JH v The Commissioner of Police
[2024] WADC 10
•6 MARCH 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JH -v- THE COMMISSIONER OF POLICE [2024] WADC 10
CORAM: CURWOOD DCJ
HEARD: 19 JANUARY 2024
DELIVERED : 6 MARCH 2024
FILE NO/S: CIVO 186 of 2022
BETWEEN: JH
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for spent conviction order - Whether a subsequent conviction for which applicant received a conditional release order resets the prescribed period under Spent Convictions Act 1988 (WA), s 11 before which an application may be brought - Words and phrases - 'No punishment'
Legislation:
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA), s 11
Result:
Preliminary issue determined that applicant is eligible to apply for spent conviction orders
Representation:
Counsel:
| Applicant | : | Ms A C Antoine |
| Respondent | : | Ms A K Miller |
Solicitors:
| Applicant | : | Perrella Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444
Commissioner of State Revenue (Vic) v EHL Burgess Properties Pty Ltd [2015] VSCA 269
DN v The Commissioner for Police [2012] WADC 130
Hussaini v Szolnoski [2013] WASC 64
Mohammadi v Bethune [2018] WASCA 98
R v Rohan (a pseudonym) [2024] HCA 3
R v Sharma (2002) 54 NSWLR 300
RV v The Commissioner of Police [2023] WADC 146
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
WHW v Commissioner of Police [2014] WASCA 153
CURWOOD DCJ:
These reasons concern a jurisdictional issue which arose in the hearing of JH's application for an order that various 'serious convictions' incurred by her on and before 17 October 1997 be declared spent under s 6 of the Spent Convictions Act 1988 (WA) (the Act).
JH has a long history of criminal offending. She has convictions for the possession of heroin (and other prohibited drugs), stealing, fraud, burglary and assault.
On 17 October 1997 JH was sentenced to a total effective sentence of 2 years and 6 months' imprisonment for 20 counts of burglary and 1 count of stealing. That term of imprisonment was suspended for a period of 2 years.
JH's eligibility to seek a spent conviction order depends upon the proper construction of s 11 of the Act. Section 11 prescribes that before an application may be made to declare a 'serious conviction' spent, a 'prescribed period' of time must elapse from the date when the serious conviction was incurred. Relevantly for JH, the prescribed period of time is 10 years from the date of her conviction on 17 October 1997 plus the period of imprisonment imposed relevant to that conviction (irrespective of whether the period of imprisonment was actually served), an additional 2 years and 6 months.
By s 11 of the Act, any prescribed period of 'eligibility' will effectively be reset if the applicant for a spent conviction order incurs a subsequent conviction, other than a conviction for which 'no punishment' or only a 'minor punishment' is imposed.[1]
[1] The Act s 11(4), s 11(5).
Accordingly, absent any subsequent conviction, JH became eligible to apply for a spent conviction order for her serious offences 12 years and 6 months after 17 October 1997.
On 5 April 2016 JH was convicted of stealing a motor vehicle. For that conviction a magistrate imposed a conditional release order for a term of 6 months, upon a personal undertaking by JH of $500. That sentence was imposed under s 39(2)(b) and pt 7 of the Sentencing Act 1995 (WA). The conviction was also declared spent. JH complied with the terms of the conditional release order.
If the sentence imposed for JH's conviction on 5 April 2016 is properly construed as 'no punishment' or a 'minor punishment' within the meaning of s 11(5) of the Act, her application under s 6 may be considered on its merits and the discretion exercised.
If, however, the conditional release order imposed for the 2016 conviction is properly construed as a punishment within the meaning of the Act, JH's application is incompetent because the 2016 conviction would be construed as her 'latest conviction' and the prescribed period of 12 years and 6 months would commence to run from 5 April 2016.
For the reasons that follow, I find that the application is within time and may be considered on its merits because the imposition of a conditional release order for the 2016 conviction constitutes 'no punishment' within the meaning of s 11(4) of the Act.
Background
By notice of motion filed 18 November 2022, the applicant applied for an order under s 6(1) of the Act that certain convictions incurred by her be declared spent.
JH was convicted of various offences between 12 April 1988 and 20 November 1996 including possession of prohibited drugs, burglary, fraud and stealing. For the convictions she incurred prior to 20 November 1996, JH received fines or community-based orders. For the purposes of the Act these convictions would be construed as 'lesser convictions'.[2]
[2] The Act s 10(1).
On 17 October 1997, upon her pleas of guilty, JH incurred convictions for 20 counts of burglary and 1 count of stealing. For these convictions Muller DCJ sentenced JH to a total effective sentence of 2 years and 6 months' imprisonment. The term of imprisonment was suspended for a period of 2 years.
The convictions entered on 17 October 1997 were 'serious convictions' within the meaning of s 9(a) of the Act because the sentence imposed was for imprisonment of more than 1 year. The fact that the term of imprisonment was not actually served is immaterial to the categorisation of the conviction as being a serious conviction.[3] By virtue of these serious convictions, the applicant's previous 'lesser convictions' became 'serious convictions' on 17 October 1997 as a consequence of the operation of s 10(2) of the Act.
[3] The Act s 11(3)(b).
After her convictions on 17 October 1997, JH incurred further convictions for possession of heroin, stealing, burglary, assault, driving a motor vehicle without a licence and possession of cannabis. These convictions were incurred between May 1998 and September 2004. Each of these subsequent convictions have already been spent.
As I have noted, JH's most recent conviction was incurred on 5 April 2016 for stealing a motor vehicle. The circumstances of the conviction were that on 21 February 2016 JH asked the complainant to take her to Fiona Stanley Hospital because she was suffering an anxiety attack. The complainant and JH were residing together at a house in South Lake at that time. The complainant refused but JH took the complainant's vehicle and drove to Murdoch Police Station and parked the vehicle. She then walked across the road to Fiona Stanley Hospital where she was given medication and discharged several hours later. JH then returned to Murdoch Police Station and gave the keys to the complainant's vehicle to police officers at the station. The State conceded that the offending was at the lower end of the scale of seriousness. JH ultimately received a conditional release order for 6 months with a $500 undertaking.
Statutory framework
A District Court judge may declare spent convictions which are 'serious convictions' for the purposes of the Act under s 6(1).
An application under s 6(1) of the Act may only be made by a person in respect of a conviction after the 'prescribed period' for that conviction has expired.[4] The prescribed period for a conviction is:
1.10 years commencing from the day on which the conviction is incurred;[5] plus
2.any period of imprisonment imposed relevant to that conviction, regardless of the period of imprisonment actually served.[6]
[4] The Act s 6(2)(a).
[5] The Act s 11(1)(a), s 11(3)(a).
[6] The Act s 11(1)(a).
However, the prescribed period is effectively 'reset' if the person incurs a subsequent conviction. This is referred to in s 11(4) as the 'latest conviction'.
If the prescribed period is reset, then the fresh prescribed period is:[7]
1.the longest of the prescribed period for the latest and any previous convictions; and
2.commences running from the date of the latest conviction.
[7] The Act s 11(4)(a).
Section 11(5) provides that:
[T]he latest conviction does not include a conviction for which no punishment, or only minor punishment, was imposed.
The Spent Convictions Regulations 1992 (WA) provides in reg 3 a definition of 'minor punishment'. Between 4 November 2005 and 2 August 2023, 'minor punishment' was defined to mean a fine not exceeding $500 and prior to 4 November 2005 'minor punishment' was defined to mean a fine not exceeding $100. The threshold is not retrospective.[8]
[8] DN v The Commissioner for Police [2012] WADC 130 [37].
No definition is provided for 'no punishment'.
If the applicant's 2016 conviction was one for which she incurred a sentence, other than 'minor punishment' or 'no punishment', then the 2016 conviction resets the prescribed period such that it would not expire until 4 October 2028, in which case JH's application would not be competent.
If the applicant's conviction in 2016 does not reset the prescribed period, then the relevant latest conviction would be the applicant's conviction on 30 September 2004. The prescribed period would then have expired on 29 March 2017.
The sentence for the 2016 conviction raises two specific questions in determining whether the prescribed period is reset under s 11(4) of the Act:
1.was the 2016 conviction a 'latest conviction' notwithstanding that it was made the subject of a spent conviction order under the Sentencing Act; and
2.did the conditional release order imposed for the 2016 conviction constitute 'no punishment' or 'minor punishment' within the meaning of s 11(5) of the Act.
A latest conviction in s 11(4) of the Spent Convictions Act includes a spent conviction
In RV v The Commissioner of Police,[9] Gething DCJ determined that the words 'latest conviction' included a conviction which was declared spent at the time it was recorded.
[9] RV v The Commissioner of Police [2023] WADC 146 [15] (RV).
I adopt the reasoning of Gething DCJ in RV. The fact that an applicant's conviction is declared spent at the time of sentencing has no bearing on the question of the construction of s 11 of the Act and whether a later conviction has the effect of resetting the prescribed period. Rather, it is necessary to consider the substance of the penalty imposed for the later conviction to determine whether such penalty constituted 'no punishment' or a 'minor punishment'. In RV the applicant was convicted of offences under the Building Act 2011 (WA) and was sentenced to a fine of $7,500, a sum above the minor punishment fine threshold of $500.
Statutory context relevant to s 11 of the Spent Convictions Act and general principles of statutory construction
The Court of Appeal observed in WHW v Commissioner of Police[10] that:
[A] fundamental objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the legal and social stigma associated with a conviction may, to a considerable extent, by removed, or at least ameliorated, after the passage of what the legislature regards is an appropriate period of time.
[10] WHW v Commissioner of Police [2014] WASCA 153 [66] (WHW).
Notwithstanding that the general purpose of the Act is to encourage offenders to rehabilitate themselves, it must be measured against the clear parliamentary intention that there must have been a significant period of time elapsing from the date of a serious conviction where no further offending has occurred such that the applicant must be considered to have been rehabilitated and deserving of some relief from conviction.
The principles applicable to statutory construction are well established. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context.[11]
[11] Mohammadi v Bethune [2018] WASCA 98 [31].
The High Court in R v Rohan[12] recently observed that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst at the same time, regard is had to context in its widest sense, including its historical context, and purpose.
[12] R v Rohan (a pseudonym) [2024] HCA 3 [25]; see also SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 [14].
The 'context' which a court is required to consider as part of the 'modern approach to statutory interpretation' encompasses the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy. Further, the history of a legislative scheme may assist in ascertaining the legislative intent.[13]
[13] Commissioner of State Revenue (Vic) v EHL Burgess Properties Pty Ltd [2015] VSCA 269 [51].
The process of construction in this case has some complication because the relevant sentencing legislation was enacted after the commencement of the Act with the introduction of the Sentencing Act with effect from 16 January 1996.
The statutory context relevant to s 11 of the Spent Convictions Act
Prior to the commencement of the Sentencing Act, sentencing options were contained within the Criminal Code (WA) and the Offenders Community Corrections Act 1963 (WA) (OCC). The legislative history in this specific instance may inform the process of construction.
Sections 19(1) ‑ s 19(5) of the Criminal Code, as they applied at the commencement date of the Act, provided for the imprisonment of offenders and the imposition of fines. Aside from imprisonment or a fine, the following dispositions were available to a court (in respect of adult offenders):
Disposition
Statutory Source
In respect of offenders convicted of indictable offences not punishable by certain severe sentencing dispositions:[14]
'instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the Court thinks fit, that he shall keep the peace and be of good behaviour for a time to be fixed by the court …'.
Criminal Code s 19(6)
In respect of offenders convicted of summary offences:
'instead of being sentenced to any punishment to which he is liable, be discharged upon his entering into his own recognizances, with or without sureties, in such amount as the justices think fit, that he shall keep the peace and be of good behaviour for a term not exceeding one year'.
Criminal Code s 19(7)
In respect of offenders convicted of an offence not punishable by certain severe sentencing dispositions:
'instead of passing sentence, discharge the offender upon his entering into his own recognizance, with or without sureties, in such sum as the Court or justices may think fit, conditioned that he shall appear and receive judgement at some future sitting of the Court or when called upon'.
Criminal Code s 19(8)
Where the offence was one not punishable by more than 3 years' imprisonment, the offender was a 'first offender' and there were extenuating circumstances (for example youth, triviality of offence, good antecedents):
'if Court considers it is inexpedient to inflict any punishment … the Court may dismiss the complaint without proceeding to conviction …' and may make certain orders as to payments of costs or restitution.
Criminal Code s 669(1)(a)
Where the offence was one not punishable by more than 3 years' imprisonment, the offender was a 'first offender' and there were extenuating circumstances (eg: youth, triviality of offence, good antecedents):
'if Court considers it is inexpedient to inflict any punishment … the Court may convict offender but discharge him unconditionally or conditionally on his entering into one or more of the recognizances provided for in s 19(6), (7) and (8) of the Code' either with or without the payment of costs or restitution.
Criminal Code s 669(1)(b)
In respect of offences under Chapter XLVII (dealing with damage to property and animals) where the court considers the injury incurred so trivial 'as not to deserve any punishment':
The court 'may convict the defendant and discharge him without inflicting any punishment'.
Criminal Code s 467
When a person is convicted of an offence punishable by a term of imprisonment otherwise than in default of payment of a fine, and having regards to certain matters:
'the Court may instead of sentencing him, make an order requiring him to be under the supervision of a probation officer' for a specified period. (Probation Order).[15]
OCC Act s 9(1)
In respect of persons of or over 17 years of age convicted of an offence punishable by a term of imprisonment otherwise than in default of payment of a fine.
'the court may, instead of sentencing him, make an order requiring him to perform unpaid work in accordance with this Part and the regulations …' (Community Service Order).
OCC Act s 20B
[14] As at the time of the 1983 reprint of the Criminal Code, this provision applied to offences not punishable by death. As at the time of the 1993 reprint of the Criminal Code, this provision applied to offences not punishable by strict security life imprisonment.
[15] Section 4 of the OCC Act defined 'probation order' as an order made under s 9(1). Recognizance orders were not to made under the Criminal Code if a probation order were appropriate: OCC Act, s 10.
Notably, those provisions were especially provided to be made instead of or, in some cases, in addition to sentencing the offender or imposing a punishment.
Legislative history of the Spent ConvictionsAct and the Sentencing Act
The notion of no punishment (or no penalty) as a feature in s 11(5) of the Act (and with respect to the calculation of a prescribed period) appears to have been derived from a Law Reform Commission of Western Australia report which predated the enactment of the Act.
Without reference to extrinsic materials the words 'no punishment' in s 11(5) are ambiguous.
In this respect, ambiguity may arise when a statutory provision is sought to be applied to a particular subject matter.[16] In Sharma[17] Spigelman CJ referred to the following passage from the reasons of O'Connor J in Bowtell v Goldsbrough, Mort & Co Ltd:[18]
It has been contended in this case that an ambiguity must appear on the face of a Statute before you can apply the rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You frequently find an Act of Parliament perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a Statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the legislature used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter.
[16] See for example: R v Sharma (2002) 54 NSWLR 300 (Sharma).
[17] Sharma [57].
[18] Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444, 456 ‑ 457.
Where a statutory provision is ambiguous s 19 of the Interpretation Act 1984 (WA) permits consideration to be given to extrinsic material. Section 19 provides as follows:
19.Extrinsic material, use of in interpretation
(1)Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material ‑
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when ‑
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes ‑
(a)all matters not forming part of the written law that are set out in an official version of the law under the Legislation Act 2021; and
(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted; and
(c)…
(f)the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House; and
(g)…
(h)any relevant material in any official record of proceedings in either House of Parliament.
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to -
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
The Law Reform Commission published in June 1986 a report with respect to historical convictions which provided:[19]
[19] The Law Reform Commission of Western Australia, Project 80 - The Problem of Old Convictions, Report (Project 80 - 1986).
7.23Not all minor convictions should have the effect of delaying an earlier conviction becoming spent automatically. The object of the spent conviction period is to show, over a comparatively long period of time, that the pattern of the convicted person's life has changed, as evidenced by the absence of further convictions. Convictions for very minor offences of a regulatory nature, or other essentially trivial offences, do not show the same sort of criminal or dishonest intent as convictions for more serious offences. They should not stop the running of the spent conviction period appropriate to an earlier conviction ‑ though they will of course generate a spent conviction period of their own.
…
7.25In the Commission's view, the category of convictions which do not prevent earlier convictions becoming spent has to be drawn more narrowly than in the United Kingdom or Queensland, and it should be done by reference to the penalty imposed for the conviction in question, rather than according to the classification of the offence, or being left to the discretion of the court … The Commission has concluded that the best solution to the problem lies in limiting the exception to convictions for which comparatively trivial penalties are imposed, without limiting the number of subsequent convictions which will be discounted. Accordingly it recommends that this category should be limited to cases where either no penalty is imposed or where the penalty imposed34 is a fine of not more than $100, or such greater sum as is prescribed.
(emphasis added)
FN34: See, for example, Criminal Code s 19(6) (on conviction, a person may be ordered to enter into a recognizance to keep the peace and be of good behaviour instead of or in addition to any punishment to which the person is liable); id, s 19(7) (on summary conviction, a person may be discharged upon entering into a recognizance to keep the peace and be of good behaviour instead of being sentenced to any punishment to which the person is liable); id s 19(8) (on conviction court may, instead of passing sentence, discharge the offender on entering into a recognizance, on condition that the offender shall appear and receive judgement at some future sittings or when called on); id s 669(1)(b) (on conviction, a person with specified previous convictions may be discharged unconditionally or conditionally on entering into one or more of the recognisances provided by s 19 (6), (7) and (8)).
(all other footnotes omitted)
In the second reading speech for the Spent Convictions Bill on 22 September 1988 the then Attorney General, the Hon J M Berinson stated:[20]
… In respect of both serious and lesser convictions the 10 year period plus the imprisonment period recommences in full from the date of any subsequent offence. A conviction cannot become spent ‑ other than a conviction for which no penalty or a fine less than $100 is imposed ‑ if there is a subsequent conviction during the period prior to which an application can be made to a District Court judge or the Commissioner of Police. …
[20] Western Australia, Second Reading of the Spent Convictions Bill, Legislative Council, 22 September 1988, 3284 (Mr J M Berinson, Attorney General).
From the Law Reform Commission report and the second reading speech it would appear that an intention of Parliament prior to the commencement of the Sentencing Act was that orders in the nature of good behaviour bonds and recognizance orders were to be considered 'no punishment' for the purposes of s 11(5) of the Act.[21]
[21] Respondent's submissions 20 July 2023, par 75.
The second reading of the Sentencing Bill took place in the Legislative Assembly on 25 May 1995. The then Attorney General, the Hon Ms C Edwardes, said relevantly that:[22]
[22] Western Australia, Second Reading of the Sentencing Bill, Legislative Assembly, 25 May 1995, 4257 (Ms C Edwardes, Attorney General).
…
A major feature of this Bill is that it contains more, and a more complete range of, sentencing options than have ever before been made available to a court in this State. Part 5 lists these options and sets out how some of them may be combined. In particular court may ‑
impose no sentence;
impose a new order called a conditional release order. This order replaces the recognisances commonly known as good behaviour bonds previously provided for in the Criminal Code. The order allows for the release of offenders with or without a surety on conditions the court deems necessary to secure the good behaviour of the offender;
impose a fine; or
impose a new order called a community based order aimed at supervision of offenders in the community
These four options may be accompanied by a spent conviction order which has the effect of making the conviction immediately spent so that the Spent Convictions Act 1988 can apply to it. …
After referring to then other sentencing options including intensive supervision orders, suspended imprisonment, directions for young adult detention and imposing terms of imprisonment the Attorney General continued:
I would like now to highlight the features of some of these. One of the progressive elements of the Sentencing Bill is that, where the court determines that the offence is not serious ‑ for example in the case of minor shoplifting ‑ and the antecedents of the offender are good, and where the conviction might have a detrimental effect on an offender's employment prospects, clauses 39 and 45 in part 5 enable a court to order that a conviction be spent. This will mean that the protections afforded by the Spent Convictions Act 1988 will immediately apply. This is not to mean that the offender is not punished. However, it is anticipated that this power will provide a significant incentive to refrain from further offending by allowing the stigma of a conviction to be lifted which could otherwise have disqualified them from pursuing their chosen career. Part 6 enables the release of an offender without sentence in cases of very trivial offending. Part 7 enables a court to make a conditional release order which, as its title indicates, releases an offender on conditions aimed at the good behaviour of the offender. Under this order an offender may also be required to provide financial security. Compliance with the order will be enforced. The court may direct that an offender appear before it so as to ascertain whether the offender has complied with the requirements of the order. An offender will be deemed to have breached the order if the offender commits another offence while on the order, or fails to honour any one of the conditions of the order.
Relevant provisions of the Sentencing Act
Section 39 of the Sentencing Act provides:
(2)Subject to s 41 ‑ s 45, a court sentencing an offender may ‑
(a)with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or
(c)with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender …; or
(ca)with or without making a spent conviction order, under Part 8A impose a suspended fine; or
(d)with or without making a spent conviction order, under Part 9 impose a CBO[23] and order the release of the offender; or
(e)under Part 10 impose an ISO[24] and order the release of the offender; or
(f)under Part 11 impose suspended imprisonment and order the release of the offender; or
(g)under Part 12 impose CSI;[25] or
(h)under Part 13 impost a term of imprisonment.
[23] Community-based order.
[24] Intensive supervision order.
[25] Conditional suspended imprisonment order.
Clearly, s 39(2)(a) of the Sentencing Act, which provides that a court may impose no sentence on an offender, would be a sentencing disposition for which there is 'no punishment' within the meaning of the Act.
Section 39(3) of the Sentencing Act provides that a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. The effect of s 39(3) is that the various options listed in s 39(2) are hierarchical from less serious sentencing options to more serious sentencing options to be determined by the seriousness of the offence and all relevant sentencing principles.
Nature of a conditional release order
A conditional release order provides for the release of an offender on the condition that he or she undertakes to be of good behaviour for the duration of the order. If the conditions of the order are complied with, the offender is discharged at the date on which the order expires. Where the offender fails to comply with the conditions of the undertaking, he or she may be resentenced for the original offence.
The learned authors of Sentencing in Australia[26] noted that:
1.The least serious sentencing option is a sentence outcome typically known as an unconditional release (which in Western Australia is contained in s 39(2)(a)).
2.Discharges, adjournments and deferrals, traditionally known as common law bonds, do not constitute a meaningful hardship to offenders as the offender is no worse off after being sentenced and such sentences 'require nothing from the offender, and impose no restrictions on future conduct'.[27] Bonds and other orders which operate in this manner are similar to suspended sentences, in that if the offender does not break the law no unpleasantness will follow, however, they are softer than suspended sentences because while breach of a bond subjects the offender to resentencing for the original offence, there is no presumption that a harsh punishment (such as imprisonment) will be imposed. The noted authors continue:
The fact that bonds do not constitute a tangible hardship does not demonstrate a shortcoming in this type of sanction. (Further) bonds are meant to be imposed where the offence is trivial or minor and it is not appropriate to impose anything other than nominal punishment. Discharges, dismissals and bonds do not set back the interest of offenders in a meaningful manner and hence, these sanctions should be reserved for the cases where a high degree of leniency is appropriate.
[26] Bagaric M, Edney R & Alexander T, Sentencing in Australia (10th ed, 2022), par 750.300.
[27] Citing Ashworth, A, Sentencing and Criminal Justice (2nd Edition, 1995), 254.
A conditional release order may only be imposed:[28]
[28] Sentencing Act s 47, s 49(1).
47.…
[I]f the court considers -
(a)there are reasonable grounds for expecting that an offender will not reoffend during the term of the CRO [conditional release order]; and
(b)that the offender does not require supervision by a CCO [Community Corrections officer].
…
49.…
(1)A court making a CRO [conditional release order] may impose any requirements on the offender it decides are necessary to secure the good behaviour of the offender.
Where an offender breaches the conditions of a conditional release order s 130 of the Sentencing Act provides that a court may deal with the reoffender under the terms of s 130(1)(a):
130.How re‑offender may be dealt with
(1)If satisfied that a person committed an offence while subject to a CRO or community order, a court that may deal with the person under this section may ‑
(a)if the CRO or community order is then in force, do one of the following:
(i)confirm the CRO or community order;
(ii)amend the CRO or community order;
(iii)cancel the CRO or community order and sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence;
or
(b)if the CRO or community order is not then in force, sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence.
(2)In dealing with a person under subsection (1) who is or was subject to a CRO, a court is not precluded from making an order under section 52(2).
Section 52 of the Sentencing Act provides that where an offender commits an offence during the term of his or her conditional release order the court that imposed the conditional release order may on its own initiative, or on an application by the State, order that the full amount agreed to be paid or deposited by the offender (or any surety) to be forfeited. As noted, s 48(1) expressly states that if the offender commits another offence in Western Australia or elsewhere while the order is in force, the offender may be resentenced again for the offence to which the order relates.
In some circumstances a conditional release order has advantages in that conditions can be imposed which make provision for rehabilitation.[29]
[29] Hussaini v Szolnoski [2013] WASC 64 [41].
The statutory text of s 11 of the Spent Convictions Act
The following may be said as to the structure and language of s 11 of the Act:
1.A prescribed period must pass before a declaration may be made that a serious conviction is spent; and
2.Any further conviction after the serious conviction has the effect that the prescribed period commences to run from the time of the latest conviction unless the latest conviction resulted in no punishment or only a minor punishment being imposed.
The parties' submissions
The applicant submits that the prescribed period expired on 29 March 2017 being a period of 12 years and 6 months after the applicant's conviction recorded on 30 September 2004, being the most recent 'serious conviction'. That submission is predicated on the basis that the sentence imposed for the 2016 conviction was one which provided 'no punishment' within the meaning of s 11(5) of the Act because a conditional release order is, properly construed, no punishment within the meaning of the Act.
The penalty imposed for the conviction on 30 September 2004 for possessing a prohibited drug was a fine of $200. That conviction reset the period as it was a fine above the prescribed 'minor punishment' amount of $100.
The comprehensive submissions filed on behalf of the Commissioner of Police may be summarised as follows:
1.A 'minor punishment' would only apply to a sentence which constitutes a fine and a conditional release order imposed under pt 7 of the Sentencing Act is not a fine;
2.A conditional release order which involves the payment of a monetary sum is in the nature of a bond which is to be repaid to the offender upon compliance with the conditional release order.[30] Accordingly, the sentence for the 2016 car stealing conviction could not be a 'minor punishment';
[30] Sentencing Act s 48(1)(b), s 51.
3.Whether the conditional release order is to be considered as 'no punishment' could be argued both ways;
4.Factors supporting a construction of no punishment include:
(a)the nature of a conditional release order is analogous to a recognizance order/good behaviour bond which could have been made under the now repealed s 19 of the Criminal Code (WA) and bears elements of a non‑punitive order;
(b)as the Act was enacted prior to the Sentencing Act a strong argument existed that recognizance order/good behaviour bonds fell within the meaning of no punishment under s 11(5) of the Act;
(c)there was nothing to suggest that Parliament intended that the scope or operation of s 11(5) change following the enactment of the Sentencing Act;
(d)such a construction would further the purpose of the provision whereas an alternative construction that a conditional release order is neither no punishment nor minor punishment would lead to an unusual result that would appear to be inconsistent with the purpose of the Act by reference to s 8 under the Interpretation Act; and
(e)statutes should be considered to be always speaking rather than confined to the matter in which they would have been read at the time of enactment.[31]
5.Factors which support a conclusion that a conditional release order as being a 'punishment' are:
(a)a conditional release order made under the Sentencing Act may be construed as in contrast to the repealed provisions of the Criminal Code and the OCC, in circumstances where s 39(2)(a) expressly states that a court sentencing an offender may 'impose no sentence and order the release of the offender';
(b)a conditional release order may impose requirements on an offender that may operate to deter reoffending and on the basis that resentencing could occur it may be considered as a punitive order; and
(c)Parliament had the opportunity to amend s 11(5) or the definition of 'minor punishment' in the Act when the Sentencing Act was introduced but did not do so.
[31] Respondent's submissions 20 July 2023, par 94 specifically referring to s 8 of the Interpretation Act. See also: Pearce D R, Statutory Interpretation in Australia (10th ed, 2024), par 4.20.
The ordinary and natural meaning of the word punishment
The new shorter Oxford English Dictionary (1993) defines the word 'punishment' as:
The action of punishing or the fact of being punished.
1.The infliction of a penalty or sanction in retribution for an offence or transgression; (also) that which is inflicted as a penalty; a sanction imposed to ensure the application and enforcement of a law.
The Macquarie Dictionary (6th ed) defines punishment as:
1.the act of punishing.
2.the fact of being punished, as for an offence or fault.
3.that which is inflicted as a penalty in punishing.
4.severe handling or treatment.
The word 'punish' is defined in the Macquarie Dictionary (6th ed) to mean:
1.to subject to a penalty, or to pain, loss, confinement, death, etc., for some offence, transgression, or fault: to punish a criminal.
2.to inflict a penalty for (an offence, fault, etc.): to punish theft.
The proper construction of the words 'no punishment'
As noted, the term 'no punishment' is not defined in the Act.
The meaning of that phrase may be ascertained from the intended meaning of the words by Parliament at the time that the legislation was introduced. The historical context of the Act is that it was introduced following a report from the Law Reform Commission of Western Australia. That report, which is referred to at [42] above, made reference to convictions for which no penalty was imposed and said that those convictions, by example, would be those under s 19(6) ‑ s 19(8) of the Criminal Code.
The provisions of s 19(6) ‑ s 19(8) of the then Criminal Code were sentences where, on conviction, a person could be ordered to enter into a recognizance to keep the peace and be of good behaviour instead of or in addition to any other punishment. Those examples are relevant to the proper interpretation of the words no punishment.
The Law Reform Commission report expressly stated that the category of convictions which did not prevent earlier convictions becoming spent (or not stopping the running of the spent conviction prescribed time limit) was to be determined by reference to the penalty imposed for the conviction in question rather than according to the classification of the offence. The report made reference to a category being limited to where 'no penalty' was imposed or the penalty imposed was a fine of not more than $100. The words subsequently used in the Act are 'no punishment'. Based upon the Law Reform Commission's report, it would appear that good behaviour bonds and recognizance orders were considered to be 'no penalty' or as the final words of the Act reflected 'no punishment'.
As I have noted, during the second reading speech of the Sentencing Act the Attorney General stated that a conditional release order replaced the recognizance orders which were commonly referred to as good behaviour bonds under the Criminal Code. The Attorney General noted that those orders allowed the release of offenders with or without surety on such conditions as the court deemed fit. The Sentencing Act, as introduced, replaced those orders with orders made under pt 5 being conditional release orders. The Sentencing Act also clearly introduced a hierarchy of offences with conditional release orders falling below fines in order of severity of sentence.
By its nature, a conditional release order requires that an offender not reoffend as any reoffending provides that the offender may be resentenced for the offence to which the conditional release order relates (see s 130 of the Sentencing Act). In that sense the offender may be brought back before the court should they reoffend and receive a different sentence, including a harsher sentence, than under the conditional release order.
The words of s 130 of the Sentencing Act should be construed as being that upon a resentence, where there has been a breach of a conditional release order, the new or substituted sentence will take effect from the date of resentencing. Where there is no resentence (and the offender has abided by the terms of the conditional release order) the order comes to an end without any punishment or detriment to the offender.
In the present case, JH complied with the terms of the conditional release order. The terms of that order came to an end six months after the order was made, on 5 October 2016. No forfeiture of any undertaking amount occurred.
It appears there are two alternative constructions of the words 'no punishment'.
The first which is, in my view, a narrow approach that does not take into account the statutory history, is that no punishment simply means a release without sentence in accordance with s 39(2)(a) of the Sentencing Act. On this construction any sentence imposed in accordance s 39(2)(b) or s 39(2)(c) (providing the fine was not above the prescribed limit) would constitute a punishment.
The alternative construction is that a conditional release order, specifically one that has been complied with and no reoffending occurred during the terms of the order, does not constitute a punishment.
There is nothing in the language of the Act, or its legislative history, that provides support for the proposition that Parliament intended a sentence comprising of a bond or a conditional release order should reset the prescribed period. A conditional release order which is complied with, does not have any adverse effect for an offender.[32]
[32] See [50] ‑ [51] above.
Taking all matters into account, I am of the opinion that the correct interpretation is that the conditional release order imposed on JH on 5 April 2016 constitutes no punishment within the meaning of s 11(5) of the Act.
For all of these reasons I find that JH's conviction incurred in 2016 did not have the effect of resetting the prescribed period under s 11(4) of the Act. As a consequence, JH was, at the time of filing her application, eligible to apply to have her serious convictions spent and for her application to be determined on the merits. Upon publication of these reasons, I will deal with the merits of JH's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LM
Associate to Judge Curwood
1 MARCH 2024
Section 20 of that Act also provided that a conviction for which a probation order was imposed was deemed not to be a 'conviction' except for specific purposes.
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