business sector' and it would be 'extremely detrimental to their ongoing employment opportunities'.
It is self-evident that, if correct, the information was available and could have been obtained for the purposes of the hearing before the magistrate. Therefore, the evidence is not fresh evidence. If it is to be admitted, it is on the basis that it is new evidence, and it would be necessary for the appellant to establish that it would necessarily have resulted in a different outcome.[35] The appellant's counsel accepted that is the correct test.
[35] De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [158] (Pullin JA).
The respondent objects to the admission of the letter into evidence for four reasons. First, no adequate explanation has been given as to why the letter was not obtained for the purposes of the Magistrates Court hearing. Secondly, the contents of the letter do not establish an adequate foundation for Mr Boobbyer to provide what purports to be an expert opinion. Thirdly, the letter adds little, if anything to information that was before the magistrate and which he was prepared to accept. Finally, to the extent that the letter might be intended to support the submission that the respondent would lose the job he had with the new employer at the time of sentencing, there is no evidence that the job was in the same industry.
As to the first point, the appellant's counsel on appeal submitted that counsel in the Magistrates Court may not have been prepared to proceed immediately to sentencing. That would have been irresponsible, given that sentencing often follows immediately after conviction in that court, and the defence could not have assumed that the appellant would be acquitted. In any event, the submission does not reflect what actually happened. It is apparent from the transcript of the proceedings that counsel was prepared to make a plea in mitigation and raised the very matters addressed in the letter, as will be apparent from my summary of the proceedings above.
As for the second point, the appellant's counsel accepted that there was nothing specific in the letter to qualify Mr Boobbyer to express the opinions. He submitted, however, that the appropriate qualification might be implied from the number of years Mr Boobbyer says he has been in the industry. In my opinion, that submission has no merit. It is an invitation to speculate.
As for the third point, as I have said, counsel in the Magistrates Court raised the matters referred to in the letter, at least to the extent of indicating that the appellant would almost certainly be terminated by his current employer and the fact that it was a small industry with 'few players'. The magistrate acknowledged the submissions. He said nothing to suggest he was not prepared to accept the factual basis for them.
As for the final point, the respondent's submission is correct. The field of the appellant's new employment was not elaborated. If the appellant was not in the same industry, then Mr Boobbyer's opinion is irrelevant. However, if one proceeds on the basis that his new employment was in the same industry, it tends to undermine the reliability of Mr Boobbyer's opinions. Apparently, despite the 'small and highly networked' nature of the industry, the appellant's new employer had not found out that the appellant had been terminated by Bondor for conduct that had resulted in criminal charges, contrary to Mr Boobbyer's expectations.
In all the circumstances, I am not prepared to admit the letter into evidence. Even if I had considered it should be admitted, I would regard it as having little weight because of the shortcomings I have described. It would not affect the outcome in any event because of other factors that weighed against the making of spent conviction orders in this case.
Consideration of the merits
The appellant's submission that the learned magistrate did not take into account the 'detriment or exceptional hardship which might be suffered by the appellant' is without merit. First, as is evident from my outline of the proceedings above, the magistrate did have regard to the fact that the recording of the convictions may have adverse consequences for the viability of the appellant's current and future employment. Secondly, the submission assumes that the potential detriment would result in exceptional hardship. I will deal with that when considering the appellant's argument that the magistrate's decision is unreasonable or plainly unjust. It is sufficient to say in respect of the alleged specific error that I am not persuaded that the magistrate failed to take into account any material consideration. His Honour engaged counsel in discussion about the issues of detriment and hardship, and he made specific reference to detriment in his reasons.
The appellant's argument at the hearing was really that the magistrate failed to give sufficient weight to the potential detriment and hardship to the appellant. That is a proposition concerned with implied or inferred error if the decision is shown to be plainly unjust or unreasonable.
The appellant relied on a passage in R v Tognini in support of his argument. In that case, having said that it is necessary for the court to look for some particular circumstance to show that it would be desirable that the adverse effect of the conviction should be immediately set aside, Murray J said that 'those circumstances may often be found in the fact that the conviction, if it is not ordered 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 would positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community'.[36]
[36] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [28] (Murray J).
His Honour thereby identified a number of circumstances which may support the exercise of discretion to make a spent conviction order. In written submissions, the appellant referred to the circumstances as 'criteria' and submitted that the learned magistrate should have made a spent conviction order because the appellant met the criteria. That submission was misconceived. Murray J's observations could not be regarded as providing a checklist which, if satisfied, would necessarily result in the making of a spent conviction order. His Honour's observations must be considered in the context that he had described the nature of the discretion in broad terms, had described the power as exceptional and to be used sparingly, and had identified other factors that needed to be taken into account, such as the seriousness of the offence.
At the hearing of the appeal, counsel for the appellant accepted that the word 'criteria' was not apt and explained that the appellant's submission went no further than that there was support for the making of spent conviction orders in this case because some of the circumstances identified by Murray J in R v Tognini could be found in the appellant's case.
In essence, the appellant's submission is that, if he has to disclose his conviction, or if having found out about it by other means, an employer is able to rely on it to deny him a position, he will not be able to work in the industry and this will result in hardship. The appellant submits that the hardship would be disproportionate to the punishment of which he is deserving, having regard to his offending and his prior good character. He submits that, in those circumstances, it was not reasonably open to the magistrate to refuse to make a spent conviction order.
The respondent submits that the evidence does not establish that the appellant would suffer exceptional hardship. I agree. In the first place, given his level of responsibility, the appellant must have known that if he was caught and convicted of stealing from his employer, he would almost certainly lose his employment and find it difficult to find similar employment. Secondly, there was no evidence before the magistrate (and there is no evidence on appeal) as to the overall income in the appellant's household or as to his family's assets. There was no evidence, in that context, that if he had to go into other lower paying employment, it would result in hardship which is exceptional, that is, other than might be regarded as the natural consequence of committing the kind of offences of which the appellant was convicted. Finally, there was no evidence that the appellant could not find work in a different field, if he could no longer work in the industry he was in at the time of his offending.
It is clear from the magistrate's sentencing remarks that his Honour regarded the seriousness and circumstances of the offending, involving as it did a very significant breach of trust, as outweighing the factors in favour of a spent conviction order.[37] His Honour properly had regard to the wider public interest.
[37] ts 66.
This was a case in which general deterrence was a significant sentencing consideration. It is clear from the authorities that the need for general deterrence is a relevant factor in deciding whether to make a spent conviction order at the time of sentencing. The appellant's offending did not involve an isolated incident or difficult personal circumstances or other factors resulting in impaired judgment which might diminish the importance of general deterrence. It was a persistent course of conduct over a lengthy period that seems to have stemmed from a belief that it was perfectly acceptable to use the company's funds to meet his personal expenditure. Such a belief was legally and morally wrong. He achieved his objective by instructing a subordinate to make fraudulent entries in the books, with which she was uncomfortable. Her evidence in the trial was that the appellant laughed off her pointed remark that suggested he was benefiting at the company's expense.
This was not a case where relieving the appellant of the adverse effect of the convictions could be said to benefit the community by contributing to his rehabilitation. Although the magistrate accepted the appellant was unlikely to reoffend in the same way, there was no evidence that he was taking steps to rehabilitate. He had not demonstrated remorse and, as the magistrate noted, his failure to tell his new employer about the charges did him no credit.
It was reasonably open to the magistrate to conclude that the appellant's offending was of a kind which ought to be attended with the ordinary consequences of conviction as a measure of deterrence.
Further, as in Brewer v Bayens, this was a case in which it could properly be regarded as being contrary to the public interest to make an order the object of which would be to ensure that those who had to decide whether to give the appellant employment in a managerial role involving considerable trust and the setting of an example for others would do so wearing blinkers. It seems to me that this was at the core of the magistrate's comments about the way in which the appellant had dealt with his new employer.
Conclusion
Ultimately, the magistrate had regard to all relevant factors. The weight to be accorded to those factors in the exercise of his discretion was a matter for the magistrate.[38] It would not be appropriate for this court to intervene on the basis it might have exercised the discretion differently. However, for the reasons I have identified, I consider the magistrate's decision was an entirely appropriate exercise of discretion in all the circumstances of this case. This was not a clear case for taking the exceptional step of relieving the appellant of the ordinary consequences of conviction.
[38] Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts‑Smith JA).
The appellant has not established specific error or that the discretion exercised by the magistrate not to make a spent conviction order in respect of each of the convictions was unreasonable or plainly unjust, and, in my opinion, the ground of appeal had no reasonable prospect of succeeding. It follows that the application for leave to appeal should be refused, as should the application for an extension of time in which to appeal. The appeal will be taken to be dismissed.
Orders
1.The appellant's application for leave to adduce additional evidence is refused;
2.The application for leave to appeal is refused;
3.The application for an extension of time in which to appeal is refused; and
4.The appeal is dismissed.
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