Koenig v Ryan - [2001] WASCA 339

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: KOENIG -v- RYAN [2001] WASCA 339

CORAM: HASLUCK J

HEARD: 18 OCTOBER 2001

DELIVERED : 2 NOVEMBER 2001

FILE NO/S: SJA 1123 of 2001

BETWEEN: ALBRECHT ADOLF HEINRICH KOENIG
Appellant
AND
CHRISTOPHER GORDON RYAN
Respondent

Catchwords:

Criminal law - Sentencing - Electrical worker convicted of breaking the regulations - Whether Magistrate erred in making spent conviction orders - Offences held not to be trivial having regard to purpose of licensing system - No particular circumstance justifying the making of spent conviction orders

Legislation:

Electricity (Licensing) Regulations 1991, reg 49(1)(a), reg 65

Electricity Act 1945
Justices Act 1902, s 196, s 199
Sentencing Act, s 45(1)

Spent Convictions Act 1988

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D J Matthews
Respondent: In person

Solicitors:

Appellant: State Crown Solicitor
Respondent: In person

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

Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloan (1997) 27 MVR 246
Pennings v Maryan [2000] WASCA 172
R v Grein [1989] WAR 178
R v Tognini [2000] WASCA 31
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Rowlands v Caporn [2001] WASCA 66
Smith v "C" [2001] WASCA 262

Case(s) also cited:

Nil

HASLUCK J: This is an appeal against sentence by the Crown. The question before the court is whether the learned Magistrate erred in imposing spent conviction orders in respect of three charges before the Court of Petty Sessions.
The respondent, Christopher Gordon Ryan, was charged with three offences arising out of events at Unit 3, 73 Walpole Street, St James, on 15 November 1999.
The allegation in each case was that, being an electrical worker, he carried out electrical work which was not in accordance with the SAA wiring rules contrary to regs 49(1)(a) and 65 of the Electricity (Licensing) Regulations 1991 made under the Electricity Act 1945.
The charges came before Ms Woods SM in the Court of Petty Sessions at Perth on 18 July 2001 on which occasion the respondent was unrepresented. The charges related to three allegedly serious defects in electrical installing work carried out by the respondent at the subject premises. It was common ground at the hearing, and at the hearing before me on the appeal, that the respondent is licensed to undertake electrical work and, at all material times, was carrying on business as C G Ryan Electrical Contractors at 68 Castlecrag Drive, Kallaroo.
The Electricity Regulations provide for the creation of an Electrical Licensing Board, the primary function of which is the determination of the competence of applicants for and holders of licences and permits. Electrical work is prohibited unless carried out by a person authorised by a licence or permit to carry out the work in question. Where it appears to the Board that a person who is the holder of a licence or permit is not a fit and proper person to hold the licence or permit, or has carried out work in a negligent or incompetent manner, the Board can initiate disciplinary proceedings.
By reg 49(1)(a), an electrical worker shall carry out electrical work in accordance with the requirement of prescribed rules and standards published by the Standards Association of Australia; hence, the reference to the SAA wiring rules in the relevant charges. Regulation 65 provides that any person who infringes the regulations commits an offence and is liable, where no other penalty is prescribed, to a fine, in the case of an individual worker, of $5,000. It is important to understand that a conviction does not necessarily lead to a revocation of any licence held, and disciplinary proceedings initiated by the Board are independent of any charges brought before the court.
At the hearing before the learned Magistrate, the prosecutor made submissions as to the seriousness of the offences. She also advised the court that the respondent had one prior conviction under the regulations.
I pause at this point to say that the information concerning the so‑called prior conviction was not strictly accurate. The true position was that Slate Holdings Pty Ltd, trading as C G Ryan Electrical Contractors, being a company of which the respondent was a director, had been convicted in 1998 of failing to ensure that the number of the electrical contractor's licence appeared in an advertisement for the business in the white pages of the telephone directory. The company was convicted pursuant to a plea of guilty and fined $400. At the hearing before me, it was explained that the failure complained of was due to some confusion between the requirements of the white pages and of the yellow pages in the telephone directory and that certainly, at all material times, the licence number had been properly displayed in the business advertisement appearing in the yellow pages. Mr Ryan himself did not have a prior conviction and the events giving rise to his company's conviction were said to have arisen out of inadvertence.
As to the charges arising out of the events at Unit 3, 73 Walpole Street on 15 November 1999, the prosecutor described the relevant circumstances in this way:
"The defendant is a licensed electrical worker, holding an A grade licence which was issued to him on the 15th of January 1978. The defendant is also an electrical contractor trading as C.G. Ryan Electrical.
On the 15th of November 1999, the defendant carried out electrical installing work at Unit 3/73 Walpole Street, St James. The defendant signed a notice of completion on the 15th of November 1999 for that electrical installing work and submitted the notice of completion to the Western Power Corporation. On the notice of completion the defendant certified that the electrical installing work, which was the subject of the notice, had been checked and tested and at the time of testing met the requirements of the electricity licensing regulations.
On the 17th of November 1999 an inspector from the Western Power Corporation inspected the electrical installing work and found the work carried out by the defendant had three serious defects, each being the subject of three separate charges to them. Firstly, the defendant had failed to install a multiple earth neutral connection at the switchboard for unit 3. This means that the defendant failed to link the main neutral bar to the main earth by way of a conductor at the switchboard for the installation …
When asked by the Western Power inspector why he failed to install a multiple earth neutral at the switchboard, the defendant replied that he presumed he only had to install a multiple earth neutral at the main switchboard for the group of units located at 73 Walpole Street. The second defect was that the meter enclosure was not adequately protected against the weather, contrary to clause 1.3.2 of the Wiring Rules, that's the subject of the second charge. And finally the multiple earth neutral connection at the main switchboard located at the front of the group of units had not been re-instated after checking and testing, that was contrary to clause 5.9 of the Wiring Rules, and is the subject of the third charge."
The prosecutor then went on to make these submissions:
"In all of those respects the electrical installation work was not in accordance with the Wiring Rules and the work was therefore contrary to regulation 49(1)(a) of the Electricity Licensing Regulations. When interviewed the defendant admitted to carrying out the electrical installing work of which was the subject of the three defects and carrying out the checking and testing of the installation. The defendant attributed his defective work to the haste and pressure of the job and human error.
By way of sentencing submissions, I have the following to say: once a person has been issued with an Electrical Worker's Licence, it is accepted that the person has completed all requirements to obtain such a licence and has had the necessary training or experience. The community relies on such persons to carry out their electrical installing work in accordance with acceptable standards of practice and safety. The obligation rests with the individual electrical worker to keep up to date with developments and requirements in the electrical industry. The consequences of not carrying out electrical work in accordance with established standards and legislation could be fatal and in many cases of sub‑standard work the fact that damage to property or injury to persons has not occurred is merely a matter of luck.
As to the first offence, the Wiring Rules clearly require that detached portions of installations have a multiple earth neutral and it was not sufficient for the group of units to have a multiple earth neutral at the main switchboard and not at the particular unit switchboard.
As stated earlier, the public relies on the defendant as a licensed electrical worker and contractor to know and apply the wiring standards required. Further, in relation to the first and clear defence, failing to install the multiple earth neutral connections renders the installation particularly dangerous. This is because under normal circumstances when an active to earth volt - which is a short circuit - occurs, the circuit protection operates and turns the power off. However, where there is no direct connection between the earth and neutral conductors, circuit protection will usually not detect an earth leakage from the fault. Further, the electricity will take the path of least resistance or the easiest path which may be a tap, water pipes or appliances, so a person touching any of these may receive a fatal electric shock. And a second offence of failing to weatherproof the meter is also potentially dangerous. The ingress of moisture into electrical wiring and components creates a potentially dangerous situation from fire and shock."
In the course of putting up a plea of mitigation, the respondent explained that the presence of other contractors on the site had placed some pressure upon him. This meant that, although he had done a thorough testing on the job to make sure it was correct, he had driven away in haste, without attending to all the details of the reconnection. He acknowledged his fault and assured the court that he had taken steps to lessen his workload and had introduced more rigorous procedures in his business to ensure that such an oversight did not happen again. He pointed out that power had not been introduced to the subject premises and, thus, in general terms the consequences of his oversight was not to give rise to a real danger, but, rather, the electrical system on the premises, if operated, did not have the prescribed extra grounding or back‑up mechanisms in place.
Against this background, the learned Magistrate imposed a fine of $400 in respect of each charge, with costs of $307.70. She took into account that the infringements essentially related to one job. She noted that it was a particularly risky mistake, but that steps had been taken to make sure that such a mistake did not happen again.
Later on the same day, it seems, the matter was brought before the learned Magistrate again on which occasion the respondent applied for a spent conviction order. In the course of the exchanges bearing upon that point, he said that he did not have any prior convictions. As I have already noted, this, strictly speaking was an accurate summation of his personal record.
The prosecutor objected to the making of the orders sought on the grounds that the offences could not be characterised as trivial. The learned Magistrate was, nonetheless, persuaded to make spent conviction orders. She took the view, it seems, that the respondent should be relieved of the adverse effect of the convictions because the disciplinary authorities would know of the infringements, in any event. She did not say explicitly that she had characterised the offences as trivial or refer directly to the criteria governing the making of spent conviction orders. She said: "I'll make the spent conviction order, Mr Ryan on that basis that obviously the authority who does the licensing and regulation knows about this conviction anyway."
The complainant then obtained leave to appeal on the following grounds:
"(a)The learned Magistrate erred in law and in fact in imposing spent conviction orders when:
(i)the circumstances of the offences were not trivial;
(ii)the Respondent (Defendant) was not of previous good character; and
(iii)there was no sufficient reason to conclude that the Respondent (Defendant) should be relieved immediately of the adverse effect that the convictions might have."
I must take account of various principles relevant to the sentencing process before returning the circumstances of the present case.
I begin by noting that by s 196 of the Justices Act 1902 the court shall determine the appeal on the material before the court below. There is power to receive further evidence as the court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the court below. Rowlands v Caporn [2001] WASCA 66.
By s 199, the court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing.
It is not enough that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. Lowndes v The Queen (1999) 195 CLR 665. It seems that an appeal by the Crown against sentence is to be decided by the same general principles as are applied by the court in an appeal against sentence by a defendant, provided the Crown has done what was reasonably required to assist the sentencing Judge to avoid error. R v Grein [1989] WAR 178.
The Spent Convictions Act1988 facilitates rehabilitation by limiting the effects of the conviction. The effect of the Act is to make it unlawful to discriminate against a person on the ground of a spent conviction. Hence, questions put to a convicted person about his past should not be taken to relate to spent conviction or the charge to which the conviction relates. Nonetheless, a court may take account of spent convictions in fixing a punishment for some further offence: Smith v "C" [2001] WASCA 262.
A spent conviction order cannot be made unless the preconditions set out in s 45(1) of the Sentencing Act are met. The provision is in these terms:
"(1)Under section 39(2),a court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."
The decided cases indicate that the offender does not have to satisfy both criteria in s 45(1)(b). He 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.
The discretionary power 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.
It follows that a spent conviction order will not necessarily be made simply because the criteria specified in s 45 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 Sloan (1997) 27 MVR 246.
Let me now return to the circumstances of the present case.
The main thrust of the appellant's submission on appeal was that the offences were so serious and the public interest in being able to access the fact of the convictions so strong that it was not appropriate for spent conviction orders to be made in relation to the offences.
Counsel for the appellant submitted that the issue of a licence allows persons to hold themselves out to employers and the public as being able to carry out electrical work in a competent and safe manner and the integrity of the system relies upon employers and the public having confidence in those representations. In the present case, the work done by the respondent was not competent or safe, as appears from the submissions made by the prosecutor to the learned Magistrate.
Counsel said that appliances in a home are earthed, so that in the event of a fault the electrical current will run to earth in its attempt to get back to its source. This system works well unless a person in the house makes a better connection to the earth and the home's earthing system. For example, a person touching the tap in a bath may make a better connection to earth than the earthing system. As a result of this problem, a multiple earth neutral (MEN) connection is made between the earthing system in a house and the neutral phase of the electrical system in the house (the neutral phase being that which carries electrical current back to the transformer after its passage through a home).
In the event of a fault, the electrical current runs through the earthing system to the MEN connection, as this offers the path of least resistance back to the transformer. The MEN connection also assists in tripping the circuit breaker which cuts of the supply of electricity to a home in the event of fault.
In summary, a MEN connection removes the risk of a person making a better connection to earth than the earthing system in the event of a fault and, more importantly, cuts of the electrical supply, which an earthing system alone will not do. The respondent's oversight had left the safety systems incomplete.
Counsel for the appellant went on to submit that when the matter was viewed against this background, it could not be said that the offences were trivial. Counsel seemed to accept that, as a consequence of the ruling of Murray J in Tognini (supra), it was open to the respondent to persuade the court that spent conviction orders could be made, not because the offences were characterised as trivial, but because the court considered the offender was unlikely to commit such an offence again and, having regard to the offender's previous good character, it considered the offender should be relieved immediately of the adverse effect of the conviction.
Counsel went on to submit, however, that the transcript of the hearing in the court below did not show clearly that the learned Magistrate had approached the matter in this way. It seemed that the Magistrate had proceeded from the premise that the offences could be characterised as trivial, bearing in mind that the Licensing Board would know about the conviction. If it be thought that the learned Magistrate had characterised the offences as trivial, she had fallen into error. On the other hand, if it be thought that she had taken the alternative view, and had made the spent conviction orders upon the basis that the respondent was of good character and was unlikely to offend again, she was in error in that regard in that he had previously been involved in an incident which gave rise to a conviction under the regulations. A conviction may not have been recorded against his name, but a company of which he was a director had been convicted.

Counsel went on to submit that the inclusion of the licence number in all advertisements is basic to the integrity of the licensing system, as it tells the community that a person is licensed and is also a means of identification for members of the public making reports to the licensing authorities. Accordingly, the transgression, although outwardly minor, should be regarded as a significant falling‑short of the requirements prescribed by the regulations.
Counsel submitted further that the learned Magistrate clearly did not advert to the preconditions of s 45 of the Sentencing Act1995 in determining whether spent conviction orders should be made and nor did she go on to examine in detail whether, if the preconditions were met, further relevant factors should lead to the exercise of the discretion. She did no more than state that "the authority who does the licensing and regulation knows about the conviction anyway".
The respondent addressed the court on his own behalf. In essence, he submitted that the previous conviction against his company should be regarded as a minor transgression, arising out of an oversight. It did not really bear upon his competence as an electrical worker. He went on to submit that he was essentially of good character and unlikely to offend again, in that he had taken steps to ensure that no such incident occurred again. He should be relieved against the adverse effects of the conviction because the presence of the conviction meant that he was subject to excessive scrutiny by the licensing authority and the presence of the conviction could interfere with his capacity to obtain work in the future.
It is difficult to discern from the transcript upon what basis the learned Magistrate purported to be exercising her discretion as to the making of a spent conviction order. She did not refer expressly to the criteria set out in s 45 of the Sentencing Act. In my view, the prosecutor acted reasonably in endeavouring the ensure that no error was made by pointing out that the offences could not be regarded as trivial. As that element of the relevant criteria came under notice shortly before the learned Magistrate arrived at her determination, I incline to the view that the sentencing officer proceeded upon the basis that the offences should be characterised as trivial, bearing in mind that the risk in question did not eventuate and the licensing authority was fully acquainted with the nature of the incident.
In my view, for the reasons advanced by counsel for the appellant on the hearing of the appeal, I consider that the offences cannot be characterised as trivial. The integrity of the licensing system and work undertaken in accordance with the prescribed standard depends upon an exact compliance with the various requirements. Accordingly, to that extent, I do consider that the learned Magistrate fell into error.
I have already noted that it was, in fact, open to the learned Magistrate to put to one side the question of whether the offences should be characterised as trivial and to look at an alternative avenue of relief allowed for by the previously decided cases, that is to say, that the offender was unlikely to commit such an offence again and was of previous good character. However, it appears from the decided cases, and especially Tognini, that, even within such a context, the learned Magistrate was obliged to make findings that there was some particular circumstance showing why it was desirable that the adverse effect of the conviction should be immediately set aside. The learned Magistrate had to be conscious also that the power to make a spent conviction order should be exercised sparingly. Finally, and in any event, as appears from Neale v Sloan (supra) consideration had to be given to all the circumstances of the case, including the wider interests of the public.
In that regard I adopt the reasoning of Parker J in Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 where he had this to say at page 13:
"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."
The transcript suggests that the learned Magistrate did not give sufficient weight to considerations of the kind I have mentioned. Accordingly, I consider that the learned Magistrate fell into error and exercised her discretion in making the spent conviction orders having regard to extraneous considerations. It follows that the grounds of appeal have been made out and a basis exists for setting aside the decision made.
It is apparent from the provisions of the Justices Act, however, that it is open to me to determine whether some other determination should be substituted for the decision made by the learned Magistrate. When I look at the circumstances of the present case, I am not persuaded that the respondent has demonstrated that there is some particular circumstance to show why it would be desirable for the respondent to be relieved of the adverse effect of the conviction. It does not seem likely that he 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, 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.
In summary, then, I consider that the grounds of appeal have been made out, with the result that the spent conviction orders previously made must be quashed. Having carefully reviewed the relevant circumstances, I am not persuaded that the appellate court should substitute its own determination and, in any event, make spent conviction orders in the circumstances of the present case. I will hear from the parties as to whether any further orders are required.