HLR v WA Police - [2025] WASC 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HLR -v- WA POLICE [2025] WASC 86
CORAM:   COBBY J
HEARD:   11 FEBRUARY 2025
DELIVERED          :   11 FEBRUARY 2025
PUBLISHED           :   17 MARCH 2025
FILE NO/S:   SJA 1075 of 2024
BETWEEN:   HLR
Appellant

AND

WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S R MALLEY
File Number            :   RO 6831/24

Catchwords:

Drink driving offence - No application made for spent conviction - Whether miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)

Result:

Leave to appeal granted
Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	Mr S P Naughton
Respondent	:	Ms R A Cook

Solicitors:

Appellant	:	Assurance Legal
Respondent	:	State Solicitor's Office

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

Brewer v Bayens [2002] WASCA 271
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

COBBY J:

(This judgment was delivered extemporaneously on 11 February 2025 and has been edited from the transcript.)

On 25 August 2024, the appellant was charged with one count of driving under the influence of alcohol, contrary to s 63(1)(a) of the Road Traffic Act 1974 (WA). Upon a plea of guilty on 30 September 2024, the appellant was convicted of that offence at Rockingham Magistrates Court.
She was disqualified from holding a driver's licence for 10 months. In addition, the appellant was fined $1,700 and ordered to pay $300.50 in court costs. At the time of sentencing, the learned magistrate informed the appellant that was the minimum she might expect for the offence. The learned magistrate did not consider making a spent conviction order. The appellant did not raise the issue whether a spent conviction order should be made.
The circumstances of the offence were as follows.
On 25 August 2024, the appellant had organised to see a friend. She drove to a local shop to purchase a bottle of wine.
Her friend subsequently cancelled their plans. The appellant then drank the majority of the bottle of the wine and began to drive home. It appears that the appellant drove a car into a fence on the way. To her credit, the appellant stayed at the scene. When the police arrived, a breath test was conducted. The appellant's blood alcohol content was high, being 0.157, almost twice the legal limit. The next day, the appellant returned to the scene and repaired the fence.
This is an appeal under div 2, pt 2 of the Criminal Appeals Act 2004 (WA) (Act). Section 7(1) of that Act allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. The sentence imposed as a result of conviction is a decision which may be appealed.[1]
[1] Sections 6(f) and 7(1) of the Act.
Section 6(g) of the Act provides that a decision of a court of summary jurisdiction includes a refusal to make an order that might be made as a result of a conviction.
The learned magistrate, in this case, failed to consider whether a spent conviction order should be made. The respondent concedes, and I accept, that constitutes a refusal to make an order that might be made as a result of a conviction and is therefore a decision within the scope of s 6(g) of the Act.
Section 8(1) of the Act sets out the grounds upon which an appeal under s 7 is made. In this instance, the appellant appeals on the ground that there has been a miscarriage of justice.
The appellant is required to obtain leave to appeal.[2] If leave to appeal is not granted, the appeal is taken to have been dismissed.[3] The court must not grant leave to permit a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[4]
[2] Section 9(1) of the Act.
[3] Section 9(3) of the Act.
[4] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
The power to make a spent conviction order is contained in s 39(2)(a) to (d) of the Sentencing Act 1995 (WA).
Section 45 of the Sentencing Act provides that the court must not make a spent conviction order under 39(2) unless certain preconditions are satisfied. The respondent in this case concedes, and I accept, that those preconditions are met.
Even where the preconditions are met, the court has the discretion, but not a duty, to make a spent conviction order. In R v Tognini,[5] Murray J observed:
If the necessary preconditions 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.
[5] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27].
That discretion is of an exceptional character and should only be exercised in clear cases. That is a significant hurdle for applicants to overcome where the discretionary power is enlivened,[6] which it is accepted is the case here.
[6] Brewer v Bayens [2002] WASCA 271 [16].
The exercise of the discretion involves a consideration of the interests of the offender and the public interest. The public interest includes general deterrence, as well as the protection of the community. That is particularly so in the case of drink driving offences.
The public interest can include the interests of an employer or a potential employer being aware of the conviction insofar as it may be relevant to assessing the person's reliability or suitability for a particular type of work. The public interest may coincide with the interests of the offender where relieving him or her of the consequences of the conviction would positively aid the offender's rehabilitation and, in that sense, would also be in the best interests of the community.
Rehabilitative effects may include the impact on the offender's employment, present or future, and the avoidance of exceptional hardship to the offender or his or her family. I must therefore consider whether the appellant should be relieved immediately of the adverse effect that the conviction might have had on her. As to that, the appellant's application was initially put on the basis that she would suffer difficulty in potential future employment as a tax agent if the conviction was not made the subject of a spent conviction order.
I reject that proposition on two bases: first, that it was unsupported by any evidence as to the appellant's recent intentions as to future employment; and, secondly, on the basis that there was no evidence to suggest that a drink driving offence might cause the appellant to fail any 'fit and proper person test' in the context of an application to become a tax agent and the obligations of what such a person is required to do.
The appellant was, however, permitted by leave of the court, with no opposition from the respondent, to give further evidence in support of her application viva voce.
There are two aspects of her oral evidence which are of significance in considering the exercise of the discretion in relation to her appeal. The first is that it appears that the appellant has been denied applications for employment on four or five occasions from working as a fly‑in fly‑out worker. In each case, she has disclosed the existence of her conviction, and I accept that I can also take judicial notice of the facts that mine sites ordinarily require workers to refrain from drinking whilst onsite and that the existence of a conviction for a drink driving offence is likely to influence her prospects of employment in such a venture.
The second is that the appellant expanded upon certain scant evidence in the affidavit filed in support of the appeal as to her mental state and the effect that the conviction has had upon it. It appears that the appellant has been diagnosed with post-traumatic stress disorder, borderline personality disorder and depression, together with anxiety. She has been undergoing treatment for those conditions for some time.
The learned magistrate's comments in the course of the hearing before him indicated that it was obvious that the charge was causing concern to the appellant, and having seen the appellant in court, I have no doubt that her mental condition is exacerbated by her uncertainty as to the future arising from the conviction.
There is a balancing exercise to be carried out in this case. On the one hand, there are the adverse effects of the conviction on the appellant to consider, and on the other, there is a public interest in an employer or potential employer being aware of the conviction insofar as it may be relevant to assessing the appellant's reliability or suitability for a particular type of work.
The learned magistrate took a favourable view of the appellant where she came before him on 30 September 2024 and was clearly minded to impose the minimum penalty in relation to her offence, given her age and circumstances. Knowing more about her, I am satisfied that it is in her and the community's interests for her to be relieved of the adverse effects of the conviction, based on the further evidence she was allowed to adduce at the hearing. Had the matter rested on the evidence disclosed in her affidavit, I would have taken a contrary view.
As it is, however, the appellant is 24 years old. She suffered an unfortunate personal tragedy early in 2024 and, since then, has taken a number of steps to improve her position in life. In my opinion, the community is best served by granting a spent conviction order, based on the evidence before me. Given the helpful attitude taken by the respondent, it is not necessary to assess how the learned magistrate came not to consider whether to make a spent conviction order when the matter came before him, and I therefore do not intend to give reasons in relation to that matter.
I am satisfied, however, that there was an error of law in failing to consider whether a spent conviction order should be made, notwithstanding that no application for such an order was made at the time, due to the provisions of the Sentencing Act. I find, based on the evidence adduced by the appellant today, that there has been a substantial miscarriage of justice as a result of the magistrate's failure to consider that issue, and I would therefore grant leave to appeal, allow the appeal and make a spent conviction order.
These reasons have been anonymised to preserve the benefit of the spent conviction order, having regard to s 14(3) of the Spent Convictions Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
17 MARCH 2025