Corruption and Crime Commission v Stokes - [2013] WASC 282

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CORRUPTION AND CRIME COMMISSION -v- STOKES [2013] WASC 282

CORAM: EM HEENAN J

HEARD: 25 JUNE 2013

DELIVERED : 31 JULY 2013

FILE NO/S: SJA 1006 of 2013

BETWEEN: CORRUPTION AND CRIME COMMISSION
Appellant
AND
GARY WAYNE STOKES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R D YOUNG
File No  :PE 66802 of 2008

Catchwords:

Application by prosecution for leave to appeal against sentence - Spent conviction order - Section 81(2) Criminal Code - Disclosing official secrets - Principles applicable to prosecution appeals against sentences in the Magistrates Courts - Discretionary power to grant spent conviction order - Relevant criteria - Application for leave to adduce further evidence by respondent

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA) s 81
Sentencing Act 1995 (WA) s 45
Public Sector Management Act 1994 (WA)

Result:

Application for leave to adduce further evidence by respondent refused
Leave to appeal against sentence granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M G Nicol
Respondent: Mr M Gunning

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Gunning Young Barristers & Solicitors

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

AR v Wood [2008] WASC 119
Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Carter v Bradbeer [1975] 1 WLR 1204; [1975] 3 All ER 158
Collins v The Queen (1975) HCA 60; (1975) 133 CLR 120
Colwell v State of Western Australia [No 2] [2012] WASCA 196
Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hogue v State of Western Australia [2006] HCA Trans 492
Horn v Butcher [2010] WASCA 67
House v The King (1936) 55 CLR 499
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; 180 ALR 569
Leonard v Pollock [2012] WASCA 108
Lowndes v The Queen (1999) 195 CLR 665
M v O'Neill [2013] WASC 187
Mohamed v Wellinger [2012] WASC 470
North Ganalanja Aboriginal Corporation & The Waanyi People v State of Queensland i[1996] HCA 2; (1996) 185 CLR 595
Ogden Industries Pty Ltd v Lucas [1970] AC 113
R v Fowler [2006] SASC 18
R v JW (2010) 77 NSWLR 7
R v Tognini; R v McGuire [2000] WASCA 31; (2000) 22 WAR 291
Re State of Western Australia; Ex parte Worswick [2005] WASCA 187
Riggall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rinaldi v The State of Western Australia [2007] WASCA 53
Robertson v Lawrence [2008] WASC 111
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scanlon v Bove [2008] WASC 213
Smith v Richardson [2013] WASC 114
Taylor v McLernon [2009] WASC 211
The State of Western Australia v Cunningham [2008] WASCA 240
The State of Western Australia v Munda [2012] WASCA 164
The State of Western Australia v Richards [2008] WASCA 134

EM HEENAN J: Gary Wayne Stokes was tried before his Honour Mr R D Young SM in the Magistrates Court at Perth from 3 to 14 September 2012, on one charge of disclosing official secrets contrary to s 81 of the Criminal Code 1913 (WA). The learned Magistrate reserved his decision at the end of the trial and delivered that decision with reasons on 3 December 2012 convicting the respondent as charged. After the conviction was entered on 3 December 2012, some short submissions in relation to sentencing were made by the prosecution but the matter was adjourned for further submissions to be heard on 13 December. On that date, further submissions were heard and his Honour then gave oral reasons for his decision to impose a fine of $1500.00 and to grant a spent conviction order. As the prosecution expressly declined to seek any order for costs, none was made.
By a notice of appeal dated 22 January 2013, the Corruption and Crime Commission (CCC) seeks leave to appeal from the sentencing decision but only in relation to the spent conviction order. The proposed grounds of appeal are:
1.The learned Magistrate erred by finding that the offence which the respondent was convicted was a minor example of an offence of its type.
2.The learned Magistrate erred by finding that general deterrence was not a significant factor in the sentencing exercise or in the consideration of whether to make a spent conviction order.
3.The learned Magistrate erred by imposing a spent conviction order in circumstances where it was not appropriate to do so.
At the hearing of this application and appeal there was no dispute between the parties as to the facts found by the learned Magistrate. The only issue was whether, on those facts, by granting a spent conviction order the learned Magistrate made an error of law in the exercise of his sentencing discretion which would justify this Court intervening on an appeal and varying the sentencing disposition.
On 20 February 2013 Hall J directed that the application for leave to appeal be referred to the hearing of the appeal. His Honour also then made the usual procedural directions for the preparation for a hearing of the application. At the hearing of the application on 25 June 2013, I granted leave to appeal for reasons which will be more fully explained later, but I reserved my decision on the appeal.

The offence charged

The offence with which the respondent was charged is to be found in Pt III of the Criminal Code which deals with offences against the administration of law and justice and against public authority. Section 81 constitutes Ch XII of the Code and establishes the offence of disclosing official secrets. Subsection 81(2) provides:‑
A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.
This charge was heard and determined summarily pursuant to s 5 of the Criminal Code. Reference was made to this procedure in the course of the sentencing process, because this mode of determination is itself of some relevance in determining the gravity with which the offence was viewed from the outset: see s 5(3) Criminal Code.
The charge against Mr Stokes and an alleged co‑offender, Brian Thomas Burke, was dated 6 November 2008 and is as follows:
Between 12 March 2006 and 24 March 2006 [at] Perth Gregory Wayne Stokes committed the offence of disclosing official secrets in that Brian Thomas Burke counselled or procured Gary Wayne Stokes who, without lawful authority, made an unauthorised disclosure of official information to Brian Thomas Burke, namely a letter from Jim Limerick, Director General, Department of Industry and Resources, to Greg Martin, Director General, Department of Planning and Infrastructure, dated 28 February 2006.
The co‑accused Mr Burke was tried together with the respondent before the learned Magistrate, but the charge against him, in identical terms, was dismissed. However, his Honour concluded that the respondent had made an unauthorised disclosure of official information as defined in s 81(1) of the Criminal Code. His Honour was also satisfied that the official information disclosed had come to the knowledge or possession of the respondent because he was at the material time a public servant and was disclosed by him while still a public servant.

Background circumstances

In the meticulous reasons for decision given by the learned Magistrate after this lengthy trial, all the evidence is reviewed in detail and careful findings have been made in relation to the facts. It is enough here to sketch the basic outlines of the history because the parties to this application and appeal accepted as accurate all the findings made by the learned Magistrate at [3] – [44] of his Honour's reasons for decision.
During the calendar year 2005 a company, Urban Pacific Pty Ltd (Urban Pacific) purchased the freehold of a parcel of land at Whitby near Mundijong within the Shire of Serpentine‑Jarrahdale. At the time of purchase the land was zoned Urban Deferred. The vendor of the land had been Iluka Resources Ltd, which had held the land for some time because it was known to contain deposits of valuable mineral sands which, possibly, might be suitable for commercial mining. The existence of these mineral sands deposits was known and recorded in the Geological Survey of Western Australia (GSWA) maintained by the Department of Mines and Industry, later the Department of Industry and Resources (DOIR). The longstanding policy of the DOIR was for 'sequential land use', which provided that land containing commercially valuable mineral deposits should, if practicable, be mined in order to realise that resource for the State and then, only after its commercial mining potential had been exhausted, it should be restored and rehabilitated before being utilised for some other non‑mining use.
Investigations into the commercial viability of developing the mineral sands deposits at Whitby had previously been undertaken by Iluka but the reports indicated that any such mining operation would, at best, be relatively small and marginal. It seems for that reason Iluka never mined the resource and sold the land.
Urban Pacific, having acquired the Whitby land, was not in the least interested in undertaking or participating in any mining operation of the mineral sands. Its intention was to seek the rezoning of the land to Urban in order to undertake suburban land development and/or subdivision. Consequently, it submitted an application in December 2005 for the Urban Deferred zoning to be lifted and for the land to be rezoned Urban. Urban Pacific obtained its own assessment of the economics of mining or developing the mineral sands deposits on the Whitby land. Their reports indicated that the commercial mining potential of the mineral sands deposits was limited and likely to last only for a relatively short term but that, nonetheless, there were reserves which might yield as much as $134 million over a six‑year mining operation or $104 million over a three‑year operation and which could yield up to $10 million in royalties to the landowner. This potential was recognised by another company, Benmax Ltd, (Benmax) which did wish to undertake mining operations on the Whitby land and proposed that it do so in a joint venture with Urban Pacific for either a three‑year or a six‑year period as the consultants had identified. Nevertheless, the intentions of Urban Pacific were fixed solely on rezoning the land with a view to the future land development and it rejected the advances by Benmax for the latter to join with it in a joint venture for any mining operation.
The local municipality, the Shire of Serpentine‑Jarrahdale, was also strongly opposed to any mining operations being conducted on the Whitby land. In this regard the Shire had the strong backing of the local community who, it is acknowledged on all sides, were also opposed to any such mining operation. The learned Magistrate accepted that, in practical terms, there was virtually no prospect of any mining operation being carried out on the Whitby land if the landowner, Urban Pacific, remained opposed. However, Benmax remained interested in undertaking a mineral sands operation at Whitby and in seeking, despite its earlier rejection, the formation of a joint venture with Urban Pacific for a mining operation on that land.
Any decision for the rezoning of the Whitby land from Urban Deferred to Urban lay within the province of the Department of Planning and Infrastructure (DPI) and the Minister for Planning. However, it was established policy, and embodied in a memorandum of understanding between its predecessor departments and others, that the DPI, the Minister for Planning and the DOIR would consult with one another before any party made a decision affecting use of land with significant mineral resources and would work together to integrate mineral exploration, mining and land use planning. At the time of Urban Pacific's request, DOIR had an objection in place on the basis of its policy of sequential land use.
Naturally enough, Urban Pacific was keen to advance its prospects of success on the request for the rezoning of the Whitby land by all legitimate means. To assist it in this regard, it engaged the services of a firm of town planning consultants and appointed a chief executive officer, Mr Cecchele, to coordinate its efforts. Finally, it engaged a firm of political lobbyists, Julian Grill Consulting, which appointed or engaged Mr Brian Burke as the principal lobbyist in this regard. His role, it seems, was to find out as much as possible about the progress and consideration of the request for rezoning and, in particular, to try and identify the nature and grounds of any opposition to the proposal with a view to allowing Mr David Cecchele and/or Urban Pacific to try and refute such opposition or to advance countervailing arguments in favour of the rezoning. To this end, Mr Burke approached and had meetings with various government officers and departmental heads associated with the consideration of the rezoning request and reported regularly to Mr Cecchele on progress, lack of progress or with suggestions of how opposition might be countered by persuasive argument.
At this point it is necessary to identify some of the personnel involved, in varying degrees, with the consideration for the proposal for the rezoning of the Whitby land. Within the DOIR the director‑general of that department was Dr Jim Limerick. He had three deputy directors, of whom the respondent, Mr Stokes, was the most senior. The respondent had himself had an extensive and responsible role in other parts of the public service before he came to the DOIR and was, on any view, an experienced officer within the department. When Dr Limerick was on leave or away overseas on departmental business it was the respondent who became the acting director‑general of the DOIR and, in that role, had all the powers, responsibilities and discretions of that office as departmental head. The activities of the respondent and all other members of the DOIR were subject to the provisions of the Public Sector Management Act 1994 (WA).
The learned Magistrate also accepted evidence which showed that in dealing with departmental affairs and persons whose interests were affected by the department the director‑general and other senior departmental heads would meet with individuals, delegations or groups of persons, whether from within the public sector or the private sector, with a view to discussing and explaining the issues in hand, departmental policy or applications or other matters then under consideration. This process of dialogue with interested parties was quite common and encouraged. His Honour also accepted similar evidence to the effect that in the course of dealing with persons interested in matters before the DOIR, the head of the department or other senior officers would, at their discretion but subject to formal oversight, supervision and standing requirements occasionally supply copies of reports, correspondence or other relevant papers to such visitors or enquirers so long as in doing so there was no disclosure of confidential information or breach of obligations of confidentiality.
During the period 23 January 2006 to 21 February 2006 Dr Limerick was out of the country on holiday and the respondent was the acting director‑general of the DOIR. In that capacity he met with Mr Julian Grill, the co‑accused Mr Burke and Mr Cecchele on 1 February 2006 to discuss the zoning of the Whitby land and the DOIR's objection to rezoning of the land to urban. Notes were kept of that meeting and they confirm that Mr Stokes held the view that in light of the opposition to mining on the land by Urban Pacific, the doubts about the economic viability of mining and the potential community backlash to mining from the local shire and community, the DOIR would have to remove its objection to the rezoning to Urban. It is sufficient to say that Mr Stokes' view was that it seemed inevitable that no commercial mining operation would take place on the land and, that being the case, that the DPI or its Minister would overrule any objection which the DOIR had to rezoning.
Mr Stokes' comments contained in the notes of the meeting of 1 February 2006 were passed to other officers within the DOIR and Mr Stokes addressed a note to the GSWA stating that it should review the independent report on the mining potential of the Whitby land. At the time GSWA was headed by Dr Tim Griffin, who disagreed with Mr Stokes and reported that, having read the independent consultant's report, he did not see a reason to remove DOIR's objection to the rezoning of the land.
On 17 February 2006 representatives of Benmax, who were still anxious to retain the Whitby land for mining, met with Mr Stokes, Dr Griffin and others from DOIR to press their case for mining and to seek the DOIR's support for the project.
On 22 February 2006 Dr Limerick returned and resumed his role as director‑general of the DOIR. During the process of the handover meeting Mr Stokes advised Dr Limerick of what had occurred in his absence with the Whitby issue. His Honour found that it was agreed then that the DOIR would remove its objection to the rezoning. Mr Stokes thereupon asked for a minute to be prepared for Dr Limerick to send to the DPI and for draft letters to be prepared and then sent to Urban Pacific and Benmax with advice of that decision.
However, Dr Griffin, of the GSWA, still disagreed with the decision and on 23 February 2006 met with Dr Limerick to urge him not to withdraw the DOIR's objection to the rezoning of the Whitby land. He later prepared a memorandum the next day, the point of which was that the Whitby land could support a viable mining operation and that the DOIR should therefore retain its objection to lifting the urban deferred zoning.
At the same time, Benmax wrote to Mr Cecchele and to Dr Limerick advising that it believed that Whitby could be successfully mined and then rehabilitated for later urban development. In this letter Benmax estimated the value of minerals at around $134 million, of which Urban Pacific would receive royalties of $10 million as owners of the project. The letter to Dr Limerick set out two sets of figures, one being estimates over a three‑year period ($104 million) and the other over six years ($134 million). Each letter stated that a six‑year mining operation would be preferable but that a three‑year project was still viable.
On 24 February 2006 Mr Stokes and Mr Grill spoke by telephone. Mr Stokes advised that Dr Limerick had returned but that the DOIR would not change the decision to remove its objection, although it might delay it by a week. On 27 February 2006 Mr Stokes and Mr Burke spoke by telephone, when Mr Stokes advised that the DOIR had decided to maintain an objection. Mr Stokes said that he thought the DOIR was handling the issue in a 'gutless way' and that Mr Freeman, a geologist within the GSWA, had 'got to' Dr Griffin, who 'got to' Dr Limerick and advised of what would be likely to follow. However, he expressed his view that the DOIR understood that it was likely that the Minister for Planning would approve rezoning the land and that it was unfortunate that the DOIR would lose credibility in having the decision imposed on it.
The next development leads to the focus of this case. On 28 February 2006 Dr Limerick wrote to Mr Martin of the DPI setting out the DOIR's position in relation to the proposed rezoning. As the learned Magistrate held, Dr Limerick's letter did not expressly object to the rezoning. It set out the objections to mining held by Urban Pacific and the Shire of Serpentine‑Jarrahdale. It also contained details of the proposal from Benmax to mine the land, including setting out verbatim the figures provided by Benmax to DOIR on 23 February 2006. Ultimately, Dr Limerick requested a briefing from Mr Martin on the 'planning context … in the sense of the urgency or otherwise of the need to develop urban land in this area'.

At this trial Dr Limerick explained that he was conscious of the obstacles that stood in the way of the mining of Whitby. DOIR had no decision‑making power in relation to zoning, but he needed more information in order to decide the extent to which he would 'stand on the hose'. By that his Honour said that Dr Limerick meant that, if there was an urgent need for residential land in Serpentine‑Jarrahdale, it was likely that any attempt to mine the land would be doomed to fail and there would be no point in DOIR objecting to rezoning. However, if there was no such urgency, then DOIR might maintain an objection in the hope that Urban Pacific would resume negotiations with Benmax.
By mid‑March 2006 Mr Cecchele had learned that the DPI had received a letter from the DOIR which did not expressly object to rezoning but, in effect, amounted to an objection and that the DOIR were seeking from the DPI some view as to whether some time may be available to allow Benmax to continue negotiations with Urban Pacific. In due course, Mr Cecchele got in touch with Mr Burke and Mr Grill and asked for advice and assistance. Mr Burke then approached the DOIR in the hope of obtaining a copy of the letter from the DOIR to the DPI, or at least a briefing as to its contents or effect. This led him to discover that Mr Stokes was then in China but was accessible by email. He thereupon emailed Mr Stokes, asking whether there was any possibility of obtaining a copy of the DOIR response. He received a reply the same day from Mr Stokes saying that he would see what he could do. Also that afternoon Mr Burke asked a statutory planner at the DPI for a copy of the letter and received a reply some days later saying that because the correspondence was on an 'active' file it would need to be released by a Freedom of Information request.
Meanwhile, on 22 March 2006, Mr Stokes emailed Dr Griffin, asking for a copy of 'the letter we sent to DPI re Whitby' and the next day Dr Griffin sent an attachment with the letter to Mr Stokes and also advised him that the department had been asked to provide briefing notes for a meeting between Urban Pacific and the Minister for Resources, Mr John Bowler, the next week, which Dr Limerick was to attend. On the same day Mr Stokes emailed Mr Burke, attaching the letter with a short message: 'Please treat as confidential, but here is a copy of our response to DPI'. Mr Burke replied, expressing thanks and saying that the letter would be treated with the strictest confidence. It was this disclosure by Mr Stokes to Mr Burke by email on 23 March 2006 of a copy of the letter from the DOIR to the DPI concerning the former's position in relation to the proposed rezoning which constituted the offence of which Mr Stokes has been convicted.
While the evidence at the trial ranged far more widely than here set out, there was no real controversy over any of the facts or events so far described. The major issues raised on behalf of Mr Stokes, and eventually determined adversely to him, were two. First, was the letter from Dr Limerick of the DOIR to his counterpart, Mr Gregory Martin, the director‑general of the DPI 'confidential' in the sense referred to in s 81 of the Criminal Code or was it no more than an assembly of details and information which by then were well‑known to all the parties concerned, including Urban Pacific and Benmax. The case for the prosecution on this point, ultimately accepted by his Honour, included the propositions that the letter contained confidential financial information and, perhaps more importantly, disclosed attitudes of thought and opinion by one government department to another on matters of government policy touching an important decision then under consideration by the DPI and/or its Minister.
The second major issue was whether or not the letter, if confidential, was disclosed without lawful authority. It was accepted that the head of the department, Dr Limerick, who had sent the letter, had, by virtue of his position and his control and supervision of the process from the point of view of the DOIR, the discretion and power to disclose the contents of the letter if he thought the circumstances warranted disclosure. From this it was argued for Mr Stokes that, as deputy director and as former acting director‑general when dealing with the earlier decision (later revoked) to withdraw objection to the rezoning of the Whitby land, he had the same or equivalent authority to disclose the letter to interested parties if he believed that the circumstances warranted this. It was further contended on his behalf that, because of his greater involvement in the issue than Dr Limerick, he was better placed to make a decision about such a disclosure than Dr Limerick.
However, as indicated, this point was also determined adversely to Mr Stokes, with his Honour deciding that the only person who had authority to disclose the letter was Dr Limerick himself and that he had not done so, nor been asked by Mr Stokes to do so. It is hardly surprising that this conclusion was reached having regard to the authorship of the letter and the fact that it was written after Dr Limerick had resumed his position as director‑general of the DOIR. There was also ample evidence to establish that Mr Stokes, Mr Burke and Mr Cecchele all knew and appreciated that the source and nature of disclosure of this information should not be revealed because of potential consequences for the respondent if it was discovered that it had been provided by him. In addition, there was no evidence of any prior relationship between Mr Burke and Mr Stokes, nor of any benefit held out to Mr Stokes should he comply with Mr Burke's request for the provision of a copy of the DOIR letter.
In the events that followed, the DPI granted the request for the rezoning of the Whitby land from Urban Deferred to Urban and did not take any steps to require further delay to allow the possibility of commercial mining to be explored further or for Benmax to renew negotiations with Urban Pacific. These events have tended to confirm that Mr Stokes' initial assessment of the inevitability of the rezoning and the impracticability of insisting on preservation of the Urban Deferred zoning in order to encourage the possibility of mining was correct, but this does not justify the unauthorised distribution of confidential information by a public servant, as he then was.
In the aftermath, an investigator appointed under the Public Sector Management Act 1994 conducted an investigation of the matter. Mr Stokes' conduct was determined to be a breach of discipline and a contravention of s 9(b) of the Public Sector Management Act and a contravention of the WA Public Sector Code of Ethics. The investigator determined that Mr Stokes' conduct was a minor breach of discipline as defined in s 80 of that Act and that he be notified of those findings, and that he be reprimanded in accordance with s 84(1)(a) of the Act. That eventuated and Mr Stokes received a written reprimand. However, he was not then removed from his position or dismissed or demoted. Towards the end of his five‑year contractual term he sought reappointment as chief executive officer but the director‑general of the Department of Premier and Cabinet, acting at the direction of the Minister for Public Sector Management, advised him that he would not be reappointed. His contract of employment and employment within the WA public sector therefore ceased on 8 January 2008, upon that notification from the director‑general of the Department of Premier and Cabinet. He subsequently sought and obtained a position in the private sector.

Reasons for sentence

In the submissions made at the sentencing hearing on 13 December 2012 counsel for the respondent submitted that Mr Stokes believed that lifting the Urban Deferred zoning would be the correct decision in the circumstances and that it would inevitably be imposed by the DPI as, indeed, it was. Counsel stressed that there was no gain obtained or any benefit sought for Mr Stokes in what had occurred and that the disclosure of the document did not in any way affect the outcome of the application. His counsel submitted that his then current position in a public listed company would be in jeopardy in view of the conviction. Counsel submitted that the prosecution accepted that a fine would be an appropriate disposition as a penalty but submitted that a spent conviction order should be made as well in view of the actual and likely impact of the proceedings upon Mr Stokes' career.
Senior counsel for the prosecution acknowledged that the offence was towards the lower end of seriousness for an offence of this type and that this was reflected by the fact that it was dealt with in the summary jurisdiction. Counsel submitted that the disclosure occurred by an officer of the public service at a very high level and related to correspondence between one director‑general and another. He also stressed that the disclosure of the correspondence tended to reveal controversy and debate within government over whether or not the inducements for mining of this land should stand.
His Honour's attention was drawn specifically to the principles said to apply to the granting of a spent conviction order including the decision of R v Tognini; R v McGuire [2000] WASCA 31; (2000) 22 WAR 291 and the then recent examination of that and other authorities by Edelman J in Mohamed v Wellinger [2012] WASC 470. Counsel for the prosecution submitted that in this particular case the need for general deterrence outweighed anything which might be said in favour of making a spent conviction order. He further submitted that the mitigation which might be found in Mr Stokes' previous creditable record, history and holding of responsible positions within the public service and the absence of any previous conviction was diminished by his attitude towards this offence, in particular by his dubious evidence that he understood that he was entitled to disclose the letter.
In his decision when imposing sentence his Honour correctly identified the potential seriousness of the offence as established by s 81 Criminal Code and said that while it was potentially serious, it was 'far from one of the most serious offences in the criminal calendar' and that he regarded this case as being a minor example of an offence of this type. In estimating the seriousness of the particular case his Honour observed that, without wishing to derogate from his findings, the letter which had been disclosed was not highly confidential and that the subject matter from the point of view of the DOIR was of little importance in the overall context. His Honour observed that he was dealing with a small scale mining project which had no realistic prospects of getting off the ground and that he was satisfied by the evidence that the director‑general of the DOIR maintaining his department's position in promoting the sequential land use policy without there being any real prospect of the Whitby land ever being mined was never going to prevail.
As for general deterrence, his Honour accepted that that was a relevant consideration when determining sentence but observed that in this particular case he had reservations in accepting that a significant penalty would achieve much at all by way of deterrence because the range of persons likely to be deterred was very limited and that there was little need for any future personal deterrence. This is one of the specific observations of his Honour which the appellant now submits discloses error. After examining the likely effects of general deterrence upon penalty in more detail, his Honour reaffirmed his earlier view that in this case general deterrence was of limited importance.
In considering other issues, his Honour observed that he was satisfied that Mr Stokes had nothing to gain personally by the disclosure of the letter and that there was no suggestion of official corruption and, for those reasons, this offence should be regarded as being towards the lower end of the scale even when dealt with in the summary jurisdiction. His Honour was satisfied that the respondent had an excellent work history, both within the public sector and in the private sector, and that the offence had happened some six years before. His Honour noted that there had been no remorse demonstrated either by a plea of guilty or otherwise, but that, nevertheless, the offence could be dealt with adequately by a relatively modest financial penalty which led him to impose the fine of $1,500.
When dealing with the application for a spent conviction order his Honour again specifically referred to cases such as R v Tognini; R v McGuire, which he treated as holding that such a disposition should only be in the case of an exceptional character. He then turned specifically to the set of statutory criteria contained in s 45 of the Sentencing Act 1995 (WA). Applying these criteria, he expressed himself satisfied that Mr Stokes was unlikely to commit the offence again, or any offence for that matter. His Honour then observed that the offence was not trivial, although it was a minor example of an offence of that type. He expressed himself to be satisfied that Mr Stokes was of previous good character and then addressed the question of whether or not he should be relieved immediately of the adverse effect of the conviction. His Honour then returned to the issue of the significance, in the particular case, of general deterrence and observed that he did not consider that making a spent conviction order would induce or disinhibit public servants to behave in a less ethical fashion. His Honour then concluded that he was satisfied that the conviction had the potential to have an adverse impact upon Mr Stokes, repeated that he was not satisfied that the need for general deterrence was such as to make a spent conviction order inappropriate and, therefore, granted the spent conviction order.

Prosecution appeals against sentence

Section 8(1)(a)(iii) of the Criminal Appeals Act expressly recognises that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision on grounds that the court of summary jurisdiction imposed a sentence that was inadequate. This power and the manner in which it may be exercised is also set out in s 41 which, by s 41(4)(b) expressly provides that the appeal court must not take into account the fact that its decision may mean that the person is again sentenced for the offence. These provisions and similar provisions relating to prosecution appeals to the Court of Appeal against a sentence imposed after conviction on indictment in s 24 and s 31 of the Criminal Appeals Act have produced their own considerable jurisprudence.
In The State of Western Australia v Cunningham [2008] WASCA 240 [21] – [22] Miller JA said, with the agreement of Steytler P and Buss JA:
Prosecution appeals are no longer subject to the 'double jeopardy' principle (for a statement of which see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at 340 – 341). Section 41(4)(b) of the Criminal Appeals Act 2004 now provides that the double jeopardy principle is no longer an irrelevant consideration when the appeal court is determining the sentence to be imposed on a State appeal: The State of Western Australia v Wallam [2008] WASCA 117, at [29] (McLure JA) and at [54] (Miller JA). This section applies to all cases in which the sentence appealed from dates after 27 April 2008: The Sate of Western Australia v Richards [2008] WASCA 134. See also The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 at [20] (Steytler P).
The result is that the appeal in this matter falls to be decided in accordance with the general principles that relate to the hearing of appeals against sentence: Wallam at [66] ‑ [67] (Miller JA) and see House v The King (1936) 55 CLR 499 at 50 ‑ 505 (Dixon, Evatt and McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. In short, some error must be shown in the exercise of the discretion exercised by the sentencing judge, either by a wrong principle being employed, some extraneous or irrelevant matter guiding or affecting the sentencing judge, a mistake as to the facts, failure to take into account some material consideration, or, alternatively, the sentence is unreasonable or plainly unjust.
However, a majority of a five‑member Court of Appeal specially assembled for the purpose departed from the view expressed in The State of Western Australia v Wallam by concluding that the amendments to s 41(4) of the Criminal Appeals Act which came into operation on 27 April 2008 were of a substantive and not a procedural character and, therefore, should have no retrospective operation – The State of Western Australia v Richards [2008] WASCA 134 [41] – [42].
The history of controversy arising about the application of the principles applying under s 41(4)(b) was also examined extensively in The State of Western Australia v Munda [2012] WASCA 164, especially by McLure P at [2] ‑ [40] which examined the approach to be taken in the light of the subsequent decision of the High Court in Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36 and of an earlier decision of the New South Wales Court of Criminal Appeal in R v JW (2010) 77 NSWLR 7. This important examination of the authorities included reference by the learned President to the concept of 'manifest inadequacy' in sentencing as a species of implied error. That examination led McLure P at [41] to observe:
Against the background of Green and Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573, I would construe s 31(4) and s 41(4) [of the Criminal Appeals Act] as giving rise to the following propositions (without intending to be exhaustive):
(1)this court's discretion under s 31(4) to allow an appeal is enlivened if the appellant (State or offender) establishes that the sentence is erroneously lenient or excessive (that is, the sentencing judge made an appealable error and the court is of the opinion that the sentencing judge should have imposed a different sentence);
(2)in deciding whether or not to allow an appeal and in any re‑sentencing the court may, subject to s 41(4)(b), take into account any relevant matter that has occurred between the time of sentencing and when the appeal is heard;
(3)s 41(4)(b) excludes the double jeopardy principle in the exercise of the discretion under s 31(4) and in re‑sentencing. That is, the mere fact that the offender may again be sentenced for the offence is an irrelevant consideration. However, relevant actions, events and consequences associated with the serving of the sentence under appeal or the manner of the conduct of the appeal or otherwise, such as the residual discretionary considerations, are not excluded; and
(4)in a State appeal against sentence, the court has a residual discretion to decline to allow an appeal against a sentence that is erroneously lenient at the time of the hearing of the appeal. Save where parity considerations arise, the residual discretion is only likely to be exercised if the error has not resulted in a manifestly inadequate sentence.
It is necessary to apply and follow these principles in the determination of the present case. In recognising that, however, I note expressly that no submission was made in the present case that the residual discretion referred to by the learned President arising under s 41(4)(b) was enlivened or, if it was, that it was relevant to or should be exercised in the present case.

Leave to appeal

Subsection 7(2) of the Criminal Appeals Act 2004 provides that leave to appeal on each proposed ground of appeal must be granted before an appeal may be determined and that for leave to be granted an evaluation needs to be made of each proposed ground in order to determine whether or not it has a reasonable prospect of success. This requirement has been examined in many cases and it is settled that for leave to be granted it is necessary for an applicant to show that the proposed ground of appeal has a rational and logical prospect of success or, in other words, a real prospect of success: Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. See also Re State of Western Australia; Ex parte Worswick [2005] WASCA 187 and Horn v Butcher [2010] WASCA 67. Applying this test, I was satisfied that leave should be granted for the applicant to appeal on each of the proposed grounds and I gave leave to do so in the course of the hearing.

Application to adduce further evidence

At the commencement of the hearing before me on 25 June 2013, counsel for Mr Stokes sought leave to adduce further evidence in the form of an affidavit of Mr Stokes sworn 20 June 2013, which deposed to the potential for his current employment as managing director of a mining company to be reviewed and possibly jeopardised if the appeal were allowed and the spent conviction order were to be set aside. This affidavit annexed a letter from the executive chairman of the mining company setting out his view that the respondent's current employment would be jeopardised in that event. There was no affidavit from the author of that letter to that effect and when this was pointed out, counsel for Mr Stokes offered to call the chairman to give oral evidence and be available for cross‑examination. This was an undesirable course not only because of a lack of notice to the appellant but also because if this course were to be allowed there would not, without an adjournment and attendant disruption, be any opportunity for the appellant to investigate or address the evidence or adduce evidence to refute or put in context these proposed assertions.
The general rule is that an appeal court must decide an appeal on the evidence and material which were before the court below; s 39(1) Criminal Appeals Act 2004. However, this court has broad power to admit other evidence pursuant to s 40(1)(e) Criminal Appeals Act as recognised in Colwell v State of Western Australia[No 2] [2012] WASCA 196 [28] – [29]. In that case, the Court of Appeal explained that in determining whether additional evidence should be admitted the general test which should be applied is whether, had the evidence been before the sentencing Judge, a different sentence should have been imposed. In Colwell [30] the Court of Appeal set out how, ordinarily, evidence will not be admitted of events which have occurred since the sentence was imposed. The exception is that evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but were either not known to the sentencing Judge or not properly appreciated at that time.
At common law there is a distinction between 'new' and 'fresh' evidence which has often been explained and defined. A recent example of this is Rinaldi v The State of Western Australia [2007] WASCA 53 [78]. As was said in Leonard v Pollock [2012] WASCA 108 [46]:
A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 [116]. Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial, or in this case a trial: see CDJ v VAJ[111]; Shilkin v Taylor [2011] WASCA 255 [66]–[67].
While it may be contended that the proposed evidence, including the evidence from the executive chairman of the mining company if put in admissible form, might be 'fresh' in the sense that it speaks to present events and prospects rather than circumstances which existed at the date of Mr Stokes' trial, I do not consider that that proposition should be accepted. The proposed evidence really amounts to nothing more than an assertion that Mr Stokes' current employment may be placed in jeopardy if the spent conviction order were set aside. There was evidence and submissions to that effect at the sentencing hearing and it was considered by the learned Magistrate. Nothing appears to have changed in that regard. This is not an occasion in which I consider the interests of justice require the admission of the other evidence and for that reason I refused the application during the course of the hearing.

Grounds of appeal

In the written and oral submissions in support of the appeal counsel for the appellant submitted that the learned Magistrate was in error in regarding the offence to be a minor example of an offence of its type and that this amounted to a wrong characterisation of the seriousness of the offence. Counsel for the appellant submitted that the offence was neither minor nor at the lowest end of the scale of seriousness having regard to the fact that the respondent was a senior public servant, given considerable trust and confidence in his capacity as the most senior deputy director‑general of the DOIR, and was easily able to secure access to the confidential letter by making a request of his subordinate, Dr Griffin. The submission continued that the letter disclosed was not a routine interdepartmental letter but a letter under the hand of one director‑general to another – in other words, a letter from the highest officer in one government department to the highest officer in another.
While acknowledging that the particular project under consideration was a mining project of small scale, counsel for the appellant submitted that the gravity of the offence lay not in the size of the operation but in the breach of the duty of non‑disclosure by a senior public servant resulting in the potential conferral of an advantage upon one party to a dispute. By disclosing a document related to an issue currently under consideration, the respondent created a potential for the government process to be undermined. It was then submitted that this error in the characterisation of the seriousness of the offence directly affected his Honour's consideration of whether or not to make a spent conviction order.
It should immediately be noted that his Honour did not conclude that the offence was at the lowest end of the scale of seriousness for that type of offence rather than it was at the lower end. As for the potential effect of the disclosure, his Honour examined that topic in detail and concluded that there was nothing to suggest that it had or could have had in any way affected the outcome, although his Honour concluded that it was likely to cause disquiet and a feeling of resentment by Benmax.
The appellant then submitted that the learned Magistrate was in error by applying little or no weight to the principle of general deterrence. Counsel stressed that general deterrence is a factor relevant to the discretion of whether or not to make a spent conviction order: Mohamed v Welinger [33].
There can be no doubt that the learned Magistrate was aware of the importance of the factor of general deterrence when sentencing this offender and when considering whether or not to make a spent conviction order. His Honour addressed this topic specifically and examined its significance in this context at length. His Honour concluded, for reasons which he expressed in a rational and detailed manner, that in the particular circumstances general deterrence was not a particularly significant issue. It cannot, therefore, be successfully maintained that his Honour did not address or evaluate this issue. Rather, the appellant's submission concludes that his Honour erred in placing insufficient weight on that factor.
Such an approach, even if demonstrated, would not amount to an error of law or to vitiate the exercise of a discretion of the nature contained in s 45 of the Sentencing Act unless the evaluation was so disproportionate or incongruous as to reveal some form of latent error by the judicial officer: The State of Western Australia v Munda [17] – [18] and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. No such contention was advanced in the appellant's written submissions, although in the course of argument counsel for the appellant accepted that it would be necessary to establish this in order to demonstrate such a latent error and contended that the characterisation by the learned Magistrate was to that degree erroneous. I do not consider that this proposition can be accepted. It was for the learned Magistrate to evaluate the significance of general deterrence as a relevant factor in the particular circumstances and his Honour did this. His Honour was aware of the importance of this factor in the general run of cases and expressly acknowledged the authorities which establish this. With the importance of this factor in mind, he then turned to examine the features of the particular case which, as already said, led him to the conclusion that general deterrence was significantly less important as a factor in these circumstances than in others. I do not consider that any error has been demonstrated in his Honour's approach, nor that the conclusion is one which bespeaks a latent or otherwise unidentifiable error.
The third ground of appeal advanced the proposition that the spent conviction order which was imposed was inappropriate and that, in light of the gravity of this offence, the importance of general deterrence and the lack of evidence that the consequences of a conviction would actually affect the respondent, 'it was not a sound exercise of discretion for such an order to be made in favour of the respondent in this case' and that 'consequently the order should be set aside'. I have already indicated that I do not consider that it can be demonstrated that his Honour was in error in misjudging or estimating the seriousness of this particular offence, nor of the potential significance in the particular case of the need for general deterrence. To contend that it was not a sound exercise of the discretion to make a spent conviction order is not to contend that there was any error of law involved in the discretionary judgment to impose a spent conviction order. For that to be established it is necessary to satisfy this court that there was an actual or latent error in the exercise of the discretion or that the exercise of the discretion was so incongruous or disproportionate as to indicate a latent or otherwise unidentifiable error. Again counsel for the appellant at the hearing made submissions to the effect that this degree of error had been established but I do not consider that they should be accepted.

Spent conviction orders

If the statutory conditions specified by s 45(1) of the Sentencing Act 1995 are established, the court has the power to grant a spent conviction order but it remains a question of discretion as to whether or not it should be exercised: Taylor v McLernon [2009] WASC 211; R v Tognini 297 and Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].
In this case before the learned Magistrate and at the hearing of this appeal the parties proceeded on the basis that, as Murray J observed in R v Tognini, a spent conviction order is to be regarded as unusual and only to be exercised sparingly – a proposition endorsed in subsequent decisions of the Court of Appeal: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 514 – 515 [14] – [16] and Riggall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, 226 – 227 [72].
In Hogue v State of Western Australia [2006] HCA Trans 492 an applicant for special leave to appeal sought to argue that the decision in R v Tognini [24] and [27] wrongly treated the power to grant a spent conviction order as of an 'exceptional character' and one that should be 'sparingly exercised'. Special leave to appeal was refused in that case with Gummow J (with whom Heydon J agreed) observing that they were not satisfied that there were sufficient prospects of success in demonstrating error in what was said in R v Tognini or in the application of s 45 to that case to warrant the grant of special leave. However, that is not an authoritative determination of the position, nor should it be regarded as a considered view of the High Court because so much depends upon the particular features and potential wider significance, or lack of significance, of the individual application for special leave to appeal. It has been established in North Ganalanja Aboriginal Corporation & The Waanye People v State of Queensland [1996] HCA 2; (1996) 185 CLR 595, 643 (McHugh J) and Collins v The Queen (1975) HCA 60; (1975) 133 CLR 120 that decisions on special leave applications do not create any binding precedent.
In AR v Wood [2008] WASC 119 I observed that there is nothing in s 45 or elsewhere of the Sentencing Act to indicate any such constraint upon the discretion to grant a spent conviction order and that to place such a limitation on the statutory power may be to introduce an unnecessary and impermissible gloss on the statutory language – McKechnie J appears to have taken a similar view in M v O'Neill [2013] WASC 187 [24] but his Honour considered that a single Judge is bound to follow such decisions of the Full Court or Court of Appeal. Such conformity was also regarded as inescapable by Johnson J in Scanlon v Bove [2008] WASC 213, Jenkins J in Robertson v Lawrence [2008] WASC 111 and Simmonds J in Smith v Richardson [2013] WASC 114.
This issue did not arise for determination in the present case as the respondent did not submit that any approach other than that outlined in R v Tognini should be taken to the application of s 45 of the Sentencing Act. Accordingly, any possibility of revisiting that question can wait for a later occasion if it ever arises but, if it does, the notable difference in the effect of a precedent, even of a Court of Appeal, dealing with the construction of a statutory text would need to be recognised and considered: see Carter v Bradbeer [1975] 1 WLR 1204 at 1206; [1975] 3 All ER 158 (Lord Diplock) and Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615, 572 – 573 (Gummow J). See also Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 408 – 409 (Windeyer J). Speaking for the Privy Council in Ogden Industries Pty Ltd v Lucas [1970] AC 113 Lord Upjohn said:
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
That statement was approved in Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; 180 ALR 569 and in R v Fowler [2006] SASC 18 [56]. With all respect, it seems to me that this proposition is even stronger when the judicial decision dealing with a statutory provision is not one which attempts to distil or express the statutory meaning but rather deals with the circumstances in which a specific statutory power is available for exercise when the limitation proposed is not to be found in the statutory language.
Although this point was not raised in argument, and I have determined the case without regard to it, the question of the breadth of the discretion might otherwise have had some potential significance. When the exercise of a discretion or power is challenged on the ground that the decision is outside the boundaries of any tolerable exercise of that discretion or power, then the breadth of the discretion or the power will need attention. Obviously, the wider or less constrained the discretion or power, the more difficult it will be to establish that the particular exercise is beyond its permitted boundary. Conversely, the more constrained or limited the discretion or power the more readily might it be shown that a particular exercise is beyond its permissible limit. In this case, the basis upon which the argument was conducted by both the appellant and the respondent concedes a limitation on the discretion referred to in Tognini.
It is well established that an appellate court is not entitled to intervene in an appeal against sentence merely because it would have exercised the sentencing discretion differently than the sentencing judicial officer. Nevertheless, an error in the exercise of the sentencing discretion may be established by inference if the result is unreasonable or unjust or the sentence is manifestly excessive: Lowndes v The Queen (1999) 195 CLR 665, 617 – 672; Dinsdale v The Queen (325). In any sentencing appeal an appellate court may intervene if it is apparent that the court below acted upon a wrong principle or took into account extraneous or irrelevant matters or was mistaken about the facts or did not take relevant matters into account: Dinsdale (324, 329 – 340). However, it is equally recognised that an appellate court must fully allow for the discretionary character of the sentencing function and must accord to the sentencing Judge a wide measure of latitude: Postiglione v The Queen (1997) 187 CLR 295, 336 ‑ 337 (Kirby J). Nevertheless, where an error in the exercise of a sentencing discretion cannot be precisely identified but the sentence is nevertheless unreasonable or plainly unjust, the appellate court may infer that the sentencing discretion has miscarried: House v The King (1936) 55 CLR 499, 505.
The learned Magistrate was faced with the need to make a discretionary judgment as to whether or not to impose a spent conviction order. His Honour correctly and comprehensively addressed the statutory criteria contained in s 45 of the Sentencing Act which prescribe the exercise of this statutory discretion. His Honour addressed the principles which had emerged from cases dealing with the exercise of this discretion and applied them conventionally. Ultimately, the weight to be placed on those particular factors, or any combination of them, was a matter for his Honour. There is nothing to suggest that his Honour's discretion was not exercised in accordance with the law, still less to suggest that it was exercised in such a fashion or to such a degree as to indicate latent or otherwise unidentified error.
Accordingly, although this is a case in which I am satisfied that leave to appeal should be granted, the final disposition must be that the appeal be dismissed.