Peterson v Quinn
[2020] WASC 294
•13 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PETERSON -v- QUINN [2020] WASC 294
CORAM: MCGRATH J
HEARD: 23 JULY 2020
DELIVERED : 13 AUGUST 2020
FILE NO/S: SJA 1097 of 2019
BETWEEN: SHELDON LEIGH PETERSON
Appellant
AND
GEORGE QUINN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ATKINS
File Number : RO 8355 of 2018
Catchwords:
Criminal law – Appeal against failure to make a spent conviction order – Express error – Failed to make finding regarding preconditions for spent conviction order
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 6(g), s 7(1), s 8(2), s 9(1), s 14(2)
Criminal Code (WA), s 74A(2)(a)
Sentencing Act 1995 (WA), s 39(2)(a) - (d), s 45
Spent Convictions Act 1998 (WA), s 7
Result:
Leave to appeal granted on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr T E Ledger |
Solicitors:
| Appellant | : | Kate King Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
GNR v The State of Western Australia [2015] WASCA 5
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Tognini [2000] WASCA 31
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:
On 21 June 2019, Mr Peterson was convicted of one offence of disorderly behaviour in public contrary to s 74A(2)(a) of the Criminal Code (WA) after trial in the Magistrates Court. The learned magistrate imposed a $1,000 fine for the offence and declined to grant Mr Peterson a spent conviction order.
Mr Peterson now seeks leave to appeal against the decision to not grant a spent conviction order. Mr Peterson contends that the learned magistrate did not make findings as to whether the necessary preconditions for the making of a spent conviction order had been established before purporting to exercise the discretion to not grant the spent conviction order. Further, Mr Peterson contends that the learned magistrate erred when she determined not to make a spent conviction order when it was reasonably open, in the proper exercise of her Honour's discretion, to do so.
For the following reasons, I have determined that leave to appeal should be granted but that the appeal must be dismissed.
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
On 20 October 2018, Mr Peterson was charged that on 19 October 2018 being in sight or hearing of any person who was in a public place he behaved in a disorderly manner contrary to s 74A(2)(a) of the Criminal Code.[1]
[1] Prosecution Notice charge number RO 8355/2018.
On 13 November 2018, Mr Peterson appeared in the Rockingham Magistrates Court and pleaded not guilty to the charge. On 21 May 2019 and 12 June 2019 the trial was held. On 21 June 2019, the learned magistrate delivered her decision, convicting Mr Peterson of the charge.
On 12 July 2019 the learned magistrate sentenced Mr Peterson. Her Honour made the following factual findings.
At about 7.20 am on 19 October 2018, Senior Constable Tordoff and Constable Quinn attended Mr Peterson's address in Secret Harbour to arrest Mr Peterson's adult son, Mr Judd Peterson.[2] Mr Judd Peterson was removed from the house, arrested, placed in handcuffs, and taken by the officers to the police vehicle which was parked across Mr Peterson's driveway on the road outside his house.[3]
[2] ts 2 (21/06/2019).
[3] ts 3 (21/06/2019).
While this was occurring Mr Peterson woke from his bed. He followed the officers to the police vehicle and proceeded to racially abuse Senior Constable Tordoff, who was born in Papua New Guinea, shouting the words 'nigger', 'blackie', and 'black cunt'. The learned magistrate found that Mr Peterson 'called Senior Constable Tordoff a nigger repeatedly when they were all at the police van.'[4] The learned magistrate further found that at the time that Mr Peterson uttered those words 'he had his fists clenched'[5] and that Mr Peterson 'took a fighting stance when he approached Senior Constable Tordoff from behind' at the police vehicle.[6] The learned magistrate found that Mr Peterson's demeanour 'went beyond quite animated' and rather he was angry.[7]
[4] ts 4 (21/06/2019).
[5] ts 4 (21/06/2019).
[6] ts 6 ‑ 7 (21/06/2019).
[7] ts 7 (21/06/2019).
Mr Peterson told Senior Constable Tordoff that he could 'shove the summons up his arse you black cunt.'[8] Once Mr Peterson returned inside the house he went onto the upstairs balcony of the house and continued to abuse the officers, calling Senior Constable Tordoff a 'token' and calling the officers 'maggot' and 'faggot' while pointing at them.[9]
[8] ts 4, 6 (21/06/2019).
[9] ts 6 - 7 (21/06/2019).
The learned magistrate found that Mr Peterson called Senior Constable Tordoff 'blackie' on more than one occasion in the recording.[10]
[10] ts 6 (21/06/2019); Exhibit 1 Recording on mobile phone.
The learned magistrate found that the words used by Mr Peterson, namely 'nigger', 'blackie', and 'black cunt', were offensive in accordance with s 74A of the Criminal Code.
On 12 July 2019, at the sentencing hearing, Mr Peterson's counsel applied for a spent conviction order, contending that Mr Peterson was of prior good character, having not committed an offence for 18 years, that the charge was at the lower end of offending, and that if a criminal conviction was recorded Mr Peterson would be prevented from regaining employment with his former employer.[11] Mr Peterson's counsel further submitted that it would be in the public interest to allow Mr Peterson to continue to use his skillset to work and contribute to the community.[12]
[11] ts 64 ‑ 65 (12/07/2019).
[12] ts 66 (12/07/2019).
The prosecutor opposed the making of a spent conviction order on the basis that the requirements for granting such an order had not been met, in particular that the offence was not trivial, that community expectations would not be met if a spent conviction were to be granted in this case, and that it was likely that Mr Peterson would reoffend again.[13]
[13] ts 68 (12/07/2019).
The magistrate imposed a $1,000 fine and declined to make a spent conviction order.[14]
[14] ts 71 ‑ 72 (12/07/2019).
Appeal
Grounds of appeal
The appellant's Notice of Appeal relied on one ground of appeal in the following terms:[15]
The sentencing discretion miscarried and the learned Magistrate erred when she determined not to make a spent conviction order when it was reasonably open, in the proper exercise of her discretion, to do so.
[15] Appellant's Amended Notice of Appeal filed 6 May 2020.
At the hearing of the appeal I granted leave to Mr Peterson to rely upon a further ground of appeal in the following terms:[16]
The learned magistrate erred in law by not making findings concerning the necessary statutory requirements under s 45(1) of the Sentencing Act 1995 (WA).
Legal principles in relation to an appeal
[16] ts 22 (23/07/2020).
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.[17]
[17] 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, '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'.[18]
[18] Criminal Appeals Act 2004, 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' within s 6(g) of the Criminal Appeals Act.
An appeal may be made under div 2 on one or more grounds contending that the court of summary jurisdiction made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[19]
[19] Criminal Appeals Act 2004 (WA), s 8.
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.[20] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[21]
[20] Criminal Appeals Act 2004 (WA), s 9(2).
[21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
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.[22] 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.
[22] Criminal Appeals Act 2004 (WA), s 14.
In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the discretion in a manner different from the sentencing magistrate.[23] The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of the sentencing discretion, to refuse the order that might have been made as a result of the conviction.
[23] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Therefore, the question to be determined in this appeal is not whether the magistrate had sufficient reason to make a spent conviction order, but rather whether the magistrate's decision involved a material error of fact or law, revealed either by the reasons given or by implication from the failure to make a spent conviction order.
Legal principles in relation to spent conviction orders
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 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.
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.
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.[24]
[24] GNR v The State of Western Australia [2015] WASCA 5 [44].
The preconditions must be established by convincing evidence.
The term ‘trivial’ in its natural and ordinary usage means of little importance, trifling, insignificant.[25] In Sharpe v Vinning,[26] 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.
[25] GNR v The State of Western Australia [2015] WASCA 5 [49].
[26] 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 decision is discretionary. Consideration must be given to all the circumstances of the offence and the offender as well as the public interest.[27]
[27] Wright v McMurchy [2012] WASCA 257 [59].
The relevant principles in respect of the discretion to order a spent conviction order were outlined in R v Tognini:[28]
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.
[28] R v Tognini [2000] WASCA 31 [27] ‑ [28].
Assessment of the merits of the appeal
I will first consider the second ground of appeal. By this ground, Mr Peterson contends that the learned magistrate erred in law by not making findings concerning the necessary statutory requirements under s 45(1) of the Sentencing Act.
Magistrate's reasons
Her Honour gave reasons for not ordering a spent conviction order. Given that the reasons comprised, in part, discourse with Mr Peterson, it is necessary that the entire passages are reproduced:[29]
[29] ts 71 ‑ 72 (12/07/2019).
HER HONOUR: To make a spent conviction order, I have to be as satisfied as I can be that you're unlikely to commit an offence of this nature again. Your counsel has submitted at length in relation to this, but now I want to hear from you. You are a man aged 45 years. Your behaviour, as I have said, was unacceptable.
Your racist comments were unacceptable, and yet you say you have worked around the world in African countries, etcetera. So how could I be satisfied that you're unlikely to commit an offence of this nature again when I have two previous disorderlies on your record from 2001 and 1993. You tell me.
ACCUSED: I've tried to behave as a good citizen for the last 18 years, as my record would reflect, your Honour. I can't offer any more than that. I mean, obviously, it's imperative that I get a spent conviction for my employment, but if I don't - - -
HER HONOUR: I'm not talking about your conviction. I'm talking about your behaviour. You're a 45-year-old man, you're not a child.
ACCUSED: Absolutely, yes. No, I absolutely accept that my behaviour was unacceptable. Absolutely accept that after the trial.
HER HONOUR: And what about the racist comments you made, are you likely to do that again?
ACCUSED: No. No, not at all. I work in Asian countries. I work in Africa. I'm certainly the furtherest thing from a racist.
HER HONOUR: If I can be satisfied of that, I then look at whether the offence is trivial, or whether you were of previous good character. You have previous matters dating back some time ago. There are court cases that say that just because you've got convictions doesn't mean that you're not of good character. The offence itself only carries a fine. It doesn't carry anything more serious than that, and therefore it's clear that the legislature, whilst regarding this as an offence worthy of prosecution, hasn't made it such to make it a very serious offence because of the maximum penalty open. So if I can be satisfied you're unlikely to commit an offence of this nature again, and I must admit I'm a bit like this on that because I'm not quite sure, Mr Peterson. Then, I have to look at whether or not you're of previous good character. Well, that is questionable. Whether the offence is trivial: not on this occasion, it's not trivial. If I find that you can be regarded as of previous good character because your disorderlies are both spent, then that raises discretion. I then have to decide whether or not exercise that discretion in your favour.
If I do not make a spent conviction order, it's going to have a significant effect upon you personally, however I look, also, about this particular case, and whether or not the community at large needs to know about a person who behaved as you did on that morning. The discretion to make a spent conviction order will not be exercised in your favour. As far as I'm concerned, your offending on that day was just too serious. It was appalling, Mr Peterson.
The learned magistrate's language is imprecise and the reasoning ambiguous. The consequence is that the reasons are replete with uncertainty as to whether her Honour was satisfied that the two preconditions had been established.
Her Honour correctly observed that the court must be satisfied that Mr Peterson is unlikely to commit an offence of that nature again. Her Honour then observed that counsel had addressed the issue but that 'now I want to hear from you.'[30] Mr Peterson addressed her Honour. Her Honour did not then make a finding, rather her Honour made the observation that 'if I can be satisfied of that, I then look to whether the offence is trivial, or whether you were of previous good character'.[31] The learned magistrate returned to the precondition stating 'I'm a bit like this on that' and 'I'm not quite sure'.[32] I am of the view that the learned magistrate did not make a finding concerning the first precondition.
[30] ts 71 (12/07/2019).
[31] ts 71 (12/07/2019).
[32] ts 72 (12/07/2019).
In respect of the precondition of good character, her Honour referred to Mr Peterson's previous convictions observing that Mr Peterson had previous convictions and that 'there are court cases that say' that that does not necessarily mean the offender is not of good character.[33] The learned magistrate returned to the precondition in her reasons, observing that whether Mr Peterson is of good character 'is questionable', but her Honour did not make an express finding.[34] I am unable to find from her Honour's reasons that a determination was made as to whether Mr Peterson is of good character. The learned magistrate did not make a finding concerning that precondition.
[33] ts 71 (12/07/2019).
[34] ts 70 (12/07/2019).
In respect of the precondition that the offence is trivial, her Honour observed that the offence 'only carries a fine'. Her Honour then stated 'whether the offence is trivial: not on this occasion, it's not trivial'.[35] Therefore, her Honour did make a finding as to the precondition of whether the offence was trivial.
[35] ts 72 (12/07/2019).
Accordingly, the learned magistrate did not make a finding as to whether Mr Peterson is unlikely to commit such an offence again or a finding as to whether Mr Peterson is of good character. It was necessary for the learned magistrate to do so. Therefore, the learned magistrate has made an express error. I grant leave in respect of ground two and the ground is upheld.
Given that I have determined that ground two must be upheld it is not necessary that I determine ground one.
Determination as to whether there has been a miscarriage of justice
Given that her Honour has made an express error it is necessary to determine whether there has been a miscarriage of justice.[36]
[36] Criminal Appeals Act 2004 (WA), s 14(2).
I turn now to consider each of the mandatory preconditions for a spent conviction order.
Is the offence trivial?
With respect to the precondition that the offence be trivial I must consider the inherent seriousness of the offence of disorderly behaviour 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 Mr Peterson's criminal responsibility under the written law, must also be taken into account.
It is clear that the offence of disorderly behaviour in public is at the lesser end of the spectrum of offences under written laws. Parliament has provided the maximum penalty is a fine of $6,000. That Parliament has not provided for a term of imprisonment supports the finding that the offence of disorderly behaviour is not inherently serious. However, the offence may be committed in a myriad of circumstances from trivial to the most serious.
I must take into account the material facts establishing guilt being the specific acts of Mr Peterson which established his criminal responsibility under s 74A(2)(a) of the Criminal Code. In the present case, the material facts establishing Mr Peterson's guilt in relation to the offence included that whilst in a public place, being the front verge of a house in a residential street and in the presence of two police officers and his spouse, Mr Peterson uttered the words 'nigger', 'blackie', and 'black cunt'. The words were directed to a police officer who was born in Papua New Guinea. At the time of uttering the words Mr Peterson clenched his fists and took a fighting stance in anger when he approached the officer from behind on the public verge in sight of both officers.
Those material facts are relevant in establishing Mr Peterson'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 Mr Peterson 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.
I have carefully considered the issue of whether the offending may be described as trivial. I find that the offence committed by Mr Peterson is not trivial. Mr Peterson in a public place racially vilified a police officer in the presence of others. The language used by Mr Peterson was appalling. The officer is from Papua New Guinea. The officer was lawfully undertaking his duty on behalf of the community. To describe a police officer as a 'nigger', 'blackie' and a 'black cunt' is reprehensible. The offending is not trivial rather it is serious.
Is Mr Peterson of good character?
I must determine whether Mr Peterson is of good character. Mr Peterson was born on 22 March 1974 and was therefore 45 years of age at the time of the offending. Mr Peterson, who is married with two adult children, is a qualified mechanical fitter. At the sentencing hearing two references were received from members of the community who attested to Mr Peterson's positive qualities.[37]
[37] ts 60 (12/07/2019).
Mr Peterson has a criminal record that comprises convictions for disorderly conduct in 1993 and 2001 and a further offence of disorderly obscene language in 1992. Further, Mr Peterson was convicted of burglary, damage and being in breach of probation in 1994. For that offending, a total effective term of immediate imprisonment of 12 months was imposed. In addition, Mr Peterson was convicted in 1996 of possessing a firearm and ammunition without a licence. Mr Peterson has been convicted of five offences of driving without a licence. In 2014, Mr Peterson was convicted of the offence of having no authority to drive (suspended) with two previous convictions for that offence in 2009 and 2012.
Mr Peterson's criminal record states that the offences prior to and including 2001 have been 'spent.' The offences are spent under the Spent Convictions Act 1988 (WA).[38]
[38] Spent Convictions Act 1998 (WA), s 7.
Given Mr Peterson's criminal history I am unable to find that he is of good character. Mr Peterson has served a term of imprisonment for an offence of dishonesty. Further, he has other convictions including, relevantly, two previous convictions for disorderly conduct. Mr Peterson has three offences of driving without authority which have not been spent.
Is Mr Peterson unlikely to commit such an offence again?
I must determine whether Mr Peterson is unlikely to commit such an offence again. I am required to predict the likelihood that Mr Peterson will commit such an offence, not just any offence, again.
In making this determination I take into account the antecedents of Mr Peterson including that he has been convicted of previous offences of disorderly conduct. However, it is not contended that he committed those offences in circumstances where he racially vilified a police officer.
In addition, Mr Peterson has been incarcerated for previous offending, though that offending has now been deemed as spent under the Spent Convictions Act.
In support of the precondition that Mr Peterson will not commit such an offence again, reliance is placed on the contention that there will be adverse consequences for Mr Peterson if the conviction is not spent, being that it will have a detrimental effect on his prospects for employment overseas. At the sentencing hearing Mr Peterson produced documentation comprising a letter from the Ministry of Manpower (Singapore) cancelling an employment pass dated 24 January 2018; a Visit Pass and Embarkation Form (Singapore) dated 24 January 2018; a letter from Shell confirming employment in Korea dated 21 October 2014; a letter from Project Plenary Solutions offering employment in Singapore dated 8 October 2011; and a letter from First Quantum Minerals Ltd dated 13 November 2018.
The entire documentation except the letter from First Quantum pre-dates the offence. The documents establish that Mr Peterson has, on occasions, been employed overseas.
The First Quantum letter offered employment to Mr Peterson in Panama commencing in August 2019. At the sentencing hearing the court received a letter from Mr Peterson's spouse, Mrs Tara Peterson, who stated that Mr Peterson's 'visa for Panama' was 'rejected' due to the outstanding criminal charge.[39] During the plea in mitigation, counsel for Mr Peterson submitted that First Quantum 'simply said that it's not a position that someone can have if they've got a charge like this on their record.'[40] Mr Peterson did not produce any other evidence to support the contention that he was denied employment in Panama due to the conviction for disorderly behaviour in public. However, I will accept the veracity of Mrs Tara Peterson's letter and therefore accept that Mr Peterson was unable to be employed in Panama due to his conviction. However, there is no evidence that Mr Peterson would be unable to be employed in Australia or in other countries (other than Panama) as a mechanical fitter.
[39] Letter from Mrs Tara Peterson to the Rockingham Magistrates Court dated 12 July 2019.
[40] ts 65 (12/07/2019).
After carefully considering all of the relevant matters, I am unable to positively find that Mr Peterson is unlikely to commit such an offence again.
Determination
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 Mr Peterson is unlikely to commit such an offence again. The offence is not trivial and I am unable to find that Mr Peterson is of good character. 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.
For completeness, in the event that the preconditions had been met I would have exercised the enlivened discretion to not order a spent conviction. Mr Peterson contends that the refusal to make a spent conviction order will impact adversely on his employment prospects and further, that there is no real public interest in Mr Peterson's conviction for the offence being recorded and exposed to public scrutiny. I have reached the determination that Mr Peterson should not be relieved immediately of the adverse effect that the conviction may have for the following reasons.
First, Mr Peterson has been convicted of committing an offence of disorderly behaviour in public that was marked by his racial vilification of a serving police officer undertaking his lawful duty. The racial vilification was persistent and occurred in circumstances where Mr Peterson had clenched fists in the presence of the police officers. Therefore it is a serious example of disorderly behaviour in public.
Second, the offence was committed in circumstances that involved racial vilification. There is a public interest in the recognition of the seriousness of this type of offending by recording the offending and exposing it to public scrutiny.
Third, Mr Peterson has a criminal record that includes serious offending for which he served a term of imprisonment. Further, Mr Peterson has been convicted of two previous offences of disorderly conduct. I have outlined that the offences, other than three offences of driving without authority (fine suspension), are now spent convictions. I have taken that into account.
Fourth, I am not satisfied that the nature of the adverse effect, being the limiting of Mr Peterson's opportunity to be employed in Panama, is sufficient to support a finding that Mr Peterson should be relieved of that adverse effect of the conviction. The evidence supports a finding that Mr Peterson was offered employment in Panama and that he was denied that opportunity due to the conviction. I accept that there is an adverse effect being the inability to obtain employment in Panama or with the employer know as First Quantum. However, as I have observed, the evidence does not support a finding that Mr Peterson will be unable to be employed in Australia or in other countries. There is no evidence that Mr Peterson will suffer significant financial hardship given that he is able to continue employment in Australia and other countries.
In all the circumstances, I am not persuaded that there is any basis for a finding that Mr Peterson should be released immediately from the adverse effects of the conviction upon him.
Accordingly, whilst leave is granted on ground two the appeal must be dismissed.
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 McGrath12 AUGUST 2020
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