M v Seidner - [2013] WASC 395

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: M -v- SEIDNER [2013] WASC 395

CORAM: PRITCHARD J

HEARD: 22 OCTOBER 2013

DELIVERED : 22 OCTOBER 2013

FILE NO/S: SJA 1067 of 2013

BETWEEN: M
Appellant
AND
JOHN DAVID SEIDNER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R LAWRENCE
File No  :PE 43173 of 2009

Catchwords:

Criminal procedure - Spent conviction for disorderly conduct - Delay - Application for an extension of time in which to appeal - No application for spent conviction made to Magistrate - Whether on all the evidence before the Court there would be a miscarriage of justice if spent conviction were not ordered - Sentencing Act 1995 (WA) s 45

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Ms B L Lonsdale
Respondent: Ms C A Lakewood

Solicitors:

Appellant: Leaker Partners
Respondent: State Solicitor for Western Australia

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

A v Esposito [2011] WASC 198
A v Staples [2007] WASC 36
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Butler v The Queen (1989) 44 A Crim R 214
Colwell v The State of Western Australia [No 2] [2012] WASC 196
Costello v Bennasar [2012] WASC 406
CW v Hounsham [2013] WASC 20
Davidson v Di Gregorio [2012] WASC 505
Eastough v The State of Western Australia (No 2) [2010] WASCA 88
Elmi v Rozario [2013] WASC 38
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
HBM v Ball [2013] WASC 167
Papas v Godwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia (2005) 30 WAR 473
Scanlon v Bove [2008] WASC 213
Wimbridge v The State of Westerm Australia [2009] WASCA 196
(These reasons were delivered orally and have been edited from the transcript.)

PRITCHARD J: Ms M is 24 years old. On 16 May 2009, when she was 19 years old, she went out with some friends to a bar in Perth. It was obviously a popular bar because, when they arrived at the venue, there was a queue to obtain entry and the queue did not move quickly.
After about half an hour, Ms M and one of her friends who was with her needed to use the toilet. They asked the bouncers at the bar if they could use the toilets in the bar and were refused. They asked whether there were any public toilets nearby and were told that they were a fair distance away. Ms M and her friend rejoined the queue, hoping it would move more quickly.
Eventually, their need to use the toilet became quite desperate. The two friends saw a laneway nearby, which appeared to be poorly lit. They hid behind some bins and relieved themselves in what they thought was privacy. Unfortunately, it was not. Their actions were illuminated by street and ambient lighting from nearby premises and they were able to be seen by two police officers who happened to be standing nearby. According to the police's Statement of Material Facts, public toilets were located within 50 metres of where they were.
Ms M was charged with disorderly behaviour in a public place, for urinating in public, contrary to s 74A(2)(a) of the Criminal Code 1913 (WA) (the Charge).
When Ms M received the summons to attend court in respect of the Charge, she entered an endorsed plea of guilty. On 27 June 2009, she was convicted and fined $300 plus costs. She did not attend court on that date.
Recently, Ms M has qualified as a teacher. In the course of applying for her teacher registration, she discovered that she had a criminal conviction arising from the Charge. At that point, she sought legal advice about this matter and eventually brought this appeal against the sentence imposed by the learned Magistrate on the ground that a miscarriage of justice was caused by the learned Magistrate not making an order for a spent conviction pursuant to s 45 of the Sentencing Act 1995 (WA) (spent conviction order). She also requires leave to appeal as the appeal was commenced well out of time. In addition, Ms M seeks leave to adduce additional evidence which was not put before the learned Magistrate.
For the reasons outlined below, the extension of time should be granted, leave to appeal should be granted, the application to adduce additional evidence should be granted, and the appeal should be upheld.
In these reasons, I deal with the following matters:
(1)the nature of the additional evidence which is sought to be admitted;
(2)principles in relation to leave to appeal and why leave to appeal should be granted;
(3)principles in relation to admitting fresh evidence on an appeal and why the application should be granted;
(4)principles in relation to extensions of time and why an extension should be granted in this case; and
(5)principles in relation to the grant of a spent conviction order and why a spent conviction order should be made.

Nature of the additional evidence which is sought to be admitted

Ms M seeks to rely on two affidavits: one sworn by her solicitor, Mr Di Menna, on 28 May 2013, and one sworn by Ms M on 24 May 2013.
Ms M's affidavit, in particular, contains material relevant to the ground of appeal, and which is relied upon by her counsel as supporting the exercise of discretion to grant a spent conviction order. The circumstances of the offence the subject of the Charge are set out in the Statement of Material Facts annexed to her affidavit. In addition, Ms M's affidavit deals with matters relating to her present employment, the possible impact of the conviction on her employment, and her good character. Ms M's affidavit also annexes two character references from longstanding family acquaintances, which are testament to Ms M's good character.
For completeness, I note that both affidavits also deal with matters relevant to the application for an extension of time in which to bring the appeal, and Mr Di Menna's affidavit also deals with the availability of documents in relation to the hearing of the Charge.

Principles in relation to leave to appeal and why leave to appeal should be granted

Ms M requires leave to appeal. Her application for leave to appeal was referred to this hearing by Hall J on 21 June 2013.
Under s 9(1) of the Criminal Appeals Act 2004 (WA), leave of the Court is required for each grant of an appeal in an appeal under Div 2 of Pt 2 of that Act. The Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of success.[1]
[1] Criminal Appeals Act 2004 (WA) s 9(2).
A grant of leave requires the applicant to demonstrate that the ground of appeal has a rational and logical prospect of success or, in other words, a real prospect of success.[2]
[2] Samuels v The State of Western Australia (2005) 30 WAR 473, 487 [56] (the Court).
It is appropriate to mention that there is limited information available as to what occurred in the Magistrates Court when the charge was heard. In his affidavit Mr Di Menna deposes that in early January 2013 he made an application for a copy of the transcript of the proceedings for the hearing on 27 July 2009, for a copy of the prosecution notice for the Charge and for any documents sent to the court by Ms M in respect of the Charge.
The outcome of that inquiry was that a copy of the prosecution notice was provided, which is endorsed by the learned Magistrate to indicate the entry of a conviction and the imposition of a fine and costs, but no mention is made of any application for, or consideration of, a spent conviction order.
Although Mr Di Menna's affidavit does not expressly deal with the matter, he has not annexed copies of any documents provided by the court which were sent to the court by Ms M in connection with the Charge, such as her endorsed plea of guilty. (In her affidavit, Ms M deposed that she sent a letter to the court explaining why she committed the offence and pleading guilty.) There is no information available as to whether any such documents still exist. In any event, there is no suggestion in Ms M's affidavit that she requested a spent conviction order be made, or provided information to the court which might support the making of such an order, because she was not aware of the possibility of such an order at that time.
Mr Di Menna deposes that he was advised by an officer of the Magistrates Court that the proceedings in respect of the Charge were not transcribed and that the recording of the hearing was only retained for two years so it is no longer possible to produce a transcript. The result is that there is no transcript for the hearing on 27 July 2009.
It is thus not possible to say whether the learned Magistrate considered a spent conviction order, although it seems more likely than not that he did not do so because Ms M entered an endorsed plea of guilty, because she did not ask for a spent conviction order and because she did not put anything before the learned Magistrate which would have justified the grant of a spent conviction order.
Having regard to the circumstances I have outlined, this is not said to be a case in which the learned Magistrate erred in considering an application for a spent conviction order. Instead, the ground of appeal in this case is that a miscarriage of justice has resulted because the learned sentencing Magistrate did not make a spent conviction order. An appeal from a decision of the Magistrates Court can be brought upon that ground.[3]
[3] Criminal Appeals Act 2004 (WA) s 8(1)(b).
There have been a number of cases in this court in which, on appeals of the kind involved here, the court has been prepared to correct a miscarriage of justice, even though that miscarriage is established only by matters which were not before the Magistrate.[4]
[4] See eg, Davidson v Di Gregorio [2012] WASC 505 [11] (Allanson J); CW v Hounsham [2013] WASC 20 (McKechnie J); A v Esposito [2011] WASC 198 [10] - [11] (Edelman J).
Counsel for Ms M submits that this case is closely analogous to a number of cases in which spent conviction orders have been made in respect of individuals convicted of the offence of disorderly conduct in public, committed as a result of urinating in public. In the present case, the respondent concedes that, on the basis of the further evidence filed by Ms M, there is sufficient material on which the Court could find that the preconditions set out in s 45(1) of the Sentencing Act have been met.
For the reasons set out below, I agree that that is so. That is sufficient to enliven the exercise of the discretion under s 45 of the Sentencing Act. Ms M has now put before the Court material relevant to the exercise of that discretion. Counsel for the respondent also conceded that if the material in Ms M's affidavit had been before the Magistrates Court it would have been open to the learned Magistrate, within the exercise of his discretion, to have granted a spent conviction order.
In those circumstances, I am satisfied that the appeal has a real prospect of success and leave to appeal should be granted.

Principles in relation to admitting fresh evidence on an appeal, and why the application should be granted

The general rule as set out in s 39(1) of the Criminal Appeals Act is that the appeal court must decide the appeal on the evidence and material that was before the lower court. The only material before the Court in this case was the prosecution notice and the Statement of Material Facts, in respect of which Ms M entered an endorsed plea of guilty.
However, this Court has power to admit other evidence.[5] The test for the admission of fresh evidence is whether, had the evidence been before the sentencing court, a different sentence may have been imposed.[6]
[5] Criminal Appeals Act 2004 (WA) s 40(1)(e).
[6] Colwell v The State of Western Australia [No 2] [2012] WASC 196 [29] - [29] (Newnes JA; Pullin JA & Mazza JA agreeing).
Evidence of facts since the sentence was imposed may be received to show facts relevant to the sentencing process, which were in existence at the time of a sentence but either not known to the sentencing judge or not properly appreciated at the time.[7]
[7] Colwell v The State of Western Australia [No 2] [2012] WASC 196 [30] (Newnes JA; Pullin JA & Mazza JA agreeing).
For the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction.[8]
[8] Caseley v Zampogna [2006] WASC 259 [19] (Blaxell J); A v Staples [2007] WASC 36 [17] (Hasluck J).
Leave to adduce the additional evidence should be granted. It is clearly highly relevant to the factors enlivening the discretion, and the exercise of the discretion itself, under s 45 of the Sentencing Act. I note that the respondent consents to the admission of the additional evidence on the basis that it is relevant to the question of whether there was a miscarriage of justice.

Principles in relation to extensions of time, and why an extension should be granted in this case

The key issue in dispute in the hearing was the question whether an extension of time should be granted.
Applications for leave to appeal are required to be lodged within 28 days of the date of decision the subject of the appeal.[9] However, the Court has a discretion to grant an extension of the time in which to commence an appeal.
[9] Criminal Appeals Act 2004 (WA) s 10(3).
Before considering the principles in relation to the grant of an extension of time, I turn to the affidavit evidence in relation to why the appeal was not commenced within time.
The position appears to be that when Ms M received a summons in respect of the Charge, she was under the impression that all she had to do was to pay a fine. She did not consider it was necessary to attend court for the hearing of the Charge and more importantly she did not understand that the result of entering an endorsed plea of guilty would be that she would end up with a criminal conviction. Ms M was convicted, and following receipt of the notice of conviction, paid the fine and costs and thought no more about the Charge.
Ms M deposed that she only became aware that she had a criminal conviction arising from the Charge when she sought registration as a teacher late last year. Upon becoming aware of her criminal conviction she sought legal advice. That appears to be the explanation for the delay of three years and four or five months up until December 2012.
Ms M's solicitors made inquiries in January 2013 as to what had occurred at the hearing in the Magistrates Court, but it appears that final instructions were not provided to those solicitors to commence an appeal, and to permit an affidavit to be sworn by Ms M in relation to matters relevant to the appeal, until May 2013. There was no explanation in the affidavits sworn by either Ms M or Mr Di Menna of the reason for the further delay of almost five months between January 2013 (when Ms M instructed solicitors), and May 2013 (when the appeal was commenced). However, in the course of the hearing today, counsel for Ms M sought to shoulder some of the blame for this delay on the basis that she and Ms M's other legal advisers could and should have ensured that better efforts were made to obtain Ms M's instructions to commence the appeal and to file a notice of appeal more promptly.
Counsel for the respondent did not take objection to the fact that information was provided from the bar table rather than in an affidavit form. The concession (which I do not criticise) does not detract from the fact that all material relevant to the delay in commencing the appeal should have been placed before the court in an affidavit form.
That that was not done means that it is not clear, for example, on the information available to the court (both on the affidavits, and in submissions) whether Ms M was actually advised in January that she had grounds for an appeal, and that she needed to commence an appeal immediately (in view of the by then considerable delay), or whether the position was left on the basis that inquiries needed to be made, and further instructions provided, before an appeal could be commenced, without it being impressed on Ms M that it was imperative an appeal be commenced as soon as possible in the circumstances.
Ms M's affidavit deposes that she provided instructions to her solicitors (as to what is not specified) in December 2012, and that she returned to Perth some time shortly before 24 May 2013, when she swore her affidavit and at that stage she provided her solicitors with the further instructions they had requested. On the basis of the information before me, I am left with the impression that the need for expedition was not made clear to Ms M because had it been made clear, one would have expected she would have provided those instructions immediately rather than waiting a further five months to do so.
The relevant principles in relation to the grant of an extension are not in contention. They are well established. Where an applicant seeks a favourable exercise of the court's discretion to extend the time limit, he or she needs to give a cogent explanation for the delay. The failure to give a satisfactory explanation can result in a refusal of an extension of time even where the prospective appeal appears to have merit.[10]
[10] See eg, Elmi v Rozario[2013] WASC 38; Butler v The Queen (1989) 44 A Crim R 214; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338; Eastough v The State of Western Australia (No 2) [2010] WASCA 88.
In Wimbridge v The State of Western Australia,[11] Wheeler J observed that where there has been a lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
[11] Wimbridge v The State of Westerm Australia [2009] WASCA 196 [19] (Wheeler J).
I did not understand counsel for Ms M to suggest that this was a case where 'exceptional circumstances' could be shown, sufficient to warrant the extension of time. A compelling explanation for the delay would constitute exceptional circumstances, such as the discovery of fresh evidence well after a conviction.[12] The circumstances of this case as disclosed in the affidavits cannot be characterised as exceptional for this purpose.
[12] Wimbridge v The State of Westerm Australia [2009] WASCA 196 [20] (Wheeler J).
The argument focused on whether there would be a miscarriage of justice if the extension were not granted. In order to establish that a miscarriage of justice would result if an extension of time were not granted, it is not sufficient to demonstrate that an appellant would have been successful had the appeal been brought within time. Were that the case, there would be no purpose to having a statutory time limit with a discretion to extend.[13]
[13] Wimbridge v The State of Westerm Australia [2009] WASCA 196 [21] (Wheeler J) citing her analysis in Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338, 358 - 359 [113] - [114].
In order to establish that a miscarriage of justice would arise, more needs to be established than that the appeal would have been likely to succeed if brought within time. In Wimbridge, a range of factors were suggested as potentially relevant to that question. Those factors were not intended to be exhaustive and the factors which were suggested in that case were clearly factors relevant to the circumstances of that case, which I note involved an appeal against conviction for serious offences including an aggravated armed robbery. The factors referred to by Wheeler J in Wimbridge[14] were: the offence in respect of which the appellant wished to appeal (for example, whether it resulted in a lengthy term of imprisonment or had other serious consequences); the prejudice (or lack thereof) to the State occasioned by the delay; the length of and reasons for the delay; and the strength of the appellant's case.
[14] Wimbridge v The State of Westerm Australia [2009] WASCA 196 [22] (Wheeler J).

In considering the various factors which might, in any relevant case, be relevant to the question of extension of time, two things must, I think, be borne in mind. The first is that the discretion to grant an extension of time is given for the purpose of enabling the court to do justice, and the overall question must remain whether it is in the interests of justice to grant the extension.[15] The discretion will be exercised only when compliance with the rules as to the time for an appeal will work an injustice.[16] By the same token, the application of the principles concerning the grant of an extension of time should not be so strictly applied as to themselves give rise to an injustice.
[15] Bardsley v The Queen [2004] WASCA 251 [108] (Wheeler J).
[16] See Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480 (McHugh J).
The second and related consideration are the rationales for time limits in which to commence an appeal. Some of these were touched upon in the discussion by Templeman J and Wheeler J in Bardsley v The Queen, which was a case involving an appeal against a conviction for wilful murder and unlawful detention. They include the public interest in the finality of litigation, the practical consequences that criminal trials generally run on the basis of oral evidence of witnesses whose recollections inevitably fade over time, and that criminal trials can be extremely traumatic for the victims and/or their families and extensions of time in which to appeal long after a criminal matter has been dealt with can revive that trauma and should not lightly be done. The strength of some of these considerations will vary depending on the circumstances of the particular case. In the present case the only one of these considerations of relevance is the public interest in the finality of litigation.
I turn then to consider the sorts of factors which were identified in Wimbridge as relevant to the exercise of the discretion to extend time. The first is the offence in respect of which the appellant wishes to appeal. The nature of the offence in this case and the circumstances in which it was committed result in a conclusion that this was a trivial offence.
Counsel for the respondent submitted that the more serious an offence the more likely the grant of an extension of time and vice versa. In my view, that analysis is unattractive, both because it focuses on this individual factor (that is, the nature of the offence) rather than the overall balance of factors, and because it focuses on the offence per se as opposed to the consequences for the offender of the refusal of an extension of time. The consequences which arise from the nature of the offence may include, for example, the fact that a lengthy sentence of imprisonment has been imposed, but may also include other consequences such as (in this case) the fact that Ms M will not be able to avail herself of a spent conviction order. The very point of a spent conviction order is that the legislature recognises that sometimes an offender should be relieved of the serious consequences that would flow from a criminal conviction.
More importantly, for present purposes, a consideration of the nature of the offence necessarily encompasses consideration of the nature of the appeal itself. This appeal is not an appeal against conviction but only an appeal in relation to one aspect of the sentencing process, namely the grant of a spent conviction order. This is not a case where a retrial is a possibility and where the delay might have an impact on that retrial, and there are no victims involved.
The next factor averted to in Wimbridge was the prejudice or lack thereof to the State occasioned by the delay. In the present case it is conceded that the respondent would not suffer any prejudice by reason of the delay.
The next factor is the extent of the delay. It is very significant in the context of a 28‑day appeal period. That weighs against the grant of an extension.
At the same time, however, the reasons for the delay must be taken into account. As I have already noted, they are attributable to ignorance of the consequence of the plea of guilty in resulting in a criminal conviction for an offence of this kind, ignorance of the possibility of obtaining a spent conviction order, and (it appears) some miscommunication or inadequate communication to Ms M of the need to commence the appeal as a matter of urgency once she sought legal advice about her conviction. This does not appear to be a case where Ms M 'sat on her hands' or pursued other courses of action apart from pursuing an appeal against sentence.
Finally, the strength of the appellant's case must be considered. For the reasons outlined below, Ms M has a strong case for the grant of a spent conviction order and that weighs heavily in favour of the grant of an extension.
Taking all of these considerations into account I am satisfied that a miscarriage of justice would occur if an extension of time were not granted in this case, particularly having regard to the impact of the failure to grant a spent conviction order in this case, to the fact that Ms M does not appear to have consciously contributed to the delay in commencing the appeal and to the fact that there would not be any prejudice to the respondent, or any impact on any victim, as a result of the extension of time being granted.

Principles in relation to the grant of a spent conviction order and why a spent conviction order should be made

The criteria for the grant of a spent conviction order are set out in s 45(1) of the Sentencing Act:
(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 principles in relation to s 45 are well settled.[17] They were recently discussed by Edelman J in a similar factual context in A v Esposito. [18]
[17] See eg, Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510; R v Tognini [2000] WASCA 31; (2000) 22 WAR 291; Rigall v State of Western Australia [2008] WASCA 69 (2008) 37 WAR 211.
[18] A v Esposito [2011] WASC 198 [8] - [9] (Edelman J).
There was no dispute that the preconditions necessary to enliven the exercise of discretion under s 45 are met in this case. I accept that is so. Having regard to the material in her affidavit, including her age at the time of the offence, her university qualifications, employment, family background and the good character references annexed to her affidavit, I accept that Ms M is unlikely to commit an offence of this kind again. Further, the offence of disorderly conduct arising out of urinating in public is clearly an offence of a trivial nature by comparison with the spectrum of offending behaviour which is the subject of the criminal law in this state.[19] The circumstances in which the offence was committed in this case confirm that characterisation is apt here. In any event, I accept that Ms M was of previous good character.
[19] Cf A v Esposito [2011] WASC 198 [12] (Edelman J).
Although the distinction is enlivened, the respondent submits that the discretion should not be exercised to grant a spent conviction order in this case because no exceptional or particular circumstance is disclosed on the affidavit material which is sufficient to establish that the adverse effect of the conviction should be set aside.
In R v Tognini Murray J discussed the exercise of the discretion under s 45 of the Sentencing Act in the following way:[20]
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.
[20] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 297 [27].
His Honour went on to give examples of the sorts of circumstances which might lead to the conclusion that the circumstances were sufficiently exceptional to warrant the exercise of the discretion. Those included:[21]
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.
[21] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, 297 - 298 [27].
The circumstances adverted to by his Honour were clearly illustrative and not exhaustive. The exercise of discretion must take into account all of the circumstances of the case.
In the present case I am satisfied that a miscarriage of justice would arise if a spent conviction order were not made for the following reasons.
First, as I have already said, the nature of the offence and the circumstances of its commission are such that it can be characterised as being of a trivial nature. In considering whether the circumstances are of an exceptional or particular kind to warrant the exercise of the discretion, in my view, it is appropriate to bear in mind the seriousness of the offence within the context of the spectrum of all criminal offences as well as the seriousness of the particular conduct giving rise to the offence in the case in question.
As for the latter circumstances, I note that the material now before the court suggests that Ms M tried to ensure that she would not be in the public view while engaging in the conduct the subject of the offence. There is no suggestion that the consumption of alcohol was involved. The facts of this case are thus wholly distinguishable from those in Scanlon v Bove[22] where the conduct was engaged in in full public view and while the appellant was intoxicated and where a spent conviction order was refused.
[22] Scanlon v Bove [2008] WASC 213.
Secondly, the respondent concedes that there is no pressing public interest in being able to have access to the fact of the conviction as part of the process of securing the protection of the community.
Thirdly, since the offence was committed, Ms M has completed a university education, has obtained employment and is working in the far north of Western Australia in a teaching position. She has a passion for indigenous education, which is why she has chosen to work in the north of the State, and as a young person willing to work as a teacher in regional Australia, she clearly has the capacity to make a contribution in relation to indigenous education.
The respondent sought to make much of the fact that Ms M has secured a job and hence there has been no adverse impact on her employment as a result of conviction, but merely embarrassment about the fact that she has had to disclose it and may have to do so in the future. Two points can be made in relation to that submission. The first is that Ms M's affidavit confirms that she is likely to have to disclose her conviction on any occasion in the future where she seeks employment as a teacher. The second is that whether or not the fact of the conviction would be likely to adversely impact on her prospects of securing future employment cannot be known and it is not appropriate to speculate. The position can be put no higher than that once a conviction has to be disclosed in an employment context, it is not possible to exclude the possibility that it may be taken into account by an employer and acted upon adversely to the job applicant.
As I have already mentioned, there have been a number of cases involving the same offence committed in not dissimilar circumstances where spent conviction orders have been granted.[23] The grant of spent conviction orders in these cases provides some support for the conclusion that the present case also involves such particular or exceptional circumstances as to warrant the exercise of the discretion to grant a spent conviction order.
[23] See eg, Papas v Godwin [2010] WASC 226; A v Esposito [2011] WASC 198; HBM v Ball [2013] WASC 167; Costello v Bennasar [2012] WASC 406; A v Staples [2007] WASC 36.
Every case must, of course, be dealt with on its own merits, and having regard to all of the factors I have mentioned, there would be a miscarriage of justice in this case if a spent conviction order were not granted.