Nguyen v Wyk

[2021] WASC 66

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NGUYEN -v- WYK [2021] WASC 66

CORAM:   MCGRATH J

HEARD:   24 FEBRUARY 2021

DELIVERED          :   11 MARCH 2021

FILE NO/S:   SJA 1066 of 2020

BETWEEN:   CHAU THI KIM NGUYEN

Appellant

AND

ELIZABETH VAN WYK

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   DEPUTY CHIEF MAGISTRATE WOODS

File Number            :   PE 27164 OF 2020

Catchwords:

Criminal law - Appeal against sentence - Stealing as a servant - Whether sentence manifestly excessive - Express error of law - Failure to take into account mental illness - Failure to specify discount afforded under s 9AA of the Sentencing Act

Legislation:

Criminal Code (WA), s 9AA, s 378(7)
Sentencing Act 1995 (WA), s 45

Result:

Extension of time in which to appeal granted
Leave to appeal on grounds 1 and 3 granted
Leave to appeal not granted on ground 2
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Allie v The State of Western Australia [2016] WASCA 6

Cartwright v The State of Western Australia [2010] WASCA 4

Dimanopoulos v The State of Western Australia [2011] WASCA 62

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

GNR v The State of Western Australia [2015] WASCA 5

Gok v The Queen [2010] WASCA 185

Heaney v The State of Western Australia [No 2] [2013] WASCA 238

Krijestorac v The State of Western Australia [2010] WASCA 35

Pflug v The State of Western Australia [2018] WASCA 65

R v Tognini [2000] WASCA 31

R v Tsiaras [1996] 1 VR 398

Roberts v The State of Western Australia [2014] WASCA 239

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sharpe v Vinning [2020] WASCA 79

Thompson v The Queen [2005] WASCA 223

Wheeler v The Queen [No 2] [2010] WASCA 105

Wright v McMurchy [2012] WASCA 257

MCGRATH J:

1. On 31 July 2020 the appellant was convicted, upon her own plea, of one offence of stealing as a servant contrary to s 378(7) of the Criminal Code (WA). The learned magistrate imposed an 8 month term of imprisonment suspended for 12 months.

2. The appellant now seeks leave to appeal against the sentence imposed. The appellant contends that the learned magistrate erred in law by failing to take into account a relevant factor in mitigation, namely that she was suffering a mental illness at the time of the offending, and secondly, by failing to afford the appellant a discount for the plea of guilty pursuant to s 9AA of the Sentencing Act1995 (WA). The appellant further contends that the learned magistrate imposed a sentence that was manifestly excessive in that a different type of sentence should have been imposed, namely a community based order. In addition, the appellant seeks a spent conviction order.

3. The appellant applies for an extension of time in which to appeal.[1]  The delay in commencing the appeal was a consequence of the appellant applying for a grant of legal aid and a review being conducted of the sentence.[2]  The application for the extension of time was not opposed by the respondent.[3]  I am satisfied that it is in the interests of justice that the extension of time in which to appeal should be granted.

   [1] Appeal Notice filed 16 September 2020.

   [2] Affidavit of Ms Sinton, Legal Practitioner, affirmed 16 September 2020.

   [3] Respondent's Written Submissions filed 19 February 2021.

4. For the following reasons, I have determined that leave to appeal is granted on grounds 1 and 3 and the appeal is allowed.  The sentence imposed by the learned magistrate is set aside and in lieu thereof a term of imprisonment of 6 months 2 weeks suspended for 8 months is imposed.  A spent conviction order will not be made. 

5. In these reasons for decision I will consider the following:

   1.The Magistrates Court proceedings.

   2.The grounds of appeal.

   3.An assessment of the merits of the appeal.

The Magistrates Court proceedings

1. The prosecution notice lodged on 4 June 2020 pleaded that between 1 March 2020 and 21 May 2020 the appellant whilst a servant stole money the property of her employer contrary to s 378(7) of the Criminal Code.[4]

   [4] Prosecution Notice lodged 4 June 2020, charge number PE 27164/2020.

2. On 31 July 2020 the appellant appeared in the Magistrates Court, represented by counsel, and pleaded guilty to the charge.[5]  The facts, which were accepted by the appellant, were in the following terms:[6]

   In relation to this matter, between 1 March 2020 and 20 May 2020, the accused was an employee of the Spud Shed at Innaloo.  During this time, the accused used other supervisor's login details and made refunds without any customers o[r] physical products present.  She placed the dockets underneath the till and removed the money from the till at the end of the day.  The store manager became suspicious and surveillance was placed on the accused and the false transactions were caught on camera.  The accused was spoken to by store management and made full admissions.  The amount stolen was $9000 and that has been repaid over a couple of days after being confronted.  3 June 2020, the accused was arrested and (indistinct) that she was waiting to contact Spud Shed for other matters.

   [5] ts 2 (31/07/2020).

   [6] ts 2 (31/07/2020).

3. In mitigation reliance was placed on the plea of guilty at the first reasonable opportunity and the remorse of the appellant who had made full restitution to her employer.  Further, the appellant relied upon two medical reports from Dr Ong, medical practitioner, who had been treating the appellant for a depressive illness.  Counsel submitted that there was a causal nexus between the depressive illness and the offending.[7]  The appellant had attended 14 counselling sessions with Dr Ong which supported a finding that the appellant was rehabilitating.  Counsel submitted that the appropriate disposition was a community based order with programming requirements.[8] 

   [7] ts 3 (31/07/2020).

   [8] ts 4 (31/07/2020).

4. The learned magistrate in imposing sentence observed that the offence of stealing as a servant was a very serious charge and the appellant's offending occurred over an extended period involving the use of other persons' details to carry out the stealing.  The learned magistrate accepted that the appellant had repaid the monies stolen and  apologised for the offending and had pleaded guilty at an early  opportunity.  Her Honour stated that general deterrence was a significant sentencing consideration in respect of the offending and imposed a term of imprisonment of 8 months suspended for 12 months.[9]

   [9] ts 4 ‑ 5 (31/07/2020).

Appeal

Grounds of appeal

1. The amended Notice of Appeal pleads two grounds of appeal in the following terms:[10]

   Ground 1:

   The learned sentencing Magistrate erred in sentencing the appellant by failing to take into account a relevant factor, namely the depression of the appellant.

   Ground 2:

   The learned sentencing Magistrate erred in sentencing the appellant to imprisonment, albeit suspended, when in all the circumstances a sentence of last resort was not open. 

   [10] Amended Notice of Appeal filed 18 January 2021.

2. After the hearing of the appeal I granted leave to the appellant to rely upon a third ground of appeal in the following terms:[11]

   Ground 3:

   The learned sentencing Magistrate erred in law by failing to reduce the sentence and refer to the reduction, on account of the appellant's plea of guilty at the first reasonable opportunity, pursuant to s 9AA of the Sentencing Act 1995 (WA).

Legal principles

[11] Appellant's Supplementary Submissions dated 2 March 2021.

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[12]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[13]

   [12] Criminal Appeals Act 2004 (WA), s 9(1).

   [13] Criminal Appeals Act 2004 (WA), s 8.

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[14]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[15]

   [14] Criminal Appeals Act 2004 (WA), s 9(2).

   [15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

3. The court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.[16] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.  That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the court determines that a different sentence should have been imposed.[17]

   [16] Criminal Appeals Act 2004 (WA), s 14.

   [17] Roberts v The State of Western Australia [2014] WASCA 239 [47].

Assessment of the merits of the appeal

1. I will now consider each ground of appeal.  I will first determine ground 1 given that the appellant contends that the magistrate made an express error of law.

Ground 1

1. By ground 1 the appellant contends that the learned magistrate erred in law by failing to take into account a relevant factor, namely that the appellant suffered depression. 

2. At the sentencing hearing counsel for the appellant tendered two medical reports from Dr Ong dated 10 June 2020 and 24 July 2020 respectively.  Counsel for the appellant during the plea in mitigation made detailed oral submissions addressing whether there was a causal nexus between the depressive illness and the offending.  The learned magistrate in her sentencing remarks made no reference whatsoever to the depressive illness or the medical reports. 

3. In written submissions the respondent conceded ground 1 and submitted that the matter should be remitted to the Magistrates Court to determine whether a different sentence should be imposed.  The respondent submitted that it was not necessary to determine ground 2.

4. The respondent further submitted that it was questionable whether Dr  Ong was suitably qualified to express an opinion in respect of whether the appellant suffered a mental illness causative of the offending.  Further, the respondent contended that the opinion of Dr  Ong was not capable of satisfying the court on the balance of probabilities that there was a causal connection between the appellant's depressive illness and her offending.

5. At the hearing of the appeal I expressed concern that the proposed remitting of the sentencing hearing would result in ground 2 not being determined; the consequence being that should a magistrate not impose a different sentence then there will invariably be an appeal in respect of that decision.  Counsel agreed with that proposition.  Therefore I determined that the matter would not be remitted to the Magistrates Court.

6. The respondent raises the issue of the expertise of Dr Ong for the first time on appeal having not objected to the two medical reports prepared by Dr Ong being received in the Magistrates Court.  The sentencing hearing proceeded with oral submissions made by counsel addressing the two medical reports.  It is only on appeal that the respondent questions the expertise of Dr Ong and does so in the course of the respondent's submissions.  In any event, I find that Dr Ong does have the relevant expertise to express an opinion in respect of the nature and effect of depression on his patient.  Dr Ong is a medical practitioner with a further qualification being a BA majoring in psychology.  As part of his medical practice he has treated the appellant with psychological counselling sessions and medication for her depression.  Dr Ong is qualified and well placed to express his opinion regarding the depressive illness of the appellant and the consequences of that depressive illness.

7. Dr Ong stated that the appellant was displaying symptoms of a major depressive illness.[18]  Further, Dr Ong stated that the appellant 'in her heartbroken state and distress' became withdrawn and that 'her head hurts and things became black' and she 'felt terror and darkness'.[19]  Dr Ong stated that 'somehow the compulsion to steal gave her a high distraction which seemed to ameliorate the dreaded pressure and discomfort in her head'.[20]  Dr Ong stated that in despair as a depressed person the appellant 'gave in to an impulsive act of stealing which gave her a form of escape and distraction from her plight.'[21] 

   [18] Report of Dr Ong dated 10 June 2020.

   [19] Report of Dr Ong dated 10 June 2020.

   [20] Report of Dr Ong dated 10 June 2020.

   [21] Report of Dr Ong dated 24 July 2020.

8. Dr Ong's reports support a finding that the appellant was suffering  a  depressive illness.  However, Dr Ong's reports are unsatisfactory in properly explaining the precise nature of the causative  link between the depressive illness and the offending.  Dr  Ong's reports make assertions but lack precision.  Further, the reports are unsatisfactory in determining the extent of any causative link. 

9. After carefully considering the two reports, I find that there is a causative link between the depressive illness and the offending.  However, I am unable to find that the depressive illness was a significant cause of the offending.  Certainly, the depressive illness formed part of the personal circumstances of the offending.  I accept that the depressive illness did have a limited causative role in the offending.  I do not accept that the depression was a significant mental impairment that had a significant causative effect in respect of the appellant's offending.

10. The relevance of mental impairment in the exercise of the sentencing discretion is established, having been outlined in numerous cases before the Court of Appeal.[22]  The authorities cite with approval the principles distilled in R v Tsiaris:[23]

    First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility.  Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.  Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served.  Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.  The illness may have supervened since that time.  Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.  Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

    [22] Thompson v The Queen [2005] WASCA 223; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Gok v The Queen [2010] WASCA 185.

    [23] R v Tsiaras [1996] 1 VR 398, 400 (per Charles & Callaway JJA & Vincent AJA).

11. I accept that the depressive illness suffered by the appellant reduces her moral culpability for the offending to an extent but not a significant extent.  Further the appellant's mental illness reduces the weight to be given in sentencing to general deterrence.  However the extent to which general deterrence is reduced is to a limited degree.  Despite the depressive illness general deterrence remains a relevant factor.

12. I grant leave to appeal in respect of ground 1 and the ground is upheld.  If a ground of appeal is decided in favour of the appellant, the court may dismiss the appeal if it considers that no miscarriage of justice has occurred.  Accordingly, I must determine whether a different sentence should be imposed.

    Ground 3

13. By ground 3 the appellant contends that the learned magistrate erred in law by failing to afford the appellant a discount for the plea of  guilty.  On 3 July 2020, at the first mention of the charge in the  Magistrates Court, the appellant informed the court that she would be pleading guilty.  On 31 July 2020, at the second mention of the charge, the appellant pleaded guilty.  Accordingly, I find that the appellant pleaded guilty at the first reasonable opportunity.

14. During the sentencing hearing the learned magistrate stated that the plea of guilty was at an early opportunity.[24]  However, the learned magistrate did not state the extent of any reduction in sentence afforded to the appellant for the plea of guilty and thereby erred in law.[25]

    [24] ts 4 (31/07/2020).

    [25] Roberts v The State of Western Australia [2014] WASCA 239 [46] ‑ [49].

15. The respondent concedes that the learned magistrate did err by failing to state the discount afforded.  That concession is properly made.  Accordingly, I grant leave to appeal in respect of ground 3 and the ground is upheld.

16. The respondent submits that a different sentence should not be imposed.  The respondent submits that the learned magistrate did afford a discount after finding that the plea was at an early stage and the sentence imposed did reflect the discount afforded.  I must now consider whether a different sentence should be imposed for the reason of this express error.  That is, whether there has been a miscarriage of justice. 

Should a different sentence be imposed?

1. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence.

2. Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. 

3. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[26] The sentencing options available to the court are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment. The two preceding options are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.

   [26] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

4. Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to five years, suspension may be ordered in cases involving serious offending.

5. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term of imprisonment.[27]  That is, all of the circumstances must be revisited.  The court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. 

Maximum penalty

[27] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

1. Whilst the maximum sentence that the magistrate could impose for an offence contrary to s 378(7) of the Criminal Code summarily was one of 2 years' imprisonment and a fine of $24,000,[28] it is relevant to have regard to the statutory maximum (10 years' imprisonment) and not merely the jurisdictional limit in assessing the seriousness of the offence.

Circumstances of the offending

[28] Criminal Code, s 426(2).

1. The offence of stealing as a servant is a most serious offence for the reason that it involves the abuse of a position of trust.

2. Turning to the circumstances of the offending, the appellant engaged in a planned systematic stealing from her employer over an  extended period of nearly three months.  During that period the appellant dishonestly used other supervisors' login details to make payment of refunds in respect of fictional products.  The money was placed under the cashier to be retrieved at the end of each day.  The stealing by the appellant did not comprise one aberrant action that occurred in the spur of the moment.  Rather, the appellant engaged in multiple acts persistently over an extended period.

3. The offending only came to light when her employer became suspicious.  It was necessary for the employer to use a surveillance device in order to establish the ongoing theft.  The appellant had devised a dishonest means by which she was able to steal small amounts of money on a continual basis without the likelihood of apprehension.

4. The amount stolen, being $9,000, is a reasonably significant amount.

Personal circumstances/Mitigating factors

1. As I have observed the learned magistrate did take into account that the appellant pleaded at an early stage.  However, her Honour did not expressly state that the plea was at the first reasonable opportunity and specify the discount afforded.  I find that the appellant should be afforded a 25% discount for the plea at the first reasonable opportunity. The respondent contends that the learned magistrate did adjust the sentence to reflect an appropriate discount for the plea of guilty.  The appellant contends that no discount was afforded for the plea of guilty.  The sentence imposed strongly supports the inference that the learned magistrate did grant a discount for the plea of guilty.  I am of the view that the learned magistrate did afford a 25% reduction for the plea of guilty.  Accordingly, a different sentence should not be imposed for that reason.

2. The appellant is a person of good character without any prior  criminal convictions.  The learned magistrate accepted that the appellant had made full restitution to her employer.  I accept that the appellant is remorseful and committed to her rehabilitation.  The court received a further letter from Dr Ong dated 26 August 2020 during the hearing of the appeal, with the consent of the respondent, that confirms that the appellant has continued with her counselling sessions and supports a finding that the appellant is committed to her rehabilitation.

3. As I observed when determining ground 1, the appellant was suffering a depressive illness during the period of the offending and there was a causal link between that illness and the offending.  I have made findings regarding the extent to which there was a causative link.  I accept that a different sentence should be imposed for the reason that the learned magistrate did not take this factor in mitigation into account when determining the sentence.

Range of sentences customarily imposed

1. The appellant did not refer to any sentencing range authorities. The respondent has referred to a number of authorities in respect of offending contrary to s 378 of the Criminal Code:  Pflug v The State of Western Australia;[29] Heaney v The State of Western Australia [No 2];[30] and Allie v The State of Western Australia.[31]  I have considered those authorities and in particular the cases referred to in Pflug v The State of Western Australia.

   [29] Pflug v The State of Western Australia [2018] WASCA 65.

   [30] Heaney v The State of Western Australia [No 2] [2013] WASCA 238.

   [31] Allie v The State of Western Australia [2016] WASCA 6.

2. In Pflug v The State of Western Australia the offender was convicted of five counts of stealing as a servant with the total amount stolen being $68,992 over a one week period.  The 44‑year‑old offender had no criminal record and was afforded a 20% discount for her plea of  guilty.  The offender had a recurrent depressive illness.  The appeal against the total effective sentence of 15 months' imprisonment was dismissed.

3. In Allie v The State of Western Australia the offender was convicted of one offence of stealing as a servant on his own plea.  The offender stole cigarettes to the value of $17,175.  The offender was 43 years old with prior relevant convictions and was afforded a 25% discount for his plea of guilty.  The sentencing judge accepted that the offender was experiencing psychological stress due to health issues of his children and had unresolved problems arising from him being abused sexually in his early teens.  The appeal against a term of 20 months' imprisonment was dismissed.

4. In Heaney v The State of Western Australia [No 2] the offender was convicted of two offences of stealing as a servant and four counts of stealing.  The offender who stole $77,000 over a 10 month period made full restitution.  The offender was 68 years of age with no criminal record.  The appeal against a total effective sentence of 2 years' imprisonment was dismissed.

5. The principle that may be distilled from the sentencing authorities is that the offence of stealing as a servant is serious, involving as it does the abuse of a position of trust with the consequence that significant weight is accorded to general deterrence with an associated reduction given to personal antecedents.[32]  Further it is often the case in offences of stealing as a servant that the offender has sound antecedents, without which they are unlikely to have been placed in a position of trust in the first place.[33]  A consequence of the application of these principles is that ordinarily the appropriate penalty is a term of imprisonment, in particular where the amount stolen is substantial or the offending involves multiple transactions or offences.

Assessment

[32] Dimanopoulos v The State of Western Australia [2011] WASCA 62.

[33] Heaney v The State of Western Australia [No 2] [2013] WASCA 238 [21].

1. After considering all relevant factors I have determined that the imposition of a suspended term of imprisonment was within the learned magistrate's discretion.  However, the length of that suspended term of imprisonment must be reduced.  I set aside the sentence imposed by the learned magistrate and in lieu thereof a term of imprisonment of 6  months 2 weeks suspended for 8 months is imposed.  Given that I have determined that a different sentence should be imposed it is not necessary to determine ground 2. 

Spent conviction

1. The appellant further contended that a spent conviction order should be imposed.  The learned magistrate declined to make such an order.  I will now consider whether a spent conviction order should be made.

Legal principles in relation to spent conviction orders

1. The power to make a spent conviction order is found in s 39(2)(a) ‑ (d) of the Sentencing Act. Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order. Relevantly, s 45 provides:

   (1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

   (a)it considers that the offender is unlikely to commit such an offence again; and

   (b)having regard to -

   (i)the fact that the offence is trivial; or

   (ii)the previous good character of the offender,

   it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

   …

   (2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.

   (3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

   (4)A spent conviction order is to be taken as part of the sentence imposed.

2. Accordingly, s 45 of the Sentencing Act directs the court not to make a spent conviction order unless three conditions are satisfied.  The  conditions, which are prerequisites to the making of the spent conviction order, are:

   1.The court must consider that the offender is unlikely to commit such an offence again.

   2.The offence must be trivial or the offender must be of previous good character.

   3.Having regard to the precondition that the offence must be trivial or the offender must be of previous good character, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

3. Therefore there are two preconditions that must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order.  The sentencing court has a discretion, not a duty, to make a spent conviction order.[34]

   [34] GNR v The State of Western Australia [2015] WASCA 5 [44].

4. The preconditions must be established by convincing evidence.

5. The term 'trivial' in its natural and ordinary usage means of little importance, trifling, insignificant.[35]  In Sharpe v Vinning,[36] the Court of Appeal considered the meaning to be given to the term 'trivial offence', stating:

   The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act directs attention primarily to the type or nature of the offence in question, including the inherent seriousness of the offence and the maximum penalty, having regard to the spectrum of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.

   As we have mentioned, the term 'offence' in s 45(1) refers to the acts or omissions (that is, the factual ingredients or elements) under a written law in respect of which the offender is to be sentenced in accordance with the Sentencing Act and the written law which imposed the criminal penalty for the relevant acts or omissions. It is apparent, therefore, that the material facts establishing guilt, which are the specific acts or omissions which establish the particular offender's criminal responsibility under the written law, must also be taken into account in determining whether the offence is 'trivial', within s 45(1)(b)(i). However, the relevant factors to be taken into account in determining whether an offence is trivial do not extend beyond the material facts establishing guilt, so as to include such matters as mitigating factors that are not part of the material facts establishing the offender's guilt or the objective and subjective personal circumstances of the offender.

   [35] GNR v The State of Western Australia [2015] WASCA 5 [49].

   [36] Sharpe v Vinning [2020] WASCA 79 [110] ‑ [111].

6. If the conditions for the making of a spent conviction order are satisfied the court is not obliged to make a spent conviction order.  The decision is discretionary.  Consideration must be given to all the circumstances of the offence and the offender as well as the public interest.[37]

   [37] Wright v McMurchy [2012] WASCA 257 [59].

7. The relevant principles in respect of the discretion to order a spent conviction order were outlined in R v Tognini:[38]

   In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character.  If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender.  It should take as the ordinary rule the fact that a conviction will be a matter of record with all of the consequences it may entail into the future.  It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

   That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment.  It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction would positively aide that person's rehabilitation in a way which may be seen to best accord with the interests of the community.  The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing for the protection of the community.

Assessment of the merits of the spent conviction application

[38] R v Tognini [2000] WASCA 31 [27] ‑ [28].

1. I turn now to consider each of the mandatory preconditions for a spent conviction order.

Is the offence trivial?

1. With respect to the precondition that the offence be trivial, I must consider the inherent seriousness of the offence of stealing as a servant and the maximum penalty available, and have regard to the range of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.  Further, the material facts that establish guilt, namely the specific acts which establish the appellant's criminal responsibility under the written law, must also be taken into account.

2. Accordingly, I must take into account the material facts establishing guilt being the specific acts of the appellant which established her criminal responsibility under s 378(7) of the Criminal Code.

3. Those material facts are relevant in establishing the appellant's guilt of the offence and are also relevant in deciding whether the offence is 'trivial' within the meaning of s 45(1)(b)(i) of the Sentencing Act. Other facts and circumstances of the offending including matters personal to the appellant are only relevant if the preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) are satisfied and, as a consequence, the discretion to make a spent conviction order is enlivened.

4. I have carefully considered the issue of whether the offending may be described as trivial.  I find that the offence committed by the appellant is not trivial.  The appellant stole from her employer over an extended period of nearly three months by executing multiple acts of dishonesty.  The amount stolen is a reasonably significant amount.

Is the appellant of good character?

1. I must determine whether the appellant is of good character.  I do accept that the appellant is otherwise of good character.

Is the appellant unlikely to commit such an offence again?

1. I must determine whether the appellant is unlikely to commit such an offence again.  I am required to predict the likelihood that the appellant will commit such an offence, not just any offence, again.

2. After carefully considering all of the relevant matters, I am unable to positively find that the appellant is unlikely to commit such an offence again.  I take into account the previous sound antecedents of the  appellant and that she did have a depressive illness during the period of the offending.  However, given the extent of the deception of the appellant and her persistence over an extended period I am unable to positively find that the appellant will not commit a future offence.

Determination

1. Accordingly, the preconditions for the making of an order for a spent conviction have not been established and therefore, such an order will not be made.  There is no proper basis for finding that the appellant is unlikely to commit such an offence again.  The offence is not trivial but I am able to find that the appellant is of good character.

2. In all of the circumstances, I am not satisfied that there has been a miscarriage of justice by the learned magistrate declining to make a spent conviction order.

3. For completeness, in the event that the preconditions had been met, I would not have exercised the enlivened discretion to order a spent conviction.  The appellant contends that the refusal to make a spent conviction order will impact adversely on her employment prospects and further, that there is no real public interest in the appellant's conviction for the offence being recorded and exposed to public scrutiny.  I have reached the determination that the appellant should not be relieved immediately of the adverse effect that the conviction may have.  The appellant has been convicted of committing an offence of stealing as a servant.  The appellant engaged in persistent conduct over an extended period.  In making that determination I have given full weight to the depressive illness of the appellant and all other mitigating factors. 

4. In all the circumstances, I am not persuaded that there is any basis for a finding that the appellant should be released immediately from the adverse effects of the conviction upon her.

Conclusion

1. Consequently, I make the following orders:

   1.Extension of time in which to appeal is granted.

   2.Leave to appeal is granted on grounds 1 and 3 and leave is not granted on ground 2.

   3.The appeal is allowed.

   4.The sentence imposed by the learned magistrate is set aside and in lieu thereof a term of imprisonment of 6 months 2 weeks suspended for 8 months is imposed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

GP

Research Orderly to the Honourable Justice McGrath

10 MARCH 2021