CVD v Director of Public Prosecutions
[2024] WASC 211
•10 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CVD -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 211
CORAM: WHITBY J
HEARD: 5 JUNE 2024
DELIVERED : 10 JUNE 2024
FILE NO/S: SJA 1011 of 2024
BETWEEN: CVD
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1011 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 55266 of 2023
Catchwords:
Spent conviction order - Whether appropriate - New evidence not before magistrate - Miscarriage of justice - Turns on own fact
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Result:
Leave to appeal granted
Appeal allowed
Spent conviction order made
Category: B
Representation:
Counsel:
| Appellant | : | Ms D Oosthuizen |
| Respondent | : | Ms M L Wong |
Solicitors:
| Appellant | : | Belinda Burke Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
A v Price [2011] WASC 121
Brewer v Bayens [2002] WASCA 271
HJT v Reichelt [2017] WASC 301
House v R [1936] HCA 40; (1936) 55 CLR 499
Papas v Godwin [2010] WASC 226
R v Tognini [2000] WASCA 31
Samuels v The State of Western Australia [2005] WASCA 193
Sharpe v Vinning [2020] WASCA 79
Turner v Kinghorn [2013] WASC 129
WHITBY J:
Introduction
The appellant is a registered nurse who pleaded guilty to stealing a medication card containing 10 Ritalin tablets from a coworker's locker at Perth Children's Hospital (PCH) on 10 March 2023.
At a hearing before Chief Magistrate Heath on 10 January 2024, the appellant was convicted under s 378 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and fined $500. The learned chief magistrate refused to make a spent conviction order.
The appellant appeals the decision of the learned chief magistrate, namely the decision not to grant a spent conviction, on the grounds of a 'miscarriage of justice'.
For the following reasons, I grant leave to appeal and allow the appeal.
Grounds of appeal
The appellant appeals the order of the learned chief magistrate on the ground that there has been a miscarriage of justice.
Factual background of the offence
On 10 March 2023, the appellant was working as a nurse at PCH.
At approximately 6:46 am, the victim placed her bag into an unlocked staff-allocated locker. At approximately 6:59 am, the appellant entered the locker room. Shortly after, the victim returned and placed her jacket in the locker. The appellant placed her backpack next to the victim's locker and left the room.
At approximately 7:02 am, the appellant returned to the locker room and started looking through the victim's bag. The appellant was disrupted by another staff member and shut the locker. The appellant then opened the victim's locker a second time, however, was once again interrupted by a staff member and shut the locker before leaving the room.
Within one minute, the appellant returned and opened the locker for a third time, and for the third time was disrupted by another staff member. The appellant shut the locker and left the room.
Five minutes later the appellant returned to the victim's locker and opened it. The appellant removed a white/silver card containing 10 Ritalin tablets from the victim's bag and placed it in her own bag. The appellant gathered her belongings and left the room. The entire incident was captured on CCTV.
The hearing before the learned magistrate on 10 January 2024
At the hearing before the learned chief magistrate, Counsel for the appellant made the following submissions in mitigation:[1]
[1] Magistrates Court proceeding 10 January 2024 ts 4 - 5.
(1)the appellant was 42 years old and had practiced as a registered nurse since 2012;
(2)the appellant had no prior criminal history and had character references from her parents, friends and family who attest to her prior good character;
(3)the appellant was deeply remorseful;
(4)the appellant was an emergency department nurse, who, in 2022, was involved in a highly publicised coronial inquest into the tragic death of a child at PCH. In the coronial inquest findings, the Deputy State Coroner noted that the appellant was sympathetic to the ongoing pressures the emergency department staff faced and didn't make any adverse comments about any of the staff, including the appellant. The coroner also noted that no staff member who had been involved in the matter on any level had been left untouched by it. The appellant's mother described the devastating impact this has had on the appellant's mental health and wellbeing;
(5)the last few years changed the appellant as a person and that her out-of-character conduct in stealing from the victim was a momentary lapse in judgment due to the stress that she was experiencing;
(6)the appellant is receiving ongoing psychiatric treatment to assist with the trauma associated with the incident and the subsequent coronial inquest;
(7)since the offence, the appellant has resigned from her role as an emergency department nurse with PCH;
(8)a criminal conviction would have a direct bearing upon the appellant's nursing career and registration. The appellant had received a reprimand from her workplace for the conduct which was the subject of the charge;
(9)the appellant is required under s 130 of the Health Practitioner Regulation National Law(WA) Act 2010 (National Law) to disclose a criminal history, including any spent convictions to the National Nursery and Midwifery Board (Board);
(10)the appellant had already disclosed the charge, and the Board is aware of the conviction. As a result of a criminal conviction, the appellant will likely need to reassure the Board that she's fit to continue practicing as a nurse, and that she doesn't pose a risk to the public. The Board may see it fit to take regulatory action to restrict the appellant's registration, or they may refer her conviction to the appropriate entity for further consideration; and
(11)the court ought be satisfied that the appellant is unlikely to reoffend and that she ought be immediately relieved of the adverse effects of a criminal conviction.
The learned chief magistrate made the following sentencing remarks:[2]
You have pleaded guilty at what I accept is an early opportunity in relation to this charge, and you're entitled to the full benefit of that early plea. It is extremely disappointing that a woman of your age with no record and with a dedicated history of employment and who can produce character references of this type should have offended in this way.
It would seem that, indeed, as has been submitted, the stress of the coronial inquest and those matters had a great impact upon you. In examining the hearing of the facts of the matter, it can't be said to have been a spur-of-the-moment decision, given that the facts reveal that there were four times that you went to the locker, were disturbed but continued. But I suspect you would have been well aware that CCTV covered the area and so made the offending all the more inexplicable.
I'm told that you are receiving ongoing treatment in relation to the stress that you've suffered, and that combined with your lack of record and the references mean that I can be satisfied both that you're of prior good character and unlikely to offend again. Given the value of the item that was stolen, of course, the only option is in a penalty by way of fine. Given that it was a theft within your workplace, that is of concern because it breaches the degree of trust that goes between your fellow employees.
And, of course, the fact that they were drugs that were taken again is of concern for someone who's employed as a nurse. But taking all those matters into account, I think that a fine of $500 is appropriate, with costs of $272.70. There is then the issue of the spent conviction order application. As I've said, I accept that you're of prior good record and unlikely to offend again. The issue is whether or not I should exercise a discretion to relieve you immediately of the consequences of the conviction.
And that's a balancing exercise between what is best for your ability to move forward from this matter and the general benefit to the community and other employers of being able to be aware of this matter. I accept that the offence has occurred in the context of impact on your mental health as a result of the stress and that, clearly, your employability will be affected by a conviction. And from your perspective, you would be best served by the conviction being spent.
As has been outlined, you're already required and have declared this charge to the nursing registration authorities, and so a spent conviction order would not hide that; however, it's also important to take into account that the theft did involve drugs, and it did occur in an employment context from a fellow employee. In those circumstances, weighing up the matters, again, considering the Supreme Court authorities that these matters should be – or the discretion should be exercised rarely, I'm not prepared to exercise the discretion in your favour, finding that the need for the community to be aware of the conviction outweighs your circumstances in this case.
[2] Magistrates Court proceedings 10 January 2024 ts 5 - 6.
Legislative regime
This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act).
The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[3]
[3] CA Act s 6(f) and s 7(1).
Section 6(g) of the CA Act states that 'decision' of a court of summary jurisdiction includes 'a refusal to make an order that might be made as a result of a conviction.'
The learned magistrate's refusal to make a spent conviction order falls squarely within the scope of s 6(g) of the CA Act.
Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made.
In this instance, the appellant is appealing solely on ground there has been a miscarriage of justice.[4]
[4] CA Act s 8(1)(b).
The appellant must obtain leave to appeal.[5] If leave to appeal is not granted, the appeal is taken to have been dismissed.[6] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[7]
[5] CA Act s 9(1).
[6] CA Act s 9(3).
[7] Samuels v The State of Western Australia [2005] WASCA 193.
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing magistrate has made an error in exercising his or her discretion.[8]
[8] House v R [1936] HCA 40; (1936) 55 CLR 499.
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.[9]
[9] CA Act s 14(2).
Application to adduce further evidence
Pursuant to s 40(1)(e) of the CA Act, an appeal court may admit any other evidence. When an appeal is against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard: s 14(5) of the CA Act.
The appellant seeks to admit, into evidence in the appeal, the affidavit of Donne Oosthuizen sworn on 4 June 2024 (Oosthuizen Affidavit) which attaches the following documents:
(1)letter dated 16 January 2024 from the appellant giving notice of her conviction to the Australian Health Practitioner Regulation Agency (AHPRA);
(2)letter dated 21 March 2024 from AHPRA enclosing: Section 161 of National Law, copy of notification x 2, Practice Information Form;
(3)email correspondence from the appellant's lawyer to the appellant's workplace dated 17 January 2024 (enclosing letter on behalf of the appellant to her workplace disclosing her conviction).
The affidavit and its attachments go to the protection of the interest of the public by reason of the legislative regimes which requires reporting of the appellant's conviction to the relevant regulatory authorities.
In determining whether a failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may in its discretion, consider further information gathered for the appeal which goes to matters which occurred after the sentencing. The Oosthuizen Affidavit provides such information. The respondent does not object to the affidavit being admitted into evidence in the appeal.
I therefore, grant leave for the appellant to adduce further evidence in the appeal, that being the Oosthuizen Affidavit.
Legal principles regarding spent conviction orders
The power to make a spent conviction order is sourced in s 39 (2)(a) ‑ (d) of the Sentencing Act 1995 (WA) (Sentencing Act).
The preconditions for the exercise of power to make a spent conviction are set out in s 45(1) of the Sentencing Act. Section 45(1) of the Sentencing Act 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.
'Offence' is not defined in the Sentencing Act but taken to mean:
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.[10]
[10] Sharpe v Vinning [2020] WASCA 79 [100].
The court can only grant a spent conviction if the pre-conditions in s 45(1) of the Sentencing Act are satisfied.[11] Even if the preconditions are met, the court has a power but not a duty, to make a spent conviction. In R v Tognini, Murray J said:[12]
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 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 [27].
[11] Papas v Godwin [2010] WASC 226 [12].
[12] R v Tognini [2000] WASCA 31 [24].
The discretion to grant a spent conviction should only be exercised in exceptional circumstances. Applicants for a spent conviction face a significant hurdle in demonstrating that the court's discretion should be favourably exercised.[13]
[13] Brewer v Bayens [2002] WASCA 271 [16].
The appeal hearing on the 5 June 2024
Counsel for the appellant submits, that having regard to the further evidence before this court on appeal, the decision of learned chief magistrate not to grant the appellant a spent conviction occasioned a miscarriage of justice.
The appellant submits that had the learned chief magistrate had the benefit of considering the further evidence, a spent conviction order should have been granted.
The respondent contends that this is not a clear case where a spent conviction order ought be granted.
Having considered the submissions of counsel for the appellant and counsel for the respondent, the circumstances of the offending and the further evidence adduced in the appeal, I find that a miscarriage of justice would occur if the appellant were not granted a spent conviction order. I now set out the reasons for so finding.
Miscarriage of justice if the appellant not granted a spent conviction order
It is uncontentious that the appellant meets the requirements of s 45 of the Spent Convictions Act 1988 (WA) such as to enliven the power to make a spent conviction; the learned chief magistrate found that the appellant was of prior good character and unlikely to reoffend.
The issue on appeal is whether, having regard to the further evidence adduced by the appellant, a miscarriage of justice would occur if the court did not exercise its discretion to grant a spent conviction order.
In considering whether there is a particular circumstance that makes it desirable for the appellant to be removed of the adverse effect of a conviction, the court may consider whether:[14]
(1)not granting a spent conviction order would be of particular impediment to the offender following a particular career or undertaking particular employment;
(2)not granting a spent conviction order would create exceptional hardship to the offender and their family;
(3)relieving the offender of the adverse effects of the conviction will aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community; and/or
(4)there is no pressing public interest in continued access to the fact of conviction in securing the protection of the community.
[14] R v Tognini [2000] WASCA 31 [28].
Counsel for the appellant submitted that:
(1)the appellant is a nurse and by not making the conviction spent, the appellant may face impediment in future employment scenarios where a police clearance was requested;
(2)given the appellant is a single mother of two children and the primary income earner, any impediment to her future employment would be productive of exceptional familial hardship;
(3)given the appellant's recent mental health struggles, making the conviction spent would aid in her rehabilitation in a way that best accords with the interests of the community; and
(4)there is no pressing public interest in continued access to the fact of conviction in securing the protection of the community.
The respondent submits that there are no adverse consequences to the appellant that could be avoided by declaring the conviction spent as due to the media reporting of the appellant's conviction, the fact of her conviction is already within the public sphere.
I turn first to consider whether the fact that the appellant's conviction has been reported in the public domain means that there are no adverse consequences to the appellant that could be avoided by granting her a spent conviction.
The appellant's conviction has been reported in the media through no fault of her own - it is simply because she was involved in a widely reported incident and subsequent coronial inquest, that her conviction for this offence was of interest to the media. While the public may become aware of the appellant's conviction by searching the internet, it is not inevitable that a member of the public would do so. It is a very different proposition for the appellant to have to disclose her conviction, for example, to lending institutions, if she travels abroad, seeks to rent a house, obtain professional licenses or applies for insurance.
I therefore, consider that there are adverse consequences that could be avoided by declaring the appellant's conviction spent.
I am also satisfied that not granting the appellant a spent conviction order would create exceptional hardship to the appellant her family.
That then leaves me to consider whether there is no pressing public interest in continued access to the fact of the appellant's conviction in securing the protection of the community, and whether granting a spent conviction order will aid the appellant's rehabilitation in a way that is in the best interests of the community.
The evidence before the learned chief magistrate, when considered in conjunction with the further evidence adduced by the appellant, establishes that:
(1)if the appellant choses to continue a career in nursing, she must disclose her conviction to the Board. In A v Price,[15] Sleight C set out the requirement of disclosure of spent convictions where the National Law applies:
Part 3 div 3 of the Spent Convictions Act 1988 (WA) provides that it is unlawful for employers (s 18), principals (s 19, s 20), organisations of employees and employers (s 21), authorities that confer qualifications (s 22) and employment agencies (s 23) to discriminate against a person on the ground of a spent conviction. Section 26 in div 4 provides that where a written law of this State permits or allows a person to consider, take into account or determine good character, fitness, propriety or other like attributes, the person shall not have regard to spent convictions of the individual, the subject of the character assessment (however, sch 3 to the Act sets out numerous exceptions to pt 3 of the Act). (For a discussion of these provisions, see Riggall v The State of Western Australia [2008] WASCA 89; (2008) 37 WAR 211 per Wheeler JA). Included in these exceptions are persons employed or seconded or who are being considered for employment or secondment by the Director General of the Department of Health under the Health Act 1911 (WA) and Hospitals and Health Services Act 1927 (WA). However, no exception applies for employees of private health operators.
However, an exemption exists under the provisions of the Health Practitioner Regulation National Law (WA) Act 2010 (WA). Section 77 of the Act provides that an individual may apply to the National Board for registration in the health profession for which the board is established. The application must include a declaration to disclose the applicant's criminal history. Section 77(4) provides that the requirement to provide a declaration concerning the applicant's criminal history applies, notwithstanding any criminal history law which prevents or does not require the disclosure of convictions (s 5 of the Act).
Similarly, there are provisions in the Act which entitle the National Board to check an applicant's criminal history and to obtain a copy of the criminal history of the applicant from a police commissioner notwithstanding a spent conviction order (s 79 and s 135 of the Act).
Accordingly, even if a spent conviction had been made by the magistrate, the National Board for registration of a health profession (which includes a registered nurse) would still be able to inquire as to the criminal history of the person before granting registration. However, this disclosure of the criminal history would not apply to a potential employer.[16]
(2)the Board has decided to investigate the appellant under s 160 of the National Law, and should they deem it necessary, they will take necessary measures to protect the public under s 178(2)(c) of the National Law regardless of whether or not an order is made for the conviction to be spent;[17]
(3)the Board may decide to refer the matter to the State Administrative Tribunal (SAT) for further consideration and any decision of SAT may be published and available to the public;
(4)under s 206 of the National Law, the Board must give written notice to the appellant's employer if it decides to take health, conduct or performance action against the appellant at the end of the investigation;
(5)the Medicines and Poisons Act 2014 (WA) (Medicines Act) and the Medicines and Poisons Regulations 2016 (WA) (Medicines Regulations) make provision for - (1) nurses dealing with scheduled medicines to keep records and failure to do so is an offence (s 23 of the Medicines Act), (2) secure storage of scheduled medicines (s 97 of the Medicines Regulations); and (3) the Medicines and Poisons Regulations Branch to suspend the authority conferred upon a nurse in relation to all schedule medicines (s 29(1)(b) of the Medicines Act); and
(6)section 145 of the Health Services Act 1016 (WA), and s 80A of the Public Sector Management Act 1994 (WA), requires employees in the public sector to notify employers of serious offences - the appellant has notified her employer in accordance with these requirements.[18]
[15] A v Price [2011] WASC 121 [15] - [18].
[16] Cited with approval in HJT v Reichelt [2017] WASC 301 [33].
[17] Oosthuizen Affidavit [10].
[18] Oosthuizen Affidavit pages 31 - 34.
I am satisfied that the legal requirement for the appellant to notify the Board and her employers of her conviction address any concern that a conviction may be hidden from her employers. Further, I am satisfied that the Board would protect the public in considering whether the appellant could remain a nurse,[19] and the Medicines Act and Medicines Regulations provides safeguards for the storage and dispensing of scheduled medicines by a nurse.
[19] Turner v Kinghorn [2013] WASC 129.
Whilst the appellant's offending occurred in her workplace, the appellant did not steal medication in the course of her employment as a nurse. The appellant stole from a co-worker's locker - not from her employer. In my view, the theft of a coworker's medication could have taken place regardless of the special position afforded to the appellant as a nurse.
Given the appellant is unlikely to re-offend and the appellant's mental health issues arising from the incident and the coronial inquest, I consider that, having regard to the appellant's rehabilitation, it is in her and the community's interest to relieve her of the adverse effect of the conviction.
In all of the circumstances, I am satisfied that a failure to grant a spent conviction order would amount to a miscarriage of justice. It is appropriate that the appellant be granted a spent conviction.
In light of s 14(3) Spent Convictions Act 1988 (WA), and to preserve the benefit of the spent conviction order, these reasons have been anonymised.
Conclusion
I make the following orders:
(1)Leave to appeal granted.
(2)Appellant's application to adduce further evidence granted.
(3)Appeal allowed.
(4)Spent conviction order made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RP
Associate to the Honourable Justice Whitby
10 JUNE 2024
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