Cochrane v Director of Public Prosecutions (WA)

[2022] WASC 378

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   COCHRANE -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 378

CORAM:   MCGRATH J

HEARD:   20 OCTOBER 2022

DELIVERED          :   9 NOVEMBER 2022

PUBLISHED           :   9 NOVEMBER 2022

FILE NO/S:   SJA 1025 of 2022

BETWEEN:   AMBER JADE COCHRANE

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Respondent

FILE NO/S:   SJA 1026 of 2022

BETWEEN:   ASHLEY LEE COCHRANE

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE L ATKINS

File Number            :   MH 4160 of 2021 (Ashley Lee Cochrane)

MH 4161 of 2021 (Amber Jade Cochrane)

Catchwords:

Criminal Law - Appeal against failure to make a spent conviction order - Turn on own facts

Legislation:

Sentencing Act 1995 (WA), s 39(2)(a) - (d), s 45
Spent Convictions Act 1988 (WA), s 7

Result:

SJA 1025 of 2022
Leave granted on ground one
Leave not granted on ground two
Appeal dismissed

SJA 1026 of 2022
Leave granted on ground one
Leave not granted on ground two
Appeal dismissed

Representation:

SJA 1025 of 2022

Counsel:

Appellant	:	Mr A D Wadham
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Wadham Legal
Respondent	:	Director of Public Prosecutions (WA)

SJA 1026 of 2022

Counsel:

Appellant	:	Ms S J Nims
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Liberty Legal Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (WA)

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

Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510

GNR v The State of Western Australia [2015] WASCA 5

Nevermann v The Queen (1989) 43 A Crim R 347

R v Tognini [2000] WASCA 31

Rule v Trudgill [2015] WASC 196

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sharpe v Vinning [2020] WASCA 79

Wright v McMurchy [2012] WASCA 257

MCGRATH J:

1. The appellants, Ms Amber Cochrane and Ms Ashley Cochrane, were convicted on pleas of guilty to one charge of assault occasioning bodily harm in circumstances of aggravation contrary to s 317(1) of the Criminal Code (WA).[1]  In respect of Ms Amber Cochrane, the learned Magistrate imposed a $5,000 fine and declined to grant her a spent conviction order.  In respect of Ms Ashley Cochrane, the learned Magistrate imposed a community based order for one year requiring 60 hours of community work and declined to grant her a spent conviction order.[2]  Both appellants now seek leave to appeal against the decision not to grant a spent conviction order.

   [1] Prosecution notice lodged 9 December 2021, charge number MH 4160 of 2021 (Ashley Lee Cochrane); Prosecution notice lodged 9 December 2021, charge number MH 4161 of 2021 (Amber Jade Cochrane).

   [2] ts 13 - 15 (22/02/2022).

2. Both appellants contend that the learned Magistrate made an error of law by failing to properly apply the requirements of s 45 of the Sentencing Act 1995 (WA) and further, that the failure to make a spent conviction order resulted in a miscarriage of justice.

3. For the following reasons, I have determined that whilst the learned Magistrate did make an error of law by failing to properly apply s 45 of the Sentencing Act, the appeal must be dismissed for the reason that no substantial miscarriage of justice has occurred.

4. In these reasons for decision, I will consider the following:

   1. The Magistrates Court proceedings;

   2. The grounds of appeal; and

   3. An assessment of the merits of the appeal.

The Magistrates Court proceedings

1. On 22 February 2022, the appellants pleaded guilty to the charge before her Honour Magistrate Atkins in the Mandurah Magistrates Court.

2. The facts upon which the learned Magistrate imposed sentence are not in dispute.  The appellant Ms Amber Cochrane is a long term family friend of the complainant's boyfriend.  Ms Amber Cochrane is a 21‑year‑old female of solid build, being 166 cms tall, whilst the complainant is a 25 year old female of slim build, being 152 cms tall.

3. On 30 November 2021, Ms Amber Cochrane, in company with her sister, the appellant Ms Ashley Cochrane, attended at an address after being requested by the complainant's boyfriend to collect him due to a disagreement that he was having with the complainant.

4. The incident, which was captured on CCTV footage, was referred to by the prosecutor but was not tendered at the sentencing hearing.  The learned Magistrate received photographs taken from the CCTV footage.[3]  Ms Amber Cochrane was observed rushing to the complainant's vehicle and opening the driver's door.  A three-year-old child was present with the complainant.  Ms Amber Cochrane then physically removed the complainant from the driver's seat of the vehicle and commenced inflicting punches to the complainant using a clenched fist.  At the commencement of the assault the complainant was sheltered by her boyfriend with her arms restrained.  The complainant did not attempt to assault any person during the incident.  The appellant Ms Amber Cochrane kicked the complainant multiple times to her lower body, punched the complainant to the head multiple times and pulled her hair.

   [3] ts 13 (22/02/2022).

5. Whilst the complainant was ushered into her vehicle by her boyfriend, the appellant Ms Amber Cochrane hit the complainant with her thong multiple times.  Ms Amber Cochrane then walked toward her own vehicle but returned to assist her sister, Ms Ashley Cochrane, who was continuing the assault. 

6. Ms Ashley Cochrane went to the driver's side whilst her sister, Ms Amber Cochrane, was assaulting the complainant and then joined her sister in assaulting the complainant by punching her with a closed fist.  Ms Ashley Cochrane then kicked the complainant multiple times including forcibly kneeing the complainant to the stomach and 'uppercutting to the stomach' with a closed fist multiple times.[4]    The complainant was ushered into the vehicle when Ms Ashley Cochrane punched her with a closed fist to her head.  Ms Ashley Cochrane walked towards her vehicle with her sister but then returned and continued punching the complainant with a closed fist to the head multiple times.[5] At that time, the two other persons present separated Ms Ashely Cochrane from the complainant, and she returned to her vehicle with the pair and they drove away.

   [4] ts 5 (22/02/2022).

   [5] ts 5 (22/02/2022).

7. The complainant attended the Peel Health Campus and was treated for concussion, bruising and 'a bloodied nose.'[6]

Plea in mitigation

[6] ts 4 (22/02/2022).

1. In mitigation, Ms Amber Cochrane's counsel submitted that she was 21 years of age with no prior criminal record and was fully employed as a FIFO worker.[7]  References from Ms Amber Cochrane's employer were provided to the court.  Counsel submitted that whilst there are 'plenty of people who do have convictions who work on mine sites', Ms Amber Cochrane has been required to provide a police clearance annually and that she is of the view that a conviction would have a detriment on her employment or future progression with her present employer.[8]

   [7] ts 7 (22/02/2022).

   [8] ts 8 (22/02/2022).

2. Counsel stated that Ms Amber Cochrane was remorseful and that the assault was not premeditated.[9]

   [9] ts 6 (22/02/2022).

3. Counsel for Ms Ashley Cochrane accepted that the offending was a serious example of assault occasioning bodily harm but that the injuries sustained were not serious.  Counsel submitted that Ms Ashley Cochrane was a 24-year-old single mother of a seven‑year‑old child who works in the aged care industry and did not have a criminal record.[10]  A reference was provided that stated that a police clearance was required to work in that industry.[11]  Counsel stated that Ms Ashley Cochrane was remorseful and had voluntarily attended counselling.[12]

   Magistrate's sentencing remarks

   [10] ts 9 - 10 (22/02/2022).

   [11] ts 10 (22/02/2022).

   [12] ts 12 (22/02/2022).

4. The learned Magistrate stated that both appellants had committed a significant assault that comprised punching, kneeling, kicking and hair pulling.[13]  The assault involved the two appellants jointly assaulting the complainant in the presence of a three-year-old child.  The complainant had suffered injuries, including concussion, that required hospital treatment.[14]

   [13] ts 13 (22/02/2022).

   [14] ts 13 (22/02/2022).

5. The learned Magistrate described the assault as a cowardly attack on a woman of slim build.[15] 

   [15] ts 13 (22/02/2022).

6. The learned Magistrate accepted that both appellants pleaded guilty at an early opportunity and were remorseful for the offending.[16]  Her Honour granted both appellants 'full credit for the pleas.'[17]

   [16] ts 12 (22/02/2022).

   [17] ts 13 (22/02/2022).

7. The learned Magistrate stated that she had considered imposing a term of imprisonment on the appellants.  Her Honour observed that the appellant Ms Amber Cochrane was employed as a FIFO worker and did not require any counselling or assistance with substance abuse given that she did not have any issues.[18]  The learned Magistrate imposed a $5,000 fine.

   [18] ts 14 (22/02/2022).

8. In respect of Ms Ashley Cochrane, the learned Magistrate stated that the appellant had received counselling.  Her Honour stated that a community based order would provide further support for rehabilitation and therefore imposed a community based order for a period of one year with supervision and program requirements and 60 hours community work.[19]

   [19] ts 14 (22/02/2022).

9. Her Honour declined to order spent conviction orders for the appellants.[20]  I will outline the reasoning of her Honour for declining to make spent conviction orders when determining ground one.

   [20] ts 15 (22/02/2022).

Appeal

Grounds of appeal

1. Both appellants rely on the same grounds of appeal in the following terms:

   1.The learned sentencing Magistrate erred in refusing to make a spent conviction order in that:

   a. Her Honour erred in law in failing to consider whether the Appellant was a person of prior good character, and in turn, failed to properly consider whether the discretion to grant the spent conviction order was enlivened or not;

   b.Her Honour erred in law in her application of s 45(1)(b) Sentencing Act 1995 (WA) to the Appellant's case, by adopting an approach that if she was not positively satisfied of either of the matters in that sub-section, the Court was prohibited from further considering or granting the spent conviction order application; and

   c.Her Honour's discretion to consider whether to relieve the Appellant of the adverse effect of a conviction was enlivened, but her Honour erred in law in failing to turn her mind to all matters relevant to the exercise of that discretion.

   2. The learned sentencing Magistrate's failure to make a spent conviction order resulted in a miscarriage of justice.

Legal principles in relation to an appeal

1. This is an appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[21]

   [21] Criminal Appeals Act 2004 (WA), s 9(1).

2. Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal against the decision to the Supreme Court constituted by a single judge sitting in its General Division.

3. Section 6 of the Criminal Appeals Act provides, relevantly, that in pt 2 of the Act, unless the contrary intention appears, 'decision' of a court of summary jurisdiction means, relevantly, 'a refusal to make an order that might be made as a result of a conviction'.[22]

   [22] Criminal Appeals Act, s 6(g).

4. Her Honour's refusal to make a spent conviction order was 'a refusal to make an order that might be made as a result of a conviction', and therefore a decision within s 6(g) of the Criminal Appeals Act.

5. Section 8(2) of the Criminal Appeals Act expressly provides that an appeal may be made under div 2 against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.

6. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[23]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[24]

   [23] Criminal Appeals Act, s 9(2).

   [24] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

7. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[25] 

   [25] Criminal Appeals Act, s 14(2).

Assessment of the merits of the appeal

Ground one

1. By ground one both appellants rely upon express error. The contention is that the learned Magistrate erred in law in her consideration and application of s 45 of the Sentencing Act.  I will outline the relevant legal principles and then turn to the reasoning of the learned Magistrate.

Relevant legal principles - spent convictions

1. The power to make a spent conviction order is found in s 39(2)(a) - (d) of the Sentencing Act. Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order. Relevantly, s 45 provides:

   (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.

   …

   (2)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.

   (3)The Spent Convictions Act 1988, other than pt 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

   (4)A spent conviction order is to be taken as part of the sentence imposed.

2. Accordingly, s 45 of the Sentencing Act directs the court not to make a spent conviction order unless three pre-requisite conditions are satisfied. The pre-requisite conditions are:

   1. The court must consider that the offender is unlikely to commit such an offence again;

   2. The offence must be trivial, or the offender must be of previous good character; and

   3. Having regard to the pre-condition that the offence must be trivial, or the offender must be of previous good character, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

3. Therefore, the first two pre-conditions must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order.

4. The pre-conditions must be established by convincing evidence.[26]

   [26] Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510 [14].

5. The term 'trivial' in its natural and ordinary usage means of little importance, trifling or insignificant.[27] In Sharpe v Vinning,[28] the Court of Appeal considered the meaning to be given to the term 'trivial offence', stating:

   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.

   [27] GNR v The State of Western Australia [2015] WASCA 5 [49].

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

6. If the conditions for the making of a spent conviction order are satisfied, the court is not obliged to make a spent conviction order.  The sentencing court has a discretion, not a duty, to make a spent conviction order.[29]  Consideration must be given to all the circumstances of the offence and the offender, as well as the public interest.[30]

   [29] GNR v The State of Western Australia [2015] WASCA 5 [44].

   [30] Wright v McMurchy [2012] WASCA 257 [59].

7. The relevant principles in respect of the discretion to make a spent conviction order were outlined in R v Tognini:[31]

   In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an 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 that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

   That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction 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.

   [31] R v Tognini [2000] WASCA 31 [27] - [28].

8. Therefore, the public interest must be considered by the court.  The public interest includes maintaining the community's confidence in the judicial system and ensuring general deterrence by the public recording of convictions.[32]  The public interest also comprises a consideration of employers being aware of an offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work undertaken by the offender.[33]

Magistrate's Reasoning

[32] Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510 [18].

[33] Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510 [17].

1. It is necessary to outline the reasoning of the learned Magistrate as to why a spent conviction order was not granted to the appellants:[34]

   You both seek spent conviction orders in relation to these matters.  To make spent conviction orders, I have to be as satisfied as I can be that you're unlikely to commit offences of this nature again.

   It is unclear your motivation as to why you thought it appropriate to behave in this manner.  Neither of you, at the ages of 21 and 24, have been before court before.  And I am hoping that, as submitted by your counsel, being subjected to interview, to police attention, to arrest, to appearance at court, has acted as a lesson to you, and will prevent you committing further offences of this nature again.  I do note, Ms Ashley Cochrane, that you have alienated yourself from the family friend, and therefore, again, it appears that you're unlikely to commit offences of this nature again.

   The second hurdle you need to get over is whether the offences are trivial or you're of previous good character. It's an either/or situation.  The court is entitled to look at either one of those two limbs of the second hurdle.  As far as I'm concerned, when it comes to matters such as this, these offences are too serious for there to be spent conviction orders made.  Therefore, the discretion is not exercised in your favour today, because of how serious these offences are.  And therefore, you have convictions recorded against your names.  I have noted what has been said by your counsel.

   [34] ts 15 (22/02/2022).

2. By ground one, the appellants contend that her Honour failed to make the necessary findings in respect of the pre-conditions for the making of a spent conviction order and further did not properly consider all factors in determining whether the enlivened discretion should be exercised in favour of granting the order. 

3. The learned Magistrate referred to the first pre-condition to making a spent conviction, stating that 'to make a spent conviction orders, I have to be as satisfied as I can be that you are unlikely to commit offences of this nature again.'[35]  Her Honour then expressly made a finding that each of the appellants were unlikely to commit offences of this nature again.  The respondent accepts that the learned Magistrate made such a finding.[36]

   [35] ts 15 (22/02/2022).

   [36] Respondent's written outline of submissions dated 13 September 2022 [12].

4. Her Honour then stated that the 'second hurdle' is whether the offences are trivial or whether the respective appellant was of good character.[37]  Her Honour observed that 'the court is entitled to look at either one of those two limbs of the second hurdle.'[38]  By so doing the learned Magistrate correctly stated the second pre-condition for the making of a spent conviction.  However, the learned Magistrate then stated that the 'offences are too serious for there to be spent conviction orders.'[39]  The contention of both appellants is that her Honour failed to make a finding as to whether the offences were trivial or whether the appellants were of good character and further, failed to turn her mind to all relevant matters in the exercise of the discretion when enlivened.

   [37] ts 15 (22/02/2022).

   [38] ts 15 (22/02/2022).

   [39] ts 15 (22/02/2022).

5. It is not necessary for a sentencing judge or magistrate to give a full and detailed statement of reasons in every case. This would give rise to an impractical burden, having regard to the busy workload of the Magistrates Court.[40]  Moreover, the sentencing remarks of magistrates should not be examined with a fine-tooth comb in an endeavour to identify appellable error, having regard to the circumstances in which reasons for decision are delivered, ordinarily on an ex tempore basis, in a court with a daily listing workload that would cause a superior court judge to wilt.

   [40] Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Malcolm CJ).

6. The contention of the appellants that the learned Magistrate did not make a finding that the appellants were of good character or that the offence was trivial is without merit.  On a fair reading of her Honour's remarks, I am satisfied the learned Magistrate identified the pre-condition without error and made the finding that both appellants were of good character.

7. However, when her Honour turned to the exercise of the enlivened discretion, she did not expressly consider all relevant factor but merely stated that the 'offences are too serious for there to be spent conviction orders.'  The respondent contends that the remark, understood in its proper context, demonstrates that her Honour was of the view that the protection of the community and the need to give effect to the sentencing principles of general deterrence were best served by the entering of a conviction, and these factors outweighed the desirability of relieving the appellants from the adverse consequences of the convictions.  The respondent submits that consideration should be given to the entire sentencing hearing during which a number of factors were raised and her Honour expressly stated during her remarks, after dismissing the application, that 'I have noted what has been said by your counsel.'[41]

   [41] ts 15 (22/02/2022).

8. I do not accept the respondent's submission.  Her Honour, in exercising the discretion, did not refer to any factor other than the seriousness of the offence and thereby did not disclose her reasoning.  I am mindful that it is not necessary for the learned Magistrate to consider each factor in detail.  The difficulty in this case is that the learned Magistrate, with respect, erred by not referring to any factor other than the seriousness of the offending.  The appellants, understandably, do not know whether any other factor was taken into account in the weighing process.

9. I therefore find that ground one has been made out.  I must now determine whether, despite this ground of appeal being in decided in favour of both appellants, the appeal should be dismissed for the reason that no substantial miscarriage of justice has occurred.[42]  I must determine whether each appellant should be afforded a spent conviction.

Ms Ashley Cochrane

[42] Criminal Appeals Act, s 14(2).

1. In respect of Ms Ashley Cochrane, her counsel submitted that there are a number of factors that support the finding that a spent conviction should be granted.  Ms Ashley Cochrane is a relatively young first time offender, being 24 years of age at the time of the offending.  A number of references from members of the community who speak of her positive qualities were presented at the sentencing hearing.[43] 

   [43] ts 9, 11 (22/02/2022).

2. Ms Ashley Cochrane has voluntarily undertaken counselling to address issues.   Counsel submitted that her exposure to the criminal justice system has weighed on her and has been in effect a salutatory lesson that will prove to be a deterrence.[44]

   [44] Appellant Ms Ashley Cochrane's written outline of submissions dated 7 July 2022 [35].

3. Ms Ashley Cochrane is a single mother of a seven-year-old daughter who does not have the benefit of child support payments and therefore relies upon her income from employment.  Counsel submitted that Ms Cochrane's employment in the aged care sector may be at risk as a consequence of her conviction.  At the sentencing hearing a letter was provided to the learned Magistrate stating that a police clearance is required to work in the aged care sector.[45]  I accept that the conviction will have a significant impact on her future employment opportunities in the aged care industry.

   [45] ts 10 (22/02/2022).

4. The prospect that the conviction will have an adverse effect on the appellant's employment does not necessarily mean that it is unjust if she were not relieved of the consequences of the conviction.  The adverse consequences of the appellant's employment prospects are factors to be weighed with all other considerations bearing on whether a spent conviction should be granted.  In respect of Ms Ashley Cochrane and her employment risk, I am mindful that there is a public interest in an employer in the aged care industry being aware of her conduct, given that the conduct is relevant in assessing the appellant's suitability for that type of work.  Ms Ashley Cochrane will provide personal care, often unsupervised, to the most vulnerable members of the community. 

Ms Amber Cochrane

1. In respect of Ms Amber Cochrane, her counsel submitted that there are a number of factors that support the making of a spent conviction.  The appellant is a relatively youthful offender, being 21 years of age at the time of the offending, who is of good character.  A reference was produced at the sentencing hearing which speaks of the appellant's positive qualities.[46]  Ms Amber Cochrane has no significant health issues nor any alcohol or illicit substance issues.[47]  The appellant is employed in the mining industry as an operator.  Counsel submitted that a conviction 'would have a detriment on her progression at the company that she's working for.'[48] Counsel stated that issues may arise if the appellant was seeking more senior positions in the company and may have an immediate impact given that a police clearance is required to be produced each year.[49]  However, the appellant did not produce any evidence to support the contention.  I accept the appellant's contention that the conviction may have some impact on her employment given that a police clearance is required to be produced each year.

   Weighing the factors and assessment

   [46] ts 7 (22/02/2022).

   [47] ts 9 (22/02/2022).

   [48] ts 8 (22/02/2022).

   [49] ts 8 (22/02/2022).

2. After carefully undertaking the weighing of all relevant factors, I find that a spent conviction order should not be granted to Ms Ashley Cochrane and Ms Amber Cochrane.  In making that determination, I have given full weight to all relevant factors to which I have referred.  However, the fact remains that the appellants were both convicted of a serious assault occasioning bodily harm.  The circumstances of the offending involved the appellants jointly assaulting a young woman with a three-year-old child present.  The assault was a most vicious, unprovoked attack.  The two appellants travelled to the residence of the complainant and began the assault which was most appositely described as 'cowardly' by the learned Magistrate.[50]  The violence included clenched fist punching, kneeing, pulling of hair and kicking of the victim.[51]  The consequence was that the complainant suffered injuries, including concussion, that required medical treatment.

   [50] ts 13 (22/02/2022).

   [51] ts 13 (22/02/2022).

3. I am mindful that the employment prospects of the appellants may be affected by the conviction.  In respect of Ms Ashley Cochrane, I am of the view that prospective employers should know about the conviction given that her role will be to care for aged persons.  In respect of Ms Amber Cochrane, whilst the conviction may affect her employment, though that is not known with any certainty, after careful consideration I am of the view that a spent conviction should not be granted.

4. I am satisfied that spent convictions should not be afforded to Ms Ashley Cochrane and Ms Amber Cochrane and therefore, the appeal should be dismissed for the reason that no substantial miscarriage of justice has occurred.

Ground two

1. Ground two contends that the refusal to grant a spent conviction order has resulted in a miscarriage of justice having regard to the appellants' personal circumstances and the adverse consequences of convictions.  The ground may be established if, on the material before the appeal court, the court is satisfied that there would be a miscarriage of justice in failing to grant a spent conviction order.[52]

   [52] Rule v Trudgill [2015] WASC 196 [35].

2. Given that I have determined that there has been no miscarriage of justice in considering ground one, leave is not granted in respect of ground two.

Conclusion

1. Accordingly, leave to appeal is granted on ground one and not granted on ground two and the appeal is dismissed.

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 McGrath

9 NOVEMBER 2022