Hill v Director of Public Prosecutions for Western Australia - [2023] WASC 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HILL -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 347
CORAM:   LEMONIS J
HEARD:   31 JULY 2023
DELIVERED          :   14 SEPTEMBER 2023
FILE NO/S:   SJA 1022 of 2023
BETWEEN:   DARREN WILLIAM HILL
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   CHIEF MAGISTRATE S HEATH
File Number            :   PE 56199 of 2016

Catchwords:

Appellant was a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) - Appellant convicted of offence of not complying with applicable reporting obligations and fined - No spent conviction order made - Convictions pursuant to which the appellant became a reportable offender set aside by orders of the Court of Appeal and subject charges later discontinued - Whether there is a miscarriage of justice if the appellant is not now granted a spent conviction order in respect of the offence of not complying with his reporting obligations

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Director of Public Prosecutions Act 1991 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)

Result:

Application for extension of time within which to bring the appeal is refused
Appeal is dismissed

Category: B

Representation:

Counsel:

Appellant	:	T M Lettenmaier
Respondent	:	P R Arndt

Solicitors:

Appellant	:	Forbes Kirby
Respondent	:	Director of Public Prosecutions (WA)

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

Bertolino v Director of Public Prosecutions for Western Australia [2022] WASC 423
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
M v Seidner [2013] WASC 395
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Mohamed v Wellinger [2012] WASC 470
R v Tognini & McGuire [2000] WASCA 31
Sharpe v Vinning [2020] WASC 79
Wimbridge v The State of Western Australia [2009] WASCA 196

LEMONIS J:

On 19 March 2014, the appellant (Mr Hill) was convicted after trial by jury of four charges of indecently dealing with a child under the age of 13 years. As is explained below, on 30 December 2019, the Court of Appeal set aside those convictions and ordered a new trial of the four charges. Ultimately, the State discontinued all four charges.
This appeal arises out of the effect of those convictions before they were set aside.
By reason of the convictions, Mr Hill became a 'reportable offender' within the meaning of s 6 of the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act). Mr Hill's reporting obligations included to report any intended travel outside of Western Australia to the Commissioner of Police at least seven days before leaving Western Australia: s 30(2) of the CPOR Act. A failure to comply with these reporting obligations without reasonable excuse is an offence under s 63(1) of the CPOR Act.
On 28 September 2016, Mr Hill left Western Australia for Thailand without giving the required notice. He was detained on his arrival into Thailand and he returned to Western Australia the next day. As a result of not giving the requisite notice, Mr Hill was charged with an offence under s 63(1) of the CPOR Act. On 1 December 2016, Mr Hill pleaded guilty to that offence (the CPOR conviction) before his Honour Chief Magistrate Heath. His Honour fined Mr Hill the sum of $500 and ordered him to pay costs of $188.
His Honour did not make, nor was his Honour asked to make, a spent conviction order under s 39 of the Sentencing Act 1995 (WA), read together with s 45. As I will come to explain, by reason of the four indecent dealing convictions, the discretion to make a spent conviction order was not enlivened at the time that Mr Hill was sentenced; it is now.
On 18 July 2018, Mr Hill brought an appeal against his four indecent dealing convictions. That appeal was commenced over four years outside the time within which to commence it. By the time the appeal was commenced, Mr Hill had served the custodial sentence imposed in respect of the four convictions.
By reasons for decision delivered 30 December 2019, the Court of Appeal granted an extension of time within which to appeal, allowed the appeal, set aside Mr Hill's convictions and ordered that there be a new trial in respect of the four charges. A suppression order was made in respect of the reasons.
Ultimately, the four charges were discontinued and thus did not proceed to trial. The State discontinued the last of the four charges on 17 June 2022. On 4 November 2022, the Court of Appeal rescinded the suppression order and declined Mr Hill's application that his name be replaced by a pseudonym.
Mr Hill now applies for leave to appeal from what the appeal notice describes as the learned magistrate's failure to grant a spent conviction order in respect of the CPOR offence. The sole ground of appeal is that a miscarriage of justice has arisen from the learned magistrate not doing so.
Pursuant to s 13(b) and s 19 of the Director of Public Prosecutions Act 1991 (WA), the Director of Public Prosecutions has taken over the appeal and has become the respondent.
Mr Hill has filed in support of the appeal an affidavit sworn by him on 27 March 2023, a further affidavit sworn by him on 26 July 2023 and an affidavit sworn by Ms Miranda on 19 May 2023, which annexes four character references. Ms Miranda is a solicitor employed by Mr Hill's solicitors. Mr Hill has applied for leave under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (the CA Act) for leave to adduce the evidence the subject of these three affidavits.
The Director has filed an affidavit of Mr Arndt affirmed 12 June 2023 in opposition to the appeal. The Director has also applied for leave under s 40(1)(e) of the CA Act for leave to adduce the evidence the subject of Mr Arndt's affidavit.
It is useful at this point to address the legislative regime under which the appeal is brought.

Appeal

Mr Hill's appeal is brought under pt 2 div 2 of the CA Act, which applies to appeals from courts of summary jurisdiction.
Section 7(1) of the CA Act, which appears in that Division, provides:
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
The CA Act defines the Supreme Court as meaning the Supreme Court constituted by a single judge sitting in its General Division: s 6.
Section 6 also defines decision as meaning, amongst other matters, a refusal to make an order that might be made as a result of a conviction or acquittal.
An appeal against a decision may be made on the ground that there has been a miscarriage of justice.[1] Leave of the Supreme Court is required for each ground of appeal.[2] An appeal cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.[3]
[1] Section 8(1)(b) of the CA Act.
[2] Section 9(1) of the CA Act.
[3] Section 10(3) of the CA Act.
The requisite 28 day period expired on 29 December 2016. The appeal notice was filed on 31 March 2023. The appeal was therefore commenced well out of time.
In Wimbridge v The State of Western Australia,[4] Buss JA (as his Honour then was) set out the following five principal factors to be considered in deciding whether to exercise the discretion to extend time, also noting those factors are not exhaustive:
First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
[4] Wimbridge v The State of Western Australia [2009] WASCA 196 [45].
His Honour also stated that:[5]
It is well settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal against conviction, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
[5] Wimbridge [42]; see also [19] - [21] (Wheeler JA).
I will return to the question of an extension once I have considered the ground of appeal.

Further evidence

In terms of the material that I may have regard to for the purposes of determining the appeal, it is not necessarily limited to the material that was before the learned magistrate. In that respect, pursuant to s 14(5) of the CA Act, I may have regard to any relevant matter that has occurred between when Mr Hill was convicted and when the appeal is heard. The setting aside of the indecent dealing convictions, and the subsequent discontinuance of the indecent dealing charges, are plainly such matters.
Further, pursuant to s 40(1)(e) of the CA Act I may admit any other evidence on the appeal. The other evidence may be 'fresh' or it may be 'new'. Fresh evidence is evidence which either did not exist at the time of the hearing or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the hearing or which could, with reasonable diligence, then have been discovered.[6]
[6] Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411].
Both parties sought to adduce further evidence on this appeal. At the hearing of the appeal, to the extent necessary, I granted to the parties leave to admit the further evidence on this appeal, subject to the deletions which are set out in the schedule to these reasons. The evidence was admitted in respect of Mr Hill's good character and the prejudice that he says he suffers from the CPOR conviction remaining on his criminal record. This evidence relates directly to whether a spent conviction order ought now be made, which is why I granted leave for it to be admitted on the appeal, irrespective of whether it is fresh or new. The evidence also explains the background and timing to the indecent dealing charges being discontinued, which in my view is admissible pursuant to s 14(5) of the CA Act.
I turn now to discuss the relevant provisions of the CPOR Act.

The subject offence

As I have already mentioned, by reason of Mr Hill being convicted of the four charges of indecent dealing, he became a reportable offender: s 6 of the CPOR Act. The purpose of the CPOR Act itself is self‑evident from its name - community protection.
Section 30 of the CPOR Act imposes certain reporting obligations where a reportable offender intends to leave Western Australia, either to travel elsewhere in Australia or outside of Australia.
Relevantly to this appeal, s 30(2) provides that at least seven days before leaving Western Australia, a reportable offender must report the intended travel to the Commissioner and also provide details of:
(a)the country to which he intends to go;
(b)the approximate dates during which he intends to be in that country;
(c)each address or location at which he intends to reside in that country (to that extent they are known) and the approximate dates he intends to reside at those addresses or locations;
(d)if he intends to return to Western Australia and, if so, the approximate date of return;
(e)if he does not intend to return to Western Australia, a statement of that intention.
As can be seen, the reporting obligation is not merely limited to reporting an intended absence from the State. It extends to providing precise details as to where the person will be at any particular point in time. These provisions serve an important community purpose, directed at reducing the prospect of reoffending and facilitating the investigation and prosecution of any future offences.
Section 30(3) of the Act provides that if circumstances arise making it impracticable for a reportable offender to comply with the reporting obligation at least 7 days before departure, it is sufficient compliance if the reportable offender reports the required information to the Commissioner no later than 24 hours after leaving Western Australia. It is implicit in Mr Hill's conviction for the CPOR offence that s 30(3) was not engaged.
Section 63(1) of the Act creates the relevant offence. The offence arises where a reportable offender, without reasonable excuse, fails to comply with any of their reporting obligations. Thus, Mr Hill's conviction of the CPOR offence carries with it not only that he failed to report as required, but also that he did so without reasonable excuse.
The penalty for the offence is imprisonment for 5 years or on summary conviction, a fine of $12,000 and imprisonment for 2 years: s 63(1) of the CPOR Act.
I turn now to the provisions of the Sentencing Act which provide for the power to make a spent conviction order.

Sentencing Act

The sentencing options available to the learned magistrate are set out in s 39 of the Sentencing Act. They include, with or without making a spent conviction order, to impose a fine and order the release of the offender.[7]
[7] Section 39(2)(c).
Section 45 addresses the making and effect of a spent conviction order. Section 45(1) states:
(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.
As can be seen, s 45(1) imposes preconditions to the making of a spent conviction order. If the preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) are satisfied, the sentencing court has a discretion, not a duty, to make a spent conviction order.[8]
[8] Sharpe v Vinning [2020] WASCA 79 [96].
The expression the offence is trivial in s 45(1)(b)(i) directs attention primarily to the type or nature of the offence in question including the inherent seriousness of the offence.[9] Further, the specific acts or omissions that establish the offender's criminal responsibility must also be taken into account in determining whether the offence is trivial. The relevant factors to be taken into account do not extend beyond the material facts establishing guilt. They do not include mitigating factors that are not part of the material facts establishing the offender's guilt. [10]
[9] Sharpe v Vinning [2020] WASCA 79 [110].
[10] Sharpe v Vinning [2020] WASCA 79 [111].
Mr Hill rightly accepts that the CPOR offence is not trivial.
In R v Tognini & McGuire[11] Murray J (with whom Malcolm CJ and Wallwork J agreed) observed in relation to the application of s 45:
Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
…
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. 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.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.
[11] R v Tognini& McGuire [2000] WASCA 31 [24], [27] - [28].
As this passage makes clear, once the discretion is enlivened, it should 'only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable'.[12]
[12] See also see also Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 514 [14] - [15].
In relation to the exercise of the discretion, Edelman J (when a member of this Court) stated in Mohamed v Wellinger:[13]
… the discretion to make a spent conviction order requires the court to have regard not only to the interests of the offender but also to the public interest. One aspect of the public interest is general deterrence which includes the exposure to public scrutiny of a conviction which may have a general deterrent effect.
[13] Mohamed v Wellinger [2012] WASC 470 [33]; see also Brewer v Bayens [18].
If a spent conviction order is not made, the Spent Convictions Act 1988 (WA) continues to apply to the CPOR offence. The CPOR offence is a 'lesser conviction' within the meaning of s 9 and s 10 of the Spent Convictions Act - the fine of $500 imposed falls well below the threshold of $15,000 for it to be regarded as a serious conviction.
Pursuant to the operation of s 7 and s 11(1)(a) of the Spent Convictions Act, after 10 years from the date of Mr Hill's conviction for the CPOR offence, Mr Hill may apply to the Commissioner of Police for it to be spent. The Commissioner must issue a certificate to that effect and upon the issue of the certificate, the conviction becomes spent. The Commissioner does not have a discretion to refuse to issue the certificate. From 1 December 2026 onwards, Mr Hill can make the necessary application in respect of the CPOR offence.

Sentencing hearing

The sentencing hearing before the learned magistrate was relatively short. The facts upon which Mr Hill was sentenced included:
On 28 September 2016, the accused departed Western Australia on a flight for Thailand. His travel wasn't reported to SOMS [Sex Offender Management Squad] as required. The accused was subsequently denied entry into Thailand, detained in immigration, returned to Western Australia on 29 September. He has been contacted by SOMS in relation to this matter and declined to be interviewed.[14]
[14] ts 2.
Mr Hill's then counsel explained the circumstances of the offending as follows:[15]
… a very close friend of his who lives in Thailand informed him two days previously that he was intending on getting married on the relevant date. The reason for the short notice is his friend is an American, had a [partner] who was of Thai background. And for cultural reasons, upon learning that she was pregnant, there was an imminent wedding planned.
[15] ts 3.

Mr Hill's then counsel said Mr Hill accepted he should have made attempts to notify the authorities but did not do so. Mr Hill's counsel also said that had he done so, then Mr Hill would not have been able to attend the friend's wedding because seven days' notice in advance is required.[16]
[16] ts 3.
The learned magistrate's sentencing remarks are brief, as would be expected in the circumstances. The learned magistrate noted that the obligations under the reporting regime are onerous and carry substantial penalties, but it was the first breach by Mr Hill of those conditions. The learned magistrate also noted that apart from the indecent dealing offences, Mr Hill had no other offences on his record. In these circumstances, the learned magistrate stated that he considered a moderate fine was appropriate and fined Mr Hill the sum of $500 plus costs in the sum of $188.
As can be seen, the learned magistrate did not expressly consider the making of a spent conviction order, nor did Mr Hill's counsel seek one. There can be no criticism of either of them for not doing so, as Mr Hill's indecent dealing convictions had not been set aside by then. That being so, Mr Hill could not be regarded as being of previous good character. Also, the CPOR offence is not trivial. Accordingly, the discretion to make a spent conviction order was not enlivened.

Consideration of the appeal

While the learned magistrate did not expressly consider whether or not to make a spent conviction order, I am satisfied that in the circumstances, the learned magistrate and Mr Hill's counsel (correctly) proceeded on the premise that the discretion was not available because of the existence of the indecent dealing convictions. Thus, in effect, the learned magistrate implicitly rejected making a spent conviction order.
In determining this appeal, I must consider whether a miscarriage of justice would occur if a spent conviction order was not made now. This is because the indecent dealing convictions have now been set aside and are no longer an impediment to a finding that Mr Hill is of good character. Thus, the principal hurdle in the way of satisfying the pre‑conditions to the exercise of the discretion is now removed. I therefore need to consider Mr Hill's application for a spent conviction order afresh, having regard to the overall circumstances that exist now and the additional evidence admitted on this appeal.[17]
[17] Bertolino v Director of Public Prosecutions for Western Australia [2022] WASC 423 [54] and Mohamed [3].
In the circumstances of this case, the preconditions to s 45(1) of the Sentencing Act require that I be satisfied that:
1.Mr Hill is unlikely to commit such an offence again; and
2.Mr Hill is of prior good character.
If I am satisfied of both of these matters, then I need to assess whether I consider Mr Hill should be relieved immediately of the adverse effect that the CPOR conviction might have on him and thus exercise the discretion to grant a spent conviction order.
I am satisfied that Mr Hill is unlikely to commit such an offence again. He is no longer the subject of the regulatory regime provided for by the CPOR Act and apart from the conduct the subject of the CPOR offence, he otherwise complied with his reporting obligations. Also, the existence of the CPOR conviction is something which has caused him angst, which I am satisfied he wishes to avoid again.
Further, on the material before me I am also satisfied that Mr Hill is of prior good character. The references now before the court taken together with Mr Hill's lack of a criminal record demonstrate this.
There is one matter regarding the references which I need to specifically address. I raised with the parties during the hearing my concerns with the reference which is LJM-3 to Ms Miranda's affidavit. This reference is from Mr Hill's friend who was having the wedding in Thailand. The reference contradicts the factual basis upon which Mr Hill was sentenced for the CPOR offence, suggesting that Mr Hill communicated with police officers prior to leaving for Thailand and took what the officers told him as giving him the 'ok to fly to Thailand'. Mr Hill was not sentenced on this basis, nor does he adopt it on this appeal.
The respondent quite rightly raised a concern that the reference might reflect that Mr Hill was minimising to his friends the nature of the conduct the subject of the CPOR offence. However, I cannot exclude the possibility that the reference reflects a misunderstanding by Mr Hill's friend of what Mr Hill told him. In these circumstances, I have not had regard to that part of the reference in determining this appeal.
Ultimately, this appeal turns on whether, having regard to Mr Hill's prior good character, I consider he should be relieved immediately of the adverse effect that the CPOR conviction might have on him.
Somewhat curiously, the existence of the CPOR conviction on Mr Hill's criminal record checks has varied from time to time. His further affidavit sworn 26 July 2023 annexes a criminal history check certificate conducted on 1 August 2022 which discloses no prior convictions.[18] Further, Mr Hill states in that affidavit that in around July 2020 a search undertaken of his criminal history also showed no criminal history.[19]
[18] Annexure DWH25 to Mr Hill's affidavit sworn 26 July 2023.
[19] Mr Hill's affidavit sworn 26 July 2023, par 8.
However, a search conducted on 19 June 2023 does refer to the CPOR offence, describing it in these terms: [20]
Offence
Failed to comply with reporting obligations; Community Protection (Offender Reporting) Act 2004; 63(1)
Result
… FINE: $500.
[20] Annexure DWH26 to Mr Hill's affidavit sworn 26 July 2023.
Accordingly, on the evidence before me, the most recent criminal history search undertaken (19 June 2023) does show the offence on Mr Hill's criminal history check, as it should.
Broadly speaking, Mr Hill works in the emergency services sector, with a particular expertise in firefighting. He has worked both in Australia and overseas. The nature of the work he undertakes usually requires him to obtain a security clearance.
I am satisfied on the evidence that the indecent dealing convictions presented a significant obstacle to Mr Hill obtaining employment in his chosen field. In Mr Hill's affidavit sworn 27 March 2023, he outlines four different scenarios where he was offered employment and those offers were withdrawn once the prospective employer became apprised of his indecent dealing convictions.[21]
[21] Mr Hill's affidavit sworn 27 March 2023, par 38.
Mr Hill says that difficulties in obtaining work in his chosen profession were a large part of his reasons for commencing his appeal against the indecent dealing convictions, even though he had already served his custodial sentence.[22] He also says that his inability to obtain work in his chosen profession, together with his ongoing and substantial legal fees, rendered him 'broke'.[23]
[22] Mr Hill's affidavit sworn 27 March 2023, par 43.
[23] Mr Hill's affidavit sworn 27 March 2023, par 42.
In relation to future employment, Mr Hill says that he is now 58 years of age and has a limited number of years to work before retirement. He also says that: [24]
It is essential that I find work in high-paying jobs within my profession and continue to work until I am at least 65 years old, if I am able to retire with any savings.
[24] Mr Hill's affidavit sworn 27 March 2023, par 48.
The prejudice to which Mr Hill points arising from the existence of the CPOR offence on his criminal record is twofold.
First, that a criminal history check will inform prospective employers of the CPOR offence, who will likely conduct further enquiries as to the nature of that offence and the reasons why Mr Hill was subject to reporting obligations under the CPOR Act. In this respect, Mr Hill is also concerned that even though the indecent dealing charges were discontinued, he does not have the benefit of an acquittal.
The second aspect of the prejudice is that such enquiries may well lead the prospective employer to the Court of Appeal decision which contains the details of the allegations the subject of the indecent dealing charges.
Mr Hill is concerned that these matters will then affect his employment prospects and consequently make it more difficult for him to have sufficient funds with which to retire.
The evidence before me as to Mr Hill's employment circumstances after the discontinuance of the indecent dealing charges is a little unclear. It reflects that:
1.On 21 September 2022, Mr Hill received e-mail correspondence from a prospective employer to the effect that he had been offered casual employment as a security monitor. The covering e-mail said that the offer lapsed if not accepted by 28 September 2022. The offer itself which was attached to the e-mail required it to be accepted by 22 September 2022.[25]
2.On 29 September 2022, Mr Hill received an e-mail from a cv check firm advising that the same prospective employer had instructed them as an independent third party provider to complete background checks in respect of six separate areas, one of which included a National Police Check.[26]
3.On 23 January 2023, Mr Hill received another e-mail from the same prospective employer saying that while they were impressed with Mr Hill's qualifications, they were not able to move forward with an offer at this time.[27]
[25] Mr Hill's affidavit sworn 27 March 2023, annexure DWH-23.
[26] Mr Hill's affidavit sworn 26 July 2023, annexure DWH-27.
[27] Affidavit of Mr Hill sworn 27 March 2023, annexure DWH-24.
It would appear that these communications all relate to the same employment opportunity, given they are in respect of the same prospective employer. In any event, the evidence before me does not demonstrate that the existence of the CPOR offence on Mr Hill's criminal record was a reason why the offer did not proceed through to finalisation.
Mr Hill says in his affidavit sworn 27 March 2023 that since the offer of employment was revoked, he has applied for a number of jobs, all of which will require him to have a clean criminal record and to get a security clearance.[28] The evidence however does not explain what the outcome of those applications was. Even presuming that the outcome of the applications was not favourable, the evidence does not enable me to determine that the CPOR conviction was a factor that resulted in Mr Hill not being offered employment.
[28] Mr Hill's affidavit sworn 27 March 2023, par 53.
Taken as a whole, the evidence does not demonstrate the existence of the CPOR offence on Mr Hill's criminal record prevents him from obtaining employment in his chosen profession.
That being said, the existence of the CPOR offence on Mr Hill's criminal record is still a relevant factor in relation to Mr Hill's prospects of employment.
In M v Seidner, Pritchard J (as her Honour then was) observed in respect of the circumstances of that case:[29]
… Ms M's affidavit confirms that she is likely to have to disclose her conviction on any occasion in the future where she seeks employment as a teacher. … whether or not the fact of the conviction would be likely to adversely impact on her prospects of securing future employment cannot be known and it is not appropriate to speculate. The position can be put no higher than that once a conviction has to be disclosed in an employment context, it is not possible to exclude the possibility that it may be taken into account by an employer and acted upon adversely to the job applicant.
[29]M v Seidner [2013] WASC 395 [66].
In addition to these observations, s 45 is expressed in terms of the 'adverse effect that the conviction might have on the offender'. The language is directed to the potential of there being an adverse effect.
In my view, having regard to the evidence on this appeal, it is likely that future prospective employers will undertake a criminal history check in relation to Mr Hill. This is evident from both the history of Mr Hill's applications for employment and also from the nature of the work that he does. Further, in my view, there is a reasonable possibility that the existence of the CPOR offence may be taken into account by a prospective employer as a factor against offering him employment. Self‑evidently, that a check is undertaken to see if a person has a criminal record reflects that it is a relevant consideration in deciding whether to offer them employment.
Furthermore, in my view, a prudent employer who was put on notice that Mr Hill committed the CPOR offence, will likely make enquiry as to why Mr Hill was subject to reporting requirements under the CPOR Act, which in turn will likely lead to them being apprised of the previous (but now set aside) indecent dealing convictions.
In relation to the asserted prejudice that a search of Mr Hill's criminal record may lead a prospective employer to the Court of Appeal decision, it is not possible to predict with any certainty whether that might occur. I also think whether or not a prospective employer might take into account the decision in a manner adverse to Mr Hill is speculative, bearing in mind that the charges were ultimately discontinued.
There is little evidence before me as to Mr Hill's overall financial position. While he has stated that he was 'broke', it is not clear to me what his current financial position is, including what superannuation he has available to him upon retirement.
However, I do accept that the indecent dealing convictions significantly hampered Mr Hill's ability to obtain employment in his chosen field. I also accept that Mr Hill genuinely believes the next working stage of his life is important to enable him to retire with savings.
Mr Hill says that he would need to work in higher paying jobs until at least 65 years of age to achieve his stated goal. However, there is nothing on the affidavit material to suggest his ability or capacity to work will significantly diminish at that age.
In terms of Mr Hill's conduct the subject of the CPOR offence, the legislative provisions which create the offence are in place for the protection of the community. Mr Hill breached those obligations quite deliberately and for his own private purposes. That being so, his conduct the subject of the CPOR offence reflected a willingness to deliberately ignore important community requirements.
Mr Hill's conduct stands in stark difference to that under consideration in both Mohamed and Seidner. In Mohamed, a young male stole a shirt from a department store so as to fit in with new friends. In Seidner, a 19‑year‑old female had a desperate need to use a toilet while out at night, there were no readily available toilets and she eventually relieved herself behind bins in what she thought was a poorly lit laneway. Those circumstances reflect spur of the moment decisions by young people. In this case, while Mr Hill's initial decision to go to Thailand might be regarded as a spontaneous one, he had plenty of opportunity to rethink that decision before actually leaving Australia.
I accept that there is an unusual aspect to this appeal as the indecent dealing convictions that gave rise to the reporting obligations under the CPOR Act were later set aside by the Court of Appeal. That being said, Mr Hill made a deliberate choice to ignore an important reporting obligation for personal reasons and in circumstances where he had the opportunity to rethink that decision. In my view, the importance of the reporting obligation that was breached and the deliberateness of Mr Hill's conduct point against exercising the discretion to make the order.
While I accept the continued existence of the CPOR offence on Mr Hill's criminal record has the capacity to cause him prejudice in seeking out future work, the extent of that prejudice is unclear. Furthermore, from 1 December 2026 onwards, Mr Hill is able to apply as a matter of course for the CPOR conviction to be spent.
There is also a public interest in the CPOR offence remaining subject to public scrutiny as to do so may have a general deterrent effect. It is in the public interest that compliance with the CPOR obligations is regarded as a matter of importance. The prospect that the underlying convictions giving rise to the CPOR obligations might be set aside on appeal should not be understood as diminishing the importance of compliance.
Taking account of all of these matters I do not consider that, having regard to Mr Hill's previous good character, Mr Hill should be relieved immediately of the adverse effect that the CPOR offence might have on him. This is not a clear case where the discretion should be exercised in favour of making a spent conviction order.
For these reasons, I am not satisfied in the circumstances of this case and on the additional evidence before me that a spent conviction order should be made. It therefore follows that there is no miscarriage of justice.
In light of this finding, I am not satisfied I should grant an extension of time within which to bring this appeal. There is no need to go into the precise circumstances of the delay. I accept that the initial delay from the setting aside of the convictions through to the ultimate discontinuance of the indecent dealing charges was reasonable. While there is no detailed evidence explaining that delay, it is a reasonable position for Mr Hill to have taken to await the outcome of any retrial on the indecent dealing charges before assessing what if anything to do about the CPOR offence. However, since the discontinuance of the indecent dealing charges there was a further unexplained delay of approximately nine months before this appeal was commenced. I accept though that the Court of Appeal rescinding the suppression order, and declining Mr Hill's application for a pseudonym order, are likely to have been matters that affected the decision to bring this appeal. Notwithstanding the delay, given the somewhat unusual circumstances of this appeal, if I had been satisfied a spent conviction order ought now be made, I would have granted an extension of time within which to bring the appeal. However, given that I am not so satisfied, I refuse the application for an extension of time.
In conclusion, for these reasons, I make the following orders:
1.Mr Hill's application for an extension of time within which to bring the appeal is refused.
2.The appeal is dismissed.

SCHEDULE 1

Paragraphs deleted from the affidavit of Mr Hill sworn 27 March 2023

[31]

[39] - [40]

Second Sentence of [49]

[52] after the word revoked

[54] - [56]

First sentence of [57]

[58]

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Lemonis
14 SEPTEMBER 2023