RLG v Donnelly
[2012] WASC 230
•29 JUNE 2012
RLG -v- DONNELLY [2012] WASC 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 230 | |
| Case No: | SJA:1006/2012 | 21 JUNE 2012 | |
| Coram: | BEECH J | 29/06/12 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 2 and 3 Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | RLG MICHAEL DONNELLY |
Catchwords: | Criminal law and sentencing Discharge without conviction Offence of providing false or misleading information in a passport application Whether magistrate erred in refusing to make an order discharging the offender without conviction Turns on own facts |
Legislation: | Australian Passports Act 2005 (Cth), s 11, s 30(1) Crimes Act 1914 (Cth), s 16A, s 19B |
Case References: | Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 CJ v The State of Western Australia [2009] WASCA 42 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568 DPP (Cth) v Maroney [2009] VSC 584 Ennis v D'Andrilli [2007] WASC 263 Kelton v Uren (1981) 27 SASR 92 Lanham v Brake (1983) 34 SASR 578 Law v The State of Western Australia [2009] WASCA 193 Moreland v Snowdon [2007] WASC 137 Nelson v Quinn [2001] WASCA 297 O'Sullivan v Wilkinson [1952] SASR 213 Papas v Godwin [2010] WASC 226 Scott v Chief Executive Office of Customs [2012] WASC 203 Stark v Plant [2010] WASCA 74 Warnakulasuriya v The Queen [2009] WASC 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MICHAEL DONNELLY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T HALL
File No : PE 46949 of 2011, PE 46950 of 2011
Catchwords:
Criminal law and sentencing - Discharge without conviction - Offence of providing false or misleading information in a passport application - Whether magistrate erred in refusing to make an order discharging the offender without conviction - Turns on own facts
(Page 2)
Legislation:
Australian Passports Act 2005 (Cth), s 11, s 30(1)
Crimes Act 1914 (Cth), s 16A, s 19B
Result:
Leave to appeal granted on grounds 2 and 3
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr L M Levy SC
Respondent : Ms S J Oliver
Solicitors:
Appellant : Michael Tudori & Associates
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
CJ v The State of Western Australia [2009] WASCA 42
Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568
DPP (Cth) v Maroney [2009] VSC 584
Ennis v D'Andrilli [2007] WASC 263
Kelton v Uren (1981) 27 SASR 92
Lanham v Brake (1983) 34 SASR 578
Law v The State of Western Australia [2009] WASCA 193
Moreland v Snowdon [2007] WASC 137
Nelson v Quinn [2001] WASCA 297
O'Sullivan v Wilkinson [1952] SASR 213
Papas v Godwin [2010] WASC 226
(Page 3)
Scott v Chief Executive Office of Customs [2012] WASC 203
Stark v Plant [2010] WASCA 74
Warnakulasuriya v The Queen [2009] WASC 257
(Page 4)
- BEECH J:
Summary
1 The appellant was convicted, on her plea of guilty, of two counts of giving false or misleading information to the Australian Passport Office. She sought an order that she be discharged without proceeding to conviction. The learned magistrate declined to make such an order. The appellant appeals against that decision.
2 While there may be grounds to interfere with the magistrate's exercise of discretion, in re-exercising the discretion I too would decline to discharge the appellant without recording a conviction. Consequently, the appeal must be dismissed.
The charges
3 The appellant was charged with two offences:
(a) between 18 November 2010 and 24 November 2010 at Perth, she gave information to officers at the Australian Passport Office (APO) which was false or misleading, and the information was given in, or in connection with, an application for an Australian travel document, namely a child passport application for her child, BRB;
(b) between 18 November 2010 and 24 November 2010 at Perth, she gave information to officers at the APO which was false or misleading, and the information was given in, or in connection with, an application for an Australian travel document, namely a child passport application for her child, LEB.
4 The charges alleged offences against s 30(1) of the Australian Passports Act2005 (Cth). That section provides as follows:
(1) A person commits an offence if:
(a) the person gives information to another person; and
(b) the information:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information is misleading; and
- (c) the information is given in, or in connection with, an application for an Australian travel document.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
The facts
5 With one exception to which I will come, the prosecution statement of facts relating to the appellant's offending was not in dispute.
6 The prosecutor stated the following facts.
7 On 10 March 2004, the Family Court of Western Australia made orders by consent between the appellant and her then husband (the Father), regarding the children of their dissolved marriage, BRB and LEB. These orders (the 2004 Orders) provided:
(a) the children were to reside with the appellant and she be responsible for their day-to-day care, welfare and development;
(b) the appellant and the Father to have joint responsibility for the long-term care and development of the children; and
(c) the Father to have reasonable contact with the children as agreed between the parties.
8 Around August 2006, the appellant sought to relocate to Mauritania as a result of her new partner's employment. A minute of consent orders was drafted and signed by the appellant and the Father. The orders were made by consent on 13 October 2006 on the appellant's application to the Family Court. These orders (the 2006 Orders) provided:
(a) leave for the appellant to remove the children from 10 October 2006 until November 2008 from the Commonwealth of Australia to relocate to Mauritania;
(b) the Father to spend time with the children as agreed between the parties including, but not limited to, half of all Australian school holiday term breaks; and
(c) upon the children returning to the Commonwealth, the Father to have access every alternate weekend, half of each school holiday period and a full three weeks of the Christmas period.
9 The appellant and the children departed Australia on 15 January 2007.
(Page 6)
10 The appellant did not comply with the 2004 Orders as amended by the 2006 Orders. Between 15 January 2007 and 12 October 2010, the Father made a number of attempts to contact the children and to make suitable arrangements to see them. He saw the children once during that time, in November 2007. This followed a sighting of the children in Perth.
11 On 12 October 2010, the Father obtained a further order from the Family Court providing that in the event the children returned to Australia, the appellant be restrained from removing the children from Australia (the 2010 Order). The 2010 Order also required the Australian Federal Police to place the children on the Airport Watch List.
12 The children arrived back in Australia on 15 November 2010.
13 On 18 November 2010, the appellant attended the APO located in Perth and lodged child passport applications for each of the children. Both applications were completed and signed by the appellant. Each application was accompanied by a number of supporting documents including the 2004 Orders.
14 Each application contained a declaration by the appellant to the effect that she had provided all court orders in relation to the respective child. In addition, each application contained a further declaration by the appellant that:
(a) all court orders in relation to the respective child had been provided with the application; and
(b) information given in, or in connection with, the application was true and correct.
15 However, in respect of both applications the appellant did not provide the 2006 Orders and failed to provide the Father's address.
16 Each of the applications was accompanied by a B-9 'Supplementary application form for a child without full parental consent' (B-9 Form). In both B-9 Forms, the appellant declared that the information given was complete and correct and that she understood it was a criminal offence to make a false or misleading statement.
(Page 7)
17 The appellant provided the following information in each B-9 Form:
(a) she stated 'unknown' for the address of the Father and omitted to answer the question 'Are you able to find out the current whereabouts of this person via friends or relatives?';
(b) she ticked 'No' to the question 'Are there any court orders in existence which affect another person's rights in relation to the child?' This section states that copies of all court orders are to be submitted with the application;
(c) she wrote '2006' as the last date of contact with the Father and ticked the box 'In person', leaving the boxes 'by phone' and 'by email' un-ticked; and
(d) she stated, as special circumstances which would warrant the issue of the children's passports without the Father's consent, that she had not tried to contact the Father and the children had had no contact with the Father and he had made no attempt to contact the children in four years.
18 On 24 November 2010, the appellant sent a completed B-7 'Application for an Australian Travel Document - No Further Court Orders (Child Application)' (B-7 Form) for each child to the APO. The appellant declared in each of the B-7 Forms that she was not aware of any other court orders in existence or pending that affected another person's rights or parental responsibility or contact with or residence or guardianship, custody or access to the children.
19 On 25 November 2010, an Approved Senior Officer was satisfied that special circumstances existed for the issue of a passport for each child, having relied on the information provided by the appellant.
20 As a result, two Australian travel documents were issued on 26 November 2010 in the names of the children.
21 On about 30 December 2010, the appellant attempted to depart Australia with the children. As a result of the Airport Watch List alert, the appellant and the children were restrained from leaving.
22 The matter was referred for investigation by the Passports Fraud Section of the APO.
(Page 8)
23 On 21 January 2011, the appellant voluntarily participated in a tape recorded interview with investigators. During the interview, the appellant made the following admissions:
(a) she completed and lodged the passport applications for the children;
(b) she signed the declaration on the last page of the applications confirming that all the information provided was true and correct;
(c) she completed and signed further declarations stating that:
(i) there were no other court orders (other than the 2004 Orders) in existence that affected another person's rights or parental responsibility or contact or residence with or guardianship, custody or access to the children;
(ii) the children had had no contact with the Father since 2006; and
(iii) she did not know the Father's last known address;
(d) she knew about the 2006 Orders and that those orders affected the Father's entitlements and access to the children;
(e) there had been contact between the children and the Father in November 2007;
(f) there had been email communications between the Father and her (including via her lawyer);
(g) she had been to the Father's residence to drop off the children and pick them up before they moved overseas; and
(h) she did not follow up her lawyer, who had previous contact with the Father in 2007, to see whether he had contact details for the Father.
24 The appellant also said in the interview that:
(a) she did not know she had to provide the 2006 Orders;
(b) the Father had not been part of the children's lives and he did not make any effort with the children;
(Page 9)
- (c) she received a letter from the Father's lawyer and when she did not respond, the Father took no further action; and
(d) she did not know that the Father still lived at his previous address and she could not remember the number.
25 Before the magistrate, counsel for the appellant generally admitted these facts (ts 6), but disputed one of them. The appellant denied knowing the Father's address when she submitted the documents. Consequently she denied that her statement that the address of the Father was 'unknown' was false. However, senior counsel on appeal accepted that the omission to respond to the question: 'are you able to find out the current whereabouts of this person via friends or relatives?', was misleading (appeal ts 15).
The appellant's application for discharge without conviction
26 Counsel for the appellant submitted to the learned magistrate that he should exercise his power under s 19B(1)(d) of the Crimes Act 1914 (Cth) to discharge the appellant without proceeding to conviction. In support of that submission, the main points emphasised by counsel were:
(a) her conduct was reckless not intentional;
(b) the plea of guilty at the first opportunity;
(c) the significant admissions made by the appellant when she was interviewed by investigators;
(d) her cooperation with the criminal justice system in returning from Spain, where she then (and now) resided, in order to be dealt with by the court;
(e) her good antecedents and the absence of any record;
(f) her future prospects as a teacher; and
(g) importantly, the fact that the appellant's new partner works for long periods in Europe and that she and the children would accompany him to countries such as Russia and Kazakhstan. Consequently, she needed visas for these countries, which she would be unable to obtain if she were convicted.
(see ts 7 - 9 and 13)
(Page 10)
27 The prosecutor opposed the application under s 19B. In summary, the prosecutor submitted that:
(a) there was nothing unusual about the case so as to take it outside of the ordinary case;
(b) the objective seriousness of the appellant's offending meant that a conviction should be recorded; and
(c) there were no extenuating circumstances under which the offence was committed.
The magistrate's reasons
28 The magistrate declined to make an order under s 19B. He expressed his reasons as follows:
HIS HONOUR: Thank you. I do consider these offences very serious. It has been submitted that the father has had little contact, or little interest. I don’t know, but there were and are Family Court orders in existence, so there must have been some interest for that to occur, and orders were made by consent allowing the accused to take the children overseas. Perhaps she was fortunate that they were made by consent because it can be difficult if they are not.
Again, it is submitted that the father has had little contact and these orders are of no effect. However, that can't be completely true because the father has obviously gone to some trouble getting an order from the Family Court and this alert was put on at the airport.
...
So I do consider this very serious and I do find that [RLG] should have known that she was required to declare these matters and she has not. I am not satisfied under s 19B, in particular (ii) and (iii), that this should be dismissed and no conviction [recorded]. I do not find that at all and I do not find there to be extenuating circumstances. I find it serious because the ramifications that can occur when someone does this are that a father is denied any contact with his children. No-one knows where they are. So I do find it very serious and, in the circumstances, I am going to deal with it by way of a fine, and there will be a fine of $500 in relation to each charge. Are there any costs?
PROSECUTOR: Yes, your Honour, $76.45, being the filing fees.
HIS HONOUR: And in relation to the visas, I mean, there is no proof before me that a conviction will not allow - you say that, but there is no proof that a conviction will not allow her to get visas. It might make it more difficult but I do not necessarily think she will not get one.
(Page 11)
29 In essence, the primary ground on which the learned magistrate declined to order a discharge under s 19B was that the appellant's offending was too serious. As will appear later in these reasons, I take a similar view.
Grounds of appeal
30 Initially, the appellant had a single ground of appeal. At the hearing, leave was granted to add two further grounds.
31 Ground 1 is unhappily drafted. It alleges that the magistrate 'erred in his sentencing discretion when he refused to deal with the charges under s 19B Crimes Act to discharge the offender without proceeding to conviction'. In oral submissions, senior counsel for the appellant said that that ground should be taken as alleging implied error in the exercise of discretion (appeal ts 13 - 14). In other words, ground 1 contends that, in all the circumstances of the case, the decision to refuse to grant an order under s 19B was so unreasonable or unjust as to reveal an error in the discretion.
32 Ground 2 alleges that the magistrate erred in law in finding that there were no extenuating circumstances.
33 Ground 3 alleges that the magistrate failed to accord the appellant procedural fairness by failing to give notice to the appellant that he was not prepared to act on the submission of her counsel as to the consequences of a conviction in circumstances where that had not been controverted by the prosecution.
34 I will begin with some general principles applicable to s 19B, before coming to the merits of the grounds of appeal.
Section 19B Crimes Act: general principles
35 The principles applicable to s 19B were not in dispute in this appeal.
36 Section 19B of the Crimes Act provides as follows:
(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
- (i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
- that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs by specified instalments as provided in the order; and
(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may
- include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
37 The power to make an order under s 19B is discretionary: Stark v Plant [2010] WASCA 74 [9]; Cobiac v Liddy (1969) 119 CLR 257.
38 A court applying s 19B applies a two stage test. First, one or more of the factors in (i), (ii) or (iii) of s 19B(1)(b) must be established. If not, the application fails. If one or more factors are established, the second stage is to consider whether, in light of that factor or factors, and taking into account general principles of sentencing as set out in s 16A of the Crimes Act, it is 'inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment': Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568 [10]; Scott v Chief Executive Office of Customs [2012] WASC 203 [17].
39 'Extenuating circumstances' have been said to mean circumstances which 'excuse in some appreciable degree the commission of the offences or lessen the appellant's guilt': Nelson v Quinn [2001] WASCA 297 [58]; O'Sullivan v Wilkinson [1952] SASR 213, 218. The language of the section makes it clear that it is only circumstances under which the offence was committed which may qualify as extenuating for the purposes of s 19B(1)(b)(iii). There must be some link between the circumstances said to be extenuating and the commission of the offence: Commissioner of Taxation v Baffsky [47].
40 It has also been said that extenuating circumstances should be circumstances that take the case out of the ordinary of offending of this nature: Moreland v Snowdon [2007] WASC 137 [44]; Warnakulasuriya v The Queen [2009] WASC 257 [71]. In other cases, the need to distinguish the circumstances of the offence from a typical offence, or the circumstances of the offender from typical circumstances of offenders of this kind, is said to be part of the second stage. See, for example, Kelton v Uren (1981) 27 SASR 92.
41 The favourable exercise of the discretion under s 19B is reserved for those cases which can be described as exceptional, rare, or special: Stark v Plant [18].
42 Factors relevant to the second stage under s 19B include the seriousness of the offence, its prevalence, any difficulty in detecting
(Page 14)
- breaches and the need for general deterrence, as well as the other matters in s 16A of the Crimes Act: Lanham v Brake (1983) 34 SASR 578; DPP (Cth) v Maroney [2009] VSC 584 [15].
43 The effect of a conviction upon an offender is relevant to whether it is inexpedient to inflict punishment, including by recording a conviction: Cobiac v Liddy; Nelson v Quinn [41].
44 That brings me to the grounds of appeal. Because grounds 2 and 3 allege express errors, while ground 1 alleges implied error, it is convenient to deal with ground 1 last. I begin with ground 2.
Ground 2: extenuating circumstances?
45 The learned magistrate found that the offence was not committed under any extenuating circumstances (ts 14). Ground 2 contends that the magistrate erred in so finding.
46 In her written submissions on appeal [35], the appellant set out six matters that were said to constitute extenuating circumstances. However, in oral submissions, senior counsel for the appellant rightly conceded that three of them were incapable of constituting extenuating circumstances, because they were not circumstances under which the offence was committed (appeal ts 6- 7). I deal with the remaining three.
47 First, and according to senior counsel for the appellant, most importantly, the appellant's conduct was reckless rather than intentional. That fact, it was contended, reduced the moral culpability of the offender and so constituted an extenuating circumstance under which the offence was committed.
48 I do not accept that submission. As was common ground, the fault element for the offence of which the appellant was convicted is recklessness: s 5.6(2) Criminal Code Act 1995 (Cth). Intention is not required in relation to the false or misleading character of the information submitted. The appellant emphasised that this offence could be committed in circumstances where intentionally misleading or false documents were submitted. That is true. However, to my mind, to say that there may be worse cases does not mean that a case involving recklessness, which is all that is required for this offence, is thereby committed under extenuating circumstances.
49 Secondly, the appellant points to her counsel's assertion before the magistrate that from 2004 the Father had shown no real interest in seeing
(Page 15)
- his children, and that the only reason that he saw them on the one occasion in 2007 was that she had insisted that he see them.
50 The magistrate rejected that assertion, saying that the existence of the Family Court orders, including the obtaining by the Father of the 2010 Order, restraining the appellant from removing the children from Australia, demonstrated some effort and interest in seeing the children (ts 14). There is no challenge to the magistrate's conclusions in this regard. In circumstances where it was an admitted fact that between 15 January 2007 and 12 October 2010 the Father had made a number of attempts to contact the children and make arrangements to see them, no challenge could succeed.
51 Thirdly, the appellant points to the fact that in committing the offences, she believed that the 2006 Orders were not relevant. Despite some attempts, senior counsel for the appellant was, to my mind, unable to identify any basis on which the appellant could have considered the 2006 Orders to be irrelevant (while evidently considering the 2004 Orders to be relevant). In any event, the appellant accepted that, as she had admitted to the investigators, she knew about the 2006 Orders and that those orders affected the Father's entitlement and access to the children.
52 I am not persuaded that the offences were committed under extenuating circumstances. Consequently, ground 2 fails.
53 In any event, if, contrary to my view, any of the circumstances relied on by the appellant constitute extenuating circumstances, for reasons I will explain later, upon a re-exercise of the discretion I would not grant an order under s 19B.
Ground 3: procedural fairness?
54 Before the magistrate, counsel for the appellant submitted that the effect of conviction would be that the appellant would be unable to obtain visas, including for Russia or Kazakhstan (ts 13). Ground 3 fixes on the statement made by the learned magistrate, immediately after announcing the sentence, that:
In relation to the visas, I mean there is no proof before me that a conviction will not allow - you say that, but there is no proof that a conviction will not allow her to get visas. It might make it more difficult but I do not necessarily think that she will not get one (ts 14).
(Page 16)
55 In immediate response, counsel for the appellant said to the magistrate:
Your Honour has made the order and I can't go against it, but if your Honour wants some evidence of that, then we should be invited to provide it [with some indistinct additional words] (ts 14).
56 The magistrate responded:
No, that's all right.
57 Before the magistrate, the prosecutor did not deny, or state that she did not accept, the appellant's contention that the consequences of conviction would prevent her from obtaining visas. Rather, the prosecutor asserted that the consequences of a conviction do not fall within the factors in s 19B (ts 10).
58 The appellant submits that the learned magistrate was obliged to give notice to the appellant that he was not prepared to act on her counsel's submission about the consequences of conviction. In other words, the appellant submits that in circumstances where her counsel's assertion had not been controverted by the prosecution, the magistrate should have brought to the appellant's attention that he was considering not acting on that submission, so as to enable the appellant to adduce evidence.
59 The appellant relies on the line of authorities, in the context of sentencing generally, that an offender need lead evidence or material to establish a fact in mitigation only if, when asserted, it is controverted or challenged by the prosecution. If the prosecution does not challenge a fact, the court must give notice to the defendant if it is not prepared to act on the uncontroverted assertion of the defendant: CJ v The State of Western Australia [2009] WASCA 42 [4]; Law v The State of Western Australia [2009] WASCA 193 [32].
60 The respondent submits that the comments of the magistrate on which this ground relies were made after the magistrate had stated the decision to impose a sentence. Consequently, the submission continues, those observations did not form part of the reasons for the decision which he made to reject the application under s 19B. I do not accept that submission. To my mind, the words said by the magistrate immediately after he had imposed a punishment were so closely connected to the decision to impose a punishment that they should be taken to reveal part of the reasoning for that decision.
(Page 17)
61 There may be room for doubt as to whether the general principles relating to facts in mitigation asserted by an offender, summarised in [59] above, apply in the same way in the specific context of an application under s 19B of the Crimes Act. There may be room for the view that it is for an offender, who seeks to invoke the exceptional exercise of that power, to put forward sufficiently cogent evidentiary material to sustain its exercise and that if the court considers the offender has failed to do so, it is not obliged to first give notice to that effect.
62 In the broadly analogous (for present purposes) context of an application for a spent conviction order under s 39 of the Sentencing Act 1995 (WA) there is authority to the effect that those who contend they come within the conditions laid down in s 45 must demonstrate that fact by convincing evidence. See, for example, Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14]; Ennis v D'Andrilli [2007] WASC 263 [50] - [58]; Papas v Godwin [2010] WASC 226 [24] - [28].
63 Whether procedural fairness requires a court to give notice to an applicant for a spent conviction order, or an order under s 19B, that an uncontradicted assertion of adverse consequences of a conviction did not sufficiently satisfy the court of such consequences, may depend upon the circumstances of the case. It is not necessary to determine whether that is so. Nor is it necessary to determine whether, in the circumstances of the case, the learned magistrate failed to afford procedural fairness to the appellant in the manner alleged. That is because if, favourably to the appellant, the asserted adverse consequence of conviction is accepted, upon a re-exercise of the discretion I would decline to grant an order under s 19B.
64 Senior counsel for the appellant submits that if ground 3 is upheld, I should remit the matter to the magistrate so as to enable the appellant to lead evidence that the recording of a conviction will have the adverse visa consequences asserted before the magistrate. I think that would be an unnecessary and inappropriate course because the application can be determined by accepting, favourably to the appellant, the asserted adverse visa consequences.
65 I turn to explaining my conclusions upon re-exercising the discretion.
(Page 18)
Re-exercising discretion: should an order under s 19B be made?
66 The following matters, as outlined in [26], were again emphasised on appeal in support of an order under s 19B:
(a) the appellant had excellent antecedents. She was 41, married with two children, and a qualified teacher who had no criminal record;
(b) in committing the offence, the appellant acted recklessly not intentionally;
(c) the appellant pleaded guilty at the first reasonable opportunity;
(d) she cooperated with the investigators in making substantial admissions;
(e) she returned from Spain to be dealt with by the court;
(f) recording of a conviction would have the significant adverse effects of preventing her from obtaining visas in Europe in the circumstances already explained; and
(g) the other matters relied on as extenuating circumstances, some of which are discussed in dealing with ground 3.
67 In my view, those matters are outweighed by the objective seriousness of the appellant's offending and the need for general deterrence.
68 The appellant offended against s 30(1) of the Australian Passports Act 2005. The seriousness of an offence against that section is reflected in the maximum penalty of imprisonment for 10 years and a fine of $110,000. On summary conviction, the maximum imprisonment is 2 years and a fine of $13,200. Those penalties reflect an increase on the previous regime (under the Passports Act1938 (Cth)). In the Second Reading Speech and Explanatory Memorandum for the 2005 Act, the increased penalties were said to have the objective of providing a deterrent effect against dishonesty in relation to passport applications and like documents.
69 Section 11 regulates the issue of passports to children. The general scheme is that, with various exceptions, a passport can be issued for a child only with the consent of all persons with parental responsibility.
(Page 19)
70 Section 11(2)(a) permits the Minister to determine that special circumstances exist and to issue a passport without consent of a parent. In that context, false information in an application for a child's passport creates the risk of unlawful removal of a child from Australia. That risk materialised in the circumstances of this case, when passports were issued to the children based upon the appellant's false or misleading information, following which the appellant attempted to leave Australia with the children.
71 The purpose of s 11 is to protect children from abduction and to protect the rights of parents: see par 7 of the notes on clauses under cl 11 in the Explanatory Memorandum to the Act.
72 Further, the appellant's offences did not involve a single instance of a misstatement. Rather, the appellant submitted six documents to the APO, each of which contained false or misleading statements or information. The B-9 Forms were false or misleading in four respects. Overall, the documents objectively created a seriously misleading impression, upon which the APO acted in issuing passports to the children. In each document there was a declaration that the information the appellant had given was true and correct, and a warning that it was a criminal offence to make false or misleading statements in connection with the applications.
73 To my mind, in the circumstances of this case, the objective seriousness of the appellant's offending and the need for general deterrence outweighed the matters which militated in favour of the exceptional course of a favourable exercise of power under s 19B.
74 For these reasons I would not grant an order under s 19B. Consequently, to the extent that ground 3 (or ground 2) succeeds, I would dismiss the appeal on the basis that no substantial miscarriage of justice has occurred: s 14(2) of the Criminal Appeals Act 2004 (WA).
Ground 1
75 Ground 1 asserts that the rejection of the application for an order under s 19B itself revealed error. In other words, it is contended that that conclusion was not open to the magistrate. I reject the ground. In my view, the magistrate's conclusion was well open. As I have explained, in re-exercising the discretion, my conclusion is the same as the magistrate's. I would not grant leave on ground 1.
(Page 20)
Conclusion
76 For these reasons I would grant leave to appeal on grounds 2 and 3, and dismiss the appeal.
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