MKF v The Commissioner of Police
[2022] WADC 111
•9 DECEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MKF -v- THE COMMISSIONER OF POLICE [2022] WADC 111
CORAM: EGAN DCJ
HEARD: 29 SEPTEMBER 2022
DELIVERED : 9 DECEMBER 2022
FILE NO/S: CIVO 63 of 2022
BETWEEN: MKF
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for spent conviction order - Serious sexual offences - Relevant considerations - Risk of reoffending - Public interest
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Corruption and Crime Commission Act 2003 (WA)
Criminal Code (WA)
Freedom of Information Act 1982 (Cth)
Spent Convictions Act 1988 (WA)
Working with Children (Criminal Record Checking) Act 2002 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Applicant | : | Mr T F Percy KC |
| Respondent | : | Ms C A Gilchrist |
Solicitors:
| Applicant | : | DG Price & Co |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288
DC v The Commissioner of Police [2020] WASCA 69
McKinnon v Secretary, Department of Treasury [2005] 145 FCR 70
Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd [2007] WASCA 175
WHW v Commissioner of Police [2014] WASCA 153
EGAN DCJ:
Introduction
By notice of motion dated 13 April 2022, the applicant, MKF, applies for an order pursuant to s 6(1) of the Spent Convictions Act1988 (WA) (the Act) that the following convictions incurred by him be declared spent:
| Count | Charge | Offence | Sentence |
| 1 | PE 2517/2008 | Sexual penetration of a child over 13 and under 16, contrary to s 321(2) of the Criminal Code. | 2 years' immediate imprisonment (concurrent). |
| 2 | PE 2514/2008 | Indecent dealing with a child over 13 and under 16, contrary to s 321(4) of the Criminal Code. | 16 months' immediate imprisonment (concurrent). |
| 3 | PE 2519/2008 | Using electronic communication with intent to procure a person believed to be under 16 to engage in sexual activity, contrary to s 204B(2)(a)(i) of the Criminal Code. | 16 months' immediate imprisonment (concurrent). |
| 4 | PE 2518/2008 | Sexual penetration of a child over 13 and under 16, contrary to s 321(2) of the Criminal Code. | 2 years' immediate imprisonment (concurrent). |
| 5 | PE 2516/2008 | Indecent dealing with a child over 13 and under 16, contrary to s 321(4) of the Criminal Code. | 16 months' immediate imprisonment (concurrent). |
| 6 | PE 2513/2008 | Sexual penetration of a child over 13 and under 16, contrary to s 321(2) of the Criminal Code. | 2 years' immediate imprisonment (concurrent). |
| 7 | PE 2515/2008 | Sexual penetration of a child over 13 and under 16, contrary to s 321(2) of the Criminal Code. | 2 years' immediate imprisonment (concurrent). |
The total effective sentence imposed was therefore 2 years' immediate imprisonment with eligibility for parole.
The notice of motion is supported by an affidavit sworn by the applicant on 13 April 2022 attaching the following:
(a)sentencing transcript dated 12 March 2009;
(b)criminal history; and
(c)three character references.
The respondent neither opposes nor supports the application, and filed papers for the judge on 7 September 2022 as well as an outline of submissions dated 27 September 2022.
Preliminary issue: jurisdiction
Prior to dealing with the substantive application, it is appropriate that I deal with the issue of whether the court has jurisdiction to determine the matter.
Section 6(1) of the Act empowers the court to declare 'serious convictions' spent.
The Act provides that convictions can constitute serious convictions in one of two ways:
(a)first, in circumstances where the sentence imposed in respect of the conviction is, relevantly, imprisonment for more than one year (see s 9(a)); or
(b)secondly, in circumstances where the conviction is a 'lesser conviction' that is not spent, and a further conviction is incurred for which the sentence is, relevantly, imprisonment for more than one year (see s 10(2)).
By virtue of s 6(2)(a) of the Act, an application under s 6(1) may not be made until the 'prescribed period' for the conviction has expired.
The 'prescribed period' for a conviction is, relevantly, 10 years commencing from the day on which the conviction is incurred, plus any period of imprisonment imposed relevant to that conviction, regardless of the period of imprisonment actually served (see s 11(1)(a) and s 11(3)).
There are additional provisions within the Act concerning when the 'prescribed period' is reset however, given the facts of this particular application, those provisions are not enlivened (see s 11(4) - s 11(5)).
The applicant incurred the seven convictions subject of this application on 12 March 2009, all of which arose out of the same course of conduct. The details of those convictions are set out at [1].
As a consequence, the convictions all constitute 'serious convictions' and their prescribed period was 12 years which expired on 12 March 2021.
The application is therefore compliant with the jurisdictional requirements and the court's discretion to make an order under s 6(1) of the Act is enlivened.
Given those circumstances, I turn to deal with the substantive application.
Spent Convictions Act
Section 6(4) of the Act provides as follows:
6.Serious Convictions
…
(4)The making of an order under subsection (1) is at the discretion of the judge and that discretion shall be exercised having regard to -
(a)the length and kind of sentence imposed in respect of the conviction; and
(b)the length of time since the conviction was incurred; and
(c)whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business or in a particular employment; and
(d)all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application; and
(e)the nature and seriousness of the offence; and
(f)the circumstances surrounding the commission of the offence; and
(g)whether there is any public interest to be served in not making an order.
In WHW v Commissioner of Police [2014] WASCA 153 [70] (WHW), the court stated that the court is bound to take into account the factors enumerated in s 6(4).
I will therefore deal with each of the matters set out in s 6(4) in turn, commencing with the circumstances of the applicant at the time of the commission of the offences, coupled with the circumstances surrounding the commission of the offences.
The circumstances of the applicant at the time of the commission of the offences and the circumstances surrounding the commission of the offences (s 6(4)(d) and s 6(4)(f))
At the time of his offending in 2008, the applicant was 39 years old and employed as a Corrections Officer and was also a volunteer sporting coach. He was married to his first wife with whom he had two teenage children.
The applicant met the victim in 2003, when he commenced coaching her. She was 9 years old at the time.
In his affidavit, the applicant deposes that he spent a lot of time with the victim as a result of her training regime, and that the more time he spent with her, the closer they became. The applicant also deposes that the victim developed a crush on him which, on an unknown date, he raised with the victim's mother who, in response, told him that the victim only loved him as 'a friend' and was not 'in love' with him.
The applicant deposes further, in effect, that as a result of the ongoing time he spent with the victim, he began to develop romantic feelings for her and gave into temptation by commencing a sexual relationship with her. At the time of that sexual relationship the victim was 15 years old.
After approximately four weeks, the sexual relationship was discovered by the victim's mother, who found messages from the applicant on the victim's phone. The victim's mother confronted the applicant in relation to the messages, after which the issue was referred to the police.
The State's amended statement of material facts, which was read into the sentencing transcript, relevantly provided as follows (ts 2 ‑ ts 4):
… the complainant, [name deleted] is a 15‑year‑old female involved in these matters. … [she] has been in training with the offender as her coach for the past six years since she was nine years old. [MKF], the offender, was employed as a prison officer and was 39 years of age at the time of the offences.
On a Wednesday afternoon in July or August 2008, the offender and the victim were weight training in the garage at the victim's home address. The offender was checking the victim's stomach muscles. He then kissed her, put his hand down her pants, placing his fingers between the lips of her vagina. The accused then lifted the victim's sports top and kissed her breast. That's in relation to count 2 on the indictment.
In relation to count 3, on Friday morning, 22 August 2008, … the offender kissed the victim, using his tongue. Upon returning to the victim's home address, the offender kissed the victim in the bathroom. He then put his hand down her pants and placed his fingers between the lips of her vagina.
In relation to count 4, the offender then lifted the victim's sports top and kissed her breast before she got into the shower.
In relation to count 5, after having a shower, the offender followed the victim to the bedroom where he kissed her and moved to the bed where he lay on top of her. The offender then kissed the victim on the mouth and then moved down to kiss her stomach, then moved off the bed to his knees where he then removed her stockings and knickers. The offender then rubbed between the lips of the victim's vagina with his fingers for about five minutes.
In relation to count 6, the offender then performed oral sex on the complainant. The victim prompted this to stop by sitting up and stating she had to get ready for school. The offender then kissed the victim on the mouth.
Lastly, in relation to count 7, on Wednesday, 20 August 2008, the offender sent a text message requesting that the complainant take photos of herself in various locations around the house whilst naked. The victim has gone into the bathroom and taken a photo of her naked and then gone to the bedroom and taken two photographs showing her vagina and sent these via her mobile phone. The offender sent a picture of his penis. He later sent two videos, one showing adults performing anal sex and the other showing a female performing oral sex.
On Monday, 25 August 2008, the victim's mother had found text messages on her daughter's mobile phone from the offender. One stated, 'I can't wait to have your hands on my cock.' The second message stated, 'I love you so fucking much.'
The complainant's mother has confronted the offender on the phone, who initially said, 'I shouldn't have put the F word in the text.' The complainant's mother said she knew what had been happening and had seen the text messages, to which the offender said, 'I'm so sorry. I'm sorry.'
The offender was interviewed on Thursday, 28 August 2008, on video. He acknowledged the complainant was 15 years old and denied commission of any of the sexual offences aside from count 7 which appears on the indictment. He was then subsequently arrested and charged.
The nature and seriousness of the offences (s 6(4)(e))
The nature and seriousness of the offences were described by the prosecutor at the sentencing hearing as being of 'the most heinous, disturbing kind' and 'extremely serious', with the counts involving penetration being 'particularly serious'. It was submitted that 'the age disparity is large and is a significant aggravating factor', and that the applicant's behaviour was 'deviant, more so given the age of the complainant at the time of her sexual corruption, and the fact that [the applicant] had grossly abused the trust that was placed in him as her athletics coach for six years'. The prosecutor also observed that the victim had 'been groomed by [the applicant] by virtue of the length of time that [the applicant] had known [the victim], the period of the offending, the escalating of the offending, and [the victim's] statements in her visually recorded interview' (ts 9 - ts 11).
The prosecutor's complete submissions in relation to the nature and seriousness of the offending is set out in Attachment A to this decision.
Defence counsel obliquely addressed the seriousness of the offences by acknowledging that the offending reflected the applicant's 'immaturity, emotional immaturity' and his 'social and experience immaturity'. It was submitted that the applicant had only ever been in one sexual relationship, that is with his wife, and that 'it almost seems like there's been this time warp that's existed and he's gone back to being a 16 or 17‑year‑old boy in the throes of that early discovery of sex and that passion and confusion that extends from that immaturity'. In addition, defence counsel submitted that it was not 'a case where we have got someone who has been a predator, manipulating and controlling [his] environment' (ts 5).
The sentencing judge remarked, in effect, that the victim was under the applicant's care, supervision and authority by reason of him being her sports coach, and that he had a special duty to her to protect her from her own vulnerability and the applicant's own stupidity. In addition, when dealing with the issue of general deterrence, the sentencing judge characterised the offending as being 'so serious as to warrant the most severe punishment' (see ts 13 - ts 15).
The length and kind of sentence imposed in respect of the convictions (s 6(4)(a))
As I have already indicated, the indictment contained seven counts, and the applicant was sentenced to 2 years for each of the four counts of penetration, and 16 months for each of the remaining three counts, with all sentences to be served concurrently. The total effective sentence was therefore 2 years' immediate imprisonment with eligibility for parole.
Whilst the applicant denied committing the offences in his video record of interview, he subsequently pleaded guilty at an early stage and the matter was then progressed to this court by way of fast‑track committal for sentence (see ts 12).
The sentencing judge remarked, relevantly, as follows (ts 14 ‑ ts 15):
Since these events came to light, you've done everything asked of you. You've admitted your guilt as soon as you reasonably could after getting legal advice.
You pleaded guilty and expressed shame and remorse. You gave up the sport you love and you commenced treatment. The nature of the treatment was such that it was necessary for you to shift out of the home, or they required you to shift out of your home, but you did that. You have suffered some extra curial punishment, in that you felt the need to resign from your job and your wife and children have suffered. Any gaol will have a huge impact on the financial situation of your family.
…
Now, I've got a pre-sentence report, I've got a [psychiatric] report … a [psychological] report … and a report from where you've been having treatment. It's clear that you accept full responsibility for this offending. You suffer documented depression as a result of the situation in which you find yourself, and [the psychiatrist] describes it as a major depressive episode.
…
You have made what has been described as impressive gains in treatment. You've completed 15 weeks of treatment … The report … is revealing on how you could have got yourself into this situation, and they describe your response as that of an adolescent, rather than a 39‑year‑old father of two, really for the reasons that [defence counsel] has already outlined.
I accept that the aims of punishment, so far as they relate to specific deterrence and rehabilitation have been met, and there are some aspects of the matter which are exceptional and I think [defence counsel] made that point, and I have really tried to make that point as well. However, there remains the necessity for general deterrence, and this is what the prosecutor was talking about.
It is absolutely essential to make it clear to all people in your situation, sporting coaches who spend a lot of time with young women, that the law regards this behaviour as so serious as to warrant the most severe punishment we have. Now, I accept the difficulties outlined by [defence counsel] as to your time in prison, and I take that into account.
On each count of digital penetration, you are sentenced to two years. On each other count, you are sentenced to 16 months. They are concurrent with each other. The total term is two years. You are eligible for parole after you have served one year.
The length of time since the convictions were incurred (s 6(4)(b))
As I have already indicated, the convictions were incurred on 12 March 2009.
It follows that as at the date of the hearing, a period of approximately 13½ years has now elapsed.
The circumstances of the applicant at the time of the application (s 6(4)(d))
The applicant is currently 53 years old. He married his current wife in 2016, having divorced his previous wife in 2015.
The applicant deposes that he commenced working for a traffic management company (the company) in 2017 and that, together with his wife, he purchased that company in 2019. He is presently the sole director of the company whilst his wife occupies a managerial position.
There is no information concerning the company's operations in the supporting materials, although at the hearing senior counsel for the applicant described the company as one which 'organises roadworks and things like that which need to be done. They employ people to orchestrate those kinds of traffic installations'.
No detail was provided to the court in terms of whether the company was registered in Western Australia, or whether its sphere of operations were confined to Western Australia or extended to other states or territories. The possible relevance of this is an issue to which I will return in due course.
Nonetheless, the applicant deposes to the fact that since purchasing the company, both he and his wife employ over 300 staff (which is an increase of over 145% compared to pre-purchase levels), and also have a fleet of 100 vehicles (which is an increase of over 60% compared to pre-purchase levels). In addition, the applicant and his wife have trained over 180 new employees.
When discussing these matters within his affidavit, the applicant uses the proverbial Royal 'we' (that is, 'we now employ …', 'we have a fleet …', etc), which I take as a reference to the company, as I assume that it is the company, and not the applicant and/or his wife that employs the staff, owns the fleet and the like. In any event, the applicant deposes that an annual growth of 35% was achieved for the company in the 12‑month period prior to his swearing his affidavit.
The applicant deposes to his deep shame and remorse for his offending which he acknowledges has had a profound effect, not only on his own life, but also the lives of the victim and her family. He takes full responsibility for his actions, and claims to have taken steps to understand, and come to terms with, both the gravity and effect of his offending. In addition, he describes the offending as having been out of character for him.
In light of these matters, it is perhaps appropriate that I now turn to consider the issue of the applicant's rehabilitation and the risk of reoffending.
As the court in WHW observed, amongst other things, that [72]:
… whether and to what extent the particular applicant has rehabilitated himself or herself is also 'one of the circumstances of the applicant … at the time of the application' within the meaning of s 6(4)(d) of the Act. Allied with the question of rehabilitation is the question of whether and to what extent the applicant poses a risk of reoffending.
The material provided in support of the application did not include any material from a person with expertise in the assessment of the risk of sexual reoffending, such as a psychiatrist or a psychologist with specialised expertise, and indeed no oral evidence was called from the applicant or any other person concerning either the applicant's risk of reoffending or his self‑rehabilitation.
The only references to the issues of rehabilitation and risk of reoffending in the supporting materials are as set out below:
(a)first, those contained in the applicant's affidavit where he states, relevantly, and in effect, that:
(i)following the offending (but seemingly before sentencing occurred) he commenced a community‑based child sex offenders treatment program (program);
(ii)at the time of sentencing he had completed approximately 10 months of treatment in the program;
(iii)he was committed to the program;
(iv)the therapists in the program were very happy with his progress in the group sessions; and
(v)the program allowed him '… to gain some very powerful life skills such as how to help others, how to effectively communicate [his] emotions and feelings, and it also offered [him] the opportunity to express [his] guilt and remorse in committing the offences'.
(b)secondly, the transcript of the applicant's sentencing hearing attached to the applicant's affidavit which revealed:
(i)a submission from defence counsel in the following terms (see ts 26):
[A conditionally suspended sentence] … would allow [the applicant] to address the underlying issues and, more significantly, I note from all of these reports that he really doesn't present as a risk of re-offending, although I note - I can't recall which report it was where they say 'You can never say never', but his risk of re‑offending is just so low. He's got no prior history of deviancy. He has got no prior history of inappropriate sexual conduct. There really is nothing in his background to suggest that this would happen again and his background supports the proposition that this was really an aberration, a product of the circumstances that he found himself in at the time.
(ii)a submission (or perhaps concession) from the prosecutor, who stated that '[it] is admirable, your Honour, that the offender has sought out treatment for himself and appears to be engaging in the program and by all accounts it would appear that his risk of reoffending is low' (see ts 31); and
(iii)the sentencing judge's remarks to the effect that a psychiatric report, a psychological report and a report from the treatment program had been provided for the purpose of sentencing, and that '… [the applicant] made what has been described as impressive gains in treatment' and that he had 'completed 15 weeks of treatment' (see ts 14).
In terms of these matters it is to be noted that:
(a)first, and importantly, none of the reports referred to at the sentencing hearing have been provided as part of the applicant's application; and
(b)secondly, whilst specific reference was made by the sentencing judge to the applicant having completed 15 weeks of treatment, the applicant in his affidavit stated that at the time of sentencing he had completed 10 months of treatment.
In terms of the second matter, I am unable to reconcile the discrepancy on the materials before me and the applicant does not explain it in his affidavit. There may, of course, be some simple explanation for the discrepancy but, as I say, no explanation has been provided.
In addition to the above, reference was made to risk of reoffending in the submissions filed on behalf of the respondent, albeit when dealing with the issue of public interest, to which I will return deal in due course. In the meantime, it is appropriate that I address the respondent's position on risk of reoffending when discussing the circumstances of the applicant at the time of the application. In this regard, the respondent submitted as follows:
… in a case where the court is not able to make a clear finding as to the applicant's risk of reoffending, the need for there to be a continuing requirement for the disclosure of sexual offending against children is a relevant consideration in relation to whether there is a public interest to be served in not making a spent conviction order.
Given this submission, I infer that the respondent accepts that there is, or at least might be, insufficient material before the court to enable it to make a clear finding as to the applicant's risk of reoffending.
In any event, the applicant himself does not depose to the fact that he does not present a risk of reoffending and, as I have already stated, there is no supporting material from a person with relevant expertise assessing the applicant's risk of reoffending as low. It would have been a simple matter for the applicant to affix to his affidavit reports by therapists involved in any completed program(s) (assuming that such reports are provided at the completion of such program(s)) expressing the view that his risk of reoffending is low. Alternatively, the applicant could have provided a report from a clinician with relevant expertise to express an opinion as to as to both whether the applicant was rehabilitated and his risk of reoffending. However, neither of those things were done.
True it is that in his affidavit the applicant describes his offending as out of character, and that he deposes that he has not offended in this way either before, or at any time after the offences, and does not have a sexual interest in young girls. However, that falls short of saying that he is not at risk of reoffending and, in any event, any statement by him concerning his rehabilitation and risk of reoffending is, or would be, an entirely self‑serving statement. In addition, and as the offences demonstrate, the applicant did have a sexual interest in at least one young girl.
Senior counsel for the applicant did make oral submissions in relation to the applicant's rehabilitation and risk of reoffending. In this regard, it was submitted, in effect, that there were a number of factors that demonstrated the applicant's rehabilitation, namely: the length of time since the convictions were incurred; the lack of any suggestion that he has re‑engaged in any form of offensive behaviour at any level; the lack of any antisocial or inappropriate behaviour in terms of consuming drugs and/or alcohol or anything of that nature; the fact that he has readily and seriously engaged in his trade or profession; and the fact that he has re‑partnered successfully. Senior counsel submitted further, and in effect, that these matters speak for themselves and might favour a finding that, on the balance of probabilities, and for all intents and purposes, the applicant was completely rehabilitated.
Notwithstanding the submissions made by senior counsel for the applicant, and the applicant's statement that the offending was out of character, in the absence of any evidential material dealing with the applicant's rehabilitation and risk of reoffending, I am unable to make a finding as to these issues. In this regard, I am cognisant of that which the court stated in DC v The Commissioner of Police [2020] WASCA 69 [52] (DC), namely:
… the common experience of the courts is sufficient to recognise, in relation to sexual offending, and in particular sexual offending against children, that an offender's self-assessment of the risk of reoffending is not always a reliable indicator of future risk. That is why legislative schemes specifically concerned with the risk of future sexual offending, such as the Dangerous Sexual Offenders Act2006 (WA), require the preparation of detailed reports from qualified experts as to the assessment of that risk.
Certainly, I do not consider that it is appropriate to rely on aspects of the transcript of the applicant's sentencing, coupled with or without submissions made on behalf of the applicant, to make a clear and positive finding that the applicant is rehabilitated, or that he presents a low risk of reoffending. Indeed, to do so in such circumstances would be fraught with difficulty: see generally, DC [53].
Nonetheless, before moving on to consider other aspects of s 6(4) of the Act, it is appropriate that I refer to the character references attached to the applicant's affidavit, as those references also go to the circumstances of the applicant at the time of the application.
The first of those references is from the applicant's wife, who states, relevantly, and amongst other things, that the type of offending for which the applicant was convicted is very much out of character; that he is the most genuine and unselfish person she has ever met; that he has always been scrupulously honest and fair and takes care to do what is morally right; that he is trustworthy and honest in all aspects of his life; and that he is 'of good moral character, honest, loyal and extremely considerate'.
The second reference is from the applicant's older sister who states, relevantly, and amongst other things, that the applicant's offending was uncharacteristic; that since his release from prison he has strived to be better and demonstrated the need to repent for his offending; that he has worked tirelessly to become a respected businessman and build a highly regulated business which employs over 300 adults; and that he is generous to others, including his employees.
The third reference is from the applicant's brother‑in‑law who states, relevantly, and amongst other things, that in his opinion the applicant's offending would appear to be out of character as up until his offending the applicant had no prior history of charges or convictions; that the applicant is generally a person of good character and standing; and that in his opinion the applicant is an honest, kind and generous hardworking person.
It is of course to the applicant's credit that he has a number of people who are prepared to provide character references of this sort in support of his application. The material perhaps underscores that the applicant has been able to improve himself since his release from prison. However, whilst the references describe the applicant's offending as being, or appearing to be, out of character for the reasons set out above, that is still insufficient to enable a finding that the applicant is at a low risk of reoffending.
Whether the convictions prevent or may prevent the applicant from engaging in a particular profession, trade or business or in a particular employment (s 6(4)(c))
The applicant deposes that in the nine months or so before he swore his affidavit, he (or perhaps more appropriately, the company) had not been able to reapply for two government tenders due to a tender requirement that he, as director, would need to disclose any criminal convictions.
The applicant does not indicate whether the two tenders are for the State of Western Australia or the Commonwealth government, however I will proceed on the basis that it is a State government tender (although nothing turns on it for the purposes of the application, save for possibly in one respect which I will address in due course).
The applicant deposes further that because of the inability to tender for government contracts the company suffered the following financial losses:
(a)$500,000 per year totalling a loss of $1.5 million over the 3‑year contract; and
(b)$550,000 per year totalling a loss of $1.6 million over the potential 3‑year contract.
In addition, the applicant deposes that because the need to disclose his convictions, the company was ineligible to tender for three local government contracts and estimates the consequential loss to the company due to that ineligibility as follows:
(a)advertised yearly spend of $750,000 per year (5‑year contract was offered;
(b)advertised yearly spend of $650,000 per year (3‑year contract was offered); and
(c)advertised yearly spend of $800,000 per year (4‑year contract was offered).[1]
[1] I have assumed that the expression 'advertised yearly spend' is the amount the local government(s) advertised they would spend in a year on the works the subject of the tender, or to put it another way, the amount the local government(s) would pay the successful tenderer(s).
The applicant deposes that when considering the combined loss to the company of both the State and local government tenders, 'the total consequential loss to the company per year over a 12-month period would have amounted to $1,450,000', and that this would represent a substantial loss to the company.
I make the following observations concerning this material:
(a)first, there is no objective evidence before the court which establishes that the company would be prevented from tendering for State or local government contracts given the applicant's criminal convictions. That objective evidence could be in the form of information to tenderers or, alternatively, example or specific tender terms and conditions that provide either that a tender cannot be submitted if a director has a criminal conviction, or that if a tender is submitted by a company whose director(s) have criminal convictions, then the tender would be rejected as invalid;
(b)secondly, it is unclear if the contracts awarded by the local government(s) would be awarded to one or more tenderers, noting of course that if more than one tenderer was awarded a contract, then the payments to any one tenderer might be reduced (perhaps even significantly) below the amounts referred to in the applicant's affidavit;
(c)thirdly, there is no objective evidence before the court concerning the value of the tenders to which the applicant is referring. Again, that objective evidence could be in the form of tender documents for those tenders;
(d)fourthly, on any view, the applicant could, at best, only seek to argue that the company had lost an opportunity or a chance to tender and compete for the work along with other traffic roadworks companies who might also have tendered. To depose, as the applicant does, that the company has in fact sustained financial loss as a consequence of the inability to tender is to put the matter far too highly, a point which was, in effect, conceded at the hearing by senior counsel for the applicant, who accepted that the applicant could not prove that the tenders would have been awarded to the company; and
(e)lastly, there is no evidence before the court as to how the applicant, as opposed to the company, would be financially affected. That is to say, there is no evidence as to the actual financial impact on the applicant and his family, although it is readily accepted that the financial fortunes of the company and the applicant are highly likely to be very closely aligned.
In any event, the applicant further deposes, in effect, that over the next two years (that is, in the two years following the swearing of his affidavit) the company has 8 of its 11 contracts up for renewal, and that the principals to those contracts will all now require the applicant, as (sole) director of the company, to produce a police clearance certificate in order for the contracts to be renewed. The applicant deposes, in effect, that if his application is refused, and the company cannot renew the contracts, there will be dire consequences for himself, his wife and their family, as well as the company and its employees. In such circumstances, the applicant considers that he will not be able to continue in the business as director and the company would most likely be sold.
I observe, again, that there is no other objective evidence before the court (in the form of terms and conditions of contracting, or the contracts themselves) to support the proposition that the principles for 8 of the 11 contracts held by the company will require a director to produce a police clearance certificate in order to be renewed.
Whether there is any public interest to be served in not making an order (s 6(4)(g))
Neither 'public interest' nor 'public' are defined in the Act.
Nonetheless, it is an expression which has been considered in other contexts involving discretionary decision‑making required to take account of the public interest.
I pause to note that it is clear from s 6(4) of the Act that the making of a spent conviction order is at the discretion of the judge, and that the discretion is to be exercised having regard to, amongst other things, whether there is any public interest to be served in not making an order. Consequently, cases where the 'public interest' has been considered, in a discretionary sense, albeit in the context of other legislation, are of assistance.
In Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd [2007] WASCA 175 [19] (Cazaly), Pullin JA observed:
The expression "in the public interest" when used as the criterion for the exercise of a statutory discretion, usually imports a discretionary value judgment confined only by the subject matter and the scope and purpose of the legislation. The ascertainment of the subject matter and the scope and purpose of the legislation will enable a court to determine whether reasons which are given are definitely extraneous to any object a legislature could have had in view.
In addition, in McKinnon v Secretary, Department of Treasury [2005] 145 FCR 70, 75 - 76 (McKinnon), Tamberlin J stated that:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where 'the public interest' resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that 'the public interest' can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing consideration will be more finely balanced so that the outcome is not so clearly predictable.
Whilst McKinnon concerned the expression 'public interest' in the context of the Freedom of Information Act 1982 (Cth), the observations of Tamberlin J concerning the expression in the context of statutory use could, like those of Pullin JA in Cazaly, be said to have general application.
In addition, in WHW [74], the court observed that 'it may be accepted that "public interest" is a protean concept', citing, generally, the observations of Martin CJ and Murphy JA in A v Corruption and Crime Commissioner [2013] WASCA 288 [79] ‑ [81] (A).
A concerned, relevantly, s 152 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) and what was meant by both 'public interest', and when something was 'necessary' in the public interest. Whilst the legislative schemes of the CCC Act and the Act are clearly different, the discussion concerning public interest is helpful and, as indicated above, the court in WHW drew upon the comments of Martin CJ and Murphy JA when considering public interest for the purposes of the Act. I do the same, and note that Martin CJ and Murphy JA also stated as follows [79] ‑ [81]:
The determination of what will advance the public interest is generally a discretionary judgment often confined only by the subject matter, scope and purpose of the Act conferring the power to make the assessment.
Questions with respect to the ascertainment of the public interest will rarely have one dimension. Very often the ascertainment of the public interest will require the consideration of a number of competing factors or considerations, or differing features or facets of the public interest.
Furthermore, and importantly when considering the exercise of my discretion, I am bound to consider the underlying rehabilitative objective of the Act. That objective was expressed by the court in WHW in the following way [66]:
[W]hen the Act is read as a whole, including its long title, it is evident that a fundamental objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the legal and social stigma associated with a conviction may, to a considerable extent, be removed, or at least ameliorated, after the passage of what the legislature regards as an appropriate period of time.
Also in WHW, the court observed 'there is nothing in the Act to indicate that the public interest requires that offences of this particular kind [that is, sexual offences] should fall outside the scope of its ordinary operation' [81].
Senior counsel for the applicant submitted, in effect, that the public interest would ultimately determine my consideration of the matter, and that there was nothing to indicate that the public interest would not be served in making the order. Senior counsel submitted further that whilst there is every reason for caution in an application such as this, some solace could be taken from the fact that the respondent does not oppose the application, and 'in any event, the spending of the convictions would not prevent the convictions from being considered for the purposes of Working with Children Checks and reporting' (which is a matter to which I will return in due course).
In light of the above, there are three matters which I consider necessitate consideration under the rubric of public interest.
The first matter of public interest concerns the applicant's risk of reoffending, which I have discussed in the context of the circumstances of the applicant at the time of the application.
The second matter of public interest concerns Working with Children Check, and ongoing reporting even if the convictions are spent.
The third matter of public interest broadly concerns the nature of the applicant's possible need to declare his convictions for work conducted by him, as a director of the company, outside of Western Australia.
In terms of the first matter of public interest, I have already found that I am unable to make a finding as to the applicant's risk of reoffending. The respondent submits (and the applicant joins with that submission) however, that the spending of the applicant's convictions would not impact either his continuing requirement to report under the Community Protection (Offender Reporting) Act 2004 (WA) (CP(OR) Act) which do not cease until 2025, or his status as a reportable offender under that legislation.
In this regard, s 111 of the CP(OR) Act provides as follows:
111.Effect of spent convictions
(1)The fact that an offence in respect of which a reportable offender has been found guilty becomes spent does not affect -
(a)the status of the offence as a reportable offence for the purposes of this Act in respect of the reportable offender; or
(b)the consideration of the offence as part of the reportable offender's total criminal record for the purposes of section 53(3)(f), 61(3)(f) or 90(3)(f); or
(c)the inclusion of information about the offence in the Register; or
(d)any reporting obligations of the reportable offender; or
(e)any protection order in respect of the reportable offender.
(2)For the purposes of this section, an offence becomes spent if, under a law in any jurisdiction, the reportable offender is permitted not to disclose the fact that he or she was convicted or found guilty of the offence.
The respondent further submits that the spending of the applicant's convictions would not prevent those convictions from being considered for the purposes of a Working with Children Check should the applicant seek work in respect of which a Working with Children Check is required in the future. In this regard, the respondent points out that cl 2(6) of sch 3 of the Act provides, in effect, that s 27 and s 28 of the Act do not apply in respect of criminal record checks under the Working with Children (Criminal Record Checking) Act 2002 (WA) (WC(CRC) Act).
Sections 27 and 28 of the Act provide, relevantly, as follows:
27. Disclosure or acknowledgment of spent convictions
(1) Questions about a convicted person put to that person or any other person shall not be taken to relate to a spent conviction or the charge to which the conviction relates.
(2) A rule of common law or equity, or a provision of an agreement or arrangement, that requires the disclosure or acknowledgment of matters relating to a convicted person does not require the disclosure or acknowledgment of a spent conviction or the charge to which the conviction relates.
28. Unlawful access to criminal records
(1A) In this section -
child means a person under 18 years of age;
official criminal record means a record containing information about the results of criminal proceedings kept for the purposes of its functions by any police force, court, government department, local or other public authority in Western Australia.
(1) A person shall not, without lawful reason, obtain information about a spent conviction, or the charge to which the conviction relates, from an official criminal record.
Penalty: $1 000.
(2) Subsection (1) does not apply to a prescribed person if -
(a) the person is required or permitted under a prescribed law of the Commonwealth, another State or a Territory to obtain or deal with information about a person who works, or seeks to work, with a child or a person with disability; and
(b) the purpose of obtaining the information from an official criminal record is to obtain or deal with the information in accordance with the prescribed law.
Clause 2(6) of sch 3 of the Act provides as follows:
The persons specified in the table to this subclause are excepted from the provision of section 27 and 28 of all spent convictions.
Table
1.A person in respect of whom section 34 of the [WC(CRC) Act] applies.
2.A person making, or giving effect to, a request for a criminal record check is defined in section 4 of the [WC(CRC) Act].
3.A person who is disclosing information where the [WC(CRC) Act] section 39A applies.
'Criminal record' is relevantly defined in s 4 of the WC(CRC) Act to mean every conviction of the person of an offence in Western Australia or another jurisdiction, whilst s 8(2) provides, in effect, that a reference to a conviction for the purposes of the WC(CRC) Act includes a spent conviction.
In such circumstances, the respondent submits that the public interest would not necessarily be served by refusing to make an order spending the applicant's convictions.
There is no evidence before the court that the applicant works with children or is in need of undertaking a Working with Children Check. In response to a query concerning whether the Working with Children Check was required by someone such as the applicant who runs a not insubstantially sized organisation that might employ people under 18, counsel for the respondent submitted that such a check was not required; rather, such checks were only required by various educational institutions and the like (which I took to include any person seeking to engage in child‑related work, whether that be in the capacity of an employee or a volunteer).
In any event, the provisions of both s 27 and s 28 of the Act, and s 111 of the CP(OR) Act, are only enlivened in circumstances where the discretion to spend the convictions has been exercised, taking into account all the factors referred to in s 6(4) of the Act. Any underlying concerns about those factors cannot be cured by provisions which would only come into effect if the convictions were spent. If that were the case, then arguably there would be no need, or at least a reduced need, for the court to be satisfied that the risk of reoffending was low.
As I have already indicated, there is no objective evidence before me which is sufficient to establish either that the company would be prevented from tendering for State and local government contracts, or renewing existing contracts, because of the applicant's convictions.
Furthermore, there is no evidence before me which addresses the policy reasons underpinning why State and/or local governments are unwilling to award or renew tenders to companies which have a director who has a criminal conviction. One might hypothesise governments are unwilling to knowingly enter into contractual relations with such organisations, as to do so might expose themselves to unacceptable legal, commercial, reputational, or political risks. Assuming that is the case, or alternatively that the reasons are broadly akin to those reasons, then it would seem strange that a State and/or local government would be willing to enter into contractual relations with such an organisation where a director of that organisation was still required to comply with some form of formal reporting for offences which a director had been convicted but had spent, which would arguably still bring the same commercial, or at least reputational and political risks.
In light of the fact that the public interest is multi‑faceted and imports a discretionary value judgement, and having closely considered the matter, I consider that it would be in the public interest for State and local governments to continue to be aware of a person's convictions as a component of tenders and/or contract renewals if those persons were still undergoing or undertaking some form of formal reporting. In this regard, I note from the respondent's submissions that the applicant has a continuing requirement to report under the CP(OR) Act which will not cease until some time in 2025.
Furthermore, as I have indicated above, the public interest has been described as a protean concept; that is to say, it can change easily or frequently. Put another way, what was in the public interest when the Act was passed, or indeed at the time of the applicant's offending, may be different to the public interest today. Certainly, in the last 13½ years there has been a significant growth of awareness within the Australian community concerning the catastrophic impacts and prevalence of child abuse, including by sporting coaches. The Royal Commission into Institutional Responses to Child Sexual Abuse, reporting concerning sexual or physical abuse by sporting coaches, and the advocacy of people such as Ms Grace Tame, the 2021 Australian of the Year and sexual abuse survivor, have been influential in this regard.
Community awareness and expectations demand that great caution should be taken in matters relating to child sexual offences (a point that has been recognised by counsel for the applicant). Accordingly, I consider it is also in the public interest that a person's convictions for sexual offences, or at least those convictions for sexual offending against children, should not be spent if that person is still the subject of some formal reporting requirements for the offences, such as those under the CP(OR) Act.
In terms of the third matter of public interest, as indicated earlier, the applicant is the sole director of the company, which is in the business of traffic management. When discussing those matters, I observed, amongst other things, that no evidence had been provided to the court concerning the nature of the company's operations or indeed the sphere of those operations. The applicant has deposed to the fact that the company is engaged by governments. As I indicated earlier, whilst the applicant deposes to the company undertaking work for local governments, it is unclear whether the other government work is undertaken at a State or Commonwealth level. I proceeded on the assumption that the work was undertaken at State level on the basis that for the purpose of considering s 6(4)(c) it was of no moment, although indicated that I would return to the matter in due course. I do so now.
The nature and sphere of the company's operations, including whether it conducts business for other states or territories and/or the Commonwealth, is arguably relevant in one respect. Other states and territories have their own spent convictions schemes, and there is no uniform legislation in Australia concerning spent convictions (although I note that there have been calls for such legislation: see, generally Australian Spent Convictions Reform: A Contextual Analysis, UNSW Law Journal [2011] Volume 34(3), 938 ‑ 963, and Taking a Fresh Look at Criminal Record Discrimination (2021) 33 Australian Journal of Labour Law, 270 - 293).
The spent conviction schemes vary from jurisdiction to jurisdiction and adopt different approaches in relation to matters such as the types of offences that are eligible to be spent, the relevant waiting periods, the benefits that are attached to having a conviction spent, and the exceptions that apply.
By way of example, the legislative schemes in jurisdictions other than Western Australia and Queensland contain exceptions for sexual offences. Specifically, for example, the legislative schemes in the Northern Territory, New South Wales, Tasmania, and Victoria do not allow for sexual offences to be spent: see s 5(a) Criminal Records (Spent Convictions) Act 1992 (NT); s 7(1)(b) Criminal Records Act 1991 (NSW); s 3 Annulled Convictions Act 2003 (Tas); and s 3 Spent Convictions Act 2021 (Vic).
The relevance of this is twofold:
(a)first, there is no limiting provision within the Act to suggest that the public interest is confined to the public in Western Australia. Accordingly, consideration of the broader Australian public is arguably a necessary consideration; and
(b)secondly, to the extent that the company's sphere of operations extends beyond Western Australia (about which there is no evidence before the court) it is arguably reasonable that the legislative schemes of other jurisdictions be taken into account when considering whether the applicant's convictions should be spent in Western Australia. Of course, this assumes that in other Australian jurisdictions, principals seeking to engage road traffic service providers like the company require that directors do not have criminal convictions.
Despite these two matters, great caution should be taken broadening or extending the scope of the public interest beyond Western Australia for the obvious reason that the legislative schemes in other jurisdictions are not only different, but also taking those schemes into account (and in particular, their exclusion of sexual offences) could improperly interfere with the discretion under the Act to declare the convictions spent. This is because, as I have already indicated, there is nothing in the Act to indicate that the public interest requires that offences of this particular kind should fall outside the scope of its ordinary operation.
That is not to suggest that the schemes in other jurisdictions should be taken into account; rather, it is to suggest that the public interest in jurisdictions other than Western Australia may need to be taken into account in certain circumstances, including, for example if the person seeking the spent conviction order is intending to operate a business in one of those other jurisdictions which have business practices and community expectations requiring sexual offences to be disclosed. And, of course, in those circumstances that public interest could be determined by reference to, amongst other things, whether the laws in those jurisdictions permit for sexual offences to be spent.
Nonetheless, in the absence of any evidence that the company operates outside of Western Australia, and also absent any evidence that the company might, as a consequence of conducting operations outside of Western Australia, be required to disclose convictions of any director, I do not consider that this third matter is a relevant consideration. However, it does highlight the need for law makers to consider whether uniform legislation is required, particularly given the cross border or inter jurisdictional working arrangements employed by companies.
Conclusion
Given that:
(a) I am unable to make a finding as to the applicant's risk of reoffending;
(b) I consider that it would be in the public interest for State and local governments to continue to be aware of the applicant's convictions (as a component of tenders and/or contract renewals) for as long as he is undergoing or undertaking formal reporting under the CP(OR) Act (and this assumes that notice of the convictions are required to be given in accordance with any tender award or contract renewal; and
(c)I consider that it would be in the public interest generally for the applicant's convictions not to be spent for as long as he is undergoing or undertaking formal reporting under the CP(OR) Act;
I consider that the public interest is to be served in not making an order to spend the applicant's convictions.
When considering that public interest, I have weighed the possible impact of not spending the convictions against the possible impact on the applicant, and in turn the operations of the company and its employees. I have also taken into account the rehabilitative objectives of the Act. When those matters are weighed against the matters referred to in [103] above, I consider that the latter should prevail.
The application is therefore dismissed.
Attachment A
Ms Sandover: Your Honour, there are seven counts on the indictment, four of those being sexual penetrations, and they can be fundamentally broken down into a number of discrete incidents: counts number 1 and 2 which are digital penetration and kissing of the breasts, counts 3, 4, 5 and 6 which involved digital penetration, cunnilingus and kissing of the breasts and, lastly, count 7 which involves the use of the mobile phone. So there are seven offences contained within three separate incidents that occur over a period of roughly two months.
Although the State does concede that it's difficult to determine the exact time frame that the offences occurred within given the offence dates pleaded in count 1. Indeed, it would appear from the complainant's visually recorded interview that the events had occurred over a period of about three weeks, and the State accepts that.
Your Honour, it really is offending of the most heinous, disturbing kind. It's a 39-year-old man, who for a period of time has repetitively had sexual relations with a 15‑year-old schoolgirl.
It's behaviour that the community and the State condemns at the highest level. The nature of the conduct is extremely serious. The counts involving penetration are particularly serious. The age disparity is large and is a significant aggravating factor of this case. The behaviour, by its very nature, is deviant, more so given the age of the complainant at the time of her sexual corruption and the fact that the offender has grossly abused the trust that was placed in him as her athletics coach for six years.
The breach of trust in this case is immense. The offender was in a position of supervision, an authority over the complainant, and he's used that position to his own advantage. He'd been a friend of the family for numerous years and had coached the complainant since she was nine years old.
He's built up a relationship and a rapport with the complainant, and indeed the family, over that time and then the State submits he has manipulated that to satisfy his own sexual desires. Indeed, many of the counts occurred in the victim's own home. They occur in her garage, her bathroom and [her] bedroom. Not only has the complainant put her trust in this person of authority, but the complainant's family has also done so.
The complainant's mother's victim impact statement really highlights that particular point. The offender has engaged in sexual penetration of their daughter in their own home. It really is a breach of trust of the most serious kind and the State's submission is that that is one of the most aggravating aspects of this case.
It can't be said that it's an isolated case. There is a course of abuse that stems over a period of three weeks. It's not a one-off and it's not isolated to one day of offending. The State submits that that also elevates the seriousness of the offending.
The State also submits, your Honour, that the complainant has been groomed; not ordinarily a typical case of long-term grooming, but has been groomed by the offender by virtue of the length of time that the offender has known the complainant, the period of the offending, the escalation of the offending and the complainant's statements made in her visually recorded interview.
The offender has known the complainant for six years, and clearly had the opportunity to influence her. In the three weeks leading up to the offender's arrest, the complainant states that the offender had started getting closer to her, that he'd started to hug her and kiss her on the cheek and had started to care more. The State submits there's an element of preparatory work being done there.
He is testing the water, so to speak, and building up to greater intimacy. It's manipulative behaviour. The complainant states that she didn't want to say no as she didn't want the offender to stop training her. That's also reflected in her own victim impact statement. She didn't want to make the offender unhappy or angry. It's a typical thought process of a victim in these types of situations.
She further states that one day the offender asked if she wanted to make love to him and she said, 'No, I'm not ready because I know I'm too young', yet the offender persists in his grooming behaviour. He regularly holds her hand. The complainant repeatedly states in her visually recorded interview that she feels uncomfortable at the offender's increasingly provocative behaviour.
However, it would appear that she was powerless to stop his advances due to the nature of the relationship that he had with her. At one stage, and this is subject to counts 3 to 6, the offender asks if he can have a shower with the complainant. She replies no and then locks the bathroom door behind her. He is persistent in his behaviour, as it's after the shower that counts 5 and 6 then occur.
This behaviour, coupled with what seems to be extensive text messaging that went back and forth between the two, is clear evidence of an offender who is preparing the complainant for greater sexual exploits. Indeed, the offender has sent the complainant two pornographic videos, one of which depicted a male anally penetrating a female.
That is especially concerning, considering the complainant's statement - this is at page 9 of the transcript of that interview - that she felt a bit weird about that, as after their Monday morning run they were going to go back to her house and he was going to do that to her.
So the State submits that there is clear intention for this behaviour to escalate, that the offender was grooming or preparing the complainant for those acts. It's manipulative coercion, designed by the offender to satisfy his own sexual desires. The complainant at this time simply doesn't have the life experience to be able to understand what's progressively happening to her.
She is sexually very inexperienced. The first time the offender sexually penetrated her was the first time that that has ever happened to her. To any adult hearing the facts, it's blatantly obvious where the behaviour was heading. Your Honour, these types of matters, they're notoriously difficult to detect. It's behaviour that goes on in secret and behind closed doors.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Egan
21 DECEMBER 2022
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