SC v Occupational Therapists' Registration Board of Western Australia

[2012] WASC 407

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   SC -v- OCCUPATIONAL THERAPISTS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2012] WASC 407

CORAM:   HALL J

HEARD:   ON THE PAPERS

DELIVERED          :   1 NOVEMBER 2012

FILE NO/S:   SJA 1011 of 2012

BETWEEN:   SC

Appellant

AND

OCCUPATIONAL THERAPISTS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE L J ATKINS

File No  :PE 50335 of 2011, PE 50336 of 2011

Catchwords:

Magistrates Court - Appeal against sentence - Regulatory offence - Whether spent conviction order should have been granted

Legislation:

Occupational Therapists Act 2005 (WA), s 83, s 86(b)

Result:

Appeal allowed
Spent conviction order made

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     Redding & Associates

Respondent:     Australian Health Practitioner Regulation Agency

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

House v The King [1936] HCA 40; (1936) 55 CLR 499

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Redding v Robinson [2009] WASC 403

HALL J: 

Introduction

1. The appellant is an occupational therapist and has worked as such since 2004.  In 2011 she neglected to renew her professional registration by the due date.  As a consequence she worked as an occupational therapist whilst unregistered for two months.  For this she was charged and pleaded guilty to offences under the Occupational Therapists Act 2005 (WA). She was fined, but a spent conviction order was not made. The appellant now seeks leave to appeal against the sentence on the grounds that the magistrate erred by not making a spent conviction order.

Background

1. Section 83 of the Occupational Therapists Act 2005 (WA) provides that it is an offence for a person who is not registered as an occupational therapist to practice in that capacity. Section 86(b) of the Act provides that it is an offence for a person to hold out or imply that they are registered or entitled to practice occupational therapy unless the person is registered as an occupational therapist. The maximum penalties for these offences are $5,000 and $2,500 respectively. A daily penalty can also be imposed.

2. The appellant qualified as an occupational therapist in 2003.  She has been registered with the Occupational Therapists Registration Board since 2004 (or at least until the Board was recently replaced by another agency).  In 2011 the appellant's renewal of registration was required to be completed prior to 30 June 2011.  She failed to renew by the due date.  She was then removed from the register.  She completed the necessary paperwork on 2 September 2011 and was then restored to the register.

3. A charge under each of s 83 and s 86(b) was preferred and the prosecution notice was served on the appellant on 25 November 2011. On 8 December 2011 she was served with a court hearing notice which stated that the matter would be heard on 16 December 2011. On 13 December 2011 the appellant endorsed a written plea of guilty to the charges and indicated that she would not be attending the hearing.

4. The written plea was sent to the Perth Magistrates Court by facsimile on 13 December 2011 together with a written explanation as to the circumstances and submissions in regard to penalty.  The appellant rang the court to confirm that the facsimile was received and was advised that it was.  She has provided a copy of the documents under cover of an affidavit dated 12 October 2012 to which is annexed a copy of the written plea and the submissions bearing a facsimile imprint for 13 December 2011.  She also attests that the copy of the documents annexed to her affidavit was obtained from the Perth Registry of the Magistrates Court.

5. In her written submissions to the Magistrates Court the appellant accepted that she had forgotten to renew her registration and had continued to work as an occupational therapist without realising that she had missed the renewal date.  She said that this was a one‑off omission and that she had complied with registration requirements by the due date in the previous seven years.  She noted that she had been employed with the same employer for the past eight years and had never been the subject of any complaints.  She respectfully asked the court to impose a fine and to grant a spent conviction.

Magistrates Court proceedings

1. The matter came before the Magistrates Court on 16 December 2011.  Counsel appearing for the Board read the facts and noted that this was not a case where there was any allegation that a person had pretended to be an occupational therapist, rather it was a case where a qualified occupational therapist 'simply did not pay for her registration and, in fairness to her, that puts her in a different category' (ts 2).

2. The magistrate noted the available maximum penalties and imposed a global penalty of $5,000 and costs of $1,534.40.  The transcript of the proceedings does not reveal any reference to the appellant's written submissions.  In particular, there is no reference to her application for a spent conviction order.

3. In my view, it is very unlikely that the magistrate would not have referred to the appellant's written submissions had she been aware of them.  The only reasonable inferences are that all of the relevant documents had not at that point found their way to the court file or that the magistrate simply overlooked them. 

Appeal proceedings

1. The appellant subsequently became aware of the penalty and that no spent conviction order had been granted.  She then sought leave to appeal to this court.  There were originally a number of grounds of appeal but her lawyers subsequently wrote to the court advising that the sole issue was whether the magistrate erred in not granting the appellant a spent conviction order. 

2. Since this appeal was commenced the Board has been replaced by the Australian Health Practitioner Regulation Agency (AHPRA).  By letter dated 15 October 2012 the AHPRA advised that it did not intend to take part in this appeal and would abide by any order made by the court, other than as to costs.  The appellant has indicated that in the event she is successful she will not seek an order as to costs.

Merits of the appeal

1. It was open to the magistrate to make a spent conviction order in this case pursuant to s 39(2) and s 45 of the Sentencing Act 1995 (WA). Section 45 provides that a court is not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial or the previous good character of the offender, the court considers that the offender should be relieved immediately of the adverse effect that the conviction might have.

2. The power to make a spent conviction order is a discretionary one.  Whilst the factors in s 45 must be met before such an order can be made they do not require that an order be made.  There are merely pre‑conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of that power:  R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24] (Murray J).

3. Where it is suggested that there has been an error in the making of a discretionary decision it is not enough that an appeal court may have made a different decision; it must be shown that some error has occurred in the exercise of the discretion:  House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon CJ, Evatt and McTiernan JJ). This may include acting on a wrong principle, taking into account an irrelevant consideration or failing to take into account a relevant consideration. In some cases it may not be apparent how a decision has been reached but the result is so plainly unjust that it can be inferred that an error in the exercise of discretion must have occurred.

4. There is no express error in the magistrate's reasons for imposing the penalty, however it can be inferred that an error occurred in that no consideration was given to whether a spent conviction order should be made.  If the magistrate was unaware that such an order had been sought, that was no fault of the appellant's.  In any event, even if a decision was made not to grant a spent conviction order such a decision would raise the question of whether that result would be plainly unjust.

5. In some cases involving appeals where a spent conviction order has not been granted there was no application for an order, but on a consideration of all of the evidence, including evidence which has been placed before the court in the appeal proceedings, a miscarriage of justice has been established:  Redding v Robinson [2009] WASC 403.

6. The present case is different; an application for a spent conviction order was made by the appellant but the magistrate appears to have been unaware of it.  In those circumstances, the magistrate did not give consideration to whether the circumstances justified the exercise of the discretion to grant a spent conviction order.  Had the magistrate turned her mind to this issue it is highly likely that such an order would have been granted.  It is now necessary for me to consider whether a spent conviction order should be made.

7. On this appeal I have received, without objection, an affidavit from the appellant setting out in detail the circumstances in which she failed to renew her registration and the consequences of the convictions.  In particular, the appellant attests that there has been some uncertainty as to whether she would be able to renew her registration in subsequent years and as to the effect of the convictions on her ability to travel overseas.  When these matters are taken together with the appellant's otherwise unblemished record, the relative shortness of the period of unregistered practice and her excellent work history, they compel a conclusion that to refuse a spent conviction order would be a miscarriage of justice.

8. Compliance with professional registration requirements is no doubt a matter of significance.  Those requirements are designed to protect the public.  In this case, the offending was of a less serious nature because the appellant was a qualified and experienced occupational therapist.  It should also be noted that the appellant accepted responsibility and entered a plea of guilty at the first reasonable opportunity. 

9. In her affidavit the appellant has referred to the salutary effect that these proceedings have had and the steps that she has taken to ensure that any correspondence from the relevant professional registration body comes to her attention and is acted upon promptly.  In these circumstances, it is unlikely that the appellant would commit offences of this nature again.

Conclusion

1. For the above reasons the appeal will be allowed and a spent conviction order will be made.  The orders are as follows:

   1.Leave to appeal in respect of grounds 1 and 2 is granted.

   2.The appeal is allowed.

   3.A spent conviction order under s 45 is made in respect of charges PE 50335/11 and PE 50336/11 (the orders made by the magistrate in regards to the fine and costs otherwise stand unaffected).

   4.There be no order as to costs.