GMB v The Commissioner of Police
[2024] WADC 111
•20 DECEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GMB -v- THE COMMISSIONER OF POLICE [2024] WADC 111
CORAM: TOVEY DCJ
HEARD: 26 APRIL 2024
DELIVERED : 20 DECEMBER 2024
FILE NO/S: CIVO 44 of 2024
BETWEEN: GMB
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for Spent Conviction Order - Turns on own facts
Legislation:
Spent Convictions Act 1988 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr E A Heywood |
Solicitors:
| Applicant | : | Not applicable |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
DC v The Commissioner of Police [2020] WASCA 69
WHW v Commissioner of Police [2014] WASCA 153
TOVEY DCJ:
On 19 December 2008, after trial heard from 24 November 2008 to 19 December 2008, the applicant was convicted of 35 offences of stealing money received with a direction, and 4 offences of gaining a benefit by fraud.
On 20 February 2009 the applicant was sentenced to a total effective sentence of 5 years' imprisonment for those offences. The sentence was backdated to commence on 19 December 2008.
For offences involving sums of money up to $1,000, terms of 6 months' imprisonment were imposed. This related to counts 5, 9, 19, 32, 34, 36 and 37.
For offences involving sums of money between $1,000 and $5,000, terms of 9 months' imprisonment were imposed. This related to counts 2, 4, 6, 8, 10, 12, 13, 14, 15, 17, 18, 20, 24, 25, 33, 35, 38, 39 and 40.
For offences involving sums of money between $5,000 and $10,000, terms of 12 months' imprisonment were imposed. This related to counts 1, 3, 7, 11, 26 and 27.
For offences involving sums of money between $10,000 and $30,000, terms of 18 months' imprisonment were imposed. This related to counts 16, 21, 22, 29 and 30.
For offences involving sums of money in the range $50,000 to $60,000, terms of 30 months' imprisonment were imposed. This related to counts 23 and 28.
The sentences imposed on counts 23 and 28 were ordered to be served cumulatively on each other. The sentences imposed on all other counts were ordered to be served concurrently with each other and concurrently with the sentences imposed on counts 23 and 28.
The applicant has made an application for these convictions to be spent pursuant to s 6(1) of the Spent Convictions Act 1988 (WA) (the Act).
For reasons which follow, I dismiss the application.
Statutory framework
The power of this court to declare a 'serious conviction' to be spent is conferred by s 6(1) of the Act.
Relevantly, by s 9(a) of the Act, a serious conviction means a conviction in respect of which the sentence imposed is imprisonment for more than one year.
Further, by s 10(2) of the Act, relevantly, if a person who has incurred a 'lesser conviction' that is not spent incurs a conviction for which a sentence referred to in s 9 of the Act is imposed, the 'lesser conviction' becomes a 'serious conviction' for the purposes of the Act.
The convictions the subject of the application, therefore, are 'serious convictions' within the meaning of the Act.
By s 6(2) of the Act, an application for a spent conviction may not be made by a person in respect of a conviction:
(a)until the prescribed period for that conviction has expired; or
(b)if a judge has refused to make an order under that subsection in respect of the same conviction within the preceding 2 years.
Section 11 of the Act defines what is meant by the 'prescribed period'.
It is common ground that the 'prescribed period', as required by s 11(1)(a) and s 11(3) of the Act, had passed when the application for a spent conviction order was made on 15 March 2024.
The application is, therefore, competent in that the prescribed period after which an application can be made has expired.
Merits of the application
In considering the merits of an application for an order declaring that a serious conviction is spent, s 6(4) of the Act provides:
(4)The making of an order under subsection (1) is at the discretion of the judge and that discretion shall be exercised having regard to -
(a)the length and kind of sentence imposed in respect of the conviction; and
(b)the length of time since the conviction was incurred; and
(c)whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business or in a particular employment; and
(d)all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application; and
(e)the nature and seriousness of the offence; and
(f)the circumstances surrounding the commission of the offence; and
(g)whether there is any public interest to be served in not making an order.
The factors outlined in s 6(4) of the Act are factors which the court is bound to take into account.
Further, the court must also have regard to the underlying rehabilitative objective of the Act.[1] In that regard, the objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the stigma associated with a conviction may be removed, or ameliorated, after the passage of time required by the Act.[2]
The length and kind of sentence imposed, the nature and seriousness of the offences, and the circumstances surrounding the commission of the offences (s 6(4)(a)(e)(f))
[1] DC v The Commissioner of Police [2020] WASCA 69 [28].
[2] WHW v Commissioner of Police [2014] WASCA 153 [66] ‑ [67].
As I have noted, the applicant was found guilty after trial of 35 offences of stealing money received with a direction, and 4 offences of gaining a benefit by fraud.
A total effective sentence of 5 years' imprisonment was imposed.
The offending occurred over an approximate 15‑month period during 2004 to 2005.
The relevant facts for the offences as found by the sentencing judge included the following.[3]
[3] ts 19 - ts 24, 20 February 2009 Sentencing Transcript.
The applicant approached Tuart College, a TAFE college, with a proposal to conduct an introductory course in investing in shares and the stock market. The college accepted the proposal and advertised the course as being for beginner to intermediate level students. The applicant, who worked for a group of stockbrokers, conducted one or two 10-week courses a year.
There were 15 victims who were enrolled in one of the courses conducted from March to May 2004, June to August 2004 and June to July 2005.
At each of these courses, the applicant proposed that, as part of the course, students could provide the applicant with funds to be pooled and invested in blue chip shares.
The applicant provided the students with a list of so-called blue chip companies and each understood that it would be in these companies that shares would be purchased with the pool of funds. The rationale for the students to participate was to follow the progress of those shares over the duration of the course and thereby gain an understanding of how the share market worked. It was left to the applicant's discretion as to which blue chip shares the pool of funds was to be invested in.
It was the understanding generally that any profits made from the investments would be distributed pro rata to the amount invested by any individual. There was also the expectation that the progress of the pooled funds invested would be discussed at each of the following week's classes. That did not seem to have transpired. Against that background, it was implicit, if not expressed by those victims who attended the applicant's courses and provided funds to the applicant, that their money would be invested by the applicant in blue chip shares.
One victim was not a participant in any of the Tuart College courses, but had heard of the opportunity to invest through a friend who attended one of the courses.
In many cases, the applicant 'guaranteed' the funds provided to him for investment.
On occasions, the applicant solicited funds by describing an investment opportunity.
In fact, the applicant used the invested funds for his own purposes and to make high‑risk investments.
There were occasions where victims wanted a return of their funds for other purposes, and in response, the applicant discouraged a return, telling the victim their funds were safe where it was. On occasions, the applicant used money received from one victim to repay in full, or in part, an earlier investor, or to pay interest to other investors. This deception created the impression that the pooled funds were generating expected returns.
On or about 1 August 2005, the applicant began to advise the victims that their money was totally lost. The applicant made admissions about his conduct to a Corruption and Crime Commission investigation in 2005.
The sum of money received by the applicant ranged from $500 (counts 34 and 36) to $60,000 (count 28) and to $70,000 (counts 22 and 23 taken together). The total amount taken was about $330,000. Some victims received reimbursement from funds received by the applicant from later investors.
The applicant subsequently declared bankruptcy and so no restitution was made.
The sentencing judge found the offending a serious example of these types of offences.
In that regard, the sentencing judge found that, save for one victim, there was a degree of trust reposed in the applicant as he was the victims' teacher in the Tuart College stock market course. That trust was enhanced by the applicant having indicated to his students he had expertise and experience with a firm of stockbrokers and employment in relation to the stock market.
The sentencing judge took the view that the duration of the offending of over 15 months and the continuing deception of the victims was indicative of a callous disregard for their interests. The sentencing judge found the callous and predatory nature of the offending elevated the seriousness of the offending.
The sentencing judge also found the conduct engaged in by the applicant, namely the use of the victim's money, was calculated substantially to support the applicant's own precarious or parlous financial circumstances.
The seriousness of the offending is a factor counting against an order that the convictions be spent.
The length of time since the convictions were incurred (s 6(4)(b))
As I have indicated, the convictions were recorded on 19 December 2008.
It follows that at the date of the hearing, a period of over 15 years has elapsed since the convictions were recorded.
The circumstances of the applicant at the time of the commission of the offences and the circumstances of the applicant at the time of the application (s 6(4)(d))
At the time of the offending, the applicant was 48 to 49 years of age. He had a relatively minor prior criminal history at the time.
In his affidavit affirmed 15 March 2024, the applicant deposed he had been employed at a Perth stockbroking company for 5 years until 2003.
He then engaged in offering independent stockbroking services. He also presented investment courses.
The applicant deposed that eight of the attendees at the courses placed money with him on the understanding that he would directly invest the money in the stock market, and he received a total of about $550,000 from the course attendees.
The applicant deposed that he invested only about 65% of the monies in the stock market, and he intermittently repaid 100% of the particular attendees' money placements, at their request, together with investment dealing profits.
The applicant further deposed that in early 2005 he was unable to financially sustain the operation, and was without personal funds sufficient to make amends for deficits owing to the course attendees.
The applicant further deposed he approached each of the people and advised them that, in aggregate, they would lose about $175,000.
The applicant is currently 68 years of age.
At the time of the application he was in receipt of Centrelink benefits.
Rehabilitation
The applicant deposed that his current behaviour is much more responsible and he adopts a risk-averse bias to his actions.[4]
[4] Affidavit affirmed 15 March 2024, par 5.
He deposed that he embarked on 'tremendously educational‑worthy rehabilitation courses' 'during the period 2009 to 2012', which would correspond to when the applicant was in custody.[5]
[5] Affidavit affirmed 15 March 2024, par 5.
He also deposed to have undertaken a cognitive behaviour therapy course. In that regard, the applicant deposed the course undertaken has been accepted by him[6]
as a very valuable tool. It guides me how to recognise and change unproductive and high‑risk thoughts, feelings and behaviours. I trust in the safeguarding associated principles and processes which I will continue to successfully implement. I believe that my 2012 parole release goes to considerations of remorse, re-offending risk and rehabilitation.
[6] Affidavit affirmed 15 March 2024, par 5.
At the sentencing on 20 February 2009, there was a psychological report which indicated that the risk of re-offending was considered low on the basis that the applicant had no prior record of offending.[7]
[7] ts 6, 20 February 2009 Sentencing Transcript.
However, as also discussed at the sentencing, that assessment was predicated on the basis the author of that psychological report had no knowledge of events that occurred in South Africa. The conduct in South Africa was described in a report dated 17 March 2006 of a consultant psychiatrist which was also before the sentencing judge. That report indicated that in early 1990 the applicant described inappropriately investing investor's money in high‑risk ventures which led to the loss of their funds. This occurred before the applicant migrated to Australia. There was no suggestion of the applicant having been charged or convicted in respect of those matters. The consultant psychiatrist concluded the applicant was at risk of re-offending unless he was able to address the underlying causes of his behaviour.[8]
[8] ts 5, ts 30 ‑ ts 31, 20 February 2009 Sentencing Transcript.
The relevance of rehabilitation to an application for a spent conviction was considered in WHW v Commissioner of Police. In that case, the court stated:[9]
… whether and to what extent the particular applicant has rehabilitated himself or herself is also one of the 'circumstances of the applicant … at the time of the application' within the meaning of s 6(4)(d) of the Act. Allied with the question of rehabilitation is the question of whether and to what extent the applicant poses a risk of reoffending.
[9] WHW v Commissioner of Police [72].
The applicant has not re-offended in a similar way to the offences to which the application relates.
However, no information has been provided by the applicant as to the content of the 'educational-worthy rehabilitation courses' undertaken, or the content of the cognitive behaviour therapy course undertaken.
There is no information as to any rehabilitation courses undertaken by the applicant since his release from custody, if any.
Further, there is no material provided in support of the application from any person with expertise as to the current risk of re‑offending, such as from a psychologist.
Given the above matters, there is an insufficient basis for me to make a finding as to the current risk of re-offending of the applicant.
Whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business in in a particular employment (s 6(4)(e))
The applicant deposed that since his release on parole, in 2012, he has been employed at various companies on a short‑term casual basis.
He deposed the absence of convictions on his Police Clearance would increase his chances of being offered volunteering and employment positions.
As to his attempts to volunteer, the applicant deposed that when he produced the current Police Clearance, it has always resulted in the position not being offered to him, with the statement, sometimes, that his criminal history on the Police Clearance is the reason.
The applicant also deposed he has obtained a Statement of Attainment towards the Certificate III in Individual Support and that could enable placement and consequent employment as a Support Worker for the elderly or infirm.[10]
[10] Affidavit affirmed 15 March 2024, par 9.
I accept that the applicant's criminal history will make it more difficult to obtain employment.
This is a factor pointing towards the application being granted.
Whether there is any public interest to be served in not making an order (s 6(4)(g))
Counsel for the respondent submitted that there is a significant public interest in prospective employers and volunteer organisations having the capacity to identify prospective employers or volunteers who have committed fraud-based offences and have not demonstrated their rehabilitation.
Each case must be determined on its merits, having regard to all relevant facts and circumstances.[11]
[11] DC v The Commissioner of Police [63] ‑ [64].
I find that, in this case, where the evidence as to rehabilitation is limited to a broad statement by the applicant of his responsible behaviour, risk‑averse bias to his actions and courses undertaken, without supporting evidence, there is a public interest to be served in not making the declaration sought.
That is particularly so in circumstances where the applicant's possible employment includes caring for the elderly or inform, who may be especially vulnerable to offending of the type to which the applicant has previously engaged.
Conclusion on the merits
The matters required to be considered by s 6(4) of the Act point in different directions.
The offending was serious. A considerable period of time has passed since the convictions without the applicant having been convicted of any similar offences.
However, in the absence of any psychological evidence, and in circumstances where the applicant has not provided any further information of what courses or therapy indicative of rehabilitation he has undertaken, I am not able to make a finding as to the applicant's risk of re‑offending.
When weighing all matters, and taking into account the rehabilitative objectives of the Act, I am of the view that my discretion ought not be exercised so as to grant the application.
Conclusion and orders
For the above reasons, I would not grant the application for an order declaring the convictions be spent in the exercise of my discretion.
The application is therefore dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SF
Associate to Judge Tovey
20 DECEMBER 2024
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