LJM v McNamara
[2013] WASC 217
•28 MAY 2013
LJM -v- McNAMARA [2013] WASC 217
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 217 | |
| Case No: | SJA:1109/2012 | 28 MAY 2013 | |
| Coram: | McKECHNIE J | 28/05/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Spent conviction order made | ||
| B | |||
| PDF Version |
| Parties: | LJM NATHAN JOHN McNAMARA |
Catchwords: | Criminal law and procedure Spent conviction Whether error to refuse Youthful offender Good prospects of rehabilitation Turns on own facts |
Legislation: | Nil |
Case References: | M v O'Neill [2013] WASC 187 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
NATHAN JOHN McNAMARA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : FR 5343 of 2012
Catchwords:
Criminal law and procedure - Spent conviction - Whether error to refuse - Youthful offender - Good prospects of rehabilitation - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Spent conviction order made
Category: B
Representation:
Counsel:
Appellant : Mr J Prior
Respondent : Ms G M Cleary
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
M v O'Neill [2013] WASC 187
(Page 3)
- McKECHNIE J:
How this matter comes to court
1 In the early evening of 17 May 2012, a lady parked her car in Subiaco. She did not lock it and left the spare keys in the glove box. Later that evening the appellant and a couple of mates took the car. They were seen by police driving recklessly in Palmyra at about 2.20 am. The appellant and his mates abandoned the car and fled on foot but he was later located at his home. The appellant was charged with stealing a motor vehicle valued at $13,000.
2 He pleaded guilty at the first opportunity. Sentencing was adjourned so that the appellant could participate in a Pre-Sentence Opportunity Programme. He did so. On 17 August 2012 he was fined $1,500. An application for a spent conviction was refused. The grounds of appeal (amended at hearing):
1. The learned sentencing Magistrate erred in refusing to make a spent conviction order in that:
(a) He found that personal deterrence required a conviction be recorded where the evidence indicated that the Applicant had rehabilitated himself;
(b) He found that the Applicant 'had put other's lives at risk' where that was no such evidence before the Court; and
(c) A conviction for the Applicant was 'inevitable when you make such a serious error of judgment' when the Applicant was a youthful offender aged 18 years and 3 months at the time the offence was committed.
2. The failure of the learned sentencing Magistrate to make a spent conviction order resulted in a miscarriage of judgment.
The application before the magistrate
3 Counsel for the appellant asked for a spent conviction pointing out that he had participated in the Pre-Sentence Opportunity Programme and was fully employed. He had learned some strategies to avoid peer group influences and had his alcohol intake under control. Two references were provided to the magistrate. The first was from his employer confirming his employment, his satisfactory employment, and an opinion of the appellant's potential.
(Page 4)
4 The second is from HALO, a voluntary organisation. The referee gave a detailed account of his voluntary and paid work with HALO.
5 Counsel acknowledged that it was a very serious offence. She submitted that it was totally out of character and that he is unlikely to reoffend. Counsel advised that the appellant was currently working as a sampler and wants to carry on, perhaps working as a driller. He would need an explosives licence which he would not be able to obtain with a conviction of this nature on his record.
The magistrate's reasons
Acknowledging that you are still relatively young, but this was an appalling lack of judgment on your part (indistinct) it's like people say to me, 'Well, why did you steal a car?' 'Well, the keys were in the ignition', or 'The engine was going.' So what?
So what? You know it's not your car. You know you are going to get done for a stealing if you get caught. You get involved, these vehicles get stolen, and they get used in high-speed pursuits, reckless driving, and unfortunately from time to time people die. So you had a choice. You are 18. You are old enough to have a good job. You are old enough to make other decisions, but you make this decision to get into a car that subsequently you know to be stolen.
So I am mindful of your age and your early plea of guilty. Those are matters in your favour, but this is an extremely serious offence. You put others' lives at risk. It is a prevalent offence, this stealing of vehicles. When I balance those factors up, in my view there is certainly a strong need for personal and general deterrence, particularly in relation to these offences, the deterrence (indistinct) in my view strongly in relation to conviction.
Some offences, as I say, of this nature, in my view, of such a nature, even allowing from strong claims in relation to your otherwise character, a conviction in my view is appropriate and necessary and, frankly, inevitable when you make such a serious error of judgment. There is a fine of $1500, costs of $66, and I'm afraid a conviction will follow (ts 3 - 4).
The principles in relation to spent convictions
6 In many cases on appeal to this court, no application was made for a spent conviction order. The issue then is whether there has been a miscarriage of justice.
7 In this case, the application was made and refused.
(Page 5)
8 It must be shown that the magistrate erred in the exercise of discretion in failing to grant a spent conviction order.
9 I have recently outlined the questions to be asked in relation to a spent conviction order in M v O'Neill [2013] WASC 187 [26] - [30].
1. Question 1: Is the offender unlikely to commit such an offence again?
2. Question 2: Is the offence trivial or is the offender of previous good character?
3. Question 3: Should the offender be relieved immediately of the adverse effect that the conviction might have on the offender?
10 The answer to the third question is a matter of discretion. The discretion will be informed by a number of considerations including:
A. The discretion should be exercised:
• sparingly;
• in a clear case; and
• for good reason is desirable.
• the nature and seriousness of the offence (both in its commission and referable to the offender); and
• the rehabilitative effect of immediate removal of the conviction, the effect both on the offender and the community being considered. The conviction for a lesser offence (of which this is one) will be able to become spent after 10 years so emphasis is placed on immediacy.
• impact on employment, present or future; and
• exceptional hardship to offender or family.
(Page 6)
- C. The court must also take into account the public interest which includes:
• any employer or potential employer being aware of the offences in assessing suitability and reliability for the type of work; and
• general and personal deterrence.
12 Counsel for the appellant points to the use of the word 'inevitable' as an error indicating that he failed to properly exercise his discretion in considering whether there was a public interest in recording a conviction. I am unable to agree. Read in context, the magistrate is emphasising the serious nature of the offending and the need for general and personal deterrence.
13 These were appropriate factors to consider, along with the serious nature of the offending conduct. They had to be balanced against other factors, including the appellant's age, work history and future and prior good character.
14 The balancing exercise was a matter for the magistrate. This court cannot intervene unless it is established that the result manifests an error.
Disposition
15 I return to the character references and the appellant's age. He was only three months past his 18th birthday.
16 The references are not only testament to his good character but also indicate that his prospects for rehabilitation are excellent.
17 The community interest is that he becomes a law abiding member continuing in productive employment.
18 I conclude that the magistrate erred. This is not a personal criticism. Magistrates sit daily in busy, sometimes very busy, courts. They have little time to reflect. They are not always assisted by counsel. In the volume of work with which any magistrate must deal, the occasional error is inevitable.
(Page 7)
19 By contrast, a judge sitting on appeal has more time to prepare and reflect. Generally, as here, a judge is given comprehensive submissions by counsel well before the hearing.
20 In the present case, I understand why the magistrate reasoned as he did in recording a conviction. With the benefit of time for reflection, it seems to me, in retrospect, the rehabilitative effects of a spent conviction order for an 18-year-old were insufficiently valued to an extent which reflects error.
21 Although reluctant to intervene in the balancing exercise which is principally for the magistrate, I am satisfied that the failure to grant a spent conviction order was an error.
Order
22 Appeal allowed; spent conviction order made.
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