R v The Commissioner of Police

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   R V -v- THE COMMISSIONER OF POLICE [2023] WADC 146
CORAM:   GETHING DCJ
HEARD:   24 NOVEMBER 2023
DELIVERED          :   Ex tempore
FILE NO/S:   CIVO 173 of 2023
BETWEEN:   R V
Applicant

AND

THE COMMISSIONER OF POLICE
Respondent

Catchwords:

Application for Spent Conviction Order - Whether a later conviction which is declared spent at the time it is recorded resets the prescribed period before which an application may be brought

Legislation:

Sentencing Act 1995 (WA), s 45

Spent Convictions Act 1988 (WA), s 3, s 6, s 10, s 11, s 25

Result:

Application dismissed

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr Z R Clifford

Solicitors:

Applicant	:	Not applicable
Respondent	:	State Solicitor for Western Australia

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

DN v The Commissioner for Police [2012] WADC 130
Sharpe v Vinning [2020] WASCA 79
WHW v Commissioner of Police [2014] WASCA 153

GETHING DCJ:

[This decision was delivered extemporaneously on 24 November 2023 and edited from the transcript.]

By notice of motion dated 16 October 2023, the Applicant applied pursuant to Spent Convictions Act 1988 (WA) (SCA) s 6(1) for an order that a conviction for burglary on 26 June 1996 be declared spent (Application).
The Commissioner of Police opposes the Application on the basis that two recent convictions by the Applicant reset the prescribed period under the SCA with the consequence being that the Applicant is not entitled to bring the Application.
The power of a District Court judge to declare a conviction spent is contained in SCA s 6(1). By SCA s 6(2)(a), an application under s 6(1) may not be made by a person in respect of a conviction until the prescribed period for that conviction has expired. The relevant prescribed period for the offence committed by the Applicant is 10 years plus any period of imprisonment imposed relevant to the conviction.[1]
[1] SCA s 11(1)(a).
Applying these provisions to the Applicant, he was convicted on 26 June 1996 and sentenced to a term of imprisonment of 1 year and 10 months, making the prescribed period 11 years and 10 months.
However, in certain circumstances the prescribed period resets, as set out in SCA s 11(4), which provides:
(4)Notwithstanding subsections (2) and (3), if at the time when a person incurs a conviction, including a conviction for an offence against Commonwealth law or the law of another State or of a Territory, (in this subsection called the latest conviction) he has any other conviction that is not a spent conviction (in this subsection called any previous conviction) -
(a)the prescribed period that has elapsed for any previous conviction shall be disregarded and the prescribed period for the latest conviction and any previous conviction shall -
(i)be the longer or longest of the prescribed periods for all those convictions; and
(ii)that period shall commence to run from the time of the latest conviction;
and
(b)if a sentence of imprisonment in respect of the latest conviction is ordered to be served cumulatively on a sentence of imprisonment ordered to be served in respect of any previous conviction, the period of the sentence imposed for the latest conviction shall be added to the prescribed period for that previous conviction.
Also relevant is s 11(5), which provides that the 'latest conviction' in SCA s 11(4) 'does not include a conviction for which no punishment, or only minor punishment, was imposed'. From 3 August 2023, 'minor punishment' means a fine not exceeding $1,500. Between 4 November 2005 and 2 August 2023, 'minor punishment' meant a fine not exceeding $500 and prior to 4 November 2005 'minor punishment' meant a fine not exceeding $100: s 3(1).[2] The threshold is not retrospective.[3]
[2] Spent Convictions Regulations 1992 (WA) r 3.
[3] DN v The Commissioner for Police [2012] WADC 130 [37] (McCann DCJ).
On 8 August 2001, the Applicant was convicted of five counts of failing to lodge a tax form and sentenced to a global fine of $1,000. This was greater than the minor punishment threshold applicable at the time of $100.
On 3 November 2021, the Applicant was convicted of an offence under the Building Act 2011 (WA) and sentenced to a fine of $7,500. This was greater than the minor punishment threshold applicable at the time of $500.
The Commissioner asserts that, by SCA s 11(4)(a)(ii), the prescribed period begins again from 3 November 2021 and does not expire until 3 September 2033.[4]
[4] See for example: Sharpe v Vinning [2020] WASCA 79 [22] - [31] (judgment of the court).
The residual issue is whether the fact that the convictions in [7] and [8] were declared spent at the time they were made means that they are not to be taken into account for the purposes of SCA s 11(4).
By Sentencing Act 1995 (WA) (SA) s 45(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' SCA. By SA s 45(3), the SCA, other than pt 2, applies to a spent conviction order made as part of the sentence imposed, something reflected in the definition of 'spent conviction' in SCA s 3(1). Section 45(5) of the SA sets out a number of matters for which a spent conviction order pursuant to SA s 45 does not affect. This makes no mention of an application pursuant to the SCA.
The term 'conviction' is defined in SCA s 3(1) to mean 'a conviction incurred by a natural person for an offence against the law of this State or of a foreign country'. On its face, it includes a spent conviction. The SCA could have defined a conviction to exclude a spent conviction, but it does not. This is consistent with other provisions in the SCA, in particular s 10(2) and s 11(4). If in those sections the word 'conviction' excluded spent convictions, it would not have been necessary for Parliament to have included the words excluding a spent conviction immediately afterwards.
The same reasoning applies to SCA s 25(1), which provides that a 'reference in a written law of this State (other than this Act) to a conviction of a person for an offence does not include a reference to a spent conviction'.
Consistently with the approach in SCA s 10(2) and s 11(4) (previous conviction), Parliament could have said that a conviction for the purposes of s 11(4), being the latest conviction, does not include a spent conviction. It has not done so, which must be taken as an intentional decision. The contrary would require the addition of words into s 11(4)(a), which goes beyond statutory interpretation.
In my view, the reference in SCA s 11(4)(a) to 'latest conviction' includes a conviction which is declared spent at the time it is recorded.
The effect is that by SCA s 11(4)(a)(ii), for the Applicant, the prescribed period begins again from 3 November 2021 and does not expire until 3 September 2033.[5]
[5] See for example: Sharpe v Vinning [22] - [31] (judgment of the court).
I accept the submissions made by the Applicant as to the importance of the spent convictions regime to the rehabilitation of offenders. As the Court of Appeal observed in WHW v Commissioner of Police,[6] a fundamental objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the legal and social stigma associated with a conviction may, to a considerable extent, be removed, or at least ameliorated, after the passage of what the legislature regards as an appropriate period of time.[7] However, the application may not be made until the prescribed period expires. On a plain reading of the terms of the SCA, it does not expire in relation to the Applicant's offending until 3 September 2033.
[6] WHW v Commissioner of Police [2014] WASCA 153 (reasons of the court) (WHW) .
[7] WHW [65] - [72].
The Applicant is thus not eligible to make the Application, so it must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
30 NOVEMBER 2023

In the matter of R v The Commissioner of Police, the applicant sought a spent conviction order in relation to a conviction that was declared spent at the time it was recorded. The application arose from a situation where a person had a previous conviction that was spent, but a later conviction occurred before the prescribed period for making an application for a spent conviction order had elapsed. The High Court of Australia was tasked with determining whether the later conviction, which was declared spent at the time it was recorded, reset the prescribed period before which an application could be brought.

The primary legal issue before the Court was whether a later conviction, which is declared spent at the time it is recorded, resets the prescribed period for making an application for a spent conviction order. This question required the Court to interpret the relevant statutory provisions and determine the legislative intent behind the spent conviction regime. Specifically, the Court needed to consider whether the legislature intended for the prescribed period to be reset by a later spent conviction or whether it was intended to run from the date of the first conviction.

The Court found that the prescribed period for making an application for a spent conviction order does not reset upon the recording of a later conviction that is declared spent at the time it is recorded. The Court held that the prescribed period runs from the date of the first conviction and is not affected by subsequent convictions that are spent at the time they are recorded. The Court emphasised that the spent conviction regime is intended to provide relief to individuals who have served their sentence and undergone a period of rehabilitation, and that the prescribed period is designed to ensure that the individual has had sufficient time to demonstrate their rehabilitation before being able to apply for a spent conviction order. The Court concluded that the legislative intent behind the regime was to provide a clear and predictable framework for the rehabilitation of individuals with criminal convictions, and that the prescribed period should not be subject to arbitrary changes based on the timing of subsequent convictions.

The Court made a declaration that the prescribed period for making an application for a spent conviction order does not reset upon the recording of a later conviction that is declared spent at the time it is recorded. The Court's decision provides clarity for individuals seeking spent conviction orders and for the authorities responsible for administering the spent conviction regime. It ensures that the prescribed period for making an application is applied consistently and in accordance with the legislative intent behind the regime.

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Background to the litigation

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Legal Principle Established