Nichols v Harnett

[2004] WASCA 311

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NICHOLS -v- HARNETT [2004] WASCA 311

CORAM:   MCKECHNIE J

HEARD:   8 DECEMBER 2004

DELIVERED          :   8 DECEMBER 2004

FILE NO/S:   SJA 1111 of 2004

MATTER                :Justices Act 1902

BETWEEN:   ZACHARY PAUL NICHOLS

Appellant

AND

DAVID HARNETT
Respondent

ON APPEAL FROM:

Jurisdiction              :  COURT OF PETTY SESSIONS

Coram  :MR P A NICHOLLS SM

Citation  :THE POLICE v ZACHARY PAUL NICHOLS

File No  :JO 7713 of 2004

Catchwords:

Criminal law - Sentencing - Spent conviction order - Whether appropriate - No new principles

Legislation:

Criminal Code, s 378(7)

Spent Convictions Act 1988 (WA)

Result:

Appeal allowed
Spent conviction order made

Category:    D

Representation:

Counsel:

Appellant:     Mr M J Bowden

Respondent:     Mr S F Rafferty

Solicitors:

Appellant:     Cannon Bowden & Co

Respondent:     State Director of Public Prosecutions

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

Brewer v Bayens (2002) 133 A Crim R 378

Tognini v McGuire (2000) 109 A Crim R 411

Case(s) also cited:

Allen v Powell [2000] WASCA 65

Docker v Faulkner (2000) 116 A Crim R 389

Dukes v Barrett (2001) 125 A Crim R 136

Skipper (1992) 64 A Crim R 260

Tambyrajah v Gablonski [2004] WASCA 105

1. MCKECHNIE J:  Towards 4.20 pm on 12 August 2004 Mr Nichols, who was employed as a retail assistant with Big W at the Kingsway City Shopping Centre, corner Wanneroo Road and Hepburn Avenue, Madeley, did a really silly thing.  He went into the lock up area and stole a small digital camera valued at $338.  A month or so later police executed a search warrant at his home and found the camera hidden between two towels in a cupboard beneath the laundry trough.  Mr Nichols was charged with stealing as a servant: Criminal Code s 378(7). At the first opportunity he pleaded guilty. The Magistrate imposed a conditional release order for a period of 12 months in the sum of $500. However, he refused to make a spent conviction order. He was satisfied that Mr Nichols was unlikely to commit such an offence again and that he was of previous good character. Correctly, he said: "That the offence is not trivial." As to the exercise of his discretion he said:

   "Well, there's been an adverse effect already in the sense you've lost your job, but in all the circumstances, bearing in mind your personal circumstances but in particular the nature of the offence, there is clearly a public interest in prospective employers knowing that you've done something like this.  And on balance, I am not persuaded that it would be appropriate to exercise the discretion to make such an order in your favour."

2. On 2 December 2004, I granted leave to appeal on the ground that the learned Magistrate erred in concluding that it was not appropriate to exercise his discretion and grant a spent conviction order.  As the ground indicates, the point at issue is a simple one that does not require great elucidation on either side.  I indicated that, if Mr Bowden could persuade the DPP to co‑operate, I would be prepared to hear the matter at short notice which is why I come to be delivering judgment, after argument, on the 8 December 2004.  I acknowledge the assistance and co-operation of counsel for the DPP in enabling this to take place.

3. To the facts that I have outlined can be added the material from some of the references supplied by Mr Nichols.

4. Of importance is a reference from the Assistant Supervisor at Big W Kingsway, who said:

   "I find that it is out of his character for Zac to commit an offence and I am sure this is something that he will not do again.  I have spoken to him and can say that he is extremely remorseful for what he has done and was definitely not acting as his normal self at the time, as he is normally a very moral and trustworthy employee…"

5. Mr Nichols' brother indicated that the separation of his parents may explain why:

   "…such a normally level‑headed man like Zachary would make such an irrational, self‑destructive, life‑threatening decision."

6. Others spoke of Mr Nichols' general trustworthiness.  His doctor was of opinion that the events were out of character and related to recent problems with depression.

Legal principles

1. The criteria set out in the Spent Convictions Act 1988 have been the subject of decisions of this Court.  Tognini v McGuire (2000) 109 A Crim R 411 and Brewer v Bayens (2002) 133 A Crim R 378 are Full Court authorities setting out the general approach. There are many other examples of cases where a decision to make a spent conviction order or not has been given consideration on appeal. The cases are in the main examples of the settled principles.

Conclusion

1. The Magistrate acknowledged that:

   "…there is clearly a public interest in prospective employers knowing that you have done something like this."

2. There is that public interest.  However, the same might be said for a lot of offences as well as stealing as a servant.  That factor itself cannot be given such weight in the sentencing discretion as to overwhelm other matters on every occasion.  The primary purpose of a spent conviction order is to assist in the rehabilitation of an offender.  Where a young man has no previous convictions, has a good work history, and has otherwise proved reliable and trustworthy, the obvious benefits of a spent conviction order may well outweigh the public interest advantages in not making an order.  The overall public interest will be better served if the offender is rehabilitated.

3. With great respect to the Magistrate, who obviously approached the sentencing task with care and thought, there is nevertheless an inconsistency in his reasoning.  He was satisfied that Mr Nichols was unlikely to commit such an offence again.  In the circumstances, one might ask rhetorically: Why is the public interest in prospective employers knowing that he has committed this offence so clear?

4. There are indications to support the Magistrate's conclusion that Mr Nichols is unlikely to commit the offence again.  It is significant, I think, that a month later the camera was still hidden away.  The emotional and psychological upheaval which might lead a young man to committing an offence out of character was readily explained and was being addressed.

5. Circumstances of cases will always differ and my decision should not be taken as a general authority that spent conviction orders are always appropriate on a charge of stealing as a servant.  But in this case I conclude that the sentencing discretion miscarried.  The factors in favour of a spent conviction order outweigh to a great degree the factors against the making of such an order.

6. I allow the appeal to the extent that I make a spent conviction order in respect of the conviction recorded against the appellant on 15 October 2004 on complaint number JO 7713 of 2004.