Norbu v WA Police
[2024] WASC 473
•11 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: NORBU -v- WA POLICE [2024] WASC 473
CORAM: MCGRATH J
HEARD: 2 DECEMBER 2024
DELIVERED : 11 DECEMBER 2024
FILE NO/S: SJA 1064 of 2024
BETWEEN: DAWA NORBU
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J SCUTT
File Number : PE 35607/24
Catchwords:
Criminal law - Appeal against failure to make a spent conviction order - Miscarriage of justice - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 39(2)(a) - (d), s 45
Spent Convictions Act 1988 (WA), s 7
Result:
Leave to adduce additional evidence granted
Extension of time in which to appeal granted
Leave to appeal not granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Naughton |
| Respondent | : | Ms A Kildea |
Solicitors:
| Appellant | : | Assurance Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bardsley v The Queen (2004) 29 WAR 338
Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510
Eastough v State of Western Australia [No 2] [2010] WASCA 88
GNR v The State of Western Australia [2015] WASCA 5
M v Seidner [2013] WASC 395
R v Tognini [2000] WASCA 31
Rule v Trudgill [2015] WASC 196
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
Wright v McMurchy [2012] WASCA 257
MCGRATH J:
Introduction
The appellant was convicted on his plea of guilty to one charge of driving with a blood alcohol content exceeding 0.08 g of alcohol per 100 ml of blood, contrary to s 64(1) of the Road Traffic Act 1974 (WA) (RTA). The appellant's blood alcohol content was recorded as 0.144.[1] The learned Magistrate imposed a fine of $1,150 pursuant to s 64(2)(a) of the RTA and ordered a 9‑month disqualification of the appellant's licence.
[1] ts 2 (25/07/2024).
The appellant now appeals on one ground, contending that the learned Magistrate did not grant, or consider granting, a spent conviction and therefore, there has been a miscarriage of justice pursuant to s 8(1)(b) of the Criminal Appeals Act 2004 (WA). At the sentencing hearing, the appellant, who was self‑represented, did not apply for a spent conviction order.
The appellant contends that should he not be granted a spent conviction, his future employment prospects will be jeopardised. For the following reasons, I have determined that the appeal is dismissed.
Magistrates Court hearing
The appellant made an endorsed plea of guilty and then pleaded in person at the sentencing hearing. At the sentencing hearing, the appellant produced a number of documents in mitigation, including a letter of apology dated 18 July 2024, and an email dated 10 July 2024 confirming that he had made a booking for individual counselling with Vision Counselling. Further, the appellant confirmed that he had made a blood donation with the Australian Red Cross Lifeblood Service as a way of expressing his remorse and provided four character references from members of the community who outlined the appellant's positive qualities.
The learned Magistrate accepted in her sentencing remarks that the appellant had genuine remorse, referring to his letter of apology to the court, personal references and that he had given back to the community by his plasma donation. Her Honour stated that the appellant's behaviour appeared to be a complete aberration and therefore, in the circumstances, the minimum penalty would be imposed.[2]
[2] ts 3 (25/07/2024).
The appellant did not make an application for a spent conviction order for the reason that he did not know that such an application could be made.
Extension of time
The appellant requires an extension of time in which to appeal given that the notice of appeal was filed on 10 September 2024, being 19 days out of time.
The question for the court to consider is whether it is in the interests of justice to grant the extension of time in which to appeal.[3] In support of the application for an extension of time in which to appeal, the appellant relies upon the affidavit of Mr Naughton affirmed, 19 September 2024. Mr Naughton deposes that the appellant's lack of experience with the criminal justice system informed much of the delay in bringing the appeal and further, given the delay is not lengthy and causes little prejudice to the respondent, leave should be granted.
[3] Eastough v State of Western Australia [No 2] [2010] WASCA 88, [13] (McLure P, Pullin JA & Mazza J (citing Bardsley v The Queen (2004) 29 WAR 338, [108])).
The respondent does not oppose the extension of time in which to appeal. In the circumstances, I grant the extension of time in which to appeal.
Ground of appeal
The appellant relies upon one ground of appeal being:
1.The learned Magistrate did not grant, or consider granting, a spent conviction, and therefore there has been a miscarriage of justice - section 8(1)(b) Criminal Appeals Act 2004 (WA).
This is an appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[4]
[4] Criminal Appeals Act 2004 (WA), s 9(1).
Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal against the decision to the Supreme Court constituted by a single judge sitting in its General Division.
Section 6 of the Criminal Appeals Act provides, relevantly, that in pt 2 of the Act, unless the contrary intention appears, a 'decision' of a court of summary jurisdiction means, relevantly, 'a refusal to make an order that might be made as a result of a conviction'.[5]
[5] Criminal Appeals Act, s 6(g).
Her Honour's refusal to make a spent conviction order was 'a refusal to make an order that might be made as a result of a conviction', and therefore a decision within s 6(g) of the Criminal Appeals Act.
Section 8(2) of the Criminal Appeals Act expressly provides that an appeal may be made under div 2 against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[6] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[7]
[6] Criminal Appeals Act, s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts-Smith JJA).
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.[8]
[8] Criminal Appeals Act, s 14(2).
Application to adduce additional evidence
The appellant seeks to adduce additional evidence on appeal that was not before the learned Magistrate at the time of the sentencing.[9] The additional evidence comprises documents and information concerning the personal antecedents of the appellant, the appellant's current terms of employment, human resources studies completed by the appellant and descriptions of recent job vacancies in the field of human resources.
[9] Affidavit of Mr Naughton affirmed 19 September 2024.
The court is required to decide the appeal on the evidence and material that was before the lower court.[10] However, the court has the discretion to admit 'any other evidence' for the purpose of dealing with the appeal.[11]
[10] Criminal Appeals Act, s 39(1).
[11] Criminal Appeals Act, s 40(1)(e).
In determining the issue as to whether the failure to make a spent conviction order has resulted in a miscarriage of justice, the court may have regard to new information which has been obtained for the purposes of the appeal and supports a finding concerning the appellant's good character and the likely consequences of a conviction.[12]
[12] M v Seidner [2013] WASC 395.
The respondent does not oppose the appellant's application for leave to adduce the additional materials on appeal.
I accept that the evidence is relevant to the factors that may enliven the discretion to order a spent conviction and further, in the exercise of the discretion itself. Accordingly, I grant the application to adduce further evidence on the appeal.
Assessment of the merits of the appeal
By the ground of appeal, the appellant contends that the refusal to grant a spent conviction order has resulted in a miscarriage of justice. The ground may be established if, on the material before the appeal court, the court is satisfied that there would be a miscarriage of justice in failing to grant a spent conviction order.[13]
Relevant legal principles - spent convictions
[13] Rule v Trudgill [2015] WASC 196, [35].
The power to make a spent conviction order is found in s 39(2)(a) - (d) of the Sentencing Act 1995 (WA). Section 45 of the Sentencing Act sets out the 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 pt 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.
Accordingly, s 45 of the Sentencing Act directs the court not to make a spent conviction order unless three prerequisite conditions are satisfied. The prerequisite conditions 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; and
3.having regard to the pre‑condition 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.
Therefore, the first two pre‑conditions must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order.
The pre‑conditions must be established by convincing evidence.[14]
[14] Brewer v Bayens [No 2] [2002] WASCA 271; (2002) 26 WAR 510, [14].
The term 'trivial' in its natural and ordinary usage means 'of little importance, trifling or insignificant'.[15] In Sharpe v Vinning, the Court of Appeal considered the meaning to be given to the term 'trivial offence', stating:[16]
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.
[15] GNR v The State of Western Australia [2015] WASCA 5, [49].
[16] Sharpe v Vinning [2020] WASCA 79, [110] - [111].
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 sentencing court has a discretion, not a duty, to make a spent conviction order.[17] Consideration must be given to all the circumstances of the offence and the offender, as well as the public interest.[18]
[17] GNR v The State of Western Australia, [44].
[18] Wright v McMurchy [2012] WASCA 257, [59].
The relevant principles in respect of the discretion to make a spent conviction order were outlined in R v Tognini:[19]
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 that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
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 the protection of the community.
[19] R v Tognini [2000] WASCA 31, [27] - [28].
Therefore, the public interest must be considered by the court. The public interest includes maintaining the community's confidence in the judicial system and ensuring general deterrence by the public recording of convictions.[20] The public interest also comprises a consideration of employers being aware of an offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work undertaken by the offender.[21]
[20] Brewer v Bayens [No 2], [18].
[21] Brewer v Bayens [No 2], [17].
Whether there is a miscarriage of justice
Whether the pre-conditions for a spent conviction are established
The respondent concedes that the pre‑conditions for consideration of the granting of spent conviction order have been established. That concession is properly made.
I am satisfied that the appellant is unlikely to commit an offence again. Further, I am satisfied that the appellant is of previous good character.
In respect to whether the appellant is of previous good character it is clear that he has excellent antecedents with no criminal record. The appellant is married with two young children with a sound employment history.[22] The learned Magistrate received at the hearing a number of very positive character references.
[22] Affidavit of Mr Naughton affirmed 19 September 2024, [20] - [23].
In respect to whether the appellant is likely to commit an offence again, the appellant provided a letter of apology to the learned Magistrate, which evidenced the appellant's remorse, a commitment to never engaging in the offending behaviour again and the steps he had taken towards rehabilitation, such as seeking counselling and donating plasma.
I now turn to whether I should exercise the discretion to make a spent conviction order.
Whether the appellant should be relieved of the adverse effects of the conviction
The appellant submits that the evidence adduced on appeal supports the granting of a spent conviction. The further material filed outlines the nature of the appellant's present employment and further, his proposed future employment plans.
The further material filed by the appellant establishes that at the time of the offence, and currently, the appellant was working on a casual basis as a support worker for Rocky Bay and as a homecare employee for Platinum Healthcare. In both current employment roles, the appellant is required to drive vehicles.
Mr Naughton deposes that the reason that the appellant has been unable to return to his role with Rocky Bay since his offending is because all of his shifts require him to drive a fleet vehicle.[23]
[23] Affidavit of Mr Naughton affirmed 19 September 2024, [31].
Similarly, the appellant's employment with Platinum Healthcare may include 'transport services: taking clients to shops, various appointments, recreational activities, day care centres, community or social activities'.[24]
[24] Affidavit of Mr Naughton affirmed 19 September 2024, Annexure 7‑Platinum Healthcare letter dated 29 November 2022, 41.
It is clearly evidenced from the material adduced that a conviction for a driving offence is relevant to the appellant's current employment positions for the reason that he is required to drive a motor vehicle. However, a spent conviction will not alleviate the difficulty that the appellant has during the period of the driver's licence suspension. During the hearing of the appeal, the appellant's counsel confirmed that the appellant has now obtained an extraordinary driver's license.
The appellant's employment for both Rocky Bay and Platinum Healthcare are subject to the appellant holding a National Police Clearance Certificate.
Mr Naughton deposes that the 'visibility of a drink driving offence would adversely impact the appellant's future employment prospects as a support worker'.[25]
[25] Affidavit of Mr Naughton affirmed 19 September 2024, [33].
Further, the appellant proposes to seek employment in human resource roles, having completed a Master of Human Resource Management in December 2023.
The appellant has adduced evidence of recent employment advertisements in human resource roles which supports a finding that an application for such positions at NACCHO, Eighty9 Limited and the University of Western Australia requires the candidate to have both an unrestricted WA licence and a National Police Clearance.
The contention of the appellant is that his employment in a human resource position may be made more difficult because a National Police Clearance appears to be a standard pre-requisite in employment applications. What is not clear is whether the conviction for the offence would affect his application for a National Police Clearance. The contention of the appellant, properly understood, is that the National Police Clearance would record his conviction and that this would then become known to a future employer. It is not contended that a conviction for driving under the influence of alcohol would make him ineligible to work as a human resource manager.
Whether or not the fact of the conviction would be likely to adversely impact on the appellant's prospects of securing future employment cannot be known and it is not appropriate to speculate. The position can be put no higher than that once a conviction has to be disclosed in an employment context, it is not possible to exclude the possibility that it may be taken into account by an employer and acted upon adversely to the job applicant.[26]
[26] M v Seidner, [66].
The prospect that the conviction may have an adverse effect on the appellant's future employment does not necessarily mean that it is unjust if he were not to be relieved of the consequences of the conviction. The adverse consequences on the appellant's employment prospects are factors to be weighed with all other considerations bearing on whether a spent conviction should be made.
I am concerned that the appellant in his employment is responsible for driving vehicles, including with vulnerable members of the community as passengers.[27] There is a strong public interest in the community and the appellant's employers being aware of the appellant's conviction.
[27] Affidavit of Mr Naughton affirmed 19 September 2024, 41.
After undertaking the weighing of all relevant factors, I find that a spent conviction order should not be made. I am satisfied that the failure to make a spent conviction order did not result in a miscarriage of justice.
Conclusion
Therefore, an extension of time in which to appeal is granted, leave to adduce further evidence is granted, leave to appeal is refused and the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
11 DECEMBER 2024
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