IHS v Director of Public Prosecutions - [2025] WASC 437

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   IHS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 437
CORAM:   LUNDBERG J
HEARD:   16 OCTOBER 2025
DELIVERED          :   23 OCTOBER 2025
FILE NO/S:   SJA 1050 of 2025
BETWEEN:   IHS
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1050 of 2025
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   MH XXXX of 2025

Catchwords:

Criminal law – Appeal against refusal to grant a spent conviction – Appellant convicted of one count of stealing on his plea of guilty – Appellant failed to scan or pay for vitamins and health products at store - Appellant an engineer from overseas, undertaking post-graduate study in Australia pursuant to a student visa - Turns on own facts

Criminal law - Application to adduce further evidence on appeal and to amend grounds of appeal - Applications granted

Criminal law - Whether refusal to grant spent conviction amounted to a miscarriage of justice - Potential serious impacts on future employment and visa status - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9, s 10, s 14, s 39, s 40
Criminal Code (WA), s 378, s 426
Sentencing Act 1995 (WA), s 39(2), s 45

Result:

Appeal allowed on ground 4 and spent conviction granted. Further orders set out at [89] of reasons.

Category: B

Representation:

Counsel:

Appellant	:	N Scerri
Respondent	:	M L Wong

Solicitors:

Appellant	:	Scerri Legal
Respondent	:	Director of Public Prosecutions (WA)

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

ADA v Director of Public Prosecutions [2022] WASC 112
AS v Wilson [2020] WASC 434
BA v The Director of Public Prosecutions [2021] WASC 370
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Cochrane v Director of Public Prosecutions [2022] WASC 378
De Marte v Director of Public Prosecutions [2025] WASC 225
Elmi v Rozario [2013] WASC 38
GNR v The State of Western Australia [2015] WASCA 5
JAD v McRae [2022] WASC 220
JJF v Tattersall [2018] WASC 170
Johnson v Matthews [2020] WASC 122
JWH v WA Police [2023] WASC 485
M v Seidner [2013] WASC 395
Pagnoni v Jones [2023] WASC 356
Peterson v Quinn [2020] WASC 294
R v Tognini [2000] WASCA 31
Rawle v Collins [2022] WASC 452
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wright v McMurchy [2012] WASCA 257

Table of Contents

Introduction and summary

The proceedings below

Legislative framework and relevant principles

Criminal Appeals Act

Spent convictions

Further evidence on appeal

Discretion in s 40(1)(e) of the CA Act

Summary of the further evidence

Grounds of appeal

The parties' submissions on appeal

Appellant's submissions

Respondent's submissions

Disposition - Ground 2

Disposition - Ground 3

Disposition - Ground 1

Disposition - Ground 4

Conclusion and orders

LUNDBERG J:

Introduction and summary

The appellant is 27 years of age. He is a foreign national, having arrived in Australia in the winter of 2024 on a study visa in order to complete a Master of Professional Engineering degree at a university in Perth. He is a recipient of a scholarship which covers part of his tuition fees. The appellant holds an engineering degree which he obtained in his home country.
On 26 March 2025, less than a year after arriving in Australia, the appellant, together with his wife, visited the Woolworths Store at the Mandurah Forum. The appellant selected various grocery items and placed them in a trolley, including numerous vitamin and health products valued at $319.30. He then made a decision which his solicitor later described as 'stupid'. The appellant moved the vitamin and health products from the trolley into a cooler bag he had brought with him.[1] The appellant and his wife proceeded to the self-service checkout and failed to scan or pay for the products he had concealed in the cooler bag.
[1] ts 2 - 3 (20 May 2025).
While views in the community may differ as to the desirability of self-checkout facilities in modern supermarkets, they are not an invitation for customers to unilaterally decide to avoid paying for some items, as the appellant appears to have done in this case. Such offences are, I would surmise, difficult to detect. They are not trivial offences.
As it happens, loss prevention officers at the store were watching the couple. The officers apprehended the couple after they exited the store. The stolen items were recovered. The appellant was remarkably candid when interviewed, stating that:[2]
I moved the items into the bag so they wouldn't be seen …
I didn't plan it, it just happened. I didn't think there would be any consequences.
[2] ts 3 (20 May 2025).
The appellant was charged with one count of stealing contrary to s 378 of the Criminal Code, to which he pleaded guilty. His wife was also charged but that charge was discontinued. On 20 May 2025, the appellant was sentenced to a $300 fine and ordered to pay costs. The appellant, who was represented by a lawyer at the hearing, sought a spent conviction order pursuant to s 39(2) and s 45 of the Sentencing Act 1995 (WA) (Sentencing Act), which was refused. A conviction for stealing was recorded.
The appellant now appeals against that refusal. The appellant seeks leave to appeal out of time and contends the Magistrate erred in refusing the spent conviction order. The application for leave to appeal is brought under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).
The appeal was filed out of time as a result of delays in receiving the transcript of the proceedings below.[3] The short delay of only 20 days has been properly explained by the appellant and an extension of time should be granted.
[3] Affidavit of the appellant sworn on 11 July 2025 (Folio 2).
As I will explain, the Magistrate's decision to refuse to grant a spent conviction was open in all the circumstances. On appeal, however, the appellant has sought leave to adduce additional affidavit evidence in support of a contention there has been a miscarriage of justice in the refusal of the spent conviction order. The respondent did not oppose the admission of the further material and I granted leave at the hearing to permit the appellant to rely upon it.
The additional material demonstrates, in my view, that the appeal should be allowed on the miscarriage of justice ground. These are my reasons for allowing that ground.

The proceedings below

The appellant was convicted, on his plea of guilty, of one offence of stealing contrary to s 378 of the Criminal Code, which provides:
378. Penalty for stealing
Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.
An application for a spent conviction order was made at the hearing on behalf of the appellant. The solicitor for the appellant provided to the Magistrate three character references in support of the application. Those references are also before this court on appeal. The references describe the appellant as honest, hardworking, and deeply remorseful, and characterise the offence as completely out of character.
The first character reference was from an Assistant Parish Priest who stated that he had known the appellant for three years, described him as decent, hardworking, and trustworthy, and believed the behaviour was a 'one-off event'. The second reference was from a fellow student who had known the appellant since 2018. The student described the appellant as respectful, honest, and dependable, that the incident was 'completely out of character' and that the appellant had expressed 'deep regret'. The final reference was from an engineering colleague who had known the appellant since 2022. He described him as demonstrating honesty, reliability, and professionalism. The colleague described the incident as a 'one-off mistake' and noted that the appellant's receipt of a scholarship reflected his potential to study overseas.
The solicitor submitted to the Magistrate that the offence was a 'stupid decision' that he made 'under pressure'. The Magistrate was informed that the appellant was 27 years of age, married with no children, and had come to Australia on the above scholarship from overseas around 12 months before the offence was committed. The appellant was studying for a Master of Professional Engineering degree at university.[4]
[4] ts 3 - 4 (20 May 2025).
The explanation proffered for the theft of the vitamins was that his wife had a vitamin D deficiency, which his counsel accepted at first instance was 'not the best submission'.
The Magistrate was clearly unimpressed that the appellant had been in Australia for one year and yet had decided to 'go around and steal in Woolworths', and had stolen non-essential items. The Magistrate indicated that she failed to understand why a '27‑year‑old man thinks that stealing from a shop does not have consequences'.[5] Those observations are unsurprising, in my respectful view, but did not ultimately form part of her sentencing reasons.
[5] ts 4 (20 May 2025).
The Magistrate reviewed the references and concluded the appellant was a person of previous good character, and was satisfied the appellant was unlikely to commit a stealing offence in the future. However, her Honour exercised the discretion to refuse the application for a spent conviction order and entered a conviction.
The relevant extracts from the transcript are below:[6]
Stand up, [appellant]. You've entered your plea of guilty at the first opportunity and I give you full credit for that plea. I'm told that you went into Woolworths, you transferred items from your trolley into a bag that you had taken in with you. You then paid for certain items at the self-serve checkout. Loss prevention officers had an eye on you because of the way you were behaving. You were detained, the items were recovered. But whether or not you offered then to pay, doesn't change the fact that you stole. You knew you stole.
You say you didn't plan it, but you didn't believe there would be consequences, of what you said in your interview, when you were stopped and spoken to by police. As far as this is concerned, giving you full credit, you will be fined in relation to the matter. There will be a $300 fine and $300.50 in costs. Organise a time to pay if you can't clear that in 28 days.
You seek a spent conviction order. To make a spent conviction order, I have to be as satisfied as I can be that you're unlikely to commit an offence of this nature again.
Your 27, you've been in this country, I'm told, a year. And according to these references, you are a man who normally behaves in a proper manner and not as a common thief – which is exactly what you are, because you stole. So in relation to this, they say that 'this is out of character'. The one person here, [Mr M], believes this was a 'one off mistake'. You put the items in your bag deliberately, and then you chose to not to pay – it wasn't a one-off mistake. You did it. You planned it by not paying. But it is your first foray into stealing, so I'm going to say that you're unlikely to commit an offence of this nature again in the hope that this has been a lesson to you.
Then I look whether the offence is trivial or you're of previous good character. You are of previous good character. That raises a suggestion to make the spent conviction order. I then have to decide whether or not to take away the burden of a stealing charge from your name. You are studying to be an engineer, I'm told you're not working at the moment, and you are – you have references here from three people, one of them being a pastor. So you go to church as well – a Catholic Church.
The normal outcome for a matter such as this is that you end up with a conviction. There may well be a detriment that you would suffer, [appellant] but on this occasion I'm satisfied that the discretion should not be exercised in your favour, and therefore you have a stealing conviction. (the emphasised passage is the subject of ground of appeal 2)
[6] ts 5 - 6 (20 May 2025).
Given the value of the property involved, which was less than $1,000, the offence in question carried a maximum penalty of a fine of $6,000: s 426(4) Criminal Code. Section 426 is engaged, inter alia, where a person is convicted of a stealing offence contrary to s 378 of the Criminal Code and the charge is dealt with summarily.

Legislative framework and relevant principles

Criminal Appeals Act

The legislative framework for this appeal is found in the CA Act. An aggrieved party may appeal a sentence imposed as a result of a conviction.[7] Any such appeal must be filed within 28 days, unless the court orders otherwise.[8] As noted above, I consider it appropriate to allow an extension of time to appeal.
[7] CA Act, s 6(f) and s 7(1).
[8] CA Act, s 10(3).
The grounds of appeal may include a complaint that there has been an error of law, a complaint that a sentence has been imposed which is manifestly excessive, and where there has been a miscarriage of justice.[9]
[9] CA Act, s 8(1)(a) and (b).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[10] meaning that the ground is required to have a rational and logical prospect of succeeding.[11] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[12]
[10] CA Act, s 9(2).
[11] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[12] 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.[13]
[13] CA Act, s 14(2).
Pursuant to s 14(1) of the CA Act, this court on appeal may dismiss the appeal, may allow the appeal, or may set aside or vary the decision of the court below and the sentence imposed, order made or thing done as a result of the decision. Additionally, pursuant to s 14(1)(d) of the CA Act, the court may substitute a decision that should have been made by the court below.
If the court exercises its power in accordance with s 14(1)(d) of the CA Act, then the court should be satisfied that the evidence before it is sufficient to safely make a finding in respect of substituting a decision of the court below.[14]

Spent convictions

[14] Johnson v Matthews [2020] WASC 122 [43].

The ordinary rule is that a conviction will be a matter of record with all of the consequences that may entail into the future.[15]A sentencing court has a discretion whether or not to make a spent conviction order, as appears from the text of s 39(2) of the Sentencing Act.[16]
[15] R v Tognini [2000] WASCA 31 [27] - [28].
[16] Sentencing Act, s 39(2) and s 39(2)(a), (b), (c), (ca), and (d).
The conditions for the making of a spent conviction order are set out in s 45 of the Sentencing Act, which provides as follows:
45. Spent conviction order, making and effect of
(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 following principles are drawn from McGrath J's decision in ADA v Director of Public Prosecutions,[17] which I also summarised in
my previous decision in JWG v WA Police:[18]
1.Section 45 of the Sentencing Act directs the court not to make a spent conviction order unless three conditions are satisfied.
2.The prerequisites to the making of the spent conviction order are: (1) the court must consider that the offender is unlikely to commit such an offence again; (2) the offence must be trivial, or the offender must be of previous good character (being express alternatives to each other); and (3) having regard to the pre‑condition that the offence must be trivial, or the offender must be of previous good character, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
3.The first two pre-conditions must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order.
4.The pre-conditions must be established by convincing evidence.[19] The exercise of the discretion to grant a spent conviction order is regarded as being of an exceptional character.[20]
5.Further, it has been observed that the sentencing court has a discretion, not a duty, to make a spent conviction order.[21]
6.Consideration must be given to all the circumstances of the offence and the offender, as well as the public interest.[22] The public interest includes 'maintaining the community's confidence in the judicial system and ensuring general deterrence by the public record of convictions'. The public interest also 'comprises a consideration of employers being aware of an offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work undertaken by the offender'.[23]
[17] ADA v Director of Public Prosecutions [2022] WASC 112 [31] (McGrath J). These principles have also been stated in the following decisions: Cochrane v Director of Public Prosecutions [2022] WASC 378 [30] - [37]; BA v The Director of Public Prosecutions [2021] WASC 370 [59] - [63]; Peterson v Quinn [2020] WASC 294 [28] - [34]; JAD v McRae [2022] WASC 220 [67] - [70]; AS v Wilson [2020] WASC 434 [39] - [53].
[18] JWG v WA Police [2023] WASC 485 [14].
[19] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14].
[20] R v Tognini [27] ‑ [28].
[21] GNR v The State of Western Australia [2015] WASCA 5 [44]; ADA v Director of Public Prosecutions [35].
[22] Wright v McMurchy [2012] WASCA 257 [59]; ADA v Director of Public Prosecutions [35].
[23] ADA v Director of Public Prosecutions [37], citing Brewer v Bayens [17] - [18].
The Court of Appeal in R v Tognini, observed that a sentencing court should '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'.[24] The court further held:[25]
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 would positively aide 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.
[24] R v Tognini [27] - [28].
[25] R v Tognini [27] - [28].
The decision in ADA v Director of Public Prosecutions provides a useful illustration of the application of the foregoing principles. The appellant in that case was convicted, upon her own plea, of one offence of assaulting a public officer who was performing a function of his employment, contrary to s 318(1)(d) of the Code. The Magistrate imposed a $1,000 fine and declined to grant the appellant a spent conviction order. The appellant appealed the decision contending that the Magistrate erred when she determined not to make a spent conviction order when it was reasonably open, in the proper exercise of her Honour's discretion, to do so.

The appellant in ADA v Director of Public Prosecutions had returned from Victoria to Western Australia and was required to complete 14 days of quarantine as part of the COVID-19 safety protocol. The appellant quarantined by herself at a private residence for the mandatory 14 days quarantine. She entered into quarantine two days prior to the offending.
When considering whether the appellant should be relieved of the adverse effect of the conviction, McGrath J found that her offending occurred in peculiar and 'extenuating' circumstances. Those circumstances were:
[48] The offending occurred in the most extenuating of circumstances. The appellant was required to undertake 14 days mandatory quarantine upon arriving in Western Australia from Victoria. Within two days of commencing the 14 days mandatory quarantine, the appellant received a telephone call from her ex-husband demanding a divorce and stating that her possessions could not be collected from their home and that she should not return to Victoria. At the time of receiving that telephone call the appellant was, in effect, in home detention, given that she was undertaking 14 days quarantine, without any support, and was not able to leave the residence. The appellant became intoxicated with alcohol. The appellant became so emotionally distressed that police officers, undertaking a routine check, determined that it was necessary to take the appellant to hospital.
[49] The appellant suffers from depression and anxiety. The medical practitioners at the hospital determined that it was necessary that the appellant required a sedative. The appellant did voluntarily become intoxicated with alcohol after receiving the telephone call from her husband. I accept that the alcohol must have affected the appellant's judgment and behaviour. However, the appellant did not become intoxicated and then choose to attend the hospital. The appellant was taken to the hospital by the police officers.
[50] The act of assaulting a security officer at a hospital is a serious offence. General deterrence is a significant sentencing factor in such cases, including in the circumstances in which the appellant committed the offence. However, the seriousness of the offending must be considered in the context of the offending. The assault of the security guard occurred as the medical practitioner was administering a sedative due to the emotional state of the appellant who was consequently not compliant. The acts of the appellant did not result in any bodily harm to the security guard. I accept that the incident was distressing for the security officer. The fact that the security guard did not suffer bodily harm is most fortunate and most likely was a consequence of the fact that the appellant was wearing a facemask. However, the fact remains that the appellant was convicted, on her own plea, of one count of assault without causing bodily harm.
His Honour took into account the adverse consequences for the appellant if convicted of the offence, particularly as to her ability to continue in the accounting profession. This was a factor to be weighed with all other considerations, according to McGrath J, but was sufficiently significant in the overall context of that case, combined with the particular extenuating circumstances in which the offence was committed.[26] Ultimately, his Honour allowed the appeal and granted a spent conviction order.
[26] ADA v Director of Public Prosecutions [52] - [56].
A further example of a decision of this court in which the impact on employment opportunities has been regarded as an important factor in favour of the grant of spent conviction orders is JJF v Tattersall.[27] In that case, Derrick J observed that there was likely to be no direct connection between the cannabis offence in that case and the appellant's reliability or suitability for project engineering work. The public interest in ensuring employers were aware of the past conviction was therefore not a strong factor in that case. There were factors present weighing against the grant of a spent conviction order in that case, including the fact the appellant had previously (and recently) been granted a spent conviction order for another offence, and that the appellant had committed the offence whilst on bail.[28]
[27] JJF v Tattersall [2018] WASC 170. See also Pagnoni v Jones [2023] WASC 356.
[28] JJF v Tattersall [69] - [70].
Derrick J ultimately considered it appropriate to exercise the discretion to grant a spent conviction order, so as to positively aid in his rehabilitation in a way which may best be seen to accord with the interests of the community.[29]
[29] JJF v Tattersall [71].
I should also mention my decision in JWG v WA Police. In that case the appellant applied for leave to appeal against the decision by the Magistrate to refuse to grant him spent conviction orders. The sole ground for the appeal was that the refusal to grant those orders resulted in a miscarriage of justice. The appellant was convicted on three offences following trial, being two counts of common assault. The Magistrate declined to exercise the power in s 39(2) of the Sentencing Act to grant a spent conviction order. The Magistrate concluded that it would not be in the public interest to make such orders, despite the appellant's prior good character, noting that the actions of the appellant were deplorable.
In JWH v WA Police, I reached the conclusion that a miscarriage of justice had been occasioned by the refusal to grant spent conviction orders on two grounds. First, I considered that the overall public interest would be better served if the appellant was given a further opportunity to be rehabilitated. Second, there was likely to be a substantial adverse effect upon the appellant in the circumstances of the case, over the penalties imposed upon him for the offences, in the event the spent conviction orders were not made. Those adverse effects included the greater difficulties in securing employment in his chosen field, as well as the resulting impact on his ability to secure appropriate visas to ultimately obtain permanent residency in Australia. In particular, being able to obtain gainful employment was the first step in this process and his inability to obtain a police clearance certificate would have operated as a substantial barrier.
Having regard to the above principles, and the particular examples of their application, I turn now to the application to adduce additional evidence on appeal and the grounds of the appeal.

Further evidence on appeal

In the present case, two further affidavits were sworn by the appellant, on 10 October 2025 and 15 October 2025, in addition to the initial affidavit sworn on 11 July 2025 which was filed with the appeal. The two further affidavits address the implications for the appellant's future employment as an intern in the engineering industry, and as an employed engineer thereafter, as well as his present employment as a driver with Uber, which has now ceased following his inability to supply a satisfactory 'background check'.

Discretion in s 40(1)(e) of the CA Act

This court has the power to admit additional evidence on an appeal such as the present: s 40(1)(e) of the CA Act. This power is wide. The court must otherwise decide an appeal on the evidence that was before the lower court: s 39 of the CA Act.
The power in s 40(1)(e) should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler v The Queen [No 2];[30] The State of Western Australia v Hyder;[31] AH v The State of Western Australia;[32] and Suleiman v The State of Western Australia.[33]
[30] Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA).
[31] The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P, Buss JA & Mazza J agreeing).
[32] AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] - [124] (Martin CJ, Mazza JA & Hall J).
[33] Suleiman v The State of Western Australia [2017] WASCA 26 [53] (Buss P, Mazza & Mitchell JA agreeing).
In M v Seidner,[34] Pritchard J, as her Honour then was, stated the following principles relevant to the exercise of the discretion to admit further evidence, all of which are orthodox and continue to be applied in this court:[35]
1.This court has power to admit other evidence. The test for the admission of fresh evidence is whether, had the evidence been before the sentencing court, a different sentence may have been imposed.
2.Evidence of facts since the sentence was imposed may be received to show facts relevant to the sentencing process, which were in existence at the time of a sentence but either not known to the sentencing judge or not properly appreciated at the time.
3.For the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction.
[34] M v Seidner [2013] WASC 395 [26] - [28] (Pritchard J).
[35] For example, Rawle v Collins [2022] WASC 452 [17] (Forrester J).
There is a distinction between additional evidence that is classified as fresh evidence and additional evidence that is classified as new evidence, as recently examined by Lemonis J in De Marte v Director of Public Prosecution.[36] As the admission of the additional evidence in this case was not opposed, and as this appeal is against sentence only, it is unnecessary to delve into this distinction.
[36] De Marte v Director of Public Prosecutions [2025] WASC 225 [40] - [62] (Lemonis J).
It is sufficient to say that I am satisfied the discretion should be exercised to admit the material, which was uncontentious on its face and in respect of which there was no application to cross-examine the appellant.

Summary of the further evidence

In some respects, the further evidence represents an amplification of material which was before the sentencing Magistrate. In other respects, it is material which provides additional factual information well beyond the evidence and statements which were before the Magistrate.
In summary, the appellant's affidavits evidence the following matters:
1.The appellant arrived in Australia in July 2024 to study engineering at an Australian university. He is a foreign national where he was a fully qualified engineer for around two and a half years. His international degree is not recognised in Australia, and he is required to do further study before he can work as an engineer in Australia.
2.The appellant successfully applied for a scholarship from an Australian university, which covers part of his tuition fees. The appellant is presently studying the Masters of Professional Engineering degree, which is due to complete by July 2026.
3.The appellant is currently on a Subclass 500 Student Visa which I understand to be a temporary visa that allows him to study in Australia, and also undertake limited work in Australia. The appellant has deposed that obtaining relevant work experience in Australia is an essential requirement in order to permit him to apply for his next visa, before he ultimately applies for permanent residency in Australia.
4.The appellant is specialising in the area of renewable energy and he hopes to remain and work in Australia once fully qualified. Before he can graduate, and earn the Masters of Professional Engineering degree, the appellant is required to complete a minimum of 450 hours of practical work.
5.The university the appellant is attending offers an internship program (the Internship Program) that assists students to locate a practical work placement, in order to complete their practical work requirements. The Internship Program operates like a recruitment agency as they offer suitable students from the university to host employers. The application form for the Internship Program placement states that 'many internships will require the intern to have a current valid Police Clearance, Working with Children Check or NDIS Screening'. The form goes on to ask the applicant to confirm whether he or she has the relevant clearance already or if they are willing to obtain them 'should your internship require you to do so'.[37]
6.The appellant acknowledges that he is not restricted to using this particular Internship Program to find a placement. However, it is his preference because of the assistance he says it can provide to international students. Further, the appellant acknowledges that he 'cannot say how the Internship Program will treat an application from [him] that discloses [his] stealing conviction', given the material from the Internship Program refers to the requirement for a National Police Certificate 'but does not go further than that'.
7.The appellant deposes that he regularly looks at publicly advertised internships and has observed that some of them seek applicants who are either permanent residents or an Australian citizen. Because of this, he contends he is already at a disadvantage when competing against applicants who satisfy those requirements.
8.The appellant has adduced material concerning three engineering internships published on the Seek website, and three positions of the type he would apply for once he is qualified. I accept that the advertisements published for all six of the positions require a 'Police Check' or 'National Police Certificate'.[38]
9.The appellant has deposed that he is concerned that his stealing conviction will prevent him from being accepted for an internship placement. He stated that internship positions in the engineering field are highly competitive and it is reasonable to expect that an employer will prefer a candidate without a criminal record over one who has a conviction for stealing.
10.Further, the appellant has deposed that, even if he manages to graduate with the stealing conviction, he remains concerned that he will face a similar disadvantage each time he applies for graduate engineering roles. The appellant states that many employers in the mining, energy and infrastructure industries require police background checks as part of their standard pre- employment screening, pointing to two employment positions published by BHP Limited and Fortescue Metals Group.[39]
11.The appellant commenced casual work as an Uber Eats delivery driver in October 2024. This was not disclosed to the Magistrate. The appellant's work involved the delivery of food only – he did not transport any passengers. When the appellant originally applied to work for Uber, he was required to pay a fee for a National Crime Check to be undertaken. It is apparent the appellant was able to pass this initial check.
12.However, since his conviction for stealing was recorded in May 2025, the appellant has been unable to obtain a satisfactory criminal check, which has led to a cessation of his work with Uber, evidenced by a notice issued to the appellant on his Uber mobile phone application. The appellant is no longer permitted to work for Uber. The appellant adduced documentary material in his affidavit which has confirmed these matters.[40]
[37] Second Affidavit of the appellant sworn on 10 October 2025 (Folio 14), pg 10.
[38] Third Affidavit of the appellant sworn on 15 October 2025 (Folio 15), Attachment 1.
[39] Third Affidavit of the appellant sworn on 15 October 2025 (Folio 15), Attachment 2.
[40] Second Affidavit of the appellant sworn on 10 October 2025 (Folio 14), Attachments 3, 4 and 5; and Third Affidavit of the appellant sworn on 15 October 2025 (Folio 15), Attachment 3.
It is unfortunate that this additional material, particularly the information which concerns the graduate program and the applications for internships and employment, was not assembled and put before the sentencing court at first instance.
Ordinarily, it is to be expected that an offender who proposes to make application for a spent conviction order treats such an application with appropriate seriousness and undertakes such work as is needed to prepare evidentiary materials to place before the Magistrate. If an adjournment is required for such a purpose, on good grounds, that can be sought from the sentencing Magistrate. But such applications are not to be approached on a perfunctory basis, on the assumption the offender will have a second bite of the cherry on appeal, even though the power to admit additional evidence on appeal is wide.

Grounds of appeal

The appellant's grounds of appeal, as initially drafted, were as follows:[41]
Ground 1: the Magistrate erred in refusing to grant a spent conviction order.
Ground 2: the Magistrate erred in determining that the ordinary rule for stealing offences is to refuse to make a spent conviction order.
Ground 3: the Magistrate erred by not having regard to the appellant's rehabilitation when considering the adverse effects of the conviction.
[41] Appeal Notice dated 14 July 2025, grounds 1 to 3 (Appeal Notice) (Folio 1); Appellant's submissions dated 5 September 2025 (AS) [9] - [12], [13] - [17], and [18] - [23].
Counsel for the appellant foreshadowed a further ground at the hearing of the appeal, and sought to rely upon the 'miscarriage of justice' ground of appeal under s 8(1)(b) of the CA Act. A minute of proposed amended grounds of appeal was provided to the court on 17 October 2025, pursuant to leave given by the court at the hearing, proposing the following further ground:
Ground 4: a miscarriage of justice was occasioned by the Magistrate in not making an order for a spent conviction pursuant to s 45 of the Sentencing Act as a result of matters not known or not appreciated by her at the time of sentence.
This further ground was not opposed by the respondent. It is appropriate to grant leave to permit the appellant to rely on that ground.

The parties' submissions on appeal

Appellant's submissions

The appellant submits that there are powerful circumstances favouring the grant of a spent conviction order. The appellant asserts that the detriment of the conviction far outweighs the seriousness of the offence, the community would benefit from the appellant's ability to offer his skills as an engineer, and the appellant's motivation for the theft was to obtain vitamins for his wife's health deficiency. The last of these points is, with respect, an extremely weak point.[42]
[42] AS [9].
The appellant submits that the Magistrate had already found the appellant was unlikely to reoffend, negating the need for future employers to be aware of the conviction. The appellant asserts that the Magistrate's discretion was influenced by an irrelevant consideration, namely the appellant's short tenure of 12 months in Australia, prior to the offence.[43]
[43] AS [10].
The appellant also challenged the Magistrate's observation that 'the normal outcome for a matter such as this is that you end up with a conviction', said to be an erroneous principle that a specific class of offence has a 'normal outcome'.
The appellant also emphasises in his submissions that the Magistrate failed to consider a necessary factor in the discretionary exercise, namely the appellant's rehabilitation.[44] The appellant contends that the Magistrate's reasons for decision do not disclose an intellectual process showing that rehabilitation was considered. While the Magistrate noted the appellant's student status and references, these were framed in the context of potential detriment, not as factors of rehabilitation.[45]
[44] AS [18].
[45] AS [23].
During the appeal, counsel for the appellant, who was not counsel below, explained the material in the second and third affidavits at some length, and made submissions as to why the appeal should be allowed on the miscarriage of justice ground. In response to my query during the hearing as to whether the further evidence was simply 'new skin on old bones', and did not advance matters much beyond the position before the sentencing Magistrate, counsel for the appellant submitted as follows:[46]
… the material before her Honour then was all from the bar table and very general. The material provided to this court, notwithstanding that in one respect it has a hearsay aspect to it, still has some significant weight. And if her Honour was presented with industry-specific materials, at the very least she would have been able to make a finding that it is clear that certainly insofar as the applicant's intended profession, this was a hurdle that was absolutely going to make itself present. Her Honour has – and not a criticism of her Honour – she can only do what she can do, but the position she was put in was submissions purely from the bar table.
So the applicant's position is that it is not really a rehashing of the same old ground. It is putting this court in a position where there is more information that is fresh information, industry-specific information. And the matters that are complained of are not matters that are sufficient to attract judicial notice, notwithstanding, as I say, the concession that I have observed these submissions being made in that jurisdiction a lot.

Respondent's submissions

[46] ts 32 (16 October 2025).

The respondent submits that the appeal should be dismissed. The respondent submits that there are no particular circumstances in the present case that render the Magistrate's decision not to exercise the discretion under s 45 plainly wrong.[47]
[47] Respondent's submissions dated 26 September 2025 (RS) [25].
The respondent submits there was nothing mitigating in the circumstances of the offending, noting that the implied necessity that the appellant stole the items as a result of his wife's vitamin deficiency remains unclear and unproven. Indeed, the respondent draws attention to the following matters, which are said to be inconsistent with any submission that the appellant stole the items out of 'necessity':[48]
(a)the appellant's comment that he did not think there would be consequences;
(b)the appellant's offer to pay for the items when he was apprehended; and
(c)the submission by the appellant's counsel that the appellant was in a position to pay 'a substantial fine'.
[48] RS [25.1].
Further, the respondent submits that no evidence was provided below, nor on appeal, to suggest that a conviction of this nature will negatively impact the appellant's ability to gain employment as an engineer.[49] Additionally, the appellant has not suggested how a conviction and order to pay a fine would negatively impact his rehabilitation.[50]
[49] RS [25.2].
[50] RS [25.3].
The respondent further submits that the Magistrate's observation as to the appellant's decision to appeal after being in the country for one year should be seen as an assessment by the Magistrate which highlighted the appellant's recklessness or poor judgment, particularly given the potential consequences from criminal offending on a person's visa status.[51]
[51] RS [26].
As to ground 2, the respondent submits that this mischaracterises the Magistrate's comments. In particular, it is submitted that at no point did the Magistrate determine 'that the ordinary rule for stealing offences is to refuse to make a spent conviction order', nor did the Magistrate rely on any such 'rule' when declining to make a spent conviction order.[52]
[52] RS [11] - [13].
As to ground 3, the appellant's complaint appears to be the absence of express reference by the Magistrate to the prospects for rehabilitation.[53] The respondent contends that the primary difficulty for the appellant is that he has not identified, either below or on appeal, how a conviction and the payment of a fine would in fact hinder his rehabilitation. That is, it is not clear how rehabilitation relates, on the facts of this case, to the adverse consequences of a conviction.
[53] RS [15] - [19].
As to ground 4, the respondent contends that it is necessary for the appellant to demonstrate that the refusal of the spent conviction order was so clearly unjust as to be miscarriage of justice, relying on Elmi v Rozario.[54]
[54] Elmi v Rozario [2013] WASC 38 (Hall J).

Disposition - Ground 2

It is convenient to approach the grounds of appeal in the order in which the respondent addressed them, commencing with grounds 2 and 3, particularly given the outcome of the appeal substantially turns on an assessment of grounds 1 and 4, which I will address last in sequence.
As to ground 2, it is contended that the Magistrate erred in determining that the 'ordinary rule' for stealing offences is to refuse to make a spent conviction order. This ground has no substance. The Magistrate's observations should be seen as part of the process of her consideration of the sentencing outcome, with her Honour's observations merely reflecting the ordinary rule that a conviction will be a matter of record.
I do not read the Magistrate's statement as reflecting a position that offences of the type in question are precluded from being the subject of a spent conviction order, or somehow limit or control the broad discretion of the court. The brief and very limited statement made by the Magistrate at the conclusion of the sentencing process cannot be elevated into a determinative statement which constitutes appealable error.

Disposition - Ground 3

As to ground 3, it is notable that this ground focuses on the appellant's rehabilitation, and yet that issue was not raised by the appellant's counsel before the Magistrate below, in support of the application for a suspended conviction order. In any event, although not referred to expressly by the Magistrate as matters of rehabilitation, it is nonetheless evident the Magistrate had express regard to the three references relied upon by the appellant below, and to the appellant's attendance at church. The appellant's character references and the appellant's attendance at church were all considered by the Magistrate, as is evident from the transcript extract which I have incorporated into these reasons.[55]
[55] ts 5 - 6.
Properly understood, then, the substance of ground 3 rises no higher than a contention that the Magistrate gave insufficient weight to the issue of rehabilitation. To the extent there is any force left in this ground, it is a complaint of implied error and subsumed by ground 1, to which I now turn.

Disposition - Ground 1

Ground 1 embodies a complaint that the Magistrate erred in exercising the sentencing discretion to refuse the spent conviction order. The Magistrate had just heard from the appellant's counsel, and in her brief reasons addressed each of the matters raised by counsel, including the matters which might be said to go to rehabilitation and the personal circumstances of the appellant, including his study as an engineer. As earlier noted, the Magistrate was unimpressed with the appellant's statement that he did not believe there would be consequences for his conduct, and she expressly observed that the appellant knowingly stole the items, being vitamins and health products.
The Magistrate did not make express reference in her reasons to the explanation that the vitamins were stolen because of the asserted vitamin deficiency of the appellant's wife. That was something of a weak explanation, in any event, as the appellant's own counsel recognised. It has not been relied upon during the appeal.
The Magistrate expressly accepted there would be detriment for the appellant in recording a conviction and ultimately concluded that the appellant should not be relieved immediately of the adverse effect that a conviction might have on him. It is apparent from the brief reasons given by the Magistrate that her Honour had regard to the circumstances of the case, the seriousness of the stealing offence, the personal circumstances of the appellant, and the effect of a spent conviction order on general deterrence. This last point is apparent from the reference to the 'normal outcome' in the Magistrate's reasons.
Counsel for the appellant, during the appeal, made strong submissions in support of the first ground of appeal, but those submissions cannot escape the difficulties presented by the following matters.
First, there was no evidence before her Honour below to support the suggestion that the recording of a conviction would negatively impact the ability of the appellant to gain employment as an engineer. The submission of the respondent in this regard should be accepted. It is typically necessary for the 'potential adverse effect of a conviction' to be identified, not 'merely speculated upon'.[56] As Forrester J explained in Rawle v Collins, where the asserted adverse effect relates to employment, evidence of the likely impact of a conviction on the appellant's ability to undertake such employment is required.
[56] Rawle v Collins [62] (Forrester J).
Second, the circumstances of the offending offer little, if anything, by way of mitigation. The appellant knowingly stole over $300 worth of vitamins. The weak explanation of his wife's vitamin deficiency, which I have mentioned already, is not mitigatory. The items were not essential in nature. In any event, the appellant emphasised below that he had the ability to pay a substantial fine, and offered to pay for the items when apprehended. Any suggestion that the offence was one of necessity suffers from a distinct lack of credibility, in my view.
Third, the appellant's explanation when apprehended that he did not believe 'there would be any consequences' is as candid as it is unhelpful for the appellant. The Magistrate viewed the admission in a dim light. She was right to do so.
Fourth, there is a strong aspect of general deterrence associated with stealing offences of this nature, which are difficult to detect. These offences should not be regarded as trivial offences and, indeed, the Magistrate did not reach that conclusion.
For these reasons, I would refuse the appellant leave to appeal in respect of ground 1.

Disposition - Ground 4

I turn to the new ground, which asserts there has been a miscarriage of justice.
The further evidence adduced on appeal by the appellant demonstrates the strong likelihood that the appellant would need to disclose his stealing conviction to prospective employers when applying for an engineering internship or for further employment as an engineer. The fact of such a disclosure is not, on the evidence, a complete bar to securing a future internship program or future employment. The stealing conviction will, I accept, be something of a barrier to the appellant's ability to secure these positions, but not an insurmountable one.
The appellant contends he will be disadvantaged in seeking such positions, not only because of the conviction but because he will be competing with applicants who are permanent residents or Australian citizens, and so his difficulties and disadvantages will be compounded.
The appellant emphasises that he has already lost his employment as a food delivery driver with Uber, following his conviction (although there appears to be an open avenue for the appellant to apply to Uber to review that outcome).
Of course, the fact of a conviction will have consequences for offenders. That is the ordinary and intended consequence. On occasions, convictions can impact a person's current employment and also their future employment prospects. The availability of a spent conviction order assumes there are such consequences, with the court being required by s 45(1) to consider whether an 'offender should be relieved immediately of the adverse effect' of those consequences.
The further material adduced on appeal does, on balance, sustain the miscarriage of justice contention. The further material provides greater detail as to the industry-specific consequences of a conviction for the appellant, as well as providing information to explain the impact on his casual position with Uber and his future visa status. As I have earlier observed, it is unfortunate this material was not assembled and placed before the Magistrate. Now that the material has been adduced on appeal, it can be said with some confidence that this information was highly relevant to the sentencing exercise and material to the outcome reached by the Magistrate.
I consider the appellant has demonstrated there has been a miscarriage of justice, in that further material concerning the likely consequence of a conviction was not placed before the Magistrate.
I therefore consider it appropriate to allow the appeal on ground 4, and to re-consider the appellant's application for a spent conviction. Neither counsel submitted that the matter should be remitted to the Magistrates Court in the event I upheld the appeal.
In my view, the available material before this court justifies the appellant's application for a spent conviction. The circumstances provide a solid basis to conclude that the appellant is unlikely to commit stealing offences of this nature in the future. The offence in question is not trivial, although I consider it is at the low-end of seriousness of stealing offences. However, in any event, when assessing the criteria in s 45(1) of the Sentencing Act, having regard to the evidence before the court, including the character references provided for the appellant, it is open to positively find that the appellant has been of previous good character. These findings are sufficient to engage the discretion whether to relieve the appellant immediately of the adverse effect of the conviction.
The court has no duty to make a spent conviction order, of course, but rather has a discretion to exercise. A positive exercise of that discretion, in favour of an offender, is of an exceptional character.
In the present circumstances, the discretion should be exercised in light of the following matters:
1.The appellant's decision to steal non-essential health products from a Woolworths store was out of character, and a 'one-off event'. It was not planned and not undertaken for profit. He confessed at once. It will a silly decision which he regrets and for which he has shown remorse.
2.The appellant has chosen to study in this country in a challenging field, and for that purpose was awarded a scholarship by a leading Australian university. The field of study follows some years of undergraduate study in his home country.
3.The appellant's personal and professional trajectory demonstrates he is attempting to improve his life and further provide for his family. These are attributes to be positively encouraged.
4.There is likely to be a substantial adverse effect upon the appellant, in addition to the penalties imposed upon him for the instant stealing offence, in the event the spent conviction application is not granted. The adverse effects include the greater difficulties in securing an internship in his chosen field, which is a step required to complete his further study and then to secure ultimate employment as an engineer. Additionally, there is a likely further impact on his ability to secure a visa to obtain permanent residency in Australia. The appellant's inability to obtain a police clearance certificate operates as a barrier, although not an insurmountable one, in this regard.
5.The appellant's future employers will no doubt wish to be assured that their prospective employee is trustworthy and honest. However, I do not consider there is a strong need for future employers in the engineering sector to be apprised of his conviction for stealing. This is because the circumstances of the commission of the offence are quite isolated in the context of the appellant's life, and may safely be said to be an aberration relative to his otherwise good behaviour. The position would likely have been different, in my view, had the stealing offence occurred whilst the appellant was in a position of trust, if there had been multiple offences of greater frequency, if the theft had involved items of greater value, or if the theft had occurred for profit. These considerations apply equally in the context of the appellant's future employment, if any, with ride-share and food delivery employers, to the extent the appellant wishes to continue casual employment in those fields.
6.I consider the overall public interest would be better served if the appellant was given a further opportunity to be rehabilitated, through the grant of a spent conviction order which removes this identified barrier to his future employment.
Having considered the matters raised on this appeal and the factors described in [87] above in particular, it is appropriate in my view to grant the appellant a spent conviction order pursuant to s 39(2)(c) and s 45(1) of the Sentencing Act.

Conclusion and orders

For the foregoing reasons, the orders I propose to make are as follows:
1.The appellant has leave to bring the appeal out of time.
2.The appellant has leave to adduce further evidence.
3.Leave to appeal on grounds 1, 2 and 3 is refused.
4.The appellant has leave to rely on ground 4, leave to appeal on ground 4 is allowed, and the appeal is upheld on this ground.
5.The decision of the Magistrate to refuse the spent conviction order is set aside and it is ordered that the appellant's conviction for the stealing offence be a spent conviction for the purposes of the Spent Convictions Act 1988 (WA).
6.The appellant's name be anonymised and replaced with the initials IHS.
I will hear from the parties as to these form of orders and as to costs, if necessary.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
23 OCTOBER 2025