Koenig v Alizadeh
[2002] WASCA 267
•24 SEPTEMBER 2002
KOENIG -v- ALIZADEH [2002] WASCA 267
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 267 | |
| Case No: | SJA:1190/2001 | 31 JULY 2002 | |
| Coram: | WHEELER J | 24/09/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ALBRECHT ADOLF HEINRICH KOENIG SOHRAB ALIZADEH |
Catchwords: | Turns on own facts |
Legislation: | Electricity Act 1945 (WA) Electricity (Licensing) Regulations 1991 (WA), reg 30, reg 49(1)(a), reg 65 Sentencing Act 1995, s 45(1) |
Case References: | Koenig v Ryan [2001] WASCA 339 Neale v Sloane (1997) 27 MVR 246 Pennings v Maryan [2000] WASCA 172 R v Tognini [2000] WASCA 31 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 Lynch v Heidrich [2002] WASCA 154 R v Tognini (2000) 22 WAR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SOHRAB ALIZADEH
Respondent
Catchwords:
Turns on own facts
Legislation:
Electricity Act 1945 (WA)
Electricity (Licensing) Regulations 1991 (WA), reg 30, reg 49(1)(a), reg 65
Sentencing Act 1995, s 45(1)
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R Bathurst
Respondent : Mr R Guerrini
Solicitors:
Appellant : State Crown Solicitor
Respondent : Vincent Partners
Case(s) referred to in judgment(s):
Koenig v Ryan [2001] WASCA 339
Neale v Sloane (1997) 27 MVR 246
Pennings v Maryan [2000] WASCA 172
R v Tognini [2000] WASCA 31
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Case(s) also cited:
Lynch v Heidrich [2002] WASCA 154
R v Tognini (2000) 22 WAR 291
(Page 3)
1 WHEELER J: This is a Crown appeal and the question before the Court is whether the learned Magistrate erred in imposing spent conviction orders in respect of three charges under the Electricity (Licensing) Regulations1991 (WA).
Background of the Application
2 The respondent was charged with three counts of carrying out electrical work, which was not in accordance with the Standards Association of Australia Wiring Rules ("SAA"), contrary to reg 49(1)(a) and reg 65 of the Electricity (Licensing) Regulations1991 (WA) made under the Electricity Act1945 (WA). Regulation 49(1)(a) provides that an electrical worker shall carry out electrical work in accordance with the requirement of prescribed rules and standards published by the SAA. Regulation 65 provides that any person who infringes the regulations commits an offence and is liable, where no penalty is prescribed, to a fine, in the case of an individual worker, of $5,000.
3 The respondent is an experienced electrician and has held an electrical worker's licence in Western Australia since 1980. He admitted under cross-examination that on 22 December 1999 he signed a notice of completion certifying that the new electrical installation that he had fitted complied with the Electricity (Licensing) Regulations1991 (WA), before the work had in fact been completed. An inspector attended the building site and inspected the electrical installation on 24 December 2000 and the respondent accepted that the inspector had found certain defects in the work. He rectified the defects that day. He attributed his actions to the pressure of the time of the year (Christmas) and the pressure on the building site to finish the building works.
4 The defects identified by the inspector formed the basis of the charges, namely that the respondent failed:
• to install a multiple earth neutral connection at the main switchboard for the premises, in particular that he failed to link the main neutral bar to the main earth by way of a conductor as required by cl 5.9.3.1 of the SAA wiring rules;
• to protect the sub-main conductors between the meter enclosure and the main switchboard with a circuit protective device, contrary to cl 2.1(7).1 of the SAA wiring rules; and
• to offer proper protection to the sub-mains by allowing the current rating of the overload protective device to exceed the current
(Page 4)
- carrying capacity of the sub-mains to an individual unit contrary to cl 2.4.3.3 of the SAA wiring rules.
5 The learned Magistrate found the respondent guilty of the three offences with which he was charged and imposed fines of $1000 in respect of the first offence; $200 in respect of the second offence and $200 in respect of the third offence, and ordered that the convictions were to be recorded as spent convictions.
6 The Crown asserts that the Magistrate erred in law and in fact in imposing spent conviction orders when there was no sufficient reason to conclude that the respondent should be relieved immediately of the adverse effect that the convictions might have.
7 The particulars of the ground of appeal are as follows:
"PARTICULARS
(A) The Respondent's (Defendant's) convictions were of a serious nature;
(B) As the offences were deliberate offences committed while the Respondent (Defendant) was engaged in his trade, and as the Respondent (Defendant) intended to continue to engage in his trade, the public interest demands that convictions be recorded;
(C) The risk of cancellation of the Respondent's (Defendant's) trade licence consequent upon offences committed while the Respondent (Defendant) was engaged in carrying out trade was not an exceptional circumstance warranting the making of the spent conviction orders;
(D) Neither the past good conduct nor the present good character of the Respondent (Defendant) was an exceptional circumstance warranting the making of the spent conviction orders;
(E) There was no exceptional circumstance warranting the making of the spent conviction orders."
Relevant Legal Principles
8 The relevant legal principles to be applied to the making of spent conviction orders for convictions are summarised by Hasluck J in Koenig
(Page 5)
- v Ryan [2001] WASCA 339; a case which also involved breach of the Electricity (Licensing) Regulations 1991.
· A spent conviction order cannot be made unless the preconditions set out in s 45(1) of the Sentencing Act 1995 are met. The appellant must satisfy the court that he is unlikely to commit such an offence again and that he should be relieved of the adverse effect of the conviction, having regard either to the fact that the offence is trivial, or to his previous good character. Counsel for the respondent at trial correctly conceded in his sentencing submissions that the offences were not trivial matters so it is not necessary to consider that precondition further.
· The discretionary power to order a spent conviction is of an exceptional character and requires the court to determine whether there is some particular circumstance to show that it would be desirable why the adverse effect of the conviction should be immediately set aside. That may often be found in the fact that a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship. The power should be sparingly exercised: R v Tognini [2000] WASCA 31; Pennings v Maryan[2000] WASCA 172.
· A spent conviction order will not necessarily be made simply because the criteria specified in s45 of the Sentencing Act are satisfied. Consideration must be given to all of the circumstances of the case and of the offender, including the wider interests of the public: Neale v Sloane (1997) 27 MVR 246.
· Where 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 the offences, because that conduct has clear relevance in assessing his reliability and suitability for the type of work which he pursues: Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 per Parker J.
"It does not seem likely that he [the respondent] will generally be pressed by employers or those contracting for his services as to whether he has any prior convictions. If that question is asked, however, it seems to me, given the potential hazards of the kind of work a contractor such as the respondent performs,
(Page 6)
- that the person asking the question is entitled to know whether the respondent has previously been involved in circumstances giving rise to a conviction. The licensing system has been set up so as to ensure that the public has a clear understanding about the skills of those undertaking electrical work."
10 I adopt the observations of Hasluck J in respect of the relevant public interest in these circumstances and note that this case was brought to the attention of the learned Magistrate by counsel. It is to the application of these principles by his Worship to which I now turn. Although his Worship was satisfied that the criterion of good character specified in s 45 of the Sentencing Act was satisfied, it is my opinion that his Honour erred in two respects.
Disciplinary Proceedings and the Exercise of the Discretionary Power
11 In his sentencing submissions, counsel for the respondent made a submission, the essence of which is that if the convictions were recorded and not declared to be spent then there would be "a very real possibility" that the Electricity Board "could cancel his licence", leaving him without the only gainful employment he had ever engaged in, which would not only impact badly upon his wife and seven children ranging from nine years of age to 18 years old, but upon his three employees.
12 In his sentencing remarks his Worship remarked:
"It's true that the public should know and so should other people. I take into account the fact of his future employment and the fact that he's reviewable by a board that gives him a licence. It's three convictions and I would have thought that a licensing board would pretty- well they'd certainly consider that.
I also take into account the fact that even if I grant a spent conviction the board can look at the matter because you look at the behaviour and not the fact of a mere conviction. I believe that because this has been his life's work and the evidence he's given in the witness box I’m going to grant him…a spent conviction on each." (Emphasis added.)
13 Disciplinary proceedings are governed by reg 30 of the Electricity (Licensing) Regulations 199.
"30. Discipline
(Page 7)
- (1) Where it appears to the Board that a person who is the holder of a licence or permit —
(a) is not a fit and proper person to hold the licence or permit;
(b) obtained the licence or permit by misrepresentation as to any material fact or by other fraudulent means;
(c) is or has been the subject of a disqualification or suspension imposed in another State, Territory or New Zealand that prevents or prevented him or her from carrying out in that State, Territory or New Zealand electrical work of the kind authorized by his or her licence or permit;
(d) has carried out electrical work in a manner that —
(i) endangers, or is likely to endanger, any person or property; or
(ii) is negligent or incompetent; or
(e) has committed an offence against the Act, these regulations, or the Energy Corporations (Powers) Act 1979 or the Energy Coordination Act 1994 or the regulations made thereunder,
the Board may, by notice in writing sent to his or her last known address giving particulars of the grounds on which it is given, require that person to appear in proceedings before the Board, at a time and place specified by the Board.
…
(3) Without limiting the grounds upon which the Board may regard electrical work as having been carried out in a manner that endangers, or is likely to endanger, any person or property the Board may consider whether the requirements of regulations 49 and 50 have been complied with.
(4) Where, under subregulation (1), the Board requires a person to appear in proceedings before the Board, it may, by order in writing sent to the person at his or her last
(Page 8)
- known address, suspend the licence or permit held by that person for a period, not exceeding 14 days, that is specified in the order."
14 I note that a conviction does not necessarily lead to a revocation of any licence held under the Electricity Act 1945, and disciplinary proceedings initiated by the Electricity Board are independent of any charges brought before the court. It appears that his Worship may simply have assumed that conviction would trigger such proceedings. Neither counsel raised reg 30 in argument.
15 His Worship, it appears, relied upon a nexus that does not necessarily exist. The respondent's work as an electrician and his ability to pursue that occupation if the convictions are not dependent upon whether a conviction is recorded. The Board may proceed to examine his conduct under reg 30(1)(d) whether a conviction is recorded or not. Even if convictions were recorded, the Board would not necessarily discipline the respondent, but would form its own view, relying upon its expertise in this industry. In any event, it is my view that his Worship did not, in adverting to this consideration, properly weigh it against the important public interest served by the regulations in question.
The Public Interest and the Exercise of Discretionary Power
16 In my opinion his Worship erred in finding that the respondent was entitled to be relieved immediately from the adverse effects that the convictions might have had on him because he failed to consider the wider interests of the public. It is not clear from the reasons for decision whether His Worship took account of the seriousness of the potential hazards involved in electrical work and the corresponding need to protect the public from those hazards, which the licensing scheme seeks to reflect.
17 As to the first offence, the consequence of not installing the MEN connection rendered that installation dangerous and potentially fatal to anyone touching one of these connections. In regard to the second offence, the failure to install circuit protective devices, which are designed to turn power off in the event of a power surge, was again dangerous and potentially fatal in terms of shock and the possibility of electrical fires. The third offence of installing circuit protectors that were over-rated for the conductors from the main switchboard exposed people at the site to the serious injury or death. I accept, as did his Worship, that the respondent intended that the omissions would be rectified before he ceased working on the site over the Christmas break, and that they were in
(Page 9)
- fact rectified. However, the licensing system depends largely on the integrity of those certifying that work has been completed, and the signing of a false certificate was the applicant's deliberate choice.
Conclusion
18 The respondent's omissions were inherently serious ones and the community must be able to rely upon licensed electricians to comply with the prescribed standards of practice, when the potential consequences of not doing so may result in fatalities. This is why the protection provided by the legislative scheme exists. The pressure of the work did not excuse the respondent's omissions, and there was nothing exceptional in the respondent's circumstances to overwhelm these considerations and to activate the discretion in s 45 of the Sentencing Act.
19 Accordingly I would quash the orders that the convictions be recorded as spent convictions.
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