Carter v The State of Western Australia - [2010] WASC 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CARTER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 247

CORAM: HALL J

HEARD: 30 AUGUST 2010

DELIVERED : 30 AUGUST 2010

FILE NO/S: SJA 1032 of 2010

BETWEEN: YVETTE NICOLA CARTER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D N JONES
File No  :PE 16664 of 2010, PE 16665 of 2010, PE 16667 of 2010

Catchwords:

Criminal law - Sentencing - Spent conviction order - Whether refusal correct - Whether all relevant factors considered and given due weight - Turns on own facts

Legislation:

Criminal Code (WA), s 424(a)
Sentencing Act 1995 (WA), s 45

Result:

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms S H Linton

Solicitors:

Appellant: Michael Tudori Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

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

Hamlyn v Lawson [2009] WASC 303
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

HALL J: (This judgement was delivered extemporaneously on 30 August 2010 and has been edited from the transcript).

On 17 March 2010 the appellant, Yvette Nicola Carter, pleaded guilty in the Magistrates Court to three charges of fraudulently making a false entry in a record, contrary to s 424(a) of the Criminal Code (WA). She was sentenced to a global fine of $1,000 and ordered to pay costs and restitution. An application for a spent conviction order under s 45 of the Sentencing Act 1995 (WA) was refused. Ms Carter now appeals against that refusal.

Facts

The facts of the offending conduct are as follows. Ms Carter was employed by the Department of Community Services as a social trainer. Her job was to assist intellectually disabled people resident at a hostel. This included taking them out on excursions, which might involve incurring expenses. A float of cash was kept at the hostel for the purpose of covering these expenses. The system was, or came to be, that a carer in Ms Carter's position could claim against that float on presentation of a receipt. The hostel kept a ledger in which details of any claim were written.
On three occasions between 8 April ‑ 24 September 2008, Ms Carter submitted receipts for expenses related to residents of the hostel which were false. The amounts involved were $12.40, $16.45 and $4.80. She made entries in the ledger, including recording the name of the relevant resident and the dates of the excursions. She obtained money in the amounts claimed. In fact, however, she had not been at work at the time the expenses were incurred. The entries therefore were false in that respect.
When the matter came before the magistrate on 17 March 2010, pleas of guilty were entered and the facts were admitted. A plea in mitigation was made on Ms Carter's behalf. The most cogent features of that plea were that she was a mature woman of 45, she had no criminal record, she had worked for 18 years as a social trainer without any adverse incident, she had references which attested to her being, apart from these offences, an honest and diligent person with a compassion for those that she cares for, at the time of the first two offences she had been going through the breakdown of a relationship, she had been diagnosed with depression and had been on and off medication at the time, and to cope with the relationship breakdown she had been doing extra shifts to keep herself occupied, including working up to 16 hours per day.
In regard to the offences it was said that the two procedures adopted by carers were as follows. Take the money first, return receipts and the change; or alternatively, to use their own money and then claim on receipts for the amount spent. It was said on Ms Carter's behalf that she was not good at keeping records and sometimes did not have the receipt for money she had spent. In those circumstances she would claim on an unrelated receipt of her own for an amount approximately the same. She accepted therefore that this was fraud but claimed that she was owed for an amount approximately the same as that claimed.
The third charge was slightly different in that although it included expenses for items purchased on Ms Carter's day off, one of the items, a mug, was purchased for a resident of the hostel and provided to him. However, when she lodged the receipt it also contained an amount of $4.80 for a cup of tea and it was said that she was not thinking straight and included the cup of tea in her claim.
An application was made for a spent conviction order by counsel who represented Ms Carter before the magistrate. It was submitted that such an order was open because Ms Carter was a person of previous good character, that the impact of convictions on her would be profound in that she would be likely to have her ability to work affected insofar as she wished to work as a carer in the future, and that depression and stress had affected her judgment at the time the offences were committed but that those factors were now under control.
The prosecution opposed a spent conviction order and argued that the offences were not trivial, that there had been an intention to defraud in respect of the offences, and that although the amounts were small, they involved taking advantage of disabled people. It was also submitted by the prosecution that there was no reason to believe that the applicant would not offend again in the future.

Sentencing remarks

The magistrate in sentencing referred to the facts and then turned to the issue of whether the spent conviction order was appropriate. I refer to what his Honour said at pages 22 ‑ 24 in which his Honour set out in some detail the factors which he took into account:
Application is made on behalf of the accused for a spent conviction in respect of these three offences. That application is opposed by the prosecutor. It is properly conceded on behalf of the accused that the offences are not trivial; it is said, however, that the accused is unlikely to commit such an offence again. Having regard to her previous good character the accused would be relieved immediately of the adverse effect that conviction might have on her. It can, in my view, be accepted that having regard to the nature of the accused's occupation, and indeed most occupations, that a fraud conviction may have an adverse effect on future employment.
The exercise of the discretion to grant a spent conviction order is not enlivened unless the court considers an offender is unlikely to commit such an offence again. The accused bears the onus of demonstrating that she is unlikely to commit such an offence again and the prosecutor submits that this requirement has not been established.
In that regard it is relevant to note that the accused offended on three separate occasions. In each case the offence involved deliberate acts of dishonesty by producing on two occasions personal receipts for expenditure which was not incurred on behalf of clients, and on a number of occasions by describing the expenditure as 'an outing and tea', when in fact the expenditure was for a mug, which represented part only of the total receipt, and on an occasion when the client was not take on an outing at all.
Although it is said on behalf of the accused her depressive illness and personal issues contributed to her behaviour and that these matters are no long present, it is in my view not apparent that these matters explain her conduct on the three separate occasions concerned, each of which necessarily involved deliberate and intentional acts of fraud. It is difficult in circumstances such as this to come to any positive conclusion about the likelihood of committing such an offence again, by reason of the deliberate nature of the conduct in question on three separate occasions.
By way of contrast, it may well be easy to say, or to make a finding, that an offence of, say, disorderly conduct committed under the influence of alcohol by a person who has hitherto never been involved in such behaviour and is otherwise of sober habits, to come to conclusion the person is unlikely to commit such an offence again. It may also be possible to reach that conclusion in respect of an isolated act of dishonesty committed at a time of stress or mental illness which is no longer present.
Assuming, however, the absence of reoffending, the accused's new employment, and her record of service to the disadvantaged lead to the conclusion that it is unlikely to commit such an offence again, the court is required to make a positive finding the accused should be relieved immediately of the adverse effect that conviction might have on her. In my view, personal deterrence is not a significant factor; however, the need for general deterrence is very important. The victims of these offences were of extreme vulnerability, so much so that they could never have questioned the claims made upon their funds. Protection of such citizens is a very important consideration.
The accused's actions, although involving effectively nominal sums of money, involved, nevertheless, gross breaches of trust. In my view the need for general deterrence to protect such citizens from potentially significant harm outweighed the matters raised on behalf of the accused, and I'm not persuaded that it is appropriate to make a spent conviction order.

Did the magistrate err in not ordering a spent conviction?

Ms Carter appeals against the refusal on a single ground that the sentencing magistrate erred in his sentencing discretion. This is a rather circular ground and says nothing as to why it is the discretion that is said to have been wrongly exercised. Where a discretionary decision is challenged, it is usually necessary to identify some reason why it is said to have been wrongly made, for example because an irrelevant consideration was taken into account, a relevant consideration was ignored or the sentence is so clearly beyond the appropriate range as to be manifestly wrong.
Some particularity has, however, been provided by the applicant's submissions both in writing and orally today. Firstly, on behalf of the applicant it is said the magistrate placed too much emphasis on the vulnerability of the residents and failed to consider the small amounts of money involved. As to this, his Honour specifically referred to the amounts being small. However, he considered that this was not a good indicator of the seriousness of the offences. He thought that the vulnerability of the residents and the breach of trust involved were more significant.
In my view, the fact that the amounts were very small was relevant, but it was not the only relevant factor. The magistrate did not overlook this factor. He merely thought it was outweighed. As to the vulnerability, it is not altogether clear that the individual residents suffered loss or any other type of damage. The restitution order for the amounts defrauded was made to the Disability Services Commission, as far as can be discerned from the transcript.
The magistrate said he proceeded on the basis that it was the funds of the individual residents that had been defrauded. However, the prosecutor said he had no instructions on this issue. He did tell the magistrate that none of the residents concerned would administer money themselves. It would seem from this that there was not in fact any clear basis for identifying the individual residents as victims.
This characterisation, however, appears to have been significant in the magistrate concluding that a spent conviction order was not appropriate. That is not to say there was not a breach of trust. Clearly there was. The applicant was trusted to submit claims for genuine expenses and the system relied significantly on the honesty of those who used it. However, to refer to the vulnerability of the victims, as the magistrate did, indicates that the intellectual disability of the residents was taken advantage of in committing these offences. With respect to the magistrate, that does not appear to have been the case. The only respect in which the intellectual disability of the residents appears to be relevant is that it might make verification of the expenses, and therefore detection of the offences, more difficult. Accordingly, it does seem to me that the magistrate gave undue emphasis to this factor in assessing the seriousness of the offending.
It is also submitted that the magistrate's discretion miscarried in that he did not take into account that Ms Carter continued to work in the same field after the offending and up to the time of sentencing, that she claimed to be owed money equivalent to that obtained, and that the offending had occurred in the context of depression and stressful personal circumstances.
The first two of those factors might be of lesser significance, but the circumstances in which the offences were said to have occurred must be relevant in considering the likelihood of reoffending. His Honour did refer to those matters but did not consider that he could conclude that they explained the conduct. He was more influenced by the fact that there were three offences over a five month period.
It does appear that his Honour rather undervalued the impact of the past good character and the mental health issues. He did acknowledge, and I quote from page 22 of the transcript, as follows:
Testimonials from her sister, doctor and personal acquaintances speak highly of her and pay tribute to her dedication and service beyond her duties to her clients. The accused's doctor reports a diagnosis of depression in 2007 and treatment for a short time in December 2007 with antidepressant medication. Since October 2008 Dr Purnell reports the accused suffered initially with depression and mood issues following her suspension from employment but reports that she had now recovered and was able to carry out her duties at the Cerebral Palsy Association in her new job. I note the accused was awarded Volunteer of the Year for the Cerebral Palsy Association in December 2009.
In my view, this strongly suggests that the factors that had led to the offending behaviour had passed and that the applicant was unlikely to offend in the same way again.
The applicant's submissions claim that his Honour placed too much emphasis on general deterrence and not enough on Ms Carter's personal contributions. It is noteworthy that the magistrate considered that personal deterrence was not a significant factor. This does suggest that he accepted that she was unlikely to re‑offend in the same respect again.
In respect of general deterrence, his Honour was influenced by his view of the vulnerability of the victims (as he saw them to be); a matter which I have referred to earlier. I do not doubt that general deterrence may be important in respect of offences of this type and in determining whether a spent conviction is appropriate. However, in the circumstances of this case I am inclined to the view that general deterrence was overemphasised, particularly when the effect of the proceedings and the fine of $1,000 are also taken into account. It was also important to take into account the passage of time between the commission of the offences and the time of sentencing, which was approximately two years, and there appears in that interval to have been subsequent good conduct. That is a matter that his Honour could properly have taken into account in determining whether a spent conviction order was appropriate.
The power of the court to make a spent conviction order arises from s 45 of the Sentencing Act. Before such an order can be made, the conditions contained in s 45 must be met. I refer in that regard to what Murray J said in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 at [24]:
It is clearly a discretionary power, and the matters enumerated under s 45(1) are merely preconditions for the exercise of that power, not matters which, if they are found to be present, would 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. The court cannot make an order under s 45 unless it considers, firstly, that the offender is unlikely to reoffend and, secondly, that the offence is trivial or that the previous good character leads the court to consider that the offender should be relieved of the adverse effects that a conviction might have upon the offender.

Conclusion

In the present case the magistrate was prepared to assume that reoffending was unlikely, but concluded that he could not be satisfied that Ms Carter should be relieved of the adverse effects, particularly having regard to general deterrence. In my view, that conclusion was erroneous and did not give sufficient, if any, regard to the past good character and the potential nature of the adverse effects upon Ms Carter.
The circumstances of this case are not dissimilar from those in Hamlyn v Lawson [2009] WASC 303. In that case the appellant had been employed to drive a disabled man. He submitted seven false claims for payment for days he had not worked. He was found guilty after trial and fined $1,000. No spent conviction order was made. On appeal McKechnie J made a spent conviction order. In doing so, he took into account fresh evidence that the appellant had lost his job following his conviction. Whilst there is no fresh evidence here, the outcome in Hamlyn v Lawson does suggest that a spent conviction might well be appropriate in this case.
As I am satisfied that the magistrate erred in the exercise of his discretion, it falls to me to exercise that discretion afresh. In my view, it is open on the facts of this case to make a spent conviction order because I am satisfied that Ms Carter is unlikely to re‑offend and, having regard to her past good character, there are grounds for believing that she should be relieved of the adverse effects that conviction would have upon her. That enlivens the power under s 45.
The question then is whether an order should be made? I am satisfied that such an order should be made. I take into account in that regard the following factors. Ms Carter's age, she was 45 at the time of sentencing; her past good character; the good references that were produced; her past work as a carer; she had worked for a lengthy period in that capacity and I understand continued, at least until the time of sentencing, to work in that field; the fact that convictions could operate to exclude her from such work, (on the information provided to the magistrate); her personal circumstances at the time of offending were such as to suggest that she was vulnerable and her judgment impaired; that those circumstances had since changed such that her depression and stress was under control; the fact that she pleaded guilty, which indicated acceptance of responsibility; the very small amounts involved; and the time that has elapsed now since those offences were committed. I also take into account that orders of this type are unusual and exceptional in nature. They are not available in every case where the s 45 criteria are met. However, I am satisfied that it would be just for such an order to be made in the present circumstances.
Accordingly, the orders of the court will be: firstly, that leave to appeal is granted; secondly, the appeal is allowed; thirdly, a spent conviction order is made in respect of the three offences. The other orders made by the learned magistrate, namely, the fine, costs and restitution orders, are unaffected.