Harvey v Director of Public Prosecutions
[2024] WASC 66
•20 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HARVEY -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 66
CORAM: FORRESTER J
HEARD: 16 FEBRUARY 2024
DELIVERED : 20 MARCH 2024
FILE NO/S: SJA 1089 of 2023
BETWEEN: SAMANTHA CANDICE HARVEY
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE AYLING
File Number : PE 19362/2022
Catchwords:
Appeal against refusal of spent conviction order - Application for extension of time to appeal - Application to adduce additional evidence - Whether failure to grant spent conviction resulted in a miscarriage of justice
Legislation:
Criminal CodeAct Compilation Act 1913 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Result:
Application for an extension of time dismissed
Application to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms J Solliss |
| Respondent | : | Ms K Cook |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Hussaini v Szolnoski [2013] WASC 64
JAD v McRae [2022] WASC 220
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
M v Seidner [2013] WASC 395
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
Introduction
On 12 August 2022, the appellant was sentenced in the Perth Magistrates Court after pleading guilty to one charge of criminal damage or destruction of property, contrary to s 444(1)(b) of the Criminal CodeAct Compilation Act 1913 (WA) (Criminal Code).
The appellant was sentenced to a 9-month community-based order with supervision and programme requirements as well as 20 hours' community service work. Her application for a spent conviction order was refused.
The appellant seeks leave to appeal against the refusal of a spent conviction order. An extension of time is required.
For the reasons which follow, leave to appeal should be granted but the appeal dismissed.
Sentencing
23 June 2022 hearing
The appellant was represented by duty counsel at the hearing on 23 June 2022.
The appellant pleaded guilty and the facts were read as follows:
On Tuesday, 1 February 2022 at 8.20pm, the accused was at [address redacted]. The accused used a knife to scrape the passenger side body panel from headlight to taillight of a grey Audi TT, the property of [the complainant]. This resulted in the paint being scraped away down to the metal of the vehicle.
Part of the offence was captured by a dash camera which was recording inside the damaged vehicle at the time of the incident. The accused was arrested by police on Wednesday, 4 May and participated in an electronic record of interview. The accused made full admissions.[1]
[1] Transcript, WA Police v Samantha Candice Harvey, Magistrates Court of Western Australia, 23 June 2022, 2 (ts 23 June 2022).
Counsel for the appellant told the court that on the day of the incident, the appellant's partner's children were with the appellant's partner's ex‑partner and their stepfather, the complainant. The appellant reported the complainant had been verbally abusive to one of the children who had then called the appellant's partner. The appellant and her partner drove to the house to see the child; the appellant remained in the car whilst her partner went inside. The appellant then 'lost control' and used one of her partner's work tools to scratch the victim's car.[2]
[2] ts 23 June 2023, 3.
The appellant's counsel informed the court that the appellant was employed as a disability support worker and had an income so was in a position to pay a fine.[3]
[3] ts 23 June 2023, 4.
It was submitted that the appellant had been diagnosed with post‑traumatic stress disorder and attention-deficit/hyperactivity disorder (ADHD), but the latter was medicated and under control, and was not an issue.[4]
[4] ts 23 June 2022, 3.
The appellant provided two references to the primary court. Neither was addressed to the court nor made reference to the charge. Counsel stated the appellant was prepared to come back to court if necessary and provide references that were more specific for the purposes of the spent conviction application.[5]
[5] ts 23 June 2023, 4.
Counsel for the appellant sought a spent conviction order, submitting that the appellant was 32 years of age and had no prior convictions, and thus could be found to be a person of prior good character.[6]
[6] ts 23 June 2023, 4.
The learned magistrate adjourned the sentencing to 12 August 2022 to allow for the details of the restitution amount to be finalised and to provide for an opportunity for mediation between the appellant and victim to occur.
Victim-Offender Mediation Report dated 11 August 2022
The author of the report stated the appellant had said she had requested the mediation process because she realised she had made a major error in judgment and had overreacted. After a short discussion with the writer regarding her reaction, the appellant acknowledged she could have and should have handled the situation differently. She said she now understood it was wrong and wanted to take full responsibility for her behaviour and the damage caused.[7]
[7] Victim-Offender Mediation report dated 11 August 2022, 1 (Mediation Report).
The appellant told the author of the report she would like to offer an apology and did so in written format dated 16 July 2022. She also indicated she wished to consider making good the out‑of‑pocket expenses incurred by the complainant although, as it transpired, he did not have any (the insurer had indicated it intended to seek the full cost from the appellant).
When contacted by the report author via telephone, the complainant was initially willing to accept the appellant's apology, if it was genuine, saying he saw it as an 'olive branch' but indicated that to date the appellant had shown little remorse and had spread rumours about him on social media.[8]
[8] Mediation Report, 2.
However, after the complainant received the appellant's apology letter, he wrote to the author of the mediation report attaching four social media posts purportedly made by the appellant which read:
(1)'How was y'all day going? My boss gives me a day off and I get arrested [laughing-crying emoji] ok but extreme ADHD and I made it to 32…..THIS MUST BE SOME KIND OF RECORD [two indiscernible emojis]' (4 May);
Comments on that post from the same account as it was posted from read:
'I've been charged with criminal damage for keying a car that belonged to someone who gets their kicks from abusing and bullying children and basically anyone who isn't a white man. I'm ok, I am home now and I'll see that weak useless sack of shit in court in a few weeks [smiley face emoji]' and 'It was really stupid to do because now he can play the victim. But also people who know me know I wouldn't do something like that for no good reason so I don't really need to justify it.'
(2)'Lmfao when child abusers are trying to push for me to respray their whole shitty car I damaged but I only have to pay 1200 [laughing-crying emoji] #worthit' (12 May);
(3)'Y'all. It's court day [laughing-crying emoji] I need like 50 cones bc it's kinda funny. I need to BEHAVE and impress the (most likely) shit old wh!te m@n and hope he doesn't abuse kids [laughing-crying emoji] [fire emoji]' (9 June);
(4)'I don't have to pay a fuckin cent to that cunt who's car I knifed up bc he's a child abuser [laughing emoji] *basks in smugness* (8 August).
The post included comments made by the appellant stating, 'I was just told insurance paid for it lol' and 'lol fuck knows, I don't really care because it's been inconvenient [smiling emoji]'.[9]
[9] The screenshots of the social media posts either do not identify the date they were posted or include a day and month but not the year.
The mediation report states that the author informed the appellant of the complainant's response, including that she had posted derogatory remarks about him on Facebook after sending the apology letter. The appellant is reported to have responded that she expected nothing less of the complainant's response, and that she was apologising for her overreaction and the damage, but she still believed the complainant to have been abusing the children.[10]
12 August 2022 hearing
[10] Mediation Report, 3.
At the hearing on 12 August 2022, the appellant was again represented. Counsel for the appellant sought a one-week adjournment to allow for the appellant to bring confirmation of enrolment in a psychological course at ECU and a copy of a reference previously provided by her employer that had not been signed. The learned magistrate confirmed the reference was one the court had received on the previous occasion and was minded to deal with the matter on that date.[11]
[11] Transcript, WA Police v Samantha Candice Harvey, Magistrates Court of Western Australia, 12 August 2022, 2 (ts 12 August 2022).
As to the facts, counsel for the appellant submitted that the appellant had actually heard the child being called a derogatory name during a phone call. After she and her partner arrived at the house, the appellant went for a walk to try to calm herself, but her emotions escalated and she went back to the address and committed the offence, about half an hour after having heard the insult.[12]
[12] ts 12 August 2022, 4 - 5.
The learned magistrate was told the appellant had been in a relationship with her partner for just over four years and saw the children as her stepchildren, and was emotionally impacted by the behaviour of the complainant, which she reported occurred on a number of occasions.[13]
[13] ts 12 August 2022, 4 - 5.
Counsel for the appellant accepted that it was difficult, in light of the contents of the mediation report, to submit that the appellant was remorseful for her conduct. She submitted that the appellant regretted the specific action and understood it was not the right thing to do, but was unable to put her feelings towards the complainant aside.[14]
[14] ts 12 August 2022, 7.
In the course of the plea, the appellant's counsel said:
She has heard from the victim mediator that she will not have to pay that money, and because of her personal views of the complainant, she has seen that as something notable to put a post about.[15]
[15] ts 12 August 2022, 7.
In response to a question from the learned magistrate about what the appellant was doing to change her 'headspace' from what it was at the time of the alleged offence, the appellant's counsel submitted that the appellant was 'focusing heavily on her work and studies', and that it may be that, in sentencing, an order which could assist the appellant with addressing her treatment needs was appropriate.[16]
[16] ts 12 August 2022, 8.
The learned magistrate was told the appellant attended her GP regularly as a result of her ADHD and saw a psychologist weekly.[17]
[17] ts 12 August 2022, 8.
Reasons for decision
Referring to the Facebook posts attributed to the appellant, the learned magistrate said:
In terms of your statements, and your acceptance of responsibility, your plea of guilty - which is ordinarily an acceptance of remorse - these statements that you put there indicate to me you're not repentant for what you've done. Whilst you're accepting responsibility for having done wrong and infringed the law, your remorse is concerned with the consequences for yourself, not for what you've done to [the complainant].
I don't accept that you're genuinely remorseful for having damaged his car. My impression, from how you've behaved in the Facebook posts leading up to this court appearance - and subsequently - is that you have no regret as to what you did on that occasion. In fact my concern is you're at risk of doing something like this again in the future if something occurred which upset you personally. I acknowledge the plea of guilty and that that has been entered to short-circuit matters at an early stage to facilitate the course of justice. The plea of guilty does not contain the weight that it ordinarily would as a mitigating factor being not a real expression of remorse from you.[18]
[18] ts 12 August 2022, 10.
Her Honour determined a fine was not an adequate penalty, as the appellant needed to address unresolved issues with anger management, her thoughts as to her role in the relationship the subject of the offending and how the appellant controlled her emotions and maturity.[19]
[19] ts 12 August 2022, 10.
Her Honour cited the post from 9 June as reflecting on the appellant's maturity. At that point, the appellant sought to speak, but the learned magistrate indicated that the appellant would be given an opportunity to speak when her sentencing remarks had concluded.[20]
[20] ts 12 August 2022, 10 - 11.
In light of the appellant's underlying issues, the learned magistrate imposed a community-based order for a period of 9 months, with program and supervision requirements.
As to the application for a spent conviction order, the learned magistrate was satisfied that the appellant was a person of good character. However, she continued:
I'm not persuaded that you're unlikely to commit such an offence again because of the manner in which you've handled - not only this offence in terms of how it was committed, but also the way that you've handled yourself in terms of the participation in this program; the posts that you placed on Facebook. They don't give to me the impression of someone who understands what they've engaged in; who understands the wrong that they've done, and they give a clear impression that there are risks of coming back to court again in an offence like this.
And so, quite simply, you don't satisfy the pre-conditions for a spent conviction, and so I decline to exercise my discretion in that manner. Thank you.[21]
[21] ts 12 August 2022, 11 - 12.
The learned magistrate did not provide the appellant the foreshadowed opportunity to speak before the matter was concluded.
Ground of appeal
The sole ground of appeal is that the learned magistrate's failure to grant a spent conviction order has resulted in a miscarriage of justice.
Extension of time
The appellant relies on her affidavit affirmed on 20 October 2023 in support of the application for an extension of time. The delay is less than inadequately explained. However, the extension is not opposed, and there is no prejudice to the respondent if an extension is granted. On that basis, I will determine the application after I have considered the merits of the appeal.
Application to adduce additional evidence
The appellant has also made an application to adduce additional evidence, pursuant to s 40(1)(e) and s 41(4)(a) of the Criminal Appeals Act 2004 (WA) (CA Act). The additional evidence sought to be adduced is:
(1)an affidavit of the appellant affirmed 29 January 2024; and
(2)a letter from the appellant's employer dated 22 January 2024.
In her affidavit of 29 January 2024, the appellant deposed that she had only had a brief discussion with the duty lawyer about the mediation report and that she did not see the social media posts attached to the mediation report. She deposed that when the posts were referred to by the learned magistrate, she (the appellant) had attempted to say she had not made the posts, but was unable to do so. She first saw the Facebook posts in January 2024 when they were emailed to her by her lawyer.[22]
[22] Affidavit of Samantha Candice Harvey affirmed 29 January 2024 [6] (Harvey Affidavit).
The appellant deposed that she made the posts dated 4 May 2022 and 9 June 2022. However, she denied making the posts dated 12 May 2022 and 8 August 2022. She speculated that the complainant or his friends falsified those posts.[23] She did not explain how they might have done so, nor did she explain why she did not notice them on her Facebook page and delete them.
[23] Harvey Affidavit [7] - [10].
The appellant was made available for cross-examination.
During cross-examination, the appellant admitted that all four of the Facebook posts appeared next to her profile name and picture as they were at the time.[24]
[24] Transcript, Samantha Candice Harvey v Director of Public Prosecutions, Supreme Court of Western Australia, 16 February 2024, 9 (ts 16 February 2024).
The appellant agreed that she was charged on 4 May 2022 and that on about 11 or 12 May 2022 she received the statement of material facts and other paperwork.[25]
[25] ts 16 February 2024, 6.
The appellant denied writing the Facebook post of 12 May 2022 personally. She alleged that the complainant worked in IT and she had seen him 'do similar things' (meaning hacking or editing posts) to other people before and that's what she believed had happened.[26]
[26] ts 16 February 2024, 10 - 11.
The appellant acknowledged that on 9 June 2022, in a post she wrote, she used a 'laughing/crying emoji' which was also used in the 12 May 2022 post.[27]
[27] ts 16 February 2024, 11.
As to the Facebook post of 8 August 2022, the appellant also denied making the comments which also appeared next to the post.[28]
[28] ts 16 February 2024, 13.
When asked about the mediation process, the appellant agreed that a couple of days before 12 August 2022, she received a phone call from the mediator updating her, and at that time he informed her that the complainant had responded to the appellant's apology letter unfavourably. When asked if she was told that the mediator had said the complainant was upset that she had been posting remarks about him on Facebook after sending the (apology) letter, the appellant said she could not 'exactly recall' the conversation.[29]
[29] ts 16 February 2024, 15.
In re-examination on this point, the appellant said she was not shown the Facebook posts by the mediator and that she could not recall if the mediator referred to the dates of the posts.[30]
[30] ts 16 February 2024, 23.
In relation to the sentencing on 12 August 2022, the appellant said that was the first occasion she had met the duty counsel who appeared for her, and that she had had the opportunity to briefly speak to her before the hearing.[31]
[31] ts 16 February 2024, 16.
The appellant was referred to her counsel's submission that:
And she has entered a plea of guilty, accepting that she has done the wrong thing because of that. She has heard from the victim offender mediator that she will not have to pay that money and, because of her personal views of the complainant, she has seen that as something notable to put a post about.[32]
and was asked whether she gave that explanation to her counsel. The appellant responded:
I don't recall only because I think I was only told about one of the screenshots before I actually entered into court, and I believe it was the one with the picture of me and I said, yes, I did write that, but I wasn't aware of the other screenshots that were there.[33]
[32] ts 12 August 2022, 7.
[33] ts 16 February 2024, 18.
The appellant accepted that her counsel had at that time been referring to the Facebook post of 8 August 2022.[34]
[34] ts 16 February 2024, 19.
When it was put to the appellant that she did make the post of 8 August 2022, the appellant said she had no recollection of making it. It was clarified with the appellant that she did not deny making it; she had no recollection of doing so. She agreed that it was possible she made it but did not recall doing so.[35]
[35] ts 16 February 2024, 19 - 20.
The appellant deposed that she was and is genuinely apologetic for her conduct and would not do it again. She has completed her community-based order. She is working as a support worker but has paused her university studies. She deposes:
My understanding is that not having a spent conviction will make it very hard or impossible for me to get clearance to work for NDIS.[36]
I have recently lost my driver's licence and need to re-sit a practical test before I can get my licence back.[37]
As a result, my work hours have reduced from about 60 hours per week to 18 hours per week.[38]
I have applied for jobs at Coles but haven't heard anything back. I don't know why I haven't heard anything back.[39]
[36] Harvey Affidavit [23].
[37] Harvey Affidavit [24].
[38] Harvey Affidavit [25].
[39] Harvey Affidavit [26].
The letter from the appellant's employer states that she is aware of the appellant's charge and says:
Please note that due to the nature of the vulnerable people that [the appellant] works with, a spent conviction for this matter would be of utmost importance to maintaining her employment within the disability sector, and I support her request for a spent conviction.[40]
[40] Letter dated 22 January 2024 (Employer's Letter).
Statutory framework and legal principles
The appeal
The application for leave to appeal is made under div 2 pt 2 of the CA Act.
A refusal to make an order that might be made as a result of a conviction is a decision which may be appealed.[41]
[41] CA Act s 6(g) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[42] meaning that the ground is required to have a rational and logical prospect of succeeding.[43] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[44]
[42] CA Act s 9(2).
[43] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[44] CA Act s 9(3).
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.[45]
Spent convictions
[45] CA Act s 14(2).
The power to make a spent conviction order is found in s 39(2)(a) ‑ (d) of the Sentencing Act 1995 (WA) (Sentencing Act). Preconditions for the making of such an order are set out in s 45 of the Sentencing Act which reads:
(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.
The precondition in s 45(1)(b) cannot be satisfied unless either the offence is trivial or the offender is of previous good character.[46]
[46] GNR v The State of Western Australia [2015] WASCA 5 [45].
If the preconditions in s 45(1)(a) and (b) are satisfied, the court has a discretion, not a duty, to make a spent conviction order.[47]
[47] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11], [16].
In JAD v McRae, Derrick J outlined the propositions to which regard is to be had when exercising the discretion whether to make a spent conviction order as follows:
1. The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;
2. In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;
3. The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future;
4. The court should look to see if 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 set aside;
5. The exercise of the discretion involves the consideration of the interest of the offender and the public interest;
6. One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect; and
7. Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the offender's reliability or suitability for a particular type of work.[48]
[48] JAD v McRae [2022] WASC 220 [70].
The potential adverse effect of the conviction should be identified, rather than merely speculated upon.[49]
[49] Hussaini v Szolnoski [2013] WASC 64 [45].
In the absence of a spent conviction order made at the time of sentence, an application can be made for a serious conviction to be declared after 10 years has elapsed since the applicant's latest conviction.[50]
Admission of additional evidence
[50] Spent Convictions Act 1988 (WA) s 11.
An appeal court must decide an appeal on the evidence and material that were before the lower court.[51] However, the court has broad powers to admit other evidence, pursuant to s 40(1) of the CA Act.
[51] CA Act s 39(1).
In determining whether the failure to make a spent conviction order constituted a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal which shows the appellant's good character and the likely consequences of a conviction.[52]
[52] M v Seidner [2013] WASC 395 [28]; see also Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234 [80].
Appellant's submissions
The appellant does not seek to establish error on the part of the learned magistrate. She contends that the additional evidence, which was not before the learned magistrate, establishes that there has been a miscarriage of justice, on the basis that it establishes that the appellant is unlikely to commit a similar offence again and should be relieved of the adverse consequences of a conviction.
The appellant submitted that unfortunate aspects of the sentencing were the learned magistrate's refusal of an adjournment to allow the appellant to obtain further material in support of the application, and further that the appellant was not given a further opportunity to speak.
As to the contention that the appellant was not given a further opportunity to speak, it was submitted that the appellant intended at that point to dispute having made two of the posts, and there were 'procedural fairness issues' with the way in which the social media posts were used in the sentencing process. It was submitted that the 'unusual'[53] manner in which they came before the court denied the appellant a 'fulsome opportunity' to respond,[54] make submissions in mitigation, or provide further information or express remorse.[55]
[53] Appellant's Outline of Submissions filed 29 January 2024 [35] (Appellant's Submissions).
[54] ts 16 February 2024, 27.
[55] Appellant's Submissions [35].
The appellant submitted she is unlikely to commit a like offence again because:[56]
[56] Appellant's Submissions [38].
(1)she was and is remorseful;
(2)her letter to the complainant included in the mediation report demonstrates her remorse and insight into the offending;
(3)the appellant's feelings towards the complainant are not indicative of a lack of insight into the inappropriateness of her offending behaviour;
(4)the offending was spontaneous and not planned;
(5)the appellant now appreciates the consequences of a conviction;
(6)the appellant has not been convicted of any further offending since the commission of the offending in question and had no previous criminal history;
(7)the offending was not related to her work and the community would be well served by a person such as the appellant being able to work in the disability support sector;
(8) the appellant has completed her community-based order; and
(9)there was an early plea of guilty.
It was conceded that, if the appellant wrote the disputed Facebook posts, it would be difficult to establish that she was remorseful at the time of sentencing.[57]
[57] ts 16 February 2024, 29 - 30.
The appellant submitted that the court should exercise its discretion to order a spent conviction, having regard to the appellant's future career plans, the adverse effect on her future work prospects if there is no spent conviction, her relative youth, the community benefit from having someone like the appellant working in the community with National Disability Insurance Scheme (NDIS) clearance and that the offence did not occur in the context of the appellant's work or study.
Respondent's submissions
The respondent submitted that the court should consider all of the available evidence, including the additional evidence, and determine whether a spent conviction order should have been made. If so, there has been a miscarriage of justice and the appeal should be allowed.
The respondent contended that it has not been shown that, had the additional evidence been before the learned magistrate at first instance, a spent conviction order would have been made.[58]
[58] Respondent's Outline of Submissions filed 12 February 2024 [23] (Respondent's Submissions).
The respondent submitted that the precondition of establishing that the appellant is unlikely to commit such an offence again is not made out,[59] and in the alternative, the appellant has failed to establish that the court ought to exercise its discretion to make the spent conviction order in light of the additional evidence.[60]
[59] Respondent's Submissions [29].
[60] Respondent's Submissions [30] - [33].
The respondent submitted that whether the appellant is the author of only two, or all four, of the social media posts is not material. This is because the two of which the appellant admitted being the author are ample to warrant the concerns held by the learned magistrate. The disputed posts do not add to the admitted posts.[61]
[61] Respondent's Submissions [25].
Further, the respondent contended that the appellant's assertions that she did not make two of the social media posts are unsupported by other evidence, and sit uncomfortably with other evidence, including the submissions of her counsel at the sentencing hearing.[62]
[62] ts 16 February 2024, 36 - 38.
Further and in the alternative, the respondent submitted the appellant has fallen short of establishing the consequences of the conviction are such that a spent conviction is warranted. The appellant has failed to provide evidence that the conviction will impede her employment given the appellant has remained employed at the same disability service provider since the conviction, and has provided no evidence of the impact of any such conviction on employment in the disability support services.[63]
[63] Respondent's Submissions [30] - [31].
Disposition
To the extent that the appellant complains of the refusal of the learned magistrate to adjourn the proceedings to enable the appellant to obtain more material in support of her application for a spent conviction, I am not satisfied that anything turns on it. The learned magistrate accepted that the appellant was engaging in the study of psychology. The appellant did not identify in the adjournment application any additional material she sought to obtain which could have had any impact on the outcome of the application.
Additional evidence going to whether the appellant is likely to re-offend
The appellant does not assert error on the part of the learned magistrate in finding that the appellant was not unlikely to commit such an offence again. She submits that the additional evidence establishes that she is unlikely to do so.
The additional evidence is, in part, that the appellant asserts she will not re-offend and that she has completed her community-based order.[64]
[64] Appellant's Submissions [38].
The appellant denies making two of the Facebook posts which were submitted to the learned magistrate as part of the mediation report.[65] She speculates that the complainant[66] or his friends[67] were responsible for them. She submitted that she was wrongly denied the opportunity to inform her Honour that she disputed writing the posts and that, if accepted, the additional evidence establishes that she is unlikely to commit a similar offence again.
[65] Harvey Affidavit [8].
[66] ts 16 February 2024, 10 - 11; Harvey Affidavit [9].
[67] Harvey Affidavit [9].
The appellant admitted making the post which was being referred to at the time she sought to interrupt the learned magistrate's sentencing remarks.[68]
[68] Appellant's Submissions [35].
As to the other post referred to by her Honour in her reasons, the totality of the additional evidence is that the appellant could possibly have made it, but does not recall doing so.[69]
[69] ts 16 February 2024, 20.
At first instance, the appellant's counsel made submissions as to the appellant's explanation for that post.[70] Those submissions could not be referring to any of the posts other than that labelled 8 August 2022. No evidence has been adduced that counsel made those submissions without instructions from the appellant.
[70] ts 12 August 2022, 7.
Further, the appellant has not adequately explained how her social media could have been used by others, how there are responsive comments to both posts, which, in the case of the post on 8 August 2022, appear to have been written by her, and why she did not notice the posts on her social media at any time.
The posts are said to be from the appellant's own Facebook page. If it was in fact the case that the appellant only became aware during sentencing that there were posts not made by her on her social media, it is to be expected that she would have immediately checked her Facebook page to see what was being referred to. Even if she had not immediately checked her Facebook page, it is inconceivable that she did not use Facebook at some stage after her sentencing.
Despite this, no evidence was led at all as to the appellant's use of Facebook. The appellant simply claims that she first saw the posts on 28 January 2024, when they were emailed to her by her lawyer.[71] While it is inappropriate to speculate as to what the appellant did do in relation to her Facebook page between her sentencing and January 2024, the absence of evidence in this regard detracts from the cogency of the appellant's evidence as to what she says did occur.
[71] Harvey Affidavit [6].
The fact that the appellant was unaware of the posts is also difficult to reconcile with the statement by the author of the mediation report that she informed the appellant that the complainant had complained that she had posted derogatory remarks about him on Facebook after she had sent the apology letter.[72] The only possible such post is one of those disputed by the appellant - that said to have been made on 8 August 2022. Again, it is difficult to accept that the appellant would not have checked her Facebook page upon being informed of this. However, in circumstances in which the appellant does not recall the conversation with the mediator, and the mediator was not called to give evidence, I do not rely on the content of the mediation report in determining whether I am satisfied that the appellant made the disputed post.
[72] Mediation Report, 3.
The post of 12 May 2022 was made at around the time the appellant received the statement of material facts, which referenced a restitution application for $1,200. In my view, the timing and content of that post are such as to substantially undermine the appellant's denial of having made the post.
Similarly, the content of the post labelled 8 August 2022 and the comments relating to it, combined with the appellant's concession that it was possible she had made the post, and, in particular, the fact that her counsel at first instance made a specific submission regarding that post, lead me to conclude that the appellant's denial of making that Facebook post lacks credibility.
In the circumstances, I am not satisfied that the additional evidence sought to be adduced by the appellant, that she was not the author of the disputed posts, is sufficiently cogent or reliable such that I should admit it on the appeal.
While the material may have come before her Honour in an unusual way, her Honour was entitled to inform herself in any way she considered fit.[73] Further, the appellant's counsel had plainly had an opportunity to consider the report, and had a further opportunity when the matter was stood down to allow the prosecutor to consider it.
[73] Sentencing Act 1995 (WA) s 15.
The appellant gave evidence that she only had a brief discussion with her lawyer about the mediation report. However, there is no evidence that she did not read the report itself, or have sufficient time to give instructions about it. The appellant claims not to have seen the attachments to the mediation report, but the social media posts are also referred to in the body of the report. When the learned magistrate raised the issue of the posts with the appellant's counsel, submissions were made which reflected the fact that instructions had been taken from the appellant about them.
Having regard to all of these matters, I do not accept the appellant's submission that she was not given the opportunity to 'fulsomely respond' to the material,[74] make submissions in mitigation or provide further information about them.[75]
[74] ts dated 16 February 2024, 26.
[75] Appellant's Submissions [35].
At first instance, the appellant presented as a somewhat immature individual who had issues controlling her temper and her actions. Not only did she commit the offence out of anger, notwithstanding having had a relatively lengthy period to cool off, but she continued to act impulsively and against her interests throughout the proceedings, even in circumstances in which her ADHD was said to be medicated and controlled.
No evidence was adduced at first instance or on appeal as to whether the appellant had taken any steps to gain insight into her offending behaviour, address her underlying issues, or address her prospect of offending in such a manner again in the future.
Further, while it is plain that, at the time of the appeal, the appellant was keenly aware of the consequences of her conduct, I am not satisfied that, at the time of sentencing or on appeal, the appellant was genuinely remorseful for what she had done.
Accordingly, I am not satisfied that the appellant is unlikely to commit such an offence again. In those circumstances, the preconditions of s 45(1) are not made out and a spent conviction order is not open.
Discretion
Had I determined that the appellant was unlikely to commit such an offence again, I would need to consider whether to exercise the discretion to make a spent conviction order.
The appellant has adduced additional evidence, and made additional submissions, as to the reasons why she should be relieved of the adverse consequences of a conviction in this matter.
The appellant submits that a conviction will jeopardise her future career prospects as a disability support worker, and any required NDIS clearance.
The additional evidence, namely a letter from the appellant's present employer, Ms Bowen, states that the appellant is employed on a casual basis as a support worker. Ms Bowen describes the appellant's duties and her study aspirations and states:
Please note that due to the nature of the vulnerable people that [the appellant] works with, a spent conviction for this matter would be of utmost importance to maintaining her employment within the disability sector, and I support her request for a spent conviction.[76]
[76] Employer's Letter.
Ms Bowen does not state the basis for her opinion, or give any explanation for it. She does not set out her qualifications or detail her role in the business in which the appellant works. Importantly, she continues to employ the appellant, and there is no evidence that the appellant's employment has been impacted in any way by her conviction. As such, this evidence has limited cogency.
The appellant did not adduce any evidence as to the regulatory framework which applies in relation to NDIS workers, or how it is said that a conviction in this case will impact on any requirement to obtain clearance under the relevant statutory framework.
At the hearing of the appeal, the appellant's counsel acknowledged that a spent conviction would still need to be disclosed as part of a NDIS worker screening check.[77] However, she submitted that, if a spent conviction order were made, the appellant would be more likely to pass the check than if it were not.[78] No factual foundation was identified for that submission.
[77] ts 16 February 2024, 32.
[78] ts 16 February 2024, 32.
As the appellant herself acknowledges, working with people with a disability involves working with vulnerable members of the community.[79] The fact that a person has committed an offence such as the present one is considered by the legislature to be of relevance to their suitability to work with such vulnerable members of the community, regardless of whether a conviction is spent or not. The court should not be required to speculate as to how the screening authority would approach the making of a spent conviction order in such a case.
[79] Employer's Letter.
In March 2023, the appellant was convicted of driving whilst her driver's licence was suspended. As a result, she was disqualified from driving for 9 months. The appellant has adduced evidence that, as a result, her work hours had markedly reduced, and that she had unsuccessfully applied for work at Coles. Neither the reduction in the appellant's work hours, nor her unsuccessful job applications to Coles demonstrate an adverse impact as a result of the conviction in this case.
The appellant was convicted of this offence in August 2022. No cogent evidence has been adduced of any adverse consequence visited upon her as a result of the conviction, or of any which will likely be visited upon her in the future.
In my view, there is no reason that the appellant should be relieved of the usual consequences of committing a criminal offence of the kind committed by her in this case. It was not submitted that the offence was trivial. There is nothing to suggest that failure to grant a spent conviction order will adversely affect the appellant's rehabilitation. Further, general deterrence weighs against granting such an order.
In the circumstances, even if the preconditions of s 45(1) were made out, I would not exercise the discretion to make a spent conviction order in this case.
I am not satisfied that there has been a miscarriage of justice as a result of the refusal of the learned magistrate to make a spent conviction order. Accordingly, the appeal is dismissed.
Orders
(1)The application for an extension of time is dismissed.
(2)The application to adduce additional evidence is dismissed.
(3)Leave to appeal is granted.
(4)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
20 MARCH 2024
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