KK v Zanetti - [2009] WASC 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KK -v- ZANETTI [2009] WASC 83

CORAM: SIMMONDS J

HEARD: 13 JANUARY 2009

DELIVERED : 9 APRIL 2009

FILE NO/S: SJA 1091 of 2008

BETWEEN: KK
Appellant
AND
JASON ZANETTI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G MIGNACCA-RANDAZZO
File No  :PE 57362 of 2008

Catchwords:

Criminal law - Sentencing - Offence of possession of prohibited drug (cocaine) - Appeal against refusal to make spent conviction order under Sentencing Act 1995 - Proper approach to making of such orders - Whether error to conclude adverse effect of conviction should not be immediately set aside

Legislation:

Misuse of Drugs Act 1981 (WA), s 6, s 34
Sentencing Act 1995 (WA), s 5, s 39, s 45
Spent Convictions Act 1988 (WA), s 10

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Ms T S Cole

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor for Western Australia

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

AR v Wood [2008] WASC 119
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Cranssen v The King (1936) 55 CLR 509
Ennis v D'Andrilli [2007] WASC 263
Hull v Castledine [2005] WASC 252
JJA v Yow [2008] WASC 69
Legal Practitioners Complaints Committee and Bull [2006] WASAT 217
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v State of Western Australia [2008] WASCA 69
Robertson v Lawrence [2008] WASC 111
Scanlon v Bove [2008] WASC 213

SIMMONDS J:

Introduction

This is an appeal by leave from a refusal by a magistrate to make a spent conviction order under the Sentencing Act 1995 (WA). The refusal was in respect of a conviction of an offence of possession of a prohibited drug, namely cocaine.
On the submissions of counsel for the appellant this appeal raises a question as to the proper approach to the making of such spent conviction orders. Counsel submits there is an apparent divergence of views in the court as to that approach, a divergence which this appeal requires me to address.
In these reasons I first provide background to the decision of the sentencing magistrate. I then set out the grounds of appeal before turning to consider them, and in particular the question counsel for the appellant submits I must address. The final section of these reasons is my conclusions and orders.

Background

On 9 October 2008 in the Magistrates Court at Perth before Magistrate Randazzo the appellant pleaded guilty to a charge of possession of a prohibited drug, namely cocaine, contrary to Misuse of Drugs Act 1981 (WA) (MD Act) s 6(2). The quantity involved was 0.17g. The penalty for that simple offence was under s 34(1)(e) a fine not exceeding $2,000 or imprisonment for a term not exceeding 2 years or both.
The circumstances of the offending as these emerge from the transcript of the sentencing submissions to his Honour were not in contest before me. They were that the cocaine belonged to a former partner of the appellant. He had recently split up with her. The appellant was not and had never been a user of cocaine and had no intention of using that drug. However, as acknowledged to his Honour by counsel for the appellant, counsel who also appeared before me, the appellant knew the cocaine was in the house he occupied. The transcript goes on to record '[h]e had this full on hope that one day [his former partner] would return to him and she would find it' (9 October 2008, ts 3). In the police search that turned up the cocaine, it was found in the master bedroom the appellant was using (ts 2).
Before his Honour the appellant was described by his counsel as having been a successful business owner who had 'just before this prosecution was brought' enrolled in a legal studies course at Murdoch University (9 October 2008, ts 3). Counsel also referred to the appellant's criminal record as 'unexceptional … involving minor traffic offending, there's a .08 and failure to wear a seatbelt' (9 October 2008, ts 3). Later in the hearing his Honour said to his counsel that the appellant's record included 'demerits point suspensions' (ts 5), which counsel did not contest.
In addition, his counsel said this of the appellant (9 October 2008, ts 3):
He has got ‑ and I will hand you up this brief reference ‑ an indication from the referee that he will be offered employment to sustain his studies in the oil mining and gas industries.
His Honour said he had 'read that' (ts 3) which is annexed to the written submissions of counsel for the appellant and which is a reference from a Mr Townsend. I will have occasion to return to this reference, in some detail.
Counsel for the appellant in his sentencing submissions to his Honour sought a spent conviction order, and addressed his Honour on three authorities concerning the making of such orders: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291; AR v Wood [2008] WASC 119; and Robertson v Lawrence [2008] WASC 111. For his part his Honour referred, both during the course of the hearing of sentencing submissions and in his Honour's sentencing remarks, to Scanlon v Bove [2008] WASC 213. The transcript of those sentencing remarks records a further reference by his Honour to the authority of 'Ashley v Yeo (2008) WASC at page 69' (9 October 2008, ts 7). It appears there is no such case. Subsequently to the hearing of the appeal counsel for the appellant, by communication with my chambers copied to counsel for the respondent, indicated he believed the sentencing magistrate meant to refer to JJA v Yow [2008] WASC 69 (McKechnie J). I also consider that was the authority his Honour meant to refer to.
I will return to all of these authorities below.
On 9 October 2008, at the conclusion of the hearing of sentencing submissions, his Honour imposed a fine of $600 for the offence of possession of cocaine, and made orders for costs and destruction of the drug.
As to the request that he make a spent conviction order, the transcript records his Honour then said this:
An application has been made for the court to exercise its discretion ‑ a discretion which is sparingly used and one that has been described as exceptional. I consider myself to be bound, amongst other decisions, by the decision of the Full Court in the R v Tognini (2002) WAR 291 which is most recently referred to in Scanlon v Bove (2008) WASCA. The particular citation escapes me at the moment.
I am of the view that although you have a record it does not necessarily mean that you can not otherwise be a person of good character and I make reference to Ashley v Yeo (2008) WASC at page 69. From my recollection that's a judgement by McKechnie J. Turning my mind to the exercise of this discretion, I am of the view that whilst it is unlikely in the circumstances ‑ if what I have understood about you, in view of the circumstances of the commission of this particular offence and in the absence of any other drug related offences in your record ‑ it is unlikely you will commit such an offence again.
I take the view that the offence is not trivial and the debatable question is whether you are a person otherwise of good character. I am prepared to exercise the view that you are capable of being described as a person otherwise of good character, notwithstanding that you have a traffic record, and I take that view in view of the remarks made by McKechnie in Ashley v Yeo. The further question then is whether you should be relieved immediately of the adverse affect of the conviction.
What has been pointed to here is your aspirations to undertake studies and finally be admitted as a legal practitioner. In my view, that stage is a matter ‑ it is suggested that there is concrete or firm evidence before the court, cogent evidence. I can understand that there is evidence before the court that you were undertaking, or proposing to undertake those further studies to that end. Whether you get there and ultimately achieve that qualification and ultimately the admission, remains something in the future and is not, in my view, of such moment at this stage that drives my mind to the conclusion that you should be immediately relieved of the adverse affects of this conviction.
Notwithstanding the circumstances in which you are said to have been in joint possession of this cocaine with your partner, I am still of the view that it is still a serious offence. It does involve cocaine which is a particularly deleterious drug and I am of the view that no particular circumstance has been indicated why that should not remain part of your record and, accordingly the application for a spent conviction is declined. That completes the matter. You can stand down (9 October 2008, ts 7 - 8).

This appeal

By appeal notice dated 30 October 2008 the appellant applied for leave to appeal against the refusal to make a spent conviction order.
By orders dated 11 November 2008 McKechnie J granted leave to appeal.
The grounds in respect of which leave was granted were, with subsequent amendments, the following:
GROUND 1
The learned magistrate erred in law in finding a spent conviction order should be used sparingly and exceptionally, when he should have found that a spent conviction order should be made if the prerequisites under section 45(1) of the Sentencing Act 1995 are met, and had he so found, would have ordered the conviction spent.
GROUND 2
The learned magistrate having correctly assessed the criteria under section 45(1)(a) and (b)(ii) of the Sentencing Act 1995 in the Applicant's favour, then erred in fact or in law or in both fact and law in finding the Applicant's legal studies enrolment and plans to practice law were not sufficient to exercise the discretion under the remaining part of section 45(1) [emphasis added].
At the hearing of the appeal and in the course of his submissions in reply counsel for the appellant sought leave to amend ground 2 to insert the words emphasised. Counsel for the respondent had no objection to this amendment. As I considered the amendment simply reflected the basis on which argument on ground 2 had proceeded before me I gave the leave requested.
I turn to consider the two grounds of appeal, as amended.

Ground 1

On the submissions of counsel for the appellant, ground 1 is intended to raise the question as to the proper approach to be taken to the exercise of the discretionary power to make a spent conviction order under Sentencing Act s 39(2)(c) read with s 45.
Sentencing Act s 39(2)(c) reads:
(2)Subject to sections 41 to 45, a court sentencing an offender may -
…
(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);
…
The phrase 'spent conviction order' is by Sentencing Act s 5(1) defined by reference to s 45(2), reproduced below. It will be noted that s 39(2), opening words, makes the provisions of that subsection, including s 39(2)(c), subject to s 45, among other provisions.
Sentencing Act s 45 in material parts reads:
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.
(2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4)A spent conviction order is to be taken as part of the sentence imposed.
…
Counsel for the appellant formulated the question as to the proper approach to the making of a spent conviction order under these provisions as follows. In a case where the sentencing officer considered there was the likelihood referred to in s 45(1)(a), and either there was the fact referred to in s 45(1)(b)(i) or the character referred to in s 45(1)(b)(ii), was that officer required to exercise the discretionary power thereby arising 'sparingly', on the basis the discretionary power was 'exceptional'? Counsel submitted that the answer was no. Counsel submitted the sentencing magistrate in this case had erred in concluding that Tognini and Scanlon required him to approach the exercise of that discretion on the basis that the answer to the question was yes.
Counsel for the appellant accepted that the power to make a spent conviction order under Sentencing Act s 39(2)(c) read with s 45 was, on the decision of the Court of Criminal Appeal in Tognini, a power to be exercised 'sparingly': [24] (Murray J), [2] (Malcolm CJ) and [3] (Wallwork J). Further counsel accepted on that authority that the power was a 'discretionary power' that was to be regarded 'as being of an exceptional character': Tognini [27].
However, counsel for the appellant submitted, it was to the combination of the court being satisfied in the terms of Sentencing Act s 45(1)(a) and one or other of s 45(1)(b)(i) or (ii) and the court's exercise of the discretionary power in s 39(2)(c) by reference to s 45 that the quoted words applied. It was the combination of all of those elements that was the making of a spent conviction order.
As I understood counsel's submission, that meant, in a case like this one, the sentencing magistrate should not have required, as it was submitted he had, he be satisfied as to more than that Sentencing Act s 45(1)(a) and s 45(1)(b)(ii) were met before he could conclude the case was 'exceptional'. That is, the meeting of those two conditions sufficed to show the case was 'exceptional'. The sense of 'exceptional' counsel identified for this purpose was that relatively few offenders would meet the conditions. That meeting of those conditions did not mean a sentencing officer had to make an order. There was a discretion that the meeting of those conditions enlivened. However, the approach to the exercise of that discretion should not be one involving a concern to find the case for its exercise was 'exceptional'. And, as I understood counsel's submission, in this case on its facts as established for sentencing purposes it would have been an error for the sentencing magistrate not to exercise the discretion to make a spent conviction order.
Counsel for the appellant submitted that the proffered view of the proper approach to the exercise of the discretionary power for which he contended was open on Tognini and removed an apparent divergence of views expressed in judgments on single judge appeals and on appeals to the Court of Criminal Appeal and the Court of Appeal in this state.
The written submissions of counsel for the appellant referred me to what was said to be the apparent divergence of views between Wood (EM Heenan J) and Robertson (Jenkins J), on the one hand, and Scanlon (Johnson J), on the other. Those submissions also referred me to what was said to be the divergence of views between Tognini, on the one hand, and Riggall v State of Western Australia [2008] WASCA 69 (Wheeler JA, with whose reasons, at least in respect of the appeal against the refusal to make a spent convictions order, Buss JA at [80] and Miller JA at [81] indicated their agreement), on the other.
However, the oral argument of counsel for the appellant was confined to what was said to be the apparent divergence of views between Wood and Tognini. This confinement was, as counsel for the appellant appeared to accept, because it is difficult to see an alignment of views in material respects between Wood and Robertson (see Robertson [49] ‑ [50]), or a divergence of views between Tognini and Riggall (see Riggall [51], [63] and [79], referred to in this respect in Robertson [50]).
In my opinion the proffered view of the proper approach to the exercise of the discretionary power, with which the approach followed by the sentencing magistrate in this case is indeed not consistent, is not open on the proper reading of the relevant paragraphs of Tognini, nor indeed is it open on the proper reading of the relevant paragraphs of Wood. Further, with Jenkins J in Robertson and Johnson J in Scanlon, to the extent there is a divergence of views between Tognini and Wood, I must, with great respect to EM Heenan J in Wood, follow Tognini in this case. The following are my reasons for those views.
Tognini concerned the making of a spent conviction order by each of two sentencing judges. In one case the spent conviction order was for a conviction following a trial by jury, of a Mr Tognini, on a charge of obtaining a cheque from the Australian Mutual Provident Society (the AMP) by a false pretence with intent to defraud contrary to Criminal Code (WA) s 409(1) as it was then. In the other case the spent convictions order was for a conviction following a trial by jury, of a Mr McGuire, of indecent assault contrary to Code s 323. The fraud offence involved Tognini forging on a form the signature of a Mr Williamson, who was a joint holder with Tognini of an investment policy with the AMP. The form was to permit reinstatement of the policy. The facts of the McGuire's offence will sufficiently appear for my purposes below.
In Tognini Murray J noted that the penalty on conviction received by Tognini, of a fine of $2000, and by McGuire, of a conditional release order for 12 months, made the conviction in each case a 'lesser conviction' within Spent Convictions Act 1988 (WA) (SC Act) s 10. This meant that, had the conviction in each case been dealt with 'entirely' under the SC Act, it would have become a spent conviction on application made after the prescribed period of ten years: Tognini [7], [15].
It was against this background that Murray J in Tognini said this, at [24] - [25], and [27] ‑ [28] (emphasis supplied):
Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
The Second Reading Speech of the Hon Attorney General introducing the Sentencing Bill into the Parliament shows, I think, that that was the intention of the legislature. Hansard for 25 May 1995, p 4258 records the Minister as saying:
'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.'
…
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.

The view of the proper approach to the exercise of the discretionary power proffered by counsel for the appellant as open on Tognini is, on any reading I have been able to make of those four paragraphs, and particularly the words emphasised in [27], not in fact open on that authority. Those emphasised words make it plain that the exceptional character of the discretionary power referred to in Tognini means that a court, considering whether to exercise the power once the 'necessary pre-conditions' for its exercise had been met, should, in view of the 'ordinary rule that a conviction will be a matter of record', look for 'some particular circumstance' of the kind described in [27], and explored in [28].
The effect of those emphasised words is in my opinion described particularly clearly in Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510. There, Burchett AUJ (with whose judgment Wallwork J, [1], and Wheeler J, [3], indicated their agreement) distinguished between the conditions to the exercise of the discretionary power, and the approach to its exercise, while also referring to the relevance of the exceptional or special character of the discretionary power to both the approach to finding the conditions met and the approach to exercising the discretionary power.
Burchett AUJ in Brewer [11] said this:
It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied.
At [14] Burchett AUJ, after saying that 'the courts have emphasised that a spent convictions order under s 39 of the Sentencing Act should only be made in a very special case', and, after quoting Tognini [24], added:
Bearing in mind the special nature of the jurisdiction to grant this relief, and the clear case the Full Court has said must be shown, it is to be expected that generally those who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence. The first condition, for which there is no substitute, is 'that the offender is unlikely to commit such an offence again'. Proof that the applicant for an order has this merit is itself the one essential statutory substitute for the evidence of the reality of reform sustained over time on which, by s 11 of the Spent Convictions Act, that Act relies in cases other than those falling within s 45 of the Sentencing Act.
His Honour, having then noted the lack of a finding in the courts below that Sentencing Act s 45(1)(a) was met [15], and that there was no basis for such a finding before the Court of Criminal Appeal, said this, [16]:
Had a finding in favour of the appellant been open under s 45(1)(a), his previous good character, as shown by the evidence and the absence of any prior conviction, would have left him with one further hurdle to surmount ‑ the exercise of the Court's discretion in his favour, having regard to his previous good character. When the Court reaches this point, although the conditions for the exercise of the discretion have been satisfied, the requirement to be conscious of the special nature of the discretion remains. On the authorities, it presents a very significant hurdle.
At this point, his Honour quoted Tognini [27].
In my opinion, these statements from Tognini and Brewer indicate that after the conditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) are met something more is required that is the 'particular circumstance' in Tognini [27], which is to be understood as [27] and [28] indicate, and as Brewer confirms. That requirement is a reflection of the exceptional character of the discretionary power.
Further, the view of the proper approach to the exercise of the discretionary power proffered by counsel for the appellant is not open on Wood. That case was an appeal against the refusal of a sentencing magistrate to make spent conviction orders in respect of convictions of the appellant on charges of behaviour in a disorderly manner in a hospital, contrary to Code s 74A(2)(a), and of carrying a tyre lever, contrary to Weapons Act 1999 (WA) s 8(1). On the appeal EM Heenan J determined that the circumstances of the offending had been wrongly described to the sentencing magistrate in a way that overstated the seriousness of the offending, and did not include reference to time spent in custody because of the incidents in question: see [20]. His Honour concluded that, having determined the criteria in s 45(1)(a) and the relevant subparagraph of s 45(1)(b) were satisfied, he should proceed to consider whether or not to make spent conviction orders for the convictions: see [33].
His Honour said this, as to the approach he should follow to the exercise of the discretionary power, referring to Tognini:
Further submissions were advanced by the respondent that the satisfaction of the criteria set out in s 45(1) of the Sentencing Act is a necessary, but not sufficient, condition for making a spent conviction order and that the ordinary rule is that a conviction will be a matter of record with all the consequences that may entail: … Tognini … 296 - 297. In advancing that submission, counsel for the respondent contended that the power to grant a spent conviction order is a discretionary power of an exceptional character and should only be sparingly exercised. As the submission went, the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender 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, that the adverse effect of a conviction should be immediately set aside - … Tognini, 297.
In dealing generally with spent conviction orders, in … Tognini Murray J at 297 referred to other legislation to similar effect in other Australian jurisdictions before concluding that the power to make such an order should be regarded as being of an exceptional character. His Honour's judgment was agreed with by Malcolm CJ and Wallwork J at 292 but those observations must, in my view, be regarded as applying to the particular circumstances of the offence there under consideration. The first spent conviction orders examined in … Tognini involved offences of actual dishonesty in a commercial context but, nevertheless, spent conviction orders were made and upheld on appeal. The spent conviction order which was set aside was in relation to the second respondent, McGuire, who had been convicted of an offence of indecent assault, contrary to s 323 of the Criminal Code. Having regard to the circumstances of the offences of dishonesty and of indecent assault examined in Tognini's case, one can readily appreciate why the learned judges dealing with that case described the making of a spent conviction order as exceptional and, indeed, in Tognini's case the circumstances were sufficiently exceptional for the making of those orders to be affirmed.
That is a far cry from the circumstances of this particular case, which were impulsive, eventually harmless, and prompted by an understandable human reaction to a somewhat frustrating attitude struck by the hospital personnel.
I am not prepared to consider that, in every case, the making of a spent conviction order must be regarded as an 'exceptional' course because to do so would involve placing a gloss upon the requirements of s 45(1) of the Act which, in unequivocal terms, is the statement by Parliament of when the power to make such orders arises. It has long been established that it is not the proper approach to put a gloss on a statute with implications derived from other considerations outside the statute itself, see Cornwell v The Queen [2007] HCA 12; (2007) 234 ALR 51 [184], and that such an approach of glossing a statute should not be used as a substitute for the text, see Vigolo v Bostin [2005] HCA 11; 221 CLR 191 [21] (Gleeson CJ). Such an approach had been described by Williams J in Coates v National Trustees Executor & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 512, as the use of a paraphrase which is apt to mislead. In every case the court must give effect to a statute by ascertaining the intention of Parliament and, when dealing with s 45, there is no scope for incompleteness, uncertainty or ambiguity [36] - [39].
His Honour then went on to say this:
True it may be that spent conviction orders and the power to make them under s 45 require mature judgment and a sense of discrimination but they are obviously intended to be used in suitable cases. There is a long history of other legislative provisions in former times, allowing first offences or minor offences to be dealt with leniently ‑ see the history of jurisprudence which examined the former s 669 of the Criminal Code which, generally, and with suitable qualifications, espoused the policy that the operation of a conviction could be suspended or avoided in suitable circumstances ‑ compare Pearce v Paskov [1968] WAR 66 and Greenfield v Edwardes [1987] WAR 207. In the latter case Burt CJ, although dissenting in the result where Brinsden and Olney JJ held that s 669 of the Criminal Code, as it then was, was excluded by operation of s 106 of the Road Traffic Act 1994 (WA), referred to the decision of Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 where a majority of the Justices held that a particular offence against the Road Traffic Act 1961‑1967 (SA) could be dismissed without proceeding to a conviction under the provisions of the then Offenders Probation Act 1913‑53 (SA). The Chief Justice cited in particular the judgment of Windeyer J where his Honour concluded that the answer to the question of the meaning of the statutory provision could not rest upon any 'presuppositions of a probable legislative intent' and that, even if it could, that would not support the prosecution's submissions. His Honour said:
'Rather, I would think the contrary. The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.'
In my view, and with respect, these are the considerations which underlie the meaning and effect of s 45 of the Sentencing Act and, in appropriate circumstances, a court should give effect to them and not require more [40] ‑ [41].
In my view, his Honour was indicating that in some circumstances there would not be anything 'exceptional' about making a spent convictions order under Sentencing Act s 45. His Honour said nothing to indicate that in such a case those circumstances themselves would be 'exceptional'. Indeed there is reason to consider he envisaged some 'typical' circumstances where the discretionary power might be enlivened: see [34].
His Honour clearly expresses the view that the observations as to the exceptional character of the discretionary power to be exercised sparingly in Tognini must be 'regarded as applying to the particular circumstances of the offence' under consideration in that case [37].
It seems to me from Tognini [27] - [28] that the offence in its circumstances may on the approach there described make it easier or more difficult for the court to exercise its discretionary power. In my view this is to be seen in Tognini most clearly from the explanations of the different results on the two appeals in that case, [29] - [31]:
Approaching the matter in that way led me to the view that it could not be said that the sentencing Judge who dealt with the respondent Tognini erred in his exercise of discretion in that case. The offence was long ago. Whilst it was serious enough in itself, it was undoubtedly committed in rather bizarre circumstances. The dishonesty was patent, but in fact no harm appears to have been done to the AMP Society or the creditor represented by Mr Williamson. Indeed the only person who appears to have suffered financial loss was Mr Tognini himself. He had shown in the 9 years which had elapsed every indication that he had resumed his former good character and there was evidence to suggest that, apart from his loss of reputation as a result of the commission of the offence, the fact of conviction would add a further impediment to Mr Tognini continuing as an insurance agent. For those reasons I joined in the order dismissing the appeal in his case.
I would, however, take a different view of the case of the respondent McGuire. Again the offence was serious in the circumstances of its commission. The complainant was in a vulnerable position and Mr McGuire was supposedly one of those who was caring for her and assisting her in her battle against alcoholism. The commission of the offence arose out of the function that he was performing at Bridge House because that gave him the opportunity to commit it. Remorseful he undoubtedly was, and he was making determined efforts to better understand why he committed the offence so that he might not do it again. But he knowingly breached the rules applicable to his employment at Bridge House and there was nothing in my view to indicate that the best interests of the community were not served in the ordinary way by having knowledge of the conviction rather than by allowing the fact of the commission of the offence to be generally concealed.
The respondent had certainly left his former employment to be a courier, but there was nothing to prevent him again seeking employment in a field in which he had considerable experience, in a drug rehabilitation centre or the like. The public interest I think remained one where he would be obliged to declare the fact of his conviction if called upon to do so. There was no particular impediment to following a career or occupation pressed upon the court in aid of the proposition that a spent conviction order should be made. I think the exercise of discretion in this case, miscarried. I would allow this appeal and in the case of the respondent McGuire, I would set aside the spent conviction order.
Another illustration of the way in which the offence in its circumstances may on the approach in Tognini [27] - [28] make it easier or more difficult for the court to exercise its discretionary power is in my view Riggall. That was an appeal against a refusal to make a spent conviction order in respect of sexual offences involving sexual encounters between the appellant then 22 and another male, then 14, but whom the appellant believed was 19. On appeal the court determined a spent conviction order should be made. Wheeler JA referred to the circumstances of the offence as follows:
That discussion brings me, finally, to an assessment of the criminality of this particular appellant. His subjective view was that he was engaged in an activity which [the 14 year old] had not only consented to, but which [the 14 year old] had sought. [The 14 year old] had, in fact, sought to have a sexual relationship with him. He understood [the 14 year old] to be a person whose maturity was roughly equivalent to his own. He had no reason to know, or to believe, that [the 14 year old] was a child, or that the appellant's conduct would be in breach of the law. When he did realise that he had, mistakenly, behaved in a way which the law forbids, he was remorseful and refrained from any such further conduct. It is difficult to imagine these offences being committed in circumstances less worthy of blame and, therefore, less deserving of a sentence which has an element of retribution.
So far as deterrence is concerned, the appellant does not require personal deterrence; his respect for the law is demonstrated in his reaction to the revelation of [the 14 year old's] age. So far as general deterrence is concerned, the cases of child sexual abuse which come before the courts are, as a general rule, so very different from the circumstances of this case that it is unlikely that any sentence imposed upon the appellant would be considered by most other offenders to be relevant to their circumstances. It is, therefore, my view that, in the very exceptional circumstances of this case, the appellant's offences should be punished to the least possible extent permitted by law [50] - [51].
I also note the following, from Brewer. There, Burchett AUJ quoted the sentence from Tognini [28], that the court may be aided in reaching the conclusion referred to in [28] had been shown 'if it thinks 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' [16]. His Honour then said this, [17] ‑ [18]:
The protection of the community is, of course, an aspect of the wider public interest. In Neale v Sloan (1997) 27 MVR 246 at 247, Wheeler J said:
'Section 45 of the Sentencing Act provides that a Court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied, and consideration must be given to all of the circumstances of the case and of the offender ‑ and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in s 45 are not thereby rendered irrelevant.'
This passage was cited, with evident approval, by Parker J in Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997. The case before Parker J involved a conviction of a leading hand shot-firer in respect of the possession, for personal use, of cannabis and an implement for the smoking of cannabis. His Honour said:
'One further consideration which it was proper, in my view, for the Magistrate to take into consideration is the public interest, one aspect of which tells against the appellant in this case. The occupation which the applicant pursues involves considerable responsibility for safety. There is a public interest in any employer or potential employer being aware of the appellant's conduct of the nature demonstrated by these offences because that conduct has clear relevance in assessing his reliability and suitability for the type of work which he pursues.
There is also the issue of personal and general deterrence. While it was submitted to the Magistrate that the appellant had learned from his experience and while he certainly showed, by co-operating with the police and entering pleas of guilty at the first appropriate opportunity, that he was remorseful and while I proceed on the assumption that it is not likely that offences of this type will occur again, the consideration of deterrence, particularly of general deterrence, remains a material consideration for offences of this nature.'
Again, in Canale v Bayens [2001] WASCA 383, Pullin J cited Neale v Sloan for the proposition that '[c]onsideration must be given to all of the circumstances of the case and of the offender, including the wider interests of the public'. It was on the ground of 'the wider interests of the public', and expressly following Neale v Sloan and Riley v Gill, that, in Koenig v Ryan [[2001] WASCA 339], Hasluck J overturned the decision of the Magistrate to grant a spent conviction order.
One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from responses to enquiries, and placing a legal impediment in the way of some enquiries. The Court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, 'the preservation of confidence in the judicial system' requires publicity: R v Tait and Bartley (1979) 24 ALR 473 at 487, per Brennan, Deane and Gallop JJ. As their Honours also said (ibid):
'To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction.'

On that view of the relevance of the offence in the circumstances of its commission it seems to me that, with the circumstances personal to the offender (see Wood [44]), the result in Wood is readily to be seen as within the range of a sound exercise of the discretionary power, as Tognini indicates that discretion is to be approached: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) and Cranssen v The King (1936) 55 CLR 509, 519 - 520 (Dixon, Evatt and McTiernan JJ).
However, it seems to me to be clear also that in Wood EM Heenan J did not consider he was approaching the exercise of the discretion in the manner indicated in Tognini [24] and [27] - [28]. Rather his Honour indicated he understood the proper approach to the exercise of the discretionary power to be in terms of the considerations in Wood [40], above.
As to the approach to the exercise of the discretionary power employed by the sentencing magistrate in this case in my view it is clear that approach is as described in Tognini [24] and [27] ‑ [28]. I am of this opinion because his Honour indicated that, his discretionary power having been enlivened, in answering the question whether the appellant should be relieved immediately of the adverse effect a conviction might have on him, his Honour should bear in mind the 'exceptional' character of the discretionary power as a power to be 'sparingly' used (9 October 2008, ts 7). In doing this he indicated he had looked to the seriousness of the offence in the circumstances of its commission and in the circumstances personal to the appellant particularly relied upon for this purpose by counsel for the appellant. He had looked at those matters to determine whether there was a 'particular circumstance' (9 October 2008, ts 7) that had been made out showing him why the offence should not be part of the appellant's record.
I consider that there was no error in the sentencing magistrate adopting that approach, as I do not consider the approach in Tognini [24] and [27] - [28] can be confined to the particular circumstances of that case. There is nothing in Tognini so indicating, and, with the exception of Wood, there is no authority to which I have been referred that has treated Tognini in that way.
I consider that it follows, in accordance with what I understand to be the position of Jenkins J in Robertson (see [50]) and the position of Johnson J in Scanlon (see [28]), and with great respect to what I have concluded is the contrary view in Wood, I must regard the views in Tognini [24] and [27] ‑ [28] as applicable generally to the exercise of the discretionary power in s 39(2)(c) read with s 45. Thus, those views were applicable in the circumstances of this case.
It follows that ground 1 is not made out.

Ground 2

The sentencing magistrate in the exercise of his discretionary judgment to make a spent conviction order proceeded on the understanding that the appellant had 'aspirations to undertake studies and finally be admitted as a legal practitioner' (9 October 2008, ts 7). It appears not to have been in contest before me that this understanding derived from the following exchange in the course of sentencing submissions, part of which I previously quoted (9 October 2008, ts 3 ‑ 5):
HIS HONOUR: Does he have the capacity to pay a fine, Mr Kitto? He is in full time employment?
KITTO, MR: He has been ‑ he has been a successful business owner. He is not now. He has just ‑ and before this prosecution was brought - he has enrolled in a course of legal studies at Murdoch University. He has got ‑ and I will hand you up this brief reference - an indication from the referee that he will be offered employment to sustain his studies in the oil mining and gas industries.
HIS HONOUR: Benjamin P Townsend, dated October 2008. Just give me a moment.
KITTO, MR: Thank you.
HIS HONOUR: I have read that, thank you.
KITTO, MR: Your honour, there is a recent authority I am going to refer you to. It's Robertson v Lawrence. I suspect your Honour is already familiar with it. It deals with generally spent convictions and it brings to account - the citation, sir, I note you are noting is Robertson v Lawrence (2008) WASC number 11. It came from a civil judge appeal. It's a judgement of her Honour Jenkins J.
It brings to a convenient summary of the last five years of the development of this law, there is nothing particularly (indistinct) or new to your Honour on this matter. I do refer you, however, to the extreme unlikelihood he is going to commit an offence again. I refer you to his previous good character and most of all I refer you to the demonstrable need for [KK] to be relieved of the adverse consequences of a spent conviction.
I remind you it was a very small quantity of drugs and, at best, he was a co‑possessor of the drug, with certainly no more condignal malign intention to possess it. He didn't even intend to use it himself. He simply pleads guilty because, on my advice to him, he is guilty. Nothing more can be said. I do ask you to bear in mind that if he puts in four years of study ‑ legal studies - it might be negatory, unless your Honour is minded to dispose of this matter under section 45 of the Sentencing Act.
…
KITTO, MR: … Ultimately it is a matter for your discretion. However, he has put before you credible and unchallenged evidence that, if a conviction is recorded against him, it will greatly and adversely affect his future ‑ either as a legal practitioner, a law student or anyone working in the legal field. In the meantime it will affect his future of someone in oil mining and gas.
HIS HONOUR: He is yet to acquire that legal qualification. He is yet to be admitted as a practitioner.
KITTO, MR: Yes.
HIS HONOUR: There's a lot of water that needs to pass under the bridge.
KITTO, MR; Without doubt. But I do ask you to bear in mind that he hasn't run off and enrolled in this simply because he was prosecuted. He enrolled in this some time ago, long before he was investigated or prosecuted. It was his genuine intention.
The submissions for the appellant identified three sets of circumstances said to reveal error in the approach the sentencing magistrate was said to have taken by reference to the basis just quoted.
Firstly, the sentencing magistrate had considered that basis against his assessment of the offence, in the circumstances of the offending, as a 'serious offence', when no such characterisation of the offence could properly have been given to it.
Second, the sentencing magistrate, in taking account of the time left for completion of the appellant's legal studies with the possibility he would not successfully complete them and gain admission as a legal practitioner, was indicating it would be harder for someone to obtain a spent conviction order early in such studies than later in them. This on counsel's submission was not in accordance with justice. Thus, as I understood this submission as to error, such an accounting could not have been in the contemplation of the legislature for the exercise of the discretionary power in Sentencing Act s 39(2)(c) read with s 45.
Third, the sentencing magistrate had evidence that the conviction might have an adverse effect, and erred in then proceeding as he did to ask himself whether or not at this stage in the appellant's tertiary studies it was possible to tell whether there would be such an effect.
I note at this point that ground 2 as I understood it did not assert there was an error by the sentencing magistrate in any other respects than those so indicated. In particular, it was not suggested that the sentencing magistrate had failed to consider whether or not the appellant should be relieved immediately of the adverse effect that conviction might have on the appellant 'having regard to' the matter in Sentencing Act s 45(1)(b)(ii) as that was met in this case. It seems to me any such assertion had it been made would have been misplaced. The sentencing magistrate had proceeded on the view the appellant was 'capable of being described as a person otherwise of good character', notwithstanding a record of traffic convictions, referring to the authority correctly to be cited as Yow. It seems to me that view of Yow (McKechnie J [24] ‑ [25], [33] (quoting Hull v Castledine [2005] WASC 252 [23] - [27], Le Miere J), [34] and [36]), was clearly open to his Honour. He was not shown to have failed to take proper account of the evidence of the appellant's previous good character referred to at the outset of these reasons.
As to the first set of circumstances said to reveal error, it was not in contest the offence in this case was not 'trivial' within s 45(1)(a). At the same time, it seems to me it was not in contest that this did not of itself make the offence 'serious'. Further it was not in contest that the sentencing magistrate had in mind both the fact possession of the cocaine was not sole but 'joint' with his partner, and the quantity was 'small', as his sentencing reasons state (9 October 2008, ts 6, 7).
Although the matter is somewhat less clear, I consider that his Honour also had in mind that the cocaine was not for the use of the appellant but that of his former partner, in circumstances where the appellant was not and had never been a user of the drug, and where he had no intention of using the drug. All of these matters, as I indicated at the outset of these reasons, had been put to his Honour in sentencing submissions. None of those matters is expressly referred to in his Honour's sentencing remarks. However, given the context, of those matters having been so put, it is my view that they are to be seen as included in his Honour's reference to 'the circumstances in which you are said to have been in joint possession of this cocaine with your partner' (ts 7).
In my view, the sentencing magistrate's characterisation of the offence as 'serious' should also be seen in the context of his approach to the exercise of his discretionary power, a context I have previously described. That approach was, as I have said, to consider whether or not the offence in the circumstances of the offending and in the circumstances personal to the offender pointed to by the appellant, of his 'aspirations' in law, was such that the offender should be immediately relieved of the adverse effect that conviction might have on the offender. I note again Tognini [27] and the sentencing magistrate's reference, immediately following his description of cocaine as a 'particularly deleterious drug', to his view 'that no particular circumstance has been indicated why [the offence] should not remain part of your record' (9 October 2008, ts 7 - 8).
His Honour's characterisation of the offence when seen in that way does not seem to me to be in error, where, as the transcript records it was put to his Honour by counsel for the appellant, the appellant's possession was knowing, and indeed the appellant had not destroyed the cocaine, because 'he had this full on hope that one day [his former partner] would return to him and she would find it' (9 October 2008, ts 3).
As to the second set of circumstances said to reveal error, there is in my view no room to doubt that the sentencing magistrate did in fact take account of the time left for completion of the appellant's legal studies. He did this on his view of the relevance of that time to the possibility that the appellant would not successfully complete those studies and gain admission as a legal practitioner. It follows it seems to me that the effect of that accounting would be as counsel for the appellant contended, that is, other things being equal, to make it harder for some one to obtain a spent convictions order early in tertiary studies of that kind than later in them.
However, I do not consider that such an accounting is inconsistent with what on Tognini the legislature should be taken as having in contemplation for the exercise of the discretionary power in Sentencing Act s 39 read with s 45, or that such an accounting is not in the interests of justice.
On my view of Tognini the court should weigh with the other matters made relevant by the analysis in that case [27] ‑ [28] the present significance to the offender of the career, profession or employment the following of which might be impeded by the conviction. This on my reading of the decision in Tognini would make relevant whether or not the offender had followed it, or was following it, or was planning to follow it (and if planning to follow it, how advanced those plans were), or some combination of these. See the treatment of the appeal by Tognini in Tognini [29], above. I also derive support for this view from Ennis v D'Andrilli [2007] WASC 263 [51] ‑ [56] (Johnson J), although in this case, unlike that one, there is no indication the assertions by counsel for the offender as to possible future impacts on a future career for which he was engaged in tertiary studies were in contest.
Further, it is not evident to me there is injustice in taking account in this way, that is, by reference to the time to completion of the relevant studies and attainment of any necessary professional qualification, of the extent of the present impact on or significance to the offender of a possible future impediment from a conviction to the realisation of the offender's plans.
I have noted the submission of counsel for the appellant that the possible future impact on the appellant's pursuit of a career in law (which I took to be as a legal practitioner or otherwise) must be understood in terms that once most employers became aware of an offence of possession of cocaine they would be uninterested in learning the circumstance of the offending so as to obtain an accurate appreciation of the level of criminality involved. This submission if accepted would distinguish the offence in this case from the offence of driving with a blood alcohol level above 0.08% in Ennis (see [58]). I understood the submission as that here the sentencing magistrate had failed to so account for that possible future impact notwithstanding he had referred to the 'particularly deleterious' nature of cocaine.
Before me there was principal reliance placed on the nature of the offence.
However, as the written submissions of counsel for the appellant indicated, if not by specific reference to the present ground, there was also evidence from a prospective employer, in the form of the reference from Mr Townsend, to which I earlier referred. That reference contained evidence on the possible future impediment to a legal career represented by the present conviction. However, in my view that reference also contained evidence of a possible present impediment to pursuing a course of studies for such a career also represented by the present conviction.
The reference stated among other things:
Until recently [KK] has owned a successful hairdressing business in Applecross that he has recently sold to make it possible for to him to pursue a long time ambition to put himself through university. A conviction of this nature would make it impossible for him to pursue a career in his desired field of law.
The reference also said:
Furthermore as an employer with a company that contracts to the Mining, Oil and Gas industry and to the Commonwealth, I had hoped to employ [KK] part time over the next few years to help maintain an income whilst he is studying. If his not able to get a spent conviction I will not be able to offer him work nor will many other prospective employers.
I note material from prospective employers is relevant to, if not necessarily determinative of, whether or not to make a spent conviction order: Ennis [54].
In relation to the nature of the offence, counsel for the appellant referred me to Riggall and to the doctrine of judicial notice.
I took the reference to Riggall as directing me to [73], in which the following appears, in the context of Wheeler JA's consideration of the application of Tognini [27] ‑ [28] in that case, and in which she initially refers to the matter of whether there is 'no pressing public interest in being able to continue to have access to the fact of the conviction as part of the process of securing the protection of the community', as follows:
Taking the last matter first, it seems to me there is no pressing public interest in persons generally being able to continue to have access to the fact of the appellant's conviction, since there is nothing to indicate that the community requires protection from the appellant. It is also, in my view, relevant in the present case to consider the very serious stigma which attaches, rightly, to a conviction for a sexual offence against a child. The stigma is so great that any person who becomes aware of the mere fact of the appellant's conviction will often be uninterested in staying to learn the detailed circumstances and will be prepared, without more, to regard the appellant as a person of thoroughly reprehensible character.
In my view the offence of possession of cocaine, considered as a 'particularly deleterious drug', is not of the same kind as that in Riggall.
If Wheeler JA in Riggall is referring to the likelihood that a person learning of the offence she described would react to the knowledge in the way she describes as a matter of which she has taken judicial notice, I am not convinced there is the requisite notoriety in the case of the offence of possession of cocaine. See Heydon J D, Cross on Evidence (7th Aust ed, 2004) [3010] on the notoriety requirement.
If Wheeler JA in Riggall is referring, as I am inclined to think she is, to the court's general experience of life, I am not convinced there is the same general experience of life in respect of the offence of possession of cocaine as there is in respect of the offence in Riggall. See Cross [3255] ‑ [3265] on the sorts of matters of which a court has taken account as part of its general experience of life.
Nor was any authority cited to me (for the experience of this court of the impact of the offence of possession of cocaine) like that cited in Ennis [58] (for the experience of the court of the impact of traffic offences on employers). In this regard I do not consider any assistance is to be gained from the approach of disciplinary authorities for the legal profession to whether or not possession of cocaine would affect a legal practitioner's practice certificate. For this approach both counsel for the appellant and counsel for the respondent referred me to Legal Practitioners Complaints Committee and Bull [2006] WASAT 217 [3] ‑ [4] (Barker P, Parry (Senior Member) and Stanton (Senior Sessional Member). There the Tribunal stated that, notwithstanding the 'usual professional disciplinary consequence of possession of a prohibited drug' (there cocaine also), the circumstances, in that case, might warrant a departure from that consequence. I consider no assistance for my purposes can be derived from that authority because that approach is not described as one in respect of an offence committed some time before any question of a right to practise law has arisen; and it is the effect on employers, not disciplinary authorities, that is in question on the present submission.
Turning to the reference, I note, as counsel for the appellant put to me, that the learned magistrate appeared to accept it without qualification. I immediately note, however, that Mr Townsend does not claim to be an employer in the appellant's 'desired field of law'. That in my view goes to the weight to be assigned to the statement in the reference that 'a conviction of this nature would make it impossible for him to pursue a career in his desired field of law', if that statement is taken to relate, as I consider it is intended to relate, to employment by an employer in that field. Had matters rested there, the reference might not have caused me to conclude his Honour erred in the way assigned by ground 2.

However, the reference also states, in the other passage from it quoted above, that Mr Townsend considered the conviction without a spent conviction order would mean he, as a contractor 'to the Mining, Oil and Gas industry and to the Commonwealth … will not be able to offer him work nor will many other prospective employers'. The reference refers in the same passage to Mr Townsend's hope to employ the appellant part time over the next few years to help maintain an income whilst he is studying. It will be recalled the reference had been put to his Honour as evidence of an offer of 'employment to sustain [the appellant's] studies' (9 October 2008, ts 3).
In my view the reference in the passages quoted in the previous paragraph describes an impact on the appellant's ability to pursue university studies to enable him to pursue a career in law, that is, an impact on his legal studies enrolment. The magnitude of that impact was not altogether clear, as offers of work to the appellant by at least some 'prospective employers' were not excluded, and Mr Townsend's qualifications to offer an assessment of the likelihood of offers from prospective employers other than contractors to the mining, oil and gas industries and the Commonwealth are not clear.
However, in my view the learned magistrate erred in not considering, as it appears to me he did not consider, the relevance of passages quoted in the paragraph before last to the appellant's legal studies enrolment. The significance of that enrolment to the appellant, for his pursuit of a career in law, was it seems accepted by his Honour. In my view the matter of the impact on the appellant's legal studies enrolment described in the reference was in the circumstances of this case capable of being a particular circumstance of the sort described in Tognini [28]. That impact so described was before his Honour but he did not address it. In my view he erred in not addressing it.
Further, in my view of the reference, had his Honour addressed the impact on the appellant's legal studies enrolment it described, his Honour would have found he had strong reason to conclude that relieving the appellant of the adverse impact of his conviction would 'positively aid [the appellant's] rehabilitation', in the terms of Tognini [28]. Given the circumstances in which the appellant was in possession of the cocaine as I consider his Honour understood them, and the appellant's personal circumstances, I consider his Honour also had strong reason to conclude that there was no 'pressing public interest in being able to have access to the fact of conviction as part of the process of securing the protection of the community', also in the terms of Tognini [28]. On those bases, I consider his Honour erred in both fact and law in finding the appellant's legal studies enrolment and plans to practise law were not sufficient to exercise the discretion to make a spent conviction order.
It follows I would uphold the present ground.
It is therefore strictly unnecessary for me to deal with the third set of circumstances adduced in relation to this ground. However, I will indicate my views as to that set of circumstances in deference to the argument put to me on them.
As to the third set of circumstances said to reveal error, I consider that there was no error so revealed.
For the purpose of considering the submission as to that error, I accept that the sentencing magistrate had evidence before him that the conviction might have an adverse effect on the appellant, not simply in the general terms of Sentencing Act s 45(1)(b), closing words, but more specifically in terms of future employment in law.
In my view it would not be an error for his Honour to consider the present significance of a possible future impact on a legal career by discounting it for the possibility the course of studies and admission might not be completed. However, I do not consider that there is anything in his sentencing remarks or the course of the exchanges with him in sentencing submissions to indicate his Honour required to be convinced that that completion would occur.

Conclusion and orders

I have concluded that I should uphold ground 2 as I have indicated. It follows I would allow the appeal.
I will hear from the parties as to the orders to be made accordingly.