K B v The Commissioner of Police
[2024] WADC 91
•30 OCTOBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: K B -v- THE COMMISSIONER OF POLICE [2024] WADC 91
CORAM: TOVEY DCJ
HEARD: 26 APRIL 2024
DELIVERED : 30 OCTOBER 2024
FILE NO/S: CIVO 41 of 2024
BETWEEN: K B
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for spent conviction order - Suspended fine - Whether prescribed period reset - Construction of s 11(5) of the Spent Convictions Act 1988 (WA)
Legislation:
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Spent Convictions Regulations 1992 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Applicant | : | Ms C A MacKay |
| Respondent | : | Mr E A Heywood |
Solicitors:
| Applicant | : | Max Crispe Barrister & Solicitor |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
DC v The Commissioner of Police [2020] WASCA 69
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DN v The Commissioner for Police [2012] WADC 130
JH v The Commissioner of Police [2024] WADC 10
RV v The Commissioner of Police [2023] WADC 146
WHW v Commissioner of Police [2014] WASCA 153
TOVEY DCJ:
On 10 January 2006, following pleas of guilty, the applicant was convicted of one count of sexual penetration of a child between the ages of 13 and 16 years, and two counts of indecent dealing of a child between the ages of 13 and 16 years. He was sentenced on that date to a total effective sentence of 2 years' imprisonment, suspended for 2 years, for those offences (2006 convictions).
The applicant has made an application for these convictions to be spent pursuant to s 6(1) of the Spent Convictions Act 1988 (WA) (the Act).
Subsequent to these convictions, on 28 August 2013, the applicant was fined $400 and was granted a spent conviction order, in respect of an offence of failure to comply with a reporting obligation as required by the Community Protection (Offender Reporting) Act 2004 (WA).
Further, on 9 September 2021, the applicant was fined $1,000, which was suspended for 6 months, in respect of one offence of common assault, and one offence of common assault in circumstances of aggravation. The applicant was granted a spent conviction order for both those offences (2021 offences).
An application for a conviction to be spent may not be made until the prescribed period for that conviction has expired.
For reasons which follow, I find the prescribed period for the 2006 convictions has not elapsed. It follows that the application must be dismissed as incompetent.
Further, even if the application was competent, then, on the merits, I would not make an order that the 2006 convictions be spent.
Statutory framework
The power of this court to declare a 'serious conviction' to be spent is conferred by s 6(1) of the Act.
Relevantly, a serious conviction means a conviction in respect of which the sentence imposed is imprisonment for more than one year.[1]
[1] The Act, s 9.
The convictions for the 2006 convictions, therefore, are 'serious convictions' within the meaning of the Act.
By s 6(2) of the Act, however, an application for a spent conviction may not be made by a person in respect of a conviction:
(a)until the prescribed period for that conviction has expired; or
(b)if a judge has refused to make an order under that subsection in respect of the same conviction within the preceding 2 years.
Section 11 of the Act defines what is meant by the 'prescribed period'.
Relevantly, s 11 provides:
11.Prescribed period, defined
(1)The prescribed period for a conviction is -
(a)10 years … plus any period of imprisonment relevant to that conviction, reckoned in accordance with this section; or
(b)where applicable, the period provided for by subsection (4).
(2)If any such imprisonment is for an indeterminate period -
(a)the period of 10 years commences with the day on which the person is discharged from that sentence; and
(b)the period of imprisonment is the actual period served.
(3)In all other cases where a sentence of imprisonment is imposed -
(a)the period of 10 years commences with the day on which the conviction is incurred; and
(b)the period of imprisonment (if any) is the period imposed, regardless of the period actually served.
(4)Notwithstanding subsections (2) and (3), if at the time when a person incurs a conviction, including a conviction for an offence against Commonwealth law or the law of another State or of a Territory, (in this subsection called the latest conviction) he has any other conviction that is not a spent conviction (in this subsection called any previous conviction) -
(a)the prescribed period that has elapsed for any previous conviction shall be disregarded and the prescribed period for the latest conviction and any previous conviction shall -
(i)be the longer or longest of the prescribed periods for all those convictions; and
(ii)that period shall commence to run from the time of the latest conviction;
and
(b)if a sentence of imprisonment in respect of the latest conviction is ordered to be served cumulatively on a sentence of imprisonment ordered to be served in respect of any previous conviction, the period of the sentence imposed for the latest conviction shall be added to the prescribed period for that previous conviction.
(5)In subsection (4) the latest conviction does not include a conviction for which no punishment, or only minor punishment, was imposed.
Therefore, by s 11(3) of the Act, the 'prescribed period' for a serious conviction is, relevantly, 10 years plus any period of imprisonment relevant to that conviction, irrespective of whether the period of imprisonment was actually served.
Absent any other issue, by virtue of s 11(3), the prescribed period for the 2006 convictions, therefore, is 12 years' imprisonment.
However, by s 11(4) and s 11(5), the 'prescribed period' is, effectively, reset when a person incurs a 'latest conviction', other than a 'conviction for which no punishment, or only minor punishment, was imposed'.
This raises the effect of the 2021 offences on determining the 'prescribed period' for the 2006 convictions. In particular, two issues are raised. The first issue is whether a 'latest conviction' includes a conviction for an offence which is declared spent at the time it is recorded. The second issue is what is meant by 'a conviction for which no punishment, or only minor punishment, was imposed'.
Does the 'latest conviction' include a conviction which is declared spent at the time it is recorded?
The issue whether the 'latest conviction' within the meaning of s 11 of the Act includes a conviction for an offence which is declared spent at the time it is recorded has been considered in RV v The Commissioner of Police[2] which was followed in JH v The Commissioner of Police.[3]
[2] RV v The Commissioner of Police [2023] WADC 146.
[3] JH v The Commissioner of Police [2024] WADC 10.
In RV v The Commissioner of Police[4] Gething DCJ took the view that the reference in s 11(4)(a) of the Act to 'latest conviction' includes a conviction which is declared spent at the time it is recorded.
[4] RV v The Commissioner of Police [15].
His Honour stated:[5]
Parliament could have said that a conviction for the purposes of s 11(4), being the latest conviction, does not include a spent conviction. It has not done so, which must be taken as an intentional decision. The contrary would require the addition of words into s 11(4)(a), which goes beyond statutory interpretation.
[5] RV v The Commissioner of Police [14].
I agree with that view.
A subsequent conviction will reset the 'prescribed period' even if it is spent pursuant to s 45 of the Sentencing Act1995 (WA) at the time of sentencing.
It follows that, subject to the issue arising under s 11(5) of the Act, the fact that a spent conviction was granted for each of the 2021 offences at the time of sentencing for those offences does not mean that each is not a latest conviction for the purposes of s 11(4) of the Act.
Meaning of 'no punishment' or 'only minor punishment'
As I have noted, in respect of the 2021 offences, in addition to spent conviction orders being granted, the court imposed a fine of $1,000, with the fine being suspended for 6 months.
The applicant submitted the suspended fine of $1,000 is 'no punishment' within the meaning of s 11(5) of the Act. In that regard, it was submitted, in essence, that as the suspended fine was not activated, no punishment was imposed for the 2021 offences.
The respondent submitted the 2021 offences have reset the 'prescribed period'. The submission was that, as a result, the 'prescribed period' will expire on 9 September 2033, being a total of 12 years from the date the suspended fine was imposed.
This raises two issues for consideration. First, whether a suspended fine is 'no punishment' within the meaning of s 11(5) of the Act. Secondly, whether a suspended fine is a 'minor punishment' within the meaning of s 11(5) of the Act.
I turn to the latter issue. By s 3(1) of the Act, 'minor punishment means a fine not exceeding $100 or such amount as may be prescribed'.
For the purposes of the definition of 'minor punishment' in s 3(1) of the Act, the amount prescribed by reg 3 of the Spent Convictions Regulations 1992 (WA) (Regulations) is currently $1,500. In September 2021, when the applicant was sentenced for the 2021 offences, the amount of $500 was prescribed under reg 3 of the Regulations. That amount is not retrospective: see JH v The Commissioner of Police[6], DN v The Commissioner for Police.[7]
[6] JH v The Commissioner of Police [22].
[7] DN v The Commissioner for Police [2012] WADC 130 [37].
As such, the suspended fine imposed for the 2021 offences is not a 'minor punishment' within the meaning of s 3(1) of the Act, as it is not a fine not exceeding $100 or such amount as may be prescribed.
I turn, now, to the issue whether a suspended fine is 'no punishment' within the meaning of the Act.
There is no definition of what is 'no punishment' in the Act.
When sentencing someone for an offence, the sentencing options are set out in s 39(2) of the Sentencing Act 1995 (WA).
Section 39(2) provides:
(2)Subject to sections 41 to 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 (unless an order under section 58 is made); 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 and order the release of the offender; or
(e)under Part 10 impose an ISO 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 and order the release of the offender; or
(h)under Part 13 impose a term of imprisonment.
Further, by s 39(3) of the Sentencing Act 1995 (WA):
A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.
Section 39(2) of the Sentencing Act 1995 (WA), therefore, sets out a hierarchical approach in sentencing an offender, from imposing no sentence and ordering the release of an offender to imposing a term of imprisonment to be immediately served.
By s 46 of the Sentencing Act 1995 (WA), a court may release an offender without sentence.
Section 46 provides:
46.Release without sentence
A court sentencing an offender may impose no sentence if it considers that -
(a)the circumstances of the offence are trivial or technical; and
(b)having regard to -
(i)the offender's character, antecedents, age, health and mental condition; and
(ii)any other matter that the court thinks is proper to consider,
it is not just to impose any other sentencing option.
In my view, a suspended fine is not 'no punishment' within the meaning of s 11(5) of the Act for the following reasons.
First, the provisions of the Act are to be read in their wider statutory context, which includes the provisions of the Sentencing Act 1995 (WA). Section 46 of the Sentencing Act 1995 (WA) specifically provides for circumstances when a court may impose 'no sentence'. Further, a court may only impose a suspended fine if it is satisfied that is it not appropriate to use any of the sentencing options previously listed in s 39(2) of the Sentencing Act 1995 (WA). Previously listed sentencing options include imposing no sentence under s 46 of the Sentencing Act 1995 (WA), imposing a conditional release order (CRO), or imposing a fine. A suspended fine is a punishment, even though the obligation to pay the fine only arises in the circumstances outlined by s 60B of the Sentencing Act 1995 (WA).
In this regard, I note the convictions to which s 11(5) of the Act refer to are not limited to a conviction for an offence against Western Australian law and applies in respect of a conviction for an offence against Commonwealth law or the law of another State or of a Territory. Section 11, therefore, must apply to a range of sentencing regimes, which may explain why reference is not made to any specific provision of the Sentencing Act 1995 (WA). However, in my view, the provisions of the Sentencing Act 1995 (WA) remain an important part of the statutory context in which the Act is to be construed.
Secondly, it would be incongruous if a suspended fine were to be regarded as 'no punishment' when it is not 'minor punishment' within the express meaning of s 3(1) of the Act.
Thirdly, the argument that a suspended fine is 'no punishment' within the meaning of s 11(5) of the Act, taken to its logical conclusion, would mean that a suspended term of imprisonment which is completed, without breach, would be 'no punishment' for the purposes of the Act. That cannot be the intent of the Act.
Suspended terms of imprisonment are properly regarded as a form of punishment, even though an offender may not serve any time in custody. (See Dinsdale v The Queen).[8]
[8] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [74] - [77].
For the above reasons, the 'prescribed period' for the 2006 convictions has reset in accordance with s 11(4) of the Act. The prescribed period, therefore, expires on 9 September 2033, being a period of 12 years after the 2021 offences were dealt with in the Magistrates Court.
I note that in JH v The Commissioner of Police Curwood DCJ held that a conditional release order, which is completed without incident, is 'no punishment' for the purposes of the Act. In the context of this application, is unnecessary for me to decide whether I would take the same, or different, view regarding whether a conditional release order is 'no punishment'.
It follows that the application is not competent and must be dismissed on that basis.
Merits of the application
If I am incorrect in my construction of s 11 of the Act, then, on the merits of the application, in the exercise of my discretion, I would not make an order that the 2006 convictions be spent.
In considering the merits of an application for an order declaring that a serious conviction is spent, s 6(4) of the Act provides:
(4)The making of an order under subsection (1) is at the discretion of the judge and that discretion shall be exercised having regard to -
(a)the length and kind of sentence imposed in respect of the conviction; and
(b)the length of time since the conviction was incurred; and
(c)whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business or in a particular employment; and
(d)all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application; and
(e)the nature and seriousness of the offence; and
(f)the circumstances surrounding the commission of the offence; and
(g)whether there is any public interest to be served in not making an order.
The factors outlined in s 6(4) of the Act are factors which the court is bound to take into account.
Further, the court must also have regard to the underlying rehabilitative objective of the Act: see DC v The Commissioner of Police.[9] In that regard, the objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the stigma associated with a conviction may be removed, or ameliorated, after the passage of time required by the Act: see WHW v Commissioner of Police.[10]
The length and kind of sentence imposed, the nature and seriousness of the offences, and the circumstances surrounding the commission of the offences (s 6(4)(a), s 6(4)(e), s 6(4)(f))
[9] DC v The Commissioner of Police [2020] WASCA 69 [29] - [30].
[10] WHW v Commissioner of Police [2014] WASCA 153 [66].
As I have noted, the applicant pleaded guilty on 10 January 2006 to one count of sexual penetration of a child between the ages of 13 and 16 years, and two counts of indecent dealing of a child between the ages of 13 and 16 years.
The applicant was sentenced to 6 months' imprisonment on each of the indecent dealing offences, and 2 years' imprisonment on the sexual penetration offence, with all terms to be served concurrently and suspended for a period of 2 years.
A total effective sentence of 2 years' imprisonment, suspended for 2 years, was imposed for those offences.
The facts for the offences illustrate the serious nature of the offending.
In this regard, the sentencing judge remarked, relevantly, as follows:[11]
… The three charges arise out of events on the same occasion in late 2003 at your residence in Perth. Count 1 is a charge that you indecently dealt with a female child then 14 years of age, it seems by procuring her to kiss your stomach and chest; secondly, that you sexually penetrated her by introducing your penis into her mouth; and thirdly, that you indecently dealt with her by placing your hand on her vaginal area.
Those events happened, it seems, after you and another person had gone to your place with this girl. You knew her, described by counsel as being in a friendship, notwithstanding that you were 30 at the time and she was 14. At your house there was certainly the smoking of cannabis. Whether there was anything else used, I don't know, and as a result she was at least significantly disarmed and went to bed. You joined her in the bed and that's when those acts happened.
…
It seems to me that it was preplanned and deliberate and that you quite well knew she was under age … I have taken on board that there was not perhaps much element of coercion and, in your case, understanding of what was happening and going to happen to the degree that I would call it preplanning.
[11] ts 16 ‑ ts 17 (10 January 2006).
The 2006 convictions concerned serious sexual offending against a 14‑year‑old girl by the then 30‑year‑old applicant. The seriousness of the offending is a factor counting against an order that the 2006 convictions be spent.
The length of time since the convictions were incurred (s 6(4)(b))
As I have indicated, the 2006 convictions were recorded on 10 January 2006.
It follows that at the date of the hearing, a period of over 18 years has elapsed since the convictions were incurred.
The length of time since the 2006 convictions were incurred is a factor in favour of making an order that the 2006 convictions be spent.
The circumstances of the applicant at the time of the commission of the offences and the circumstances of the applicant at the time of the application (s 6(4)(d))
As I have also noted, at the time of the offending, the applicant was 30 years of age. He had no criminal history at the time.
The applicant operated a skateboarding business prior to the offences, and, as a result, had connections with teenagers at the time.
At the time of the commission of the offences, he was sharing a house and the victim attended at his home with a male.
The applicant was using cannabis and had taken some dexamphetamine on the day the offences occurred.
In his affidavit sworn 12 March 2024, the applicant deposed his house mate had organised a party at their home and the victim had attended the party. The applicant also deposed he was highly intoxicated at the time.[12]
[12] Applicant's Affidavit sworn 12 March 2024, pars 27 ‑ 29.
The applicant is currently 51 years of age.
He currently works as a sales representative.
At the time of making this application, the applicant had been working full-time as a sales representative for the same employer for 10 years.[13]
[13] Applicant's Affidavit sworn 12 March 2024, par 24.
By his supplementary affidavit sworn 24 April 2024, the applicant deposed that he believed his convictions were disclosed and he was subsequently dismissed from his long-term employment.[14] The applicant had to seek new employment and had been working as a sales representative for another company for a couple of weeks at the time of swearing that affidavit.[15]
[14] Applicant's Supplementary Affidavit sworn 24 April 2024, par 14.
[15] Applicant's Supplementary Affidavit sworn 24 April 2024, par 17.
The applicant also deposed that he suffered from depression and anxiety.[16]
[16] Applicant's Supplementary Affidavit sworn 24 April 2024, par 16.
As I have noted, subsequent to the 2006 convictions, the applicant committed an offence of failure to comply with a reporting obligation as required by the Community Protection (Offender Reporting) Act 2004 (WA). That offence related to a failure to inform the Sex Offender Management Squad of his return from overseas travel in 2013 within the required timeframe for such reporting.
The applicant has also committed an offence of common assault and an offence of common assault in circumstances of aggravation. Those offences occurred in 2020 and related to slapping and then pushing the first victim and later punching the 21-year-old daughter of the first victim on the shoulder after she went to check on her mother.
Rehabilitation
In his affidavit sworn 12 March 2024, the applicant deposed that since the 2006 convictions, he has stopped drinking. He deposed that he was highly remorseful for what had occurred and expressed regret for his behaviour and actions on the night.[17]
[17] Applicant's Affidavit sworn 12 March 2024, pars 37 ‑ 39.
In addition, I have a number of character references that speak to the applicant's character and the positive regard he is held in.
The applicant also gave evidence he was remorseful for his behaviour.
In his supplementary affidavit, the applicant deposed he was prescribed cannabis by his doctor to assist with sleep in the last couple of years. He also deposed he stopped using the prescribed cannabis and has been prescribed antidepressants, the latter which has helped him with his sleep and has been beneficial.[18]
[18] Applicant's Supplementary Affidavit sworn 24 April 2024, pars 26 ‑ 27.
In addition, the applicant gave evidence he had not engaged in any rehabilitation courses that related to the 2006 convictions and had not had any drug counselling. The applicant gave evidence that the only courses he has done have been for family violence, which relate to the 2021 offences.
The relevance of rehabilitation to an application for a spent conviction was considered in WHW v Commissioner of Police. In that case, the court stated:[19]
… whether and to what extent the particular applicant has rehabilitated himself or herself is also one of the 'circumstances of the applicant … at the time of the application' within the meaning of s 6(4)(d) of the Act. Allied with the question of rehabilitation is the question of whether and to what extent the applicant poses a risk of reoffending.
[19] WHW v Commissioner of Police [72].
The applicant has not reoffended in a similar way to the offences to which the application relates.
However, on his evidence, the applicant has not completed any rehabilitation courses relating to the 2006 convictions.
Further, there is no material provided in support of the application from any person with expertise as to the risk of sexual reoffending, such as from a psychiatrist or psychologist.
In addition, whilst the applicant deposed to, and gave evidence, of being remorseful for the offending, his initial recount of the factual basis of the 2006 convictions was inconsistent with the factual basis for sentencing.
In this regard, by his affidavit sworn 12 March 2024, the applicant deposed he consumed a significant amount of alcohol, became highly intoxicated, passed out in his room and, when he came to, a girl was in his room performing fellatio on him.[20]
[20] Applicant's Affidavit sworn 12 March 2024, pars 28 - 31.
In his supplementary affidavit sworn 24 April 2024 the applicant deposed as follows:[21]
I have reviewed the Statement of Material facts in relation to my indecent dealings with a child under 16 years from 21 years ago and have been brought back to reality of the surrounding circumstances with respect to those charges.
It has been 18 years since I had to think in-depth about my actions that I caused to the complainant. I tried to forget about the events and move on with my life.
[21] Applicant's Supplementary Affidavit sworn 24 April 2024, pars 21 ‑ 22.
In his evidence at the hearing, the applicant accepted that his version of events in his affidavit sworn 12 March 2024 did not coincide with the factual basis for sentencing. The applicant gave evidence he tried to move on with his life, put the period of time in his life in the back of his mind and he did not have a record of the material facts.
In cross-examination, the applicant was asked what he did and gave evidence:[22]
… Okay. A girl came into my bed and gave me fellatio, and I was there, and I was very drunk and very off my head; I don't completely remember the event. I remember snippets of the event, and I am guilty of that.
[22] ts 14 (26 April 2024).
In re-examination the applicant said he accepted the statement of material facts and what he did.
The evidence of the applicant was inconsistent as to the factual basis of the 2006 convictions. That is a matter which, I find, diminishes the acceptance of responsibility by the applicant for his offending and limits the degree of remorse for his offending.
Given all the above matters, there is an insufficient basis for me to make a finding as to the risk of reoffending, and the extent of remorse, of the applicant.
Whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business in in a particular employment (s 6(4)(e))
As I have noted, after being terminated from his previous position, the applicant has secured a new position. The applicant gave evidence the 2006 convictions were 'never going to help', but that he 'can move forwards and try and do the best' he can.[23]
[23] ts 7 (26 April 2024).
To this extent, the 2006 convictions have not stopped the applicant from engaging in any employment.
I accept, however, as deposed to in his supplementary affidavit sworn 24 April 2024, the fact of the 2006 convictions will affect the employment of the applicant.
The applicant further deposed that he instructs at a raceway, and he is unable to progress as a motor sports coach as he needs a working with children card.
He also deposed that it was highly unlikely he would be coaching a child 'underage'.[24]
[24] Applicant's Supplementary Affidavit sworn 24 April 2024, par 18.
There was, however, no evidence before me as to age of the children the applicant may coach and whether any children would be 'underage'.
The applicant also gave evidence that he had been working in his volunteer role for 2 years.
Whether there is any public interest to be served in not making an order (s 6(4)(g))
In the context of an application for a spent conviction in respect of sexual offending against a child, the court in DC v The Commissioner of Police, stated:[25]
This is not to say that the public interest would, in every case, require that an application for a spent conviction order in relation to convictions for sexual offences against children should be refused. As the Court held in WHW v Commissioner of Police, there is nothing in the Act to indicate that the public interest requires that offences of this particular kind should fall outside the scope of its ordinary operation.
Each case must be determined on its merits, having regard to all relevant facts and circumstances.
[25] DC v The Commissioner of Police [63] - [64].
Counsel for the respondent does not point to any particular countervailing public interest in the circumstances of this case as to whether there is any public interest to be served in not making the order.
Ultimately, each case must be determined on its merits as I have noted.
Conclusion on the merits
The matters required to be considered by s 6(4) of the Act point in different directions.
The offending was serious. A considerable period of time has passed since the 2006 convictions without the applicant having been convicted of any similar offences. However, in the absence of any psychiatric or psychological evidence, and in circumstances where the applicant has not undertaken any courses related to his child sexual offending, I am not able to make a finding as to the applicant's risk of reoffending.
While the 2006 convictions have impacted on the applicant's employment, it has not prevented him from obtaining and continuing employment as a sales representative.
In addition, given the inconsistencies in the evidence of the applicant regarding the factual basis of the 2006 convictions, I find the applicant has diminished his responsibility for the offending. In those circumstances, I also find the extent of the applicant's remorse for his offending is limited.
When weighing all matters, and taking into account the rehabilitative objectives of the Act, I am of the view that my discretion ought not be exercised so as to grant the application.
Conclusion and orders
For the above reasons, I find that the 'prescribed period' for the 2006 convictions has not elapsed.
As a result, the application for an order that the 2006 convictions be spent must be dismissed as incompetent.
As I have also noted, if the application was competent, I would not grant the application in the exercise of my discretion.
The application is therefore dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SF
Associate to Judge Tovey
30 OCTOBER 2024
0
5
3