Sharpe v Vinning - [2020] WASCA 79

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SHARPE -v- VINNING [2020] WASCA 79
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   22 JANUARY 2020
DELIVERED          :   26 MAY 2020
FILE NO/S:   CACR 87 of 2019
BETWEEN:   MICHAEL MARY SHARPE
Appellant
AND
RODERICK THORN VINNING
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
File Number            :   SJA 1032 of 2019

Catchwords:

Criminal law - Appeal against failure to make a spent conviction order - Proper construction of s 45(1) of the Sentencing Act 1995 (WA) - The meaning of the expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act - Whether the only conclusion reasonably open was that the appellant's offence against s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) was not 'trivial' within s 45(1)(b)(i) of the Sentencing Act

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)
Criminal Appeals Act 2004 (WA), s 14, s 16, s 18
Sentencing Act 1995 (WA), s 39, s 45
Spent Convictions Act 1988 (WA), s 6, s 11

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Mr S Nigam
Respondent	:	Mr D E Leigh

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	State Solicitor's Office

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

GNR v The State of Western Australia [2015] WASCA 5
Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

JUDGMENT OF THE COURT:

Since 3 July 2015 the appellant has been a reportable offender under the Community Protection (Offender Reporting) Act2004 (WA) (the CPOR Act).
On 8 February 2019, the appellant was convicted, on his plea of guilty in the Magistrates Court before Magistrate Young, on one charge in a prosecution notice. The charge alleged that on 2 January 2019 the appellant failed to comply with reporting obligations, contrary to s 63(1) of the CPOR Act.
The Magistrate imposed a fine of $200 and ordered the appellant to pay costs. His Honour refused the appellant's application for a spent conviction order. The primary basis for his Honour's refusal was that the offence was not 'trivial' within s 45(1)(b)(i) of the Sentencing Act 1995 (WA).
The appellant applied for leave to appeal to a single judge of the Supreme Court sitting in its General Division against the Magistrate's refusal to make a spent conviction order. Curthoys J refused leave and dismissed the appeal.
The appellant has now appealed to this court against Curthoys J's decision. The appeal should be dismissed.

The appellant's offences of aggravated indecent assault and his reporting obligations under the CPOR Act

On 3 July 2015, the appellant was convicted on two counts of aggravated indecent assault, contrary to s 324 of the Criminal Code (WA) (the Code). On that date he was sentenced to a total effective sentence of 2 years' imprisonment, conditionally suspended for 2 years. The offences were committed against a child. Consequently, the appellant became a reportable offender under the CPOR Act.[1]
[1] See s 6(1), s 9(b) and sch 2 of the CPOR Act.
Part 3 of the CPOR Act imposes obligations on reportable offenders in respect of their 'personal details'. By s 24(1), relevantly, a reportable offender must report his or her personal details to the Commissioner of Police (the Commissioner) within a specified period. By s 28(1), a reportable offender must report his or her personal details to the Commissioner each year. By s 29(1), relevantly, a reportable offender must report to the Commissioner any change in his or her personal details within 7 days. The personal details which a reportable offender must report to the Commissioner include, relevantly:
(a)any 'communication service provided by means of the internet' in connection with which the reportable offender uses a name referred to in pars (a) or (d) of s 26(1) or an email address referred to in par (db) of s 26(1) (s 26(de)(ii)); and
(b)any user name and password that the reportable offender uses to gain access to any such communication service (s 26(df)(ii)).

The facts and circumstances of the appellant's offence under s 63(1) of the CPOR Act

On 2 January 2019, the appellant attended the Sex Offender Management Squad office for a scheduled meeting. During the meeting it was ascertained that the appellant had installed 'Uber' and 'Viber' applications on his mobile telephone. The appellant was required by s 29(1) of the CPOR Act to report to the Commissioner within 7 days his use of those applications and the user name and password he used to gain access to them. The appellant had failed to report those personal details within 7 days.
On 25 January 2019, the appellant was charged with the offence of failing to comply with his reporting obligations, contrary to s 63(1) of the CPOR Act.
As we have mentioned, on 8 February 2019 the appellant pleaded guilty to the offence and was convicted in the Magistrates Court.

The appellant's application in the Magistrates Court for a spent conviction order

Section 63(1) of the CPOR Act provides:
A reportable offender who, without reasonable excuse, fails to comply with any of his or her reporting obligations commits a crime.
Penalty: imprisonment for 5 years.
Summary conviction penalty: a fine of $12 000 and imprisonment for 2 years.
Section 39 of the Sentencing Act applies to an offender who is a natural person. Section 39(2) and s 39(3) provide:
(2)Subject to sections 41 to 45, a court sentencing an offender may ‑
(a)with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or
(c)with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made); or
(ca)with or without making a spent conviction order, under Part 8A impose a suspended fine; or
(d)with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender; or
(e)under Part 10 impose an ISO and order the release of the offender; or
(f)under Part 11 impose suspended imprisonment and order the release of the offender; or
(g)under Part 12 impose CSI and order the release of the offender; or
(h)under Part 13 impose a term of imprisonment.
(3)A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.
Section 39(2) does not empower a sentencing court to make a spent conviction order where the court uses a sentencing option under pt 10, pt 11, pt 12 or pt 13 of the Sentencing Act.
Section 45(1) of the Sentencing Act provides, relevantly:
[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.
By s 45(4) of the Sentencing Act, a spent conviction order is to be taken as part of the sentence imposed.
On 8 February 2019, at the sentencing hearing, the prosecutor informed the Magistrate that 'Uber' is an online ride sharing service and 'Viber' is an encrypted messaging service. The prosecutor said the appellant had explained, when questioned, that his failure to make the requisite report to the Commissioner was an oversight and that he did not realise he had to make the report.
At the sentencing hearing, defence counsel made submissions in support of the application for a spent conviction order as follows:
(a)the appellant had downloaded the Viber application on his mobile telephone at the request of an adult friend who was travelling overseas so that the appellant and his friend could communicate on that service without incurring telephone charges;
(b)at the meeting on 2 January 2019, the appellant had voluntarily disclosed to the police the Uber and Viber applications on his mobile telephone;
(c)the appellant was not a person of prior good character having regard to the two counts of aggravated indecent assault against a child of which he was convicted in 2015;
(d)however, those offences were 'historic' in that the offences occurred in 1991;
(e)since the aggravated indecent assault offences were committed, the appellant had been rehabilitated;
(f)the appellant's breach of the reporting obligations, contrary to s 63(1) of the CPOR Act, was 'trivial', within s 45(1)(b)(i) of the Sentencing Act, in that the breach was not 'for criminal purposes' and there was 'no mention of any nefarious behaviour' (for example, contacting children);
(g)the breach occurred 'four years into an eight year [sic] reporting period' and it was not suggested that he had previously failed to comply with his reporting obligations;
(h)the appellant was unlikely to reoffend in relation to his reporting obligations; and
(i)if a spent conviction order was not made the appellant would be unable to apply until 2029 for the convictions recorded in 2015 to be spent, and that would adversely affect his ability to travel to Ireland to visit his family (ts 4 ‑ 7).
In addition, defence counsel contended in his written submissions to the Magistrate that if a spent conviction order was not made the conviction 'would cause further hardship to [the appellant's] employment opportunities, as well as any future positions for growth within his chosen field of employment' and that 'further convictions of this nature on [the appellant's] record [are] highly likely to prevent him from travelling to various countries' to visit his 'family, extended family and friends [who] reside in Europe'.
During discourse with defence counsel, the Magistrate was 'prepared to accept' that the appellant had 'done everything he can do to change his position so that he is effectively rehabilitated' and that the appellant was 'certainly not likely to reoffend again in relation to these breaches' (ts 6).
The Magistrate's reasons for refusing to make a spent conviction order were as follows:
I can accept that the offences giving rise to your obligation to report happened a long time ago and that your life has changed for the better since that time. You've got yourself some qualifications and meaningful employment, and obviously while those offences are self‑evidently serious that they did not result in an immediate custodial sentence, and I accept that you've since complied with your reporting regime.
In terms of the offences here, I think if it was just the Uber I would be inclined to characterise it as being a trivial offence because – again this is to some extent an assumption on my part, but I assume you can't use the Uber for anything other than booking Uber related things, however, in relation to Viber I will accept that your personal reason for downloading it was to communicate with a friend overseas without incurring expense, and I accept that to be the case and I don’t see anything sinister about it.
I accept that to be the case, however, the difficulty with that one is that … there's a wider consideration in the sense that the public interest lies in ensuring that the supervising police are able to be aware of anything that a person is accessing or downloading and it really can't be left to individuals to determine for themselves what they think might be innocuous and what might not.
In other words, this is social legislation which depends upon compliance in order to be effective and in that regard, noting that the prosecution said that the conditions of your order read any online app or online account which requires a user name and password, that it should have been a flag that that was the sort of matter which might come within that prohibition, and then there is the capacity or the potential to use it without the knowledge of the police for untoward purposes.
Now, again I accept it was never your intention and it was never going to happen, but that is the underlying public interest to ensure that anyone subject to this regime does not access any account or application which might allow them to use it for untoward means. So for that reason, having regard to that wider context, whilst it's certainly a breach at the lower end of the scale I'm unable to regard it as being trivial. I must therefore consider the other criteria in s 45 of the Sentencing Act.
Now, I mean, it's a difficult application in the sense [that] obviously you have these serious convictions, and again I repeat they're dated and I accept things are very different for you now than they were previously. I can accept there might be a concern about the fact that it might be one thing explaining to prospective employers and the like the convictions which occurred nearly 30 years ago as against a more recent conviction.
Fundamentally, the submission put to me in terms of detriment is that you are able to apply to have these convictions spent in July 2025 on the expiration of 10 years from the date of conviction, and then it is said that if … this conviction is not spent immediately, then you will be unable to apply for this matter to be spent until February 2029 and that … you've suffered detriments already as a result of matters that were recorded in 2015 and that you may suffer further detriments in that period of time.
Whilst I accept that to be the case, Mr Sharpe, I don't accept that's a matter which should relieve you of the adverse consequence of the conviction immediately and I say that because having regard to the matters in totality an additional three and a half years without being able to have the conviction spent does not seem to be the sort of detriment that is contemplated by the legislation. It seems to relate primarily to travel matters. It's not a permanent preclusion or prohibition upon any travel plans and, as I say, whilst no doubt you prefer if it were different it essentially extends the period of time which you might have those difficulties, or you might encounter difficulties from mid‑2025 until early 2029. So for those reasons I'm not satisfied that the criteria for a spent conviction has been established (ts 7 ‑ 9).
It is apparent from the Magistrate's reasons that there were two bases for his refusal to make the spent conviction order. First, his Honour was not satisfied that the offence was 'trivial', within s 45(1)(b)(i) of the Sentencing Act, and, consequently, the discretionary power to make the order was not enlivened. Secondly, even if the offence was 'trivial' and, consequently, the discretionary power to make the order was enlivened, his Honour considered that, in the exercise of his discretion, the appellant 'should not be relieved immediately of the adverse effect that the conviction might have on [the appellant]', within s 45(1)(b).

The prescribed period which must elapse before the appellant could make an application for a spent conviction order in respect of the convictions recorded in 2015

Defence counsel (who was not counsel for the appellant in this appeal) made submissions before the Magistrate as to the prescribed period which must elapse before the appellant could make an application under s 6(1) of the Spent Convictions Act 1988 (WA) for a spent conviction order in respect of the 2015 convictions, if the Magistrate did not make a spent conviction order under s 45(1) of the Sentencing Act in respect of the appellant's offence against s 63(1) of the CPOR Act.
Counsel submitted that if the Magistrate did not make a spent conviction order then the prescribed period in respect of the 2015 convictions would, in effect, be reset and not expire until February 2029.
Counsel's submission was erroneous.
Section 6(2) of the Spent Convictions Act provides, relevantly, that an application under s 6(1) for a spent conviction order in respect of a 'serious conviction' (as defined in s 9 of that Act) may not be made by a person in respect of the serious conviction until the prescribed period for that conviction has expired.
The appellant's 2015 convictions were 'serious convictions' as defined in s 9 of the Spent Convictions Act.
By s 11(1) of the Spent Convictions Act, the prescribed period for a serious conviction is, relevantly, 10 years, plus any period of imprisonment relevant to that conviction, reckoned in accordance with s 11.
Section 11(4) of the Spent Convictions Act makes provision for the prescribed period stipulated in s 11(1) to be, in effect, reset if the person is convicted of another offence. However, by s 11(5), s 11(4) does not apply if no punishment, or only 'minor punishment', is imposed for the later conviction. The term 'minor punishment' is defined in s 3(1) to mean 'a fine not exceeding $100 or such amount as may be prescribed'.
When the appellant was sentenced by the Magistrate, the amount of the fine, for the purposes of the definition of 'minor punishment' in s 3(1), had been prescribed as $500.
As we have mentioned, the Magistrate imposed a fine of $200 for the offence committed by the appellant against s 63(1) of the CPOR Act.
Accordingly, the Magistrate's decision not to make a spent conviction order did not have the effect of resetting the prescribed period in respect of the 2015 convictions.

The appeal before Curthoys J

The appeal from the Magistrate's decision to the Supreme Court in its General Division was brought pursuant to div 2 of pt 2 of the Criminal Appeals Act 2004 (WA).
The appellant relied on two grounds of appeal before Curthoys J.
Ground 1 alleged that the Magistrate had erred in law in determining that one of the preconditions necessary to enliven the discretion to make a spent conviction order, namely that 'the offending' was trivial, was not satisfied.
It was submitted, on the appellant's behalf, that the only conclusion reasonably open to the Magistrate was that 'the offending' was trivial having regard to the following:
(a)the lack of any sinister purpose in downloading the Uber and Viber applications;
(b)the lack of any evidence that the applications had ever been used to attempt to contact under-aged children or for any other improper purpose;
(c)the appellant's voluntary disclosure to the police that he had downloaded the applications;
(d)the fact that the Uber application was unable to be used to contact third parties such as under-aged children; and
(e)the unchallenged submission of defence counsel that the appellant had downloaded the Viber application for the sole purpose of communicating with an adult friend so that he did not have to incur international mobile telephone charges.
Ground 2 alleged that the Magistrate's decision not to make a spent conviction order had occasioned a miscarriage of justice.
It was submitted that 'upon a proper assessment of the triviality of the offending and the public interest in not requiring the ongoing disclosure of the [offence], [the Magistrate's] refusal to grant a spent conviction order resulted in a miscarriage of justice'.
Curthoys J referred in his reasons for decision to the judgment of this court in GNR v The State of Western Australia.[2] His Honour said:
Based on the authority of GNR, in considering whether the offence [committed by the appellant] is trivial, one is to have regard to the offence itself rather than the circumstances of the offending. I am not satisfied that the offence is trivial. The legislation is in place for the protection of the community and [the] protection of the community against sexual offenders. The authorities … establish that [an offence against] s 63 [of the CPOR Act] is not a trivial offence, and the penalties that are imposed, being imprisonment up to 5 years, emphasise the offence is not trivial (ts 8).
[2] GNR v The State of Western Australia [2015] WASCA 5.

His Honour said he was not satisfied that the offence was trivial and, therefore, his Honour was not satisfied that 'the circumstances which would enliven a spent conviction order arise' (ts 8). His Honour rejected the appellant's argument that regard could be had to 'the circumstances of the offence' in deciding whether an offence is trivial (ts 8).
Curthoys J accepted that it is appropriate to have regard to the circumstances of the offence once the discretionary power to make a spent conviction order is enlivened.
His Honour said that even if (contrary to his opinion) the offence was trivial, he was not satisfied that the Magistrate's provisional exercise of the discretionary power under s 45(1) had miscarried. The Magistrate had taken into account all relevant matters in concluding that the appellant should not be relieved immediately of the adverse effect that the conviction might have on him.

The appellant's grounds of appeal before this court

The appellant relies on two grounds in his appeal from Curthoys J's decision.
Ground 1 alleges that Curthoys J erred in law in determining that the preconditions necessary for the exercise of the discretion to make a spent conviction order had not been satisfied. There are two particulars of ground 1. The first particular asserts that his Honour erred in determining that 'the offending [and] the circumstances of the offending' were not 'trivial'. The second particular asserts that his Honour erred in determining that 'the legislative indicia of an offence [are] the only precursor[s] to determining the triviality of an offence', and only once the discretion to grant a spent conviction order has been enlivened, can the circumstances of an offence be considered.
Ground 2 alleges that a miscarriage of justice was occasioned by Curthoys J's failure to make a spent conviction order.
On 17 August 2019, Mazza JA granted leave to appeal on each of the grounds.

The relevant framework of the Criminal Appeals Act in the context of the present case

As we have mentioned, the appeal before Curthoys J was governed by div 2 of pt 2 of the Criminal Appeals Act. Division 2 comprises s 7 to s 15.
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 to the Supreme Court constituted by a single judge sitting in its General Division against the decision.
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' (s 6(g)).
In the present case, the Magistrate'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).
The appeal before this court is governed by div 3 of pt 2 of the Criminal Appeals Act. Division 3 comprises s 16 to s 19.
By s 16(2) of the Criminal Appeals Act, a party to an appeal under div 2 of pt 2 of the Criminal Appeals Act 'who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court sitting in its General Division' that:
(a)refuses leave to appeal; or
(b)dismisses or decides an appeal,
may appeal to this court against the decision.
By s 18, read with s 9, of the Criminal Appeals Act:
(a)the leave of this court is required for each ground of appeal in an appeal under div 3;
(b)after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding; and
(c)unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
By s 18, read with s 14(1), of the Criminal Appeals Act, in deciding the appeal under div 3, this court may, relevantly:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the Supreme Court sitting in its General Division and any order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the Supreme Court sitting in its General Division.
By s 18, read with s 14(2), of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

Additional evidence adduced in the appeal

At the conclusion of the hearing of the appeal, this court ordered, pursuant to s 40(1)(e) of the Criminal Appeals Act, that the parties file an agreed minute in relation to the characteristics and functions of Viber.
On 17 February 2020, the parties filed an agreed minute as follows:
Viber is a multi-platform communication application which runs on mobile telephones, computers and tablets. The system operates over both mobile telephone and Internet connections. Users are registered and identified through their existing mobile telephone number. Because the system operates over the Internet, it can be accessed through devices which do not have a service from a mobile telecommunications provider (such as, for example, Telstra).
What functions does it provide?
Viber allows users to:
Free services
•Communicate with other Viber users by voice or video.
•Send text, voice and video messages to other Viber users.
•Send data files such as pictures and videos to other Viber users.
•Create group chats where 'communities' of Viber users can communicate together. These communities can operate in a restricted manner, where new numbers can only be added by the group's creator, or in an open manner where any member can add new users (Communities Feature).
•Create secure, hidden chats which can only be accessed via a pin code. Viber calls these 'hidden chats' (Hidden Chat Feature).
•Send messages and files which expire at a user defined time. Viber calls these 'secret messages' (Secret Message Feature).
Charged services
•The ability to connect to non-Viber users, though these services are charged.
Does it require an internet connection?
To use these functions, each user must be connected to Wi-Fi, 3G or 4G (ie. an internet connection). However, although this application requires an internet connection, one cannot freely browse the internet on the application itself.

The decision of this court in GNR

In GNR, the appellant was convicted, on his plea of guilty, that on an unknown date between 9 March 2012 and 11 May 2012 he had sexually penetrated a child aged between 13 and 16 years, contrary to s 321(2) of the Code. The appellant appealed to this court against conviction and sentence. His appeals were dismissed. A ground of his appeal against sentence alleged that the sentencing judge had erred in failing to make a spent conviction order.
At the hearing of the appeal in GNR, the appellant's counsel conceded that the conditions enlivening the power under s 45(1) of the Sentencing Act to make a spent conviction order were not enlivened. The concession was correctly made.
In GNR, McLure P (Buss and Mazza JJA agreeing) noted that the text of s 45(1)(b)(i) of the Sentencing Act was relevantly different from the text of s 46(a) of the Sentencing Act [48].
Section 46 of the Sentencing Act is concerned with the release of an offender without sentence, and provides:
A court sentencing an offender may impose no sentence if it considers that ‑
(a)the circumstances of the offence are trivial or technical; and
(b)having regard to ‑
(i)the offender’s character, antecedents, age, health and mental condition; and
(ii)any other matter that the court thinks is proper to consider,
it is not just to impose any other sentencing option.
Section 46 was amended in 2014 (with effect from 6 September 2014), but the amendment was minor and is immaterial for present purposes.
In s 45(1)(b)(i) the expression 'the offence is trivial' is used. By contrast, under s 46, a court sentencing an offender may impose no sentence if the court considers that, amongst other things, 'the circumstances of the offence are trivial or technical'.
McLure P observed:
The term 'trivial' in its natural and ordinary usage means of little importance, trifling, insignificant. That focuses attention on the grade or level of seriousness. In sentencing for criminal offences, there is a well‑known and understood distinction between the seriousness of the offence and the level of seriousness of the circumstances of the offence. The former focuses on the statutory indicia of the legislative intent as to the gravity or seriousness of the offence. The latter brings to account all the subjective and objective circumstances of the particular offence committed by the offender.
If the focus is directed to the statutory context, it cannot be said that an offence against s 321(2) of the Code is trivial. The offence is one of strict liability; the State does not have to prove knowledge, intention or any other fault element. A very narrow mistake type defence applies to the charge. If the child is not under the care, supervision, or authority of the accused, it is a defence to a charge under s 321(2) to prove that the accused person (a) believed on reasonable grounds that the child was of or over the age of 16 years and (b) was not more than three years older than the child: s 321(9) [49] ‑ [50].
Her Honour noted that in Riggall v The State of Western Australia,[3] Wheeler JA (Buss JA agreeing and Miller JA agreeing generally) expressed the view that s 321(2) of the Code does not create a 'trivial' offence, within s 45(1)(b)(i). Wheeler JA said:
In interpreting par (a) of s 46, the first matter to note is that the legislative focus is not on 'the offence', but upon 'the circumstances of the offence'. The distinction may be important. Had the legislature directed attention to 'the offence', it would, in my view, be difficult to suggest that any offence could be regarded as trivial or technical, where the legislature had indicated by the provision of a severe maximum penalty, that the offence was an important one for the protection and welfare of the community.
…
It is to be noted that, unlike s 46, s 45(b)(i) directs attention not to the circumstances of the offence, but to the offence, and does not contain the word 'technical'. In those circumstances, I am presently unable to see how a sexual offence which carries a maximum penalty of 14 years imprisonment could be considered to be 'trivial', no matter what the circumstances of its commission [54], [70].
[3] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211.
McLure P expressed her agreement with Wheeler JA that the meaning of the expression 'the offence is trivial' in s 45(1)(b)(i) differs from the meaning of the expression 'the circumstances of the offence are trivial' in s 46(a) of the Sentencing Act.
McLure P then said, significantly for the present purposes:
Although the primary focus in s 45(1)(b)(i) is on the type or nature of the offence in question, that does not foreclose the possibility that a subset of circumstances (such as the material facts establishing guilt) may be taken into account in determining whether the offence is trivial. However, it is unnecessary to determine that issue which was not addressed by the parties. Even if regard is had to all the circumstances of the appellant's offence, it cannot be characterised as trivial [55].

The appellant's submissions

At the hearing of the appeal, counsel for the appellant contended, on the basis of the possible construction of s 45(1)(b)(i) of the Sentencing Act referred to by McLure P in GNR [55], that this court should hold that, although the primary focus is on the type or nature of the offence in question, the sentencing court must also take into account the material facts establishing guilt in determining whether the offence is trivial. Counsel contended that this court should determine the appeal in accordance with GNR, subject to the possibility that was left open by McLure P at [55] of her Honour's reasons which counsel contended this court should adopt (appeal ts 7 ‑ 8).
Counsel submitted that Curthoys J should have held that the Magistrate had made a material error in construing s 45(1)(b)(i).
According to counsel for the appellant, the only conclusion reasonably open to the Magistrate and Curthoys J was that the offence committed by the appellant was trivial, in the relevant sense, having regard to the material facts establishing the appellant's guilt of the offence against s 63(1) of the CPOR Act.
It was submitted that, having regard to the triviality of the appellant's offence, the public interest did not require the ongoing disclosure of the offence.
Counsel argued that the proper exercise of the discretion under s 45(1)(b) required the making of a spent conviction order. In all the circumstances, including having regard to the matters set out at [17], [18] and [35] above, the appellant should have been relieved immediately of the adverse effect that the conviction might have on him.
The orders wanted by the appellant include an order that '[i]n reporting the matter, the Court identify the appellant by a pseudonym so as to not identify him'.

The respondent's submissions

As to ground 1, counsel for the respondent acknowledged that, at the hearing before Curthoys J, the respondent's primary position was that, on a proper construction of s 45(1)(b)(i) of the Sentencing Act, it is not open to the sentencing court to take into account the circumstances of the offence in determining whether an offence is trivial.
However, counsel submitted before this court that, on further reflection, the respondent accepted that the preferable construction of s 45(1)(b)(i) is 'to adopt the possibility adverted to in GNR [55]', and that it is permissible to take into account 'the material facts establishing guilt in determining whether an offence is trivial', within s 45(1)(b)(i).
Counsel argued that for a number of reasons the type or nature of the offence created by s 63(1) of the CPOR Act cannot be characterised as trivial.
First, the maximum penalty is 5 years' imprisonment. Secondly, s 63(1) is concerned with a failure by a reportable offender to comply with his or her reporting obligations. The obligation to report is intended to protect the community. A failure by a reportable offender to comply with his or her reporting obligations undermines the regime for community protection created by the CPOR Act and is therefore a serious offence. Thirdly, the offence is one of strict liability. The prosecution does not have to prove knowledge, intention or any other fault element. Rather, the offender bears the onus of proving that he or she had a reasonable excuse for failing to comply with his or her reporting obligations.
According to counsel, in the present case, the material facts establishing guilt are limited to the nature of the appellant's breach of s 63(1) of the CPOR Act, namely the appellant's failure to report his use of communication services. It was contended that the material facts establishing guilt did not include the fact that the particular communication services which the appellant failed to report were Uber and Viber.
Counsel argued, in the alternative, that if the material facts establishing guilt, in the present case, did include the fact that the particular communication services which the appellant failed to report were Uber and Viber, then the failure to disclose the use of Uber may be characterised as a trivial example of offending against s 63(1), but the failure to report the use of Viber was not a trivial example of offending against that provision. Counsel referred, in support of his contention in relation to Viber, to the following matters.
First, the appellant's breach of s 63(1) consisted of a failure to report the use of a communication service (that is, Viber) that was accessed by means of the internet and a failure to report the user name and password necessary to gain access to the communication service. Secondly, the personal details which the appellant failed to report under s 26 of the CPOR Act would be difficult for the police to detect. The police are not empowered to inspect a reportable offender's electronic devices to determine whether the offender has used any communication services, without making a report to the Commissioner, in the absence of the offender's consent or an applicable investigative order (for example, a data access order under pt 7 of the Criminal Investigation Act 2006 (WA)). Thirdly, a failure to report the use of a communication service may pose an increased risk to the community compared to a failure to report other personal details. It is notorious that a communication service poses a particular kind of risk to the community because of the potential for a child sex offender to use the internet and other types of electronic communication for the purpose of engaging a potential child victim. Fourthly, a reportable offender's use of a communication service may indicate to the police that the offender may be engaging in predatory online behaviour and that indication may prompt police to take further action in relation to the offender.
Counsel submitted that all of those matters make it important to ensure that there is strict compliance with the legislative requirement imposed on a reportable offender to report the use of telecommunication services.
Consequently, a failure to comply with s 63(1) of the CPOR Act is not a trivial offence. Further, the appellant's failure, in the present case, to comply with s 63(1) in relation to Viber was not a trivial example of offending against that provision.
It was submitted, in effect, that even if the Magistrate and Curthoys J had misconstrued and misapplied s 45(1)(b)(i) of the Sentencing Act, on a proper analysis of the type or nature of the offence created by s 63(1) of the CPOR Act and the material facts establishing the appellant's guilt, the offence committed by the appellant was not 'trivial', within s 45(1)(b)(i).
As to ground 2, counsel submitted that the Magistrate's refusal to make a spent conviction order did not result in a miscarriage of justice because the appellant's offence was not trivial and, in any event, the Magistrate refused to make a spent conviction order on an additional basis, namely that the appellant should not be relieved immediately of the adverse effect of the conviction.
It was argued that there was no evidence to support the appellant's assertions that he would suffer detriment if he was not relieved immediately of the adverse effect of the conviction. In particular, there was no evidence to support the assertions that, absent a spent conviction order, the appellant may be restricted in his ability to travel overseas and his future employment opportunities may be adversely affected.
Further, it was argued that, given that the appellant's breach of s 63(1) was less serious than his convictions for aggravated indecent assault, the contention that the offence against s 63(1) will restrict the appellant in his ability to travel overseas or will affect his employment opportunities assumes that the appellant will be successful in applying to have his more serious convictions spent. That application cannot be made until July 2025 and depends upon the exercise of a discretion which must take into account all relevant matters, including the circumstances of the applicant at the time of the application. See s 6(4) of the Spent Convictions Act.
It was submitted that even if the Magistrate ought to have found that the offence was trivial (so that the Magistrate's discretion to grant a spent conviction order did arise), the appellant did not establish before the Magistrate (and has not established before this court) any relevant potential adverse effect upon him of the conviction. It was open to the Magistrate, in the circumstances, to exercise his discretion to refuse to make a spent conviction order.

According to counsel, even if the Magistrate and Curthoys J misconstrued and misapplied s 45(1)(b)(i) of the Sentencing Act, this court should nevertheless dismiss the appeal on the basis that no substantial miscarriage of justice has occurred. See s 14(2) read with s 18 of the Criminal Appeals Act.

The merits of the grounds of the appeal

The Spent Convictions Act makes provision for, relevantly, a person who has been convicted of an offence against a law of Western Australia and who has not reoffended during a specified period to be rehabilitated by limiting the effects of the conviction.[4] Part 2 of the Act specifies the requirements for a conviction to become spent. It distinguishes between 'serious convictions' (s 6), on the one hand, and 'lesser convictions' (s 7), on the other.
[4] See the long title to the Spent Convictions Act.
In R v Tognini,[5] Murray J (Malcolm CJ and Wallwork J agreeing) explained the legislative purpose underpinning the Spent Convictions Act, as follows:
Ordinarily … a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Convictions Act … are clearly based on the proposition that after conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the ways described in the Act so that the offender may put the offence behind them and function in the future without the need to disclose the conviction [20].
[5] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
In s 3(1) of the Spent Convictions Act, the term 'spent conviction' is defined to include a conviction that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act.
Section 39(2) of the Sentencing Act confers on a court sentencing an offender the power 'with or without making a spent conviction order' to impose, relevantly, a fine (s 39(2)(c)).
By s 45(1) of the Sentencing Act, under s 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.
In Tognini, Murray J made these observations in relation to the power conferred on a sentencing court by s 45:
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 the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community [27] ‑ [28].
The necessary preconditions to the exercise of the discretionary power conferred by s 45(1) of the Sentencing Act are set out in par (a) and par (b)(i) or (ii) of s 45(1).
The precondition in s 45(1)(b) cannot be satisfied unless either the offender is of previous good character or the offence is trivial. See GNR [45].
If the preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) are satisfied, the sentencing court has a discretion, not a duty, to make a spent conviction order. See GNR [44].
In s 4(1) of the Sentencing Act, the term 'offence' is defined to mean an offence under a written law. The term 'offence' is not otherwise defined in the Sentencing Act.
In s 2 of the Code, it is stated that '[a]n act or omission which renders the person doing the act or making the omission liable to punishment is called an offence'. That definition of the term 'offence' applies to acts or omissions which under the Code render the person doing the acts or making the omissions liable to punishment. The definition of 'offence' in s 2 of the Code does not further define the term 'offence' in s 45 of the Sentencing Act.
In Kingswell v The Queen,[6] Brennan J pointed out that a criminal offence can be identified only in terms of its factual ingredients, or elements, and the criminal penalty which the combination of elements attracts. Brennan J dissented in Kingswell, but there is, with respect, no reason to doubt the correctness of that observation.
[6] Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, 292.
In our opinion, the term 'offence' in s 45(1) of the Sentencing Act 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. Our opinion is consistent with the view expressed by Brennan J in Kingswell and accords with the text, context and purpose of s 45(1) and the Sentencing Act as a whole.
The word 'trivial' is not defined in the Sentencing Act.
The natural and ordinary meaning of the word 'trivial' is 'of little importance, trifling, insignificant'. See GNR [49].
In our opinion, the word 'trivial' in s 45(1)(b)(i) of the Sentencing Act bears its natural and ordinary meaning.
The phrase 'the circumstances of the offence' appears in s 46(a) and s 85(1)(b) of the Sentencing Act. The phrase 'the circumstances of the offender' appears in s 33N(1), s 84I(1), s 127(1) and s 136I(2) of the Sentencing Act. Neither of those phrases is defined in the Sentencing Act.
It is apparent from the text, context and purpose of s 46(a) and s 85(1)(b), and the Sentencing Act as a whole, that the phrase 'the circumstances of the offence' is concerned with:
(a)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; and
(b)the objective and subjective circumstances in which the offender committed the relevant acts or made the relevant omissions, including the objective and subjective personal circumstances of any victim of the offending.
It is apparent from the text, context and purpose of s 33N(1), s 84I(1), s 127(1) and s 136I(2), and the Sentencing Act as a whole, that the phrase 'the circumstances of the offender' is concerned with the objective and subjective personal circumstances of the offender.
The meaning of the expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act is different from the meaning of the expression 'the circumstances of the offence are trivial' in s 46(a) of the Sentencing Act. See Riggall [54], [70]; GNR [55].
In GNR, McLure P held that although the primary focus in s 45(1)(b)(i) is on the type or nature of the offence in question, that primary focus did not foreclose the possibility that a sub‑set of circumstances (such as the material facts establishing guilt) may be taken into account in determining whether the offence is trivial.
We are satisfied that the possibility averted to by McLure P in GNR is correct.
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.
In the present case, the material facts establishing the appellant's guilt in relation to the offence against s 63(1) of the CPOR Act included, relevantly:
(a)that the particular communication services which the appellant failed to report were Uber and Viber; and
(b)the characteristics and functions of Uber and Viber.
That those facts were part of the material facts which established the appellant's guilt is apparent from the elements of the offence created by s 63(1) of the CPOR Act, the provisions of s 29(1) read with s 26(de)(ii) and s 26(df)(ii) of the CPOR Act, and the particulars of the offence committed by the appellant.
The material facts we have set out at [112] above were relevant in establishing the appellant's guilt of the offence and, also, were relevant in deciding whether the offence was 'trivial', within s 45(1)(b)(i) of the Sentencing Act.
However, the facts and circumstances referred to at [17] and [18] above did not fall within that category. Those facts and circumstances were relevant only if the preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) were satisfied and, in consequence, the discretion to make a spent conviction order conferred by s 45(1) was enlivened.
The sentencing remarks of the Magistrate and the reasons of Curthoys J reveal that both of their Honours made an error in construing and applying s 45(1)(b)(i) of the Sentencing Act, in that:
(a)each of their Honours held, in effect, that regard could not be had to the material facts establishing guilt in deciding whether the offence committed by the appellant against s 63(1) of the CPOR Act was 'trivial', within s 45(1)(b)(i); and
(b)neither of their Honours had regard to the facts to which we have referred at [112] above in deciding whether the offence committed by the appellant was 'trivial', within s 45(1)(b)(i).
We turn to consider whether the Magistrate and Curthoys J should have held that the preconditions necessary to enliven the discretion to make a spent conviction order under s 45(1) had been satisfied.
During discourse with defence counsel, the Magistrate accepted, in essence, that the appellant was unlikely to commit 'such an offence again', within s 45(1)(a) of the Sentencing Act. It was not submitted on behalf of the respondent, before the Magistrate, Curthoys J or this court, that the precondition in s 45(1)(a) was not satisfied. Accordingly, the Magistrate considered, in effect, that the appellant was unlikely to commit 'such an offence again' and that conclusion has not been challenged.
The appellant did not contend, before the Magistrate, Curthoys J or this court, that the appellant was of 'previous good character'. The appellant's prior convictions for aggravated indecent assault precluded a finding that he was of previous good character. Accordingly, the precondition in s 45(1)(b)(ii) was not satisfied.
The critical question was whether the offence committed by the appellant was 'trivial', within s 45(1)(b)(i). If that precondition was not satisfied then the discretion to make a spent conviction order under s 45(1) was not enlivened.
In our opinion, on the unchallenged facts before the Magistrate and having regard to the additional evidence adduced in the appeal in relation to the characteristics and functions of Viber, the offence committed by the appellant was not 'trivial', within s 45(1)(b)(i). We are of that opinion based on the type and nature of the offence and the material facts which established the appellant's guilt. Our reasons are as follows.
We begin with the type and nature of the offence. First, the maximum penalty for the offence created by s 63(1) of the CPOR Act is 5 years' imprisonment. The maximum penalty indicates that Parliament thought the offence was serious. The summary conviction penalty set out in s 63(1) is a jurisdictional limit, not a maximum penalty. See Wiltshire v Mafi.[7]Secondly, s 63(1) is concerned with a failure by a reportable offender to comply with his or her reporting obligations. The obligation to report is intended to advance or secure the protection of the community. A failure by a reportable offender to comply with his or her reporting obligations may prejudice the efficacy of the statutory scheme for the protection of the community. Thirdly, it is not an element of the offence that a failure by a reportable offender to comply with his or her reporting obligations be associated with a particular state of mind (for example, knowledge or intention).
[7] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [26] ‑ [31] (Pullin & Buss JJA and Mazza J).
We turn to the material facts which:
(a)established the appellant's guilt of the offence; and
(b)are relevant in deciding whether the offence was 'trivial', within s 45(1)(b)(i).
We accept that the appellant's failure to report his use of Uber may be characterised as a trivial example of offending against s 63(1) of the CPOR Act in that Uber only permits a user to communicate with an Uber driver or customer support and does not, for example, permit a user to communicate with under‑age children. However, those considerations do not apply to Viber. It is apparent, from the additional evidence adduced in the appeal, that Viber is a multi‑platform communication application which runs on mobile telephones, computers and tablets. The system operates over both mobile telephone and internet connections. Users are registered and identified through their existing mobile telephone numbers. The system can be accessed through devices which do not have a service from a mobile telecommunications provider because the system operates over the internet. Viber permits a user to communicate with other Viber users by voice or video; to send text, voice and video messages to other Viber users; to send data files, such as pictures and videos, to other Viber users; and to create and access the 'Communities Feature', the 'Hidden Chat Feature' and the 'Secret Message Feature' referred to at [56] above.
Also, it is apparent that a failure to report the use of a Viber application and the user name and password necessary to gain access to the application would, ordinarily, be difficult for the police to detect.
The characteristics and functions of Viber and the difficulty that the police would ordinarily encounter in detecting a breach of a reporting obligation involving Viber do not permit a conclusion that the appellant's failure to report the use of Viber was a 'trivial' example of offending against s 63(1).
We are satisfied that, in the circumstances, the only conclusion reasonably open is that the offence committed by the appellant against s 63(1) of the CPOR Act was not 'trivial', within s 45(1)(b)(i). The preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) were not satisfied. The discretion to make a spent conviction order conferred by s 45(1) was not enlivened.
Accordingly, we consider that no substantial miscarriage of justice has occurred as a result of the Magistrate and Curthoys J making the error in construing and applying s 45(1)(b)(i). See s 14(2) read with s 18 of the Criminal Appeals Act.
It is unnecessary to decide whether, on the assumption that the offence committed by the appellant against s 63(1) of the CPOR Act was 'trivial' within s 45(1)(b)(i), the Magistrate's provisional exercise of the discretionary power under s 45(1) miscarried.
The appeal must be dismissed.

The appellant's application for an order that the Court identify the appellant by a pseudonym in its reasons for judgment

It is a fundamental principle of the administration of justice that the proceedings of a court should be open and transparent. This principle extends to a court's reasons for judgment. There are, of course, exceptional circumstances which will justify and require a departure from the fundamental principle. The appellant did not explain why, in his submission, this court should, in effect, suppress his identity in its reasons for judgment in the event that the appeal was dismissed. An order suppressing the appellant's identity was not made by the Magistrate or Curthoys J. In the circumstances, the order sought by the appellant from this court should not be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JM
Research Associate to the Honourable Justice Buss

26 MAY 2020

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: SHARPE -v- VINNING [2020] WASCA 79 (S)
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   26 MAY 2020
DELIVERED          :   26 MAY 2020
FILE NO/S:   CACR 87 of 2019
BETWEEN:   MICHAEL MARY SHARPE
Appellant
AND
RODERICK THORN VINNING
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
File Number            :   SJA 1032 of 2019

Catchwords:

Practice and procedure - Criminal appeal - Application for costs - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18, s 19(2)(b), s 20

Result:

Application for costs granted

Category: B