MRS v The Commissioner of Police
[2024] WADC 97
•14 NOVEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MRS -v- THE COMMISSIONER OF POLICE [2024] WADC 97
CORAM: EGAN DCJ
HEARD: 22 OCTOBER 2024
DELIVERED : 14 NOVEMBER 2024
FILE NO/S: CIVO 146 of 2024
BETWEEN: MRS
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for spent conviction order - Non-sexual offences and sexual offences - Relevant considerations - Risk of sexual reoffending - Public interest
Legislation:
Corruption and Crime Commission Act 2003 (WA)
Freedom of Information Act 1982 (Cth)
Spent Convictions Act 1988 (WA)
Working with Children (Screening) Act 2004 (WA)
Result:
Application successful in part
Representation:
Counsel:
| Applicant | : | Ms A Antoine |
| Respondent | : | Mr E A Heywood |
Solicitors:
| Applicant | : | Perrella Legal |
| Respondent | : | State Solicitor's Office |
Case(s) 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
MKF v The Commissioner of Police [2022] WADC 111
R v Gavel [2014] NSWCCA 56
R v MJB [2014] NSWCCA 195
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [No 4] [2007] WASCA 175
SAL v The State of Western Australia [2021] WASCA 192
WHW v Commissioner of Police [2014] WASCA 153
EGAN DCJ:
Introduction
By amended notice of motion dated 21 October 2024, the applicant, MRS, 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 (the application):
Table 1
Count
Court
Court Date
Offence
Sentence
1
Perth Court of Petty Sessions
5 April 1976
False report to police
$25 fine
2
Perth Court of Petty Sessions
3 July 1976
Stealing
$20 fine
3
Perth Court of Petty Sessions
16 July 1976
Stealing
2 years probation
4
Perth Court of Petty Sessions
16 July 1976
Stealing
2 years probation
5
Perth Court of Petty Sessions
21 July 1976
Stealing
2 years probation
6
Karratha Court of Petty Sessions
22 April 1981
Stealing
$100 fine
7
Perth Supreme Court
29 May 1995
Indecent dealing of a child by a lineal relative
3 years imprisonment (concurrent)
8
Perth Supreme Court
29 May 1995
Indecent dealing of a child under 13 years
12 months imprisonment (concurrent)
9
Perth Supreme Court
29 May 1995
Indecent dealing of a child under 13 years
12 months imprisonment (concurrent)
10
Perth Supreme Court
29 May 1995
Aggravated sexual assault
4 years 4 months imprisonment
11
Perth Supreme Court
29 May 1995
Aggravated sexual assault
2 years 6 months imprisonment (cumulative)
12
Perth Supreme Court
29 May 1995
Sexual penetration by a lineal relative
5 years imprisonment (concurrent)
13
Perth Supreme Court
29 May 1995
Sexual penetration by a lineal relative
5 years imprisonment (concurrent)
The total effective sentence imposed for the convictions 7 ‑ 13 in Table 1 entered on 29 May 1995 was 7 years' imprisonment with an order that he be made eligible for parole.
The application is supported by two affidavits from the applicant, the first of which was sworn and dated 18 July 2024 (first affidavit), whilst the second was unsworn and undated, but provided to the court on or about 7 November 2024 (second affidavit). The following was annexed to the applicant's first affidavit:
(a)a copy of the applicant's National Police Certificate dated 17 August 2021;
(b)a copy of the Certificate of Final Outcome from the Supreme Court in relation to convictions 7 ‑ 13 in Table 1;
(c)a copy of the transcript of the sentencing hearing concerning convictions 7 ‑ 13 in Table 1 conducted in the Supreme Court of Western Australia; and
(d)a Seek online job advertisement (undated).
The application is also supported by affidavits from:
(a)AW sworn 16 February 2024;
(b)BMRK sworn 24 May 2023;
(c)LS sworn 18 July 2024;
(d)PJL sworn 26 April 2023; and
(e)SRP sworn 24 May 2023.
The respondent opposes the application and filed and served submissions dated 21 October 2024 in support of that opposition.
Preliminary issue: jurisdiction
Prior to dealing with the substance of the 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) of the Act).
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) of the Act).
The applicant incurred the latest of the convictions the subject of this application, namely convictions 7 - 13 in Table 1 on 29 May 1995, all of which arose out of the same course of conduct.
As a consequence, the convictions all constitute 'serious convictions' and their prescribed period was 17 years from 29 May 1995; that is to say that the prescribed period expired on 29 May 2012.
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 substance of the 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) of the Act.
I will therefore deal with each of the matters set out in s 6(4) of the Act 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))
Whilst the convictions 1 - 6 in Table 1 form part of the application, the applicant's affidavits in support contain no details concerning those convictions; rather, the applicant's affidavits discuss, exclusively, matters pertaining to the convictions 7 ‑ 13 in Table 1, as well as the various issues relevant to whether the court should declare those particular convictions spent.
In light of the above, and unless otherwise stated, the remainder of this decision will be confined to discussing the matters set out in s 6(4) of the Act insofar as they concern convictions 7 ‑ 13 in Table 1, and I will refer to those convictions collectively as the 'sexual offences' or alternatively the 'sexual offence convictions'. Furthermore, I will refer to the balance of the convictions in Table 1, that is, convictions 1 ‑ 6, as the non-sexual offence convictions.
At the time of his offending the subject of the sexual offences (offending which occurred on dates unknown in the eight‑year period between 6 February 1986 and 30 November 1994) the applicant was aged between 27 and 36 years old.
In the period 1986 to 1993 the applicant was employed as a trades' assistant and/or a train driver assistant for a mining company, whilst in the period 1993 to 1994 the applicant was employed as a machine operator.
The applicant met his wife-to-be, LS, in 1981, when she was 18 years old, and he was 21 years old, and at a time when his wife‑to‑be had a daughter, RB, who was approximately 7 or 8 months old.
The applicant married LS in 1984, and whilst married they had three children, born, respectively, in 1982, 1984, and 1989.
All of the sexual offences were committed against RB, and at the time of the applicant's offending, RB was his stepdaughter, and she was aged between approximately, 6 - 14 years old.
In his first affidavit, the applicant deposes that:
(a)he was 'being incredibly selfish' (at the time he committed the sexual offences);
(b)at the time he and his wife were going through a 'rough patch' in their marriage, and 'were not having sex';
(c)he suspected his wife was having an affair, and he felt that if she was cheating on him that 'somehow justified what [he] was doing to' RB;
(d)in his mind RB 'freely came to [him] to allow [him] to abuse her'; and
(e)he was drinking heavily at the time he committed the sexual offences, and the alcohol 'diminished [his] inhibitions' and made him 'feel more confident to offend against' RB.
As I have already stated, the applicant's sexual offending against RB occurred on dates unknown in the eight-year period between 6 February 1986 and 30 November 1994, however the sexual offences with which he was charged and convicted were not isolated; rather, the conduct the subject of the sexual offence convictions was representative of a course of conduct. Furthermore, the offending occurred at the then family home and only came to an end when RB made a complaint to the police (and I note for completeness that previous complaints by RB to her mother were not believed by her mother, and that when the applicant was confronted by RB's mother about RB's allegation, the applicant said that RB was lying).
A copy of the amended statement of material facts concerning the sexual offences was not attached to the application, however the sentencing judge had the following to say about the applicant's offending when sentencing the applicant on 29 May 1995:
All the offences occurred at the then family home on dates unknown between 6 February 1986 and 30 November 1994. The offences you have admitted were not isolated but representative of a course of conduct towards the child to whom you were step father. You are now aged 37 and she is now aged 16.
Crown counsel provided me with this statement of facts which were admitted, on your behalf, by your counsel:
Your Honour will also note from the complainant's statement the complainant alleges the [applicant] began touching her when she was 6 years of age, and the alleged acts include anal and vaginal penile penetration, fellatio, cunnilingus, indecent dealings in a number of manners, and naked bodily contact between the [applicant] and the complainant which is referred to in the papers as - and I quote - 'a naked cuddle.'
The activity predominantly occurred usually when the complainant's mother was out of the house and the [applicant] would ask her whether she wanted to do it - reference to some sexual encounter; the complainant states that she was pressured into it - and would act in such a manner that it would appear that he was upset and told her that she didn't love him. The complainant also states, particularly at page 4 of the brief for prosecution, and I quote, 'He had a total manipulation over her,' and I end the quote there.
On page 6 of the brief the complainant also indicates that if she ever wanted something the [applicant] would seek a sexual favour from her in return. At other times the [applicant], when refused by the complainant, would become angry, he would yell at her, and in order to pressurise her he would say - and would also on other occasions pressurise her by allowing her sisters to do things which she would want to do but he would refuse to allow her to do if she did not allow him to participate in some sort of sexual activity.
The extent of the [applicant's] demands is clearly indicated, in our respectful submission, sir, by the fact that the complainant states the [applicant] would write notes to her school in order to get her out of school so he would get what he wanted when her mother was not at home. I have laid that by way of background in relation to all of these charges and the specific facts which are these, sir.
As to count 1, when the complainant was 7 she recalled an incident when she went into the kitchen one morning and the [applicant] had no underpants on. He told her to take her underpants off but to keep her skirt on in case her mother would walk into the room. The complainant complied and sat on the [applicant's] lap with her back facing his chest and her legs on either side of his legs.
Her skirt was covering her except for the back which was bare and her bottom was on his groin. The touching is what the crown - that is the bare bottom on his groin, was the touching which the crown relies upon as being the indecent dealing. He stopped touching her in that way when they were interrupted by his wife.
The complainant's mother later asked the child if anything was wrong and not to be afraid to tell her. She did and her mother began crying. When the [applicant] was later told by the complainant that she had told the mother, he made her - that is the complainant - tell the mother that it was a lie.
She says at page 1 and over on 2 of the brief in respect of this matter, sir, that the behaviour continued for about twice a week until she reached the age of 8 or 9 when anal sex started. I deal specifically now with the facts of counts 2 and 3 together. Between the end of 1987, the beginning of 1988, the complainant recalled that around the first time it happened the [applicant] came into the lounge room and started touching and rubbing his hand up and down her arms, legs and face.
He put his hand inside her underpants and began touching the outside of her vagina. The touching of her vagina in that way is the subject matter of count 2, sir. The [applicant] then kissed the complainant on the lips and then put on a blue movie. He then told her that he was going to try something, that it might hurt her at first.
He told the complainant to take her clothes off. He took his shorts and underpants off as well and then he anally penetrated the complainant, and that is the subject matter of count 3, sir. The complainant states that he penetrated her a bit and she screamed because it hurt. The complainant said that the anal sex occurred about once a week until she was 12 or 13, always when the mother was out.
I deal with count 4, sir, at page 4 of the brief. The complainant said that when she was either 11 or 12 years of age she remembered that the [applicant] was sitting on top of a chest of drawers with just a shirt on. He made her give him what she described as a head job, sir. She remembered her sister walking past and the [applicant] sending her out to ask her sister if she had seen anything. Her sister told her that she had seen the [applicant] naked.
The [applicant] then told the complainant to tell her sister that, and I quote, 'She was seeing things and it wasn't true.'
Obviously the introduction of his penis into her mouth is the subject of count 4 on the indictment.
As to count 5 the complainant recalls an incident when her family had just returned to Perth from Queensland at the end of January, early February, 1993. The family was staying at her grandmother's house - grandfather's house, I should have said, your Honour - and on one occasion she remembered the [applicant] coming into the toilet where she was. he was on medication at the time and the [applicant] and the complainant participated in what the [applicant] called a naked cuddle; that is, when both of them took their clothes off and merely cuddled.
She said that the [applicant] was in the middle of cuddling her when he ejaculated onto her vagina. The [applicant] monitored the subsequent menstrual cycles of the complainant because he had feared that she may have fallen pregnant. As to counts 6 and 7, which can be seen at page 7 of the brief, between 1 October 1994 and 30 November 1994 the complainant said that when her mother was out on one occasion the [applicant] made her have oral sex with him in the lounge room. Obviously the introduction of his penis into her mouth is the subject matter of count 6.
As to count 7 the [applicant] then went on to demand, or wanted, vaginal sex and he started to have it - that is, he penetrated her vagina with his penis - but the complainant refused and withdrew and curled up into a ball. He became angry, she described, when she told him that she did not want to participate. That was the last occasion when the abuse occurred as the complainant then made her complainants to the police shortly thereafter.
Might I quote a passage from the papers at page 7 of the brief, sir, to indicate the girl's attitude in respect of all this conduct? At page 7 of the brief the girl states:
He has sexually molested me for the past 10 years. I knew what he was doing was wrong. I have told my mother on a couple of occasions……fed up with it and I decided it was time to tell someone.
The [applicant] was subsequently confronted by the complainant's mother once the complainant made clear to her mother what had been happening. The [applicant] denied that he had done what she had claimed and claimed that his wife had no faith or trust in him and pleaded with her repeatedly not to take the matter any further and allow the complainant to cool down over several days.
The complainant's mother informed the [applicant] that a complaint had been made to the police in due course and the [applicant] told her that he was going to plead guilty without him reading any statements to save everyone the pain of having to go through court. On 20 November 1994 the [applicant] was spoken to by detectives attached to the CIB child abuse unit. In the initial oral interview, sir, the [applicant] said amongst other things - and I summarise - that what the complainant would have said would have been the truth and that she would not lie.
He claimed to have had what he referred to as 'encounters' with the complainant and denied that he had ever had 'full-blown sex with her'. He admitted having performed oral sex with her, him on her, on 'heaps of times'. He also admitted having anal sex with her on only one occasion and finally claimed that intercourse had commenced a couple of years earlier - that is, prior to the interview - and that it had occurred numerous times.
The nature and seriousness of the offences (s 6(4)(e))
The nature and seriousness of the offences were described by the sentencing judges in this way:
Whilst there are undoubted mitigating factors, to which I have referred in some detail, nonetheless the seriousness of these offences inevitably calls for a substantial custodial sentence in the hope that it will act not only as a personal deterrent to you but as a general deterrent to others who may contemplate similar conduct.
By reason of the prolonged and repetitive sexual abuse of your child victim, to whom you were in a position of trust, you have deprived her of a normal upbringing and caused her significant emotional trauma and distress, which I have no doubt will be long standing. Your conduct had the disturbing feature of increasing sexual intensity over many years with the consequential tendency to corrupt the child.
Notwithstanding the plea made on your behalf by your defacto wife the dominant sentencing considerations in your case are punishment and general and personal deterrence.
Whilst this case does not involved violence or the use of force your conduct constituted a gross abuse of trust and the courts must impose sentences which reflect the seriousness of the conduct and the need to protect young children from it.
It follows from the above that the sentencing judge considered the offending to be serious. In my view however, the offending was of the very serious kind in that it was offending:
(a)which commenced when RB was approximately 6 years old and continued until she was approximately 14 years old;
(b)that continued for a period of eight years;
(c)that only stopped when RB reported the offending to police;
(d)that constituted a gross abuse of trust;
(e)against a child who was vulnerable;
(f)that involved manipulation and grooming;
(g)that persisted, notwithstanding that RB made complaints to her mother, complaints which the applicant said were unfounded;
(h)in the family home where RB was entitled to feel safe;
(i)that occurred during a time when the applicant's wife and other children lived in the family home;
(j)which, amongst other things, involved the applicant writing leave permission notes to RB's school to enable him the opportunity to offend against her;
(k)which carried with it a risk to RB of pregnancy and/or the contracting of a sexually transmitted disease; and
(l)that only stopped once RB herself reported the offending to police.
In addition, whilst it is apparent from the transcript of the applicant's sentencing that RB provided a victim impact statement, there is no discussion as to the contents of that statement.
Nonetheless, there is no doubt that the offending would have had, and would likely continue to have, devastating effects on RB. As the sentencing judge observed, RB was 'deprived of a normal upbringing' and suffered 'significant emotional trauma and distress'. Further, as is apparent from the materials forming part of the application, RB engaged in years of counselling following the offending being discovered, and she 'still struggles due to the sexual and emotional abuse [that] she suffered'.
It is of course well established that victims of child sexual abuse suffer profound and deleterious effects for many years, if not their whole lives, and it is inevitable that victims suffer psychological damage. See generally: SAL v The State of Western Australia [2021] WASCA 192; R v Gavel [2014] NSWCCA 56 [110]; R v MJB [2014] NSWCCA 195 [49].
The length and kind of sentence imposed in respect of the convictions (s 6(4)(a))
As I have already stated, the total effective sentence imposed on the applicant for the sexual offence convictions was 7 years' imprisonment. The sentencing judge (seemingly) reduced the sentence on account of early pleas of guilty, and he also noted that there were a number of mitigating factors, namely prior good character, remorse, cooperation with authorities, and rehabilitative efforts undertaken.
The length of time since the convictions were incurred (s 6(4)(b))
As I have already stated, the sexual offence convictions were entered on 29 May 2005.
It follows that as at the date of the hearing of the application, a period of almost 30 years has elapsed since the sexual offending convictions were incurred.
The circumstances of the applicant at the time of the application (s 6(4)(d))
The applicant is currently 65 years old.
In his first affidavit the applicant deposes, in effect, to the following:
(a)following his arrest for the offending, his relationship with his wife 'crashed', and she moved to Queensland with both RB and their biological children;
(b)he contacted his wife after his parole period came to an end and he convinced his wife to take him back, and that 'she moved back to Perth approximately 18 years ago';
(c)he is still married to his wife and they just celebrated their 40th wedding anniversary;
(d)he has a 'close' relationship with his biological children and a 'great relationship' with his grandchildren;
(e)his grandchildren are aware of his offending although they do not know 'the specifics';
(f)his whole family and some close friends are aware of what happened, although this has not affected his relationship with those people; rather, he believes the relationships have improved, and that is because he does not argue with his wife the way he used to, and he has ceased drinking alcohol;
(g)he thinks that RB will never fully forgive him for what he put her through, but they are 'able to maintain an amicable relationship', and that whilst RB has not expressed that she does not want him to visit her interstate where she now lives, he has 'allowed her to live her life away from him' (emphasis added);
(h)he has financially supported his wife to go and visit RB, and at times he has also financially supported RB; and
(i)he commenced working for a mining company sometime in 2021, however he suffered a workplace injury within six months of joining and he has been on workers' compensation since January 2022.
In addition to the above, the applicant in his first affidavit deposes to various matters concerning the counselling and rehabilitation that he has undertaken following his sexual offending, namely that:
(a)he participated in the Holyoake Dependent's Programme in 1995 (although he has no details of his attendance given the passage of time);
(b)he engaged in some group therapy for his sexual offending, and that therapy commenced in February 1994; and
(c)he has not engaged in any further counselling other than the various court ordered programmes; and that,
(d)following release from prison he has not engaged in any further counselling, and that is because:
(i)he was assessed as being 'a low risk of reoffending whilst in prison' (emphasis added);
(ii)whilst on parole there was no requirement for him to engage in any further counselling; and
(iii)he felt that he had addressed his offending through the counselling programmes which he had undertaken.
In addition, and relevantly, the applicant in his first affidavit deposes that 'through counselling [he] learnt that [RB] was the place [he] went for attention and sexual gratification' and that he 'did not have any sexual interest in younger people or children'. The applicant also deposes that he never sexually assaulted [his] biological daughters or son'. The applicant deposes further that he believes that 'alcohol played a significant role in [his] offending', and that he was 'constantly under the influence of alcohol when he abused [RB]'. Lastly, the applicant deposes that his offending against RB was 'opportunistic in the sense that [RB] was available to' him.
It is convenient to note that notwithstanding that the applicant deposes that he did not have a sexual interest in young people or children, he clearly had a sexual interest in at least one such child, namely RB (and he possessed that interest for approximately eight years), and indeed, he deposes to the fact that he sought sexual gratification from offending against her. In addition, whilst alcohol and opportunism (as identified by the applicant) may well have played some role in the applicant's sexual offending against RB it must be remembered that his offending occurred over a period of eight years.
In any event, during the course of the applicant's sentencing for the sexual offences the sentencing judge remarked on the applicant's rehabilitative efforts, observing that:
(a)that the applicant participated in the Holyoake Dependent's Programme in February 1995, and attended 12 sessions and participated in group therapy;
(b)that a clinical psychologist had provided a report dated 28 April 1995, and concluded as follows:
There has been a rumour of his experiencing sexual abuse as a child, which may be a causative factor, but this has not been proven. To add to his problems [MRS] appears to have become addicted to alcohol, and also 'addicted' to his relationship with his step daughter.
He reports feeling guilty and remorseful about the abuse and also because he was not able to get out of the cycle of destructive behaviours. The clinical factors of the CAQ [which I take to be a reference to a 'Clinical Analysis Questionnaire'] reflect this guilt, self-criticism, depression and anguish.
To his credit, he has admitted to seven counts of sexual abuse and does not wish for his step-daughter to experience any further anguish, by challenging her statement.
He states that he is currently undergoing counselling with S.A.I.F. [which I take to be a reference to 'Sexual Assault in Families Inc'] and has organised counselling for his family in Queensland.
Should he receive a custodial sentence, I consider it is imperative that he participate in the sex offender's program which is currently available. The fact that he is willing to explore the reasons for his behaviour and make amends for his wrongdoing, is a positive sign. However, I feel that at present he poses a risk to society, but he can address this problem with appropriate assistance.
(bold text added for emphasis but original underlining)
(c)that a psychologist and the Acting Programme Director of Sexual Assault Families Inc had provided a report dated 22 May 1995 which concluded as follows:
[MRS] commenced group-therapy in February 1994, the first available commencement date. The Introduction module has several aims including the provision of general information regarding the causes and effects of sexual assault on children, and importantly, the challenging and correction of cognitive distortions. I was one of the facilitators of this group. I found [MRS] to be an active participant who accepted full responsibility for his offences right from the beginning of treatment. He was remorseful for the harm he had caused and eager to do whatever he could to prevent further harm to her. He was keen to address the issues contributing to his offending, and in no way offered these as excuses for his offending. He provided a good model to other men in the group by being scrupulously open and honest with himself and the group. His level of insight, openness and accepting of responsibility was unusual for an offender at this stage of treatment and I would assess his response to treatment as excellent.
In addition, I note that one of those individuals who has provided an affidavit in support of the application has deposed to the applicant being ashamed of his sexual offending at the time of his release from prison. Besides that one reference I note that the other individuals providing affidavits in support of the applicant are silent as to the applicant's remorse, although of course, as is discussed more fully below (see [54] - [58]), they do say, in effect, and amongst other things, that the applicant is a changed person since he was released from prison and because he has stopped drinking alcohol.
The court in WHW at [72] observed, amongst other things, that:
… 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.
Importantly, 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 those matters which I have referred to in [39] and [42].
In terms of these matters, it is to be noted that:
(a)first, none of the reports referred to at the sentencing hearing have been provided as part of the applicant's application, and that is explained by the applicant on the basis that the matters the subject of the reports were from so long ago. Whilst the applicant's explanation in this regard is understandable, it does mean that the court only has before it those conclusions of the authors of the two reports as referred to by the sentencing judge;
(b)secondly, there is no material before the court, including within the affidavit material from the applicant, evidencing that the applicant participated in the sex offenders treatment programme whilst in prison for the sexual offences;
(c)thirdly, the applicant does say in his affidavit that he did not participate in any further counselling once he went through the various court ordered programmes, and that was because he was not required 'to do anything more that what [he] had already done', and because, it seems he was considered to be a low risk of reoffending whilst in prison;
(d)fourthly, the clinical psychologist observed that the applicant can address his risk to society with appropriate assistance, not that he has addressed his risk to society; and
(e)lastly, there is no evidence before the court that the applicant has in fact addressed any risk (or any residual risk) to society which he might have by seeking the appropriate assistance, and indeed, the applicant appears to accept that he has not sought that further assistance. In this regard the applicant in his affidavit deposes, relevantly, that there was no need for him to do any further counselling whilst out on parole for the sexual offence convictions, and also that he felt that he had addressed his offending through the counselling and programmes which he had done.
In written submissions dated 21 October 2024 counsel for the applicant submitted that notwithstanding that there was no formal opinion before the court as to the applicant's risk of reoffending, the court could nevertheless be satisfied that the applicant was a low risk of reoffending having regard to the following matters:
(a)the applicant's last convictions were in May 1995, which was over 29 years ago, and the applicant has not reoffended in any manner since that time;
(b)while the sexual offences amounted to serious offending, it was isolated to one complainant and occurred in a rather specific set of circumstances (and during oral submissions counsel for the applicant submitted that those circumstances were, in effect, that there was only one complainant, and that the offending occurred against just that one complainant notwithstanding that the applicant was also surrounded by other children);
(c)following the applicant's arrest for the sexual offences he engaged in extensive sexual offending counselling, including for his alcohol consumption;
(d)the applicant demonstrated significant insight into his offending, which is something that is accepted by the respondent to these proceedings; and
(e)the applicant is supported by a strong network of family and friends, all of whom are aware of his sexual offence convictions, and this in and of itself serves to guard against the applicant's risk of reoffending.
It is perhaps appropriate that I turn to address the respondent's position concerning the applicant's risk of reoffending. In this regard, in written submissions the respondent submitted as follows:
6.… The Applicant has not engaged in any counselling or therapy since the conclusion of his Court mandated programmes and has not provided any independent psychiatric or psychological evidence to support his application.
…
33.Despite the insight demonstrated by the Applicant, both at the time of the offending and in the Application, and the time that has passed without the Applicant reoffending, the applicant has not undergone any counselling or therapy since attending court order programs. There is no independent psychiatric or psychological report to establish that the Applicant is of low risk or re-offending.
34.In light of the nature of the [sexual] offending and its character as being a sustained abuse of a position of trust against a vulnerable person, the absence of any further counselling or therapy or independent expert evidence as to the Applicant's risk of re‑offending at the time of the Application is significant.
(citations omitted)
Besides these matters, and in oral submissions, counsel for the respondent submitted, in effect, that the applicant could have provided a report from a clinician with relevant expertise to express an opinion as to whether the applicant was rehabilitated and also his risk of reoffending, but the applicant chose not to do so.
Against this background, and notwithstanding the submissions made by counsel for the applicant referred to at [48], 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 those matters raised by counsel for the applicant in order 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]. Furthermore, I consider that to make a finding of that nature would be to fly in the face of that which the clinical psychologist stated in the report dated 28 April 1995, namely, that the applicant 'can address [his risk to society] with appropriate assistance': see [42(b)]. Given that the applicant accepts that he did not seek that assistance whilst in prison or, alternatively, following release from prison, the court cannot be satisfied that he is not a risk of future reoffending.
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 first 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 AW, who is the fiancé of one of the applicant's biological daughters. AW states, relevantly, and amongst other things, that: he has known the applicant for approximately 8 ‑ 10 years; he has found the applicant to be a welcoming and supportive father-in-law; he was shocked to learn of the applicant's offending; he has no issue leaving his 3-year-old daughter with the applicant, and he trusts the applicant; he considers the applicant to be dependable and trustworthy; the applicant told him that alcohol played a huge role in his offending; that he and the applicant will only have the 'odd beer together' and that he has never seen the applicant drunk; that the applicant is 'great with children' and that the applicant 'keeps his grandchildren busy and even gets them to work to earn a bit of pocket money'; and that he has observed that the applicant will not 'stay with the kids himself just because of what happened in the past'.
The second reference is from BMRK, the applicant's sister, who states, relevantly, and amongst other things, that: she was completely shocked when she learned of the applicant's offending; she considered that the applicant is a truly kind and caring person; she considers him to be generous as evidenced by the fact that he has recently taken over the care of his displaced mother; she considers that whilst the applicant was engaging in counselling he became 'more self‑aware'; and she considers the applicant to be a selfless and loving grandfather.
The third reference is from LS, the applicant's wife, who states, relevantly, and amongst other things, that: when in late 1994, her daughter told her of the applicant's offending she was shocked, confused and disgusted, and she had no idea what had been going on and does not understand why the applicant committed the offences against her daughter; upon learning of the applicant's offending she separated from him although remained in contact, and that contact continued whilst the applicant was in prison as well as after he was released; she and her children (including RB) engaged in counselling for a number of years after she learned of the offending; she was willing to accept the applicant back into the family home upon the applicant's completion of sexual abuse counselling and also on the basis that he abstain from drinking alcohol; that RB does have contact with the applicant on occasion mainly when she requires financial assistance; she considers that the applicant's offending occurred whilst he was 'addicted to drinking' but that after release from prison the applicant 'became a completely changed person' in that he was 'more understanding and had a more positive outlook on life'; and that leaving aside his offending, the applicant has 'otherwise been a good father and husband and now grandfather'.
The fourth reference is from PJL, the applicant's brother‑in‑law, who states, relevantly and amongst other things that: he has known the applicant for 20 years; he did not have any adverse reaction towards finding out about the applicant's sexual offending; he considers the applicant to be a very hardworking conscientious father and grandfather, and that he has seen the applicant continually display a caring attitude; and although he has observed many interactions between the applicant and children at family and social gatherings, he has 'not seen anything of concern or that there is a risk to the children'.
The last reference is from SRP who is the applicant's nephew, who states, relevantly and amongst other things that: he has noticed a shift in the applicant's demeanour since being released from prison; that the applicant had to do a lot of counselling to address his sexual offending and also stopped drinking alcohol, and that the applicant became a different person when he stopped drinking; that the applicant is very open about what happened with RB and his offending; that the applicant is always available to assist with his (SRP's) children and that the applicant is someone whom she trusts and that she regards as a good role model.
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, although it is unclear from a number of those authors whether they are aware of the nature and extent of the applicant's sexual offending against RB. Nonetheless, the material does perhaps underscore that the applicant has been able to improve himself since his release from prison. However, whilst the references describe the applicant's changed behavior since being released from prison and having stopped drinking alcohol, that is still insufficient to enable the court to make 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))
As I have stated at [38(i)], the applicant is presently employed by a mining company, however he has been on workers' compensation since January 2022 following a workplace incident.
The applicant in his first affidavit deposes that the workplace incident occurred at a time whilst he was on six-month probation with the mining company and that whilst he remains on workers' compensation the company is unable to terminate him.
The applicant deposes further in the first affidavit that:
(a)when he applied for his position at the mining company no police clearance certificate was required;
(b)he is due to return to work in 2024 and that he wants to be offered full time work by that mining company;
(c)he is aware from speaking with other employees at the mining company that the mining company has changed its policy and is likely to require him to provide a police clearance certificate before offering him full time employment (and to this end the applicant has annexed to his affidavit a Seek online job advertisement from the mining company which states, amongst other things, in effect, that a police clearance certificate is required);
(d)if he is not employed at the mining company, he will need to find work elsewhere, and he is aware from online job advertisements that other mining companies would require a police clearance certificate as part of any job application, and that this is an 'increasingly rapid trend towards the standardization inclusion of nationwide police checks with employment applications in the mining industry'; and
(e)if he loses his job and is unable to get another due to his recorded convictions, he will suffer financially and be required to sell his investment property (which has a mortgage of $44,500) or his primary residence (which has a mortgage of approximately $135,000).
I make the following observations concerning this material:
(a)first, there is no evidence before the court that the applicant has in fact been prevented from engaging in a particular profession, trade or business because of the sexual offence convictions ‑ a point which has also been observed by the respondent in written submissions; and
(b)secondly, the possible financial consequences to the applicant which might arise in the event that the sexual offence convictions are not declared spent is a matter which I would necessarily take into account in the balancing exercise of whether or not to declare those convictions spent.
Whether there is any public interest to be served in not making an order (s 6(4)(g))
I have observed elsewhere what is meant by 'public interest' and the legal principles to be applied when considering that interest, and I reproduce those observations in [65] - [74]. See: MKF v The Commissioner of Police[2022] WADC 111.
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 [No 4] [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 considered 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… 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.
80Questions 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.
(citations omitted)
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 at [66] in the following way:
[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 at [81] that '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'.
Counsel for the applicant submitted, in effect, that:
(a)it would not be in the public interest for the applicant's current employer or indeed, any prospective employer in the mining industry to be aware of the applicant's sexual offence convictions;
(b)the applicant would not come into contact with any minors whilst working in the mining industry, and in support of this submission reliance was placed on the applicant's second affidavit in which the applicant states, in effect that:
(i)he has worked in the mining industry for 25 years and has never worked with employees under the age of 18 years old;
(ii)in his time working with his current employer he has never worked with employees under the age of 18 years; and
(iii)regulation 634 of the Work Health and Safety (Mines) Regulations (2022) (WA) provides, in effect, that a person under the ae of 16 years is not to work at a mine, and a person under 18 years is not to work underground or in certain areas of a mine site; and
(c)in the event that the sexual offence convictions were declared spent, interested agencies responsible for working with children checks would nevertheless be able see the applicant's sexual offence convictions and discriminate against him.
On the other hand, counsel for the respondent observes, amongst other things, that:
(a)notwithstanding that there are agencies that would have access to spent convictions and take those spent convictions into account, there are other agencies which require a police clearance, with one such example being for liquor licensing, and that those agencies and prospective employers of the applicant should continue to be able to source information concerning the applicant's convictions in circumstances where the court was unable to make a finding that the applicant was a low risk of future reoffending;
(b)the mere passage of time between the sexual offences and the application does not amount to evidence that the applicant is a low risk of reoffending;
(c)whilst family members have provided character references in support of the application, those individuals are not independent;
(d)the comments from the authors of the reports at the applicant's sentencing hearing do not, and could not, support a finding that the applicant is a low risk of reoffending (and in making that submission counsel for the respondent referred to the passage from DC referred to at [51] above); and
(e)the only evidence presented to the court concerning the applicant's risk of reoffending is the applicant's own evidence, and that evidence is not sufficient to enable the court to make a finding that the applicant is a low risk of reoffending.
In light of the above, there are two 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, and in this regard I refer to and repeat my comments at [38] ‑ [59] and, in particular [47], [51], [52], and [59].
The second matter of public interest concerns Working with Children Checks even if the convictions are spent.
In this regard, 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 (Screening) Act 2004 (WA) (WC(S) Act).
Section 27 and s 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 provisions of sections 27 and 28 of all spent convictions.
Table
1.A person in respect of whom section 34 of the [WC(S) 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(S) Act].
…
3.A person who is disclosing information where the [WC(S) Act] section 33A, 34I or 39A applies.
'Criminal record' is relevantly defined in s 4 of the WC(S) 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(S) Act includes a spent conviction.
In light of the above, and as counsel for the applicant observes, interested agencies would nevertheless have access to the applicant's sexual offence convictions even if those convictions were declared spent.
There is of course no evidence before the court that the applicant works with children (and indeed the evidence before the court is that the applicant does not work with children: see [75(b)]) or is in need of undertaking a Working with Children Check.
Nonetheless, the provisions of s 27 and s 28 of the 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.
Conclusion
Given that I am unable to make a finding as to the applicant's risk of reoffending in a manner similar to that which led to the sexual offence convictions, I consider that the public interest is to be served in not making an order to spend those convictions (being those convictions 7 ‑ 13 in Table 1).
When considering that public interest, I have weighed the possible impact of not spending the convictions against the possible impact (including financial impact) on the applicant, and I have also taken into account the rehabilitative objectives of the Act. However, when those matters are weighed against the (very significant) matter referred to in [87] (which is discussed more fully in these reasons), I consider that the latter should prevail.
The application is therefore dismissed in terms of the applicant's sexual offence convictions.
Notwithstanding that the application is dismissed in terms of the sexual offence convictions, I do not consider that there is any public interest in not making an order for spending the applicant's non-sexual offence convictions, that is, convictions 1 ‑ 6 in Table 1. Importantly I note that the non-sexual offence convictions:
(a)occurred in the period April 1976 to April 1981, which is over 40 years ago;
(b)do not appear, based on the penalties received, on their face to be particularly serious, although as I have already stated, there are no details of the matters before me;
(c)did not attract a prison sentence; and
(d)are not offences which the respondent opposes being ordered spent.
In the circumstances, the application is granted in terms of the non-sexual offence convictions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Associate to Judge Egan
14 NOVEMBER 2024
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