Conomy v Maden
[2015] WASC 179 (S)
•2 JUNE 2015
CONOMY -v- MADEN [2015] WASC 179 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 179 (S) | |
| Case No: | SJA:1065/2014 | ON THE PAPERS | |
| Coram: | MARTINO J | 2/06/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Spent conviction order not made | ||
| B | |||
| PDF Version |
| Parties: | JERROD JAMES CONOMY CHRISTOPHER MADEN |
Catchwords: | Criminal law Appeal against conviction and sentence Stalking Spent conviction order |
Legislation: | Sentencing Act 1995 (WA), s 45 |
Case References: | Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 R v Tognini (2000) 22 WAR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
CHRISTOPHER MADEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M WHEELER
File No : MH 3334 of 2013
Catchwords:
Criminal law - Appeal against conviction and sentence - Stalking - Spent conviction order
Legislation:
Sentencing Act 1995 (WA), s 45
Result:
Spent conviction order not made
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D E Leigh
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
R v Tognini (2000) 22 WAR 291
1 MARTINO J: On Friday 29 May 2015, I delivered my decision dismissing Mr Conomy's appeal against conviction and sentence: Conomy v Maden [2015] WASC 179. Mr Conomy attended the hearing at which I published my reasons. He made submissions as to the costs sought by the respondent, but did not seek to make any further submissions.
2 At 12.22 pm that day, Mr Conomy sent an email to my Associate in which he said:
I forgot to raise something important today regarding a spent conviction application. I was only made aware of spent conviction applications after my conviction for the stalking charge hence the reason I did not apply at the time of sentencing. Given that the breach of VRO charge was heard at a later date I then successfully applied for a spent conviction. Given that the two charges were both a result of the same matter I had hoped to have that spent conviction also apply to the stalking charge. My submissions supporting the application would be as per my submissions in sentencing for the breach trial.
My career as an Instrument and Controls Engineer/Designer has already been affected and will continue to be affected by having this on my record.
I apologise for not raising this today but I was literally stunned by the decision.
Could you possibly put this application before Justice Martino.
3 The breach trial to which Mr Conomy referred was his conviction for breaching a restraining order. Mr Conomy had been granted a spent conviction order in that prosecution by the Magistrate who sentenced him on that matter. Mr Conomy appealed against his conviction and sentence on that matter. I dismissed his appeal: Conomy v Maden [2015] WASC 178.
4 On WA Day, Monday 1 June 2015, at 2.06 pm, Mr Conomy sent an email to my Associate in which he said:
I just wanted to follow up the email below sent last week. Is there any update on this request. It's a very crucial matter for me because i've been reluctant to apply for many jobs to avoid the possibility of a background check being done and revealing a very off-putting record given what the publics understanding of stalking is. It will pretty much turn off any employer who has several people to choose from and I don't feel that would be just at all. The primary court Magistrate had absolutely no doubt that I had no intention of intimidating [the complainant] and he also found no flaws in my mental health. It was one bad chapter of my life and I feel that by only having a spent conviction for the breach of VRO offence would defeat the purpose of the spent conviction since I'm currently left with the stalking conviction which literally took place days before the breach charge. I was not found of any wrong doing prior to [the complainant's] VRO application.
Once again I apologise for forgetting to raise this at the Judgement hearing.
5 For the following reasons I refuse to make a spent conviction order. As I am not re-sentencing Mr Conomy, he is not required under s 14 of the Sentencing Act 1995 (WA)to be present for the delivery of my decision.
6 First, although Mr Conomy appealed against the sentence that the learned Magistrate imposed, he did not include in his appeal that the learned Magistrate should have made a spent conviction order.
7 Secondly, Mr Conomy did not raise the failure of the Magistrate to make a spent conviction order in his 87-page outline of submissions. Nor did he submit in the hearing of the appeal that the Magistrate should have made a spent conviction or that I should do so.
8 Thirdly, I do not consider that a spent conviction order should be granted. Section 45(1) of the Sentencing Act provides:
45. Spent conviction order, making and effect of
(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.
11 It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied.
…
14 The courts have emphasised that a spent conviction order under s 39 of the Sentencing Act should only be made in a very special case. In the leading authority, R v Tognini (2000) 22 WAR 291, Murray J (with whom Malcolm CJ and Wallwork J agreed) said (at 296 - 297):
"Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions 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. 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."
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.
11 Further, a spent conviction can only be made in a very special case. The power should be exercised sparingly. While Mr Conomy feels he will have difficulty in obtaining employment by reason of the conviction, it appears from his email of 1 June 2015 that he has not yet applied for many jobs. In my view, if a prospective employer were to consider that Mr Conomy's conviction were to be relevant to his employment, then the prospective employer should not be denied that information.
1Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510.
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