Smith v WA Police

Case [2025] WASC 55

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SMITH -v- WA POLICE [2025] WASC 55

CORAM:   SOLOMON J

HEARD:   28 JANUARY 2025

DELIVERED          :   28 JANUARY 2025

PUBLISHED           :   25 FEBRUARY 2025

FILE NO/S:   SJA 1054 of 2024

BETWEEN:   RICHARD JOHN SMITH

Appellant

AND

WA POLICE

Respondent

ON APPEAL FROM:

For File No:   SJA 1054 of 2024

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE E SHACKLETON

File Number            :   JO 6660/2024


Catchwords:

Criminal law - Refusal to grant spent conviction order - Leave to appeal - Careless driving causing grievous bodily harm or bodily harm - Disqualified from holding or obtaining a passenger transport driver authorisation - Interaction of Sentencing Act, Spent Convictions Act and Transport (Road Passenger Services) Act

Legislation:

Criminal Appeals Act 2004 (WA), s 6(1)(g), s 7(1), s 9(2), s 9(3), s 14(2)
Road Traffic Act 1974 (WA), s 59BA(1), s 75(2a)
Sentencing Act 1995 (WA), s 39(2), s 45(1), 45(3), s 45(5)
Spent Convictions Act 1988 (WA), s 25, s 13
Transport (Road Passenger Services) Act 2018 (WA), s 73, s 97(2), s 115, s 115(2)
Transport (Road Passenger Services) Regulations 2020 (WA), sch 3
Young Offenders Act 1994 (WA), s 189, s 189(8)(d)

Result:

Leave to appeal refused

Representation:

Counsel:

Appellant : Mr A Barbaro
Respondent : Mr S Boccardo

Solicitors:

Appellant : Bar Legal
Respondent : State Solicitor's Office

Cases referred to in decision:

BA v Director of Public Prosecutions for Western Australia [2021] WASC 370

Bertolino v Director of Public Prosecutions for Western Australia [2022] WASC 423

Henshaw v Spooner [2012] WASC 484

Pavlovic v Spooner [2014] WASCA 31

Samuels v State of Western Australia [2005] WASCA 193; 30 WAR 473

SOLOMON J:

(This judgment was delivered extemporaneously on 28 January 2025 and has been edited from the transcript).

Background

  1. On 19 July 2024 in the Magistrates Court at Joondalup, the appellant, Mr Richard Smith, entered a plea of guilty and was convicted of one charge of careless driving causing grievous bodily harm or bodily harm pursuant to s 59BA(1) of the Road Traffic Act 1974 (WA) (Road Traffic Act).

  2. The learned magistrate sentenced Mr Smith, imposing a fine of $1,500.00, ordering costs of $272.70 and disqualifying the appellant from driving for a period of three months.[1]

    [1] Transcript, Smith v The State of Western Australia, Joondalup Magistrates Court, 19 July 2024, 5.

  3. The material facts of the offence were read by the prosecutor and are set out in the Magistrates Court transcript as follows:[2]

    At about 6.30 am on Wednesday 22 May 2024, the accused was the driver of a motor vehicle commencing his school bus duties. The accused was stationary at the edge of the depot driveway, facing onto Gnangara Road, Landsdale, waiting to turn right. There was medium traffic on Gnangara Road, and the accused waited until he could see a large enough space between vehicles travelling in both directions, to pull out.

    The accused has commenced to pull out after a…

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Smith v WA Police [2025] WASC 55
Case
[2025] WASC 55
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CaseChat Overview and Summary

In the case of Smith v WA Police, the appellant, Mr Smith, sought leave to appeal against the refusal of the Magistrates Court to grant a spent conviction order in relation to an offence of careless driving causing grievous bodily harm or bodily harm. The primary concern was the impact this refusal had on Mr Smith's ability to work as a bus driver for five years, as mandated by the Transport (Road Passenger Services) Act 2018 (WA). The appeal raised the issue of whether the disproportionate impact on Mr Smith's employment and income constituted a miscarriage of justice.

The legal issues before the court included whether the failure to grant a spent conviction order resulted in a miscarriage of justice and whether the court's refusal to grant such an order was justified under the Spent Convictions Act and Sentencing Act. The court had to determine if the refusal was in line with established principles regarding the discretion to grant spent conviction orders. The key question was whether the refusal led to an unjust outcome for Mr Smith, considering the disproportionate impact on his employment and income.

The court examined the interaction between the relevant statutes and found that the refusal to grant a spent conviction order was within the discretion of the Magistrates Court. The court considered the pre-conditions for granting such an order and determined that they were not satisfied in this case. The court held that the refusal did not amount to a miscarriage of justice as it was in accordance with the principles governing the grant of spent conviction orders. The court also noted that the disproportionate impact on Mr Smith's employment did not override the statutory requirements for granting such an order.

The appeal was dismissed, and the court did not grant leave to appeal. The court upheld the Magistrates Court's decision, finding that the refusal to grant a spent conviction order was justified and did not result in a miscarriage of justice. The order of the Magistrates Court remained in place, and Mr Smith's appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The second ground of appeal was that a miscarriage of justice had occurred because the effect of the failure to grant a spent conviction order was that Mr Smith would be unable to be employed in his usual employment as a bus driver for a period of five years due to the effect of the Transport Act. That is so notwithstanding that the penalty he received for the offence under the Road Traffic Act was a disqualification of only three months.[14]Affidavit evidence and Mr Smith's circumstances[14] Appellant's Affidavit, 1. In order to understand the basis for the appeal it is necessary, in brief, to outline the affidavit evidence filed by the appellant. Mr Smith's employment is as a bus driver. For those purposes, he needs to hold an authorisation under the relevant legislation, which is the Transport Act.[15] Under s 115 of that Act, if a person is convicted of a disqualification offence then, by force of that section, the person is disqualified from holding or obtaining a passenger transport driver authorisation for the period determined in accordance with that section.[16] Section 115(2) provides that the period of disqualification ends 'as prescribed', which is a reference to the Transport (Road Passenger Services) Regulations 2020 (WA) (Regulations).[17][15] Transport (Road Passenger Services) Act 2018 (WA), s 73.[16] Transport (Road Passenger Services) Act 2018 (WA), s 115.[17] Transport (Road Passenger Services) Regulations 2020 (WA), sch 3. It was common ground that the effect of s 115 of the Transport Act and the Regulations is that Mr Smith will be disqualified from having the requisite authorisation to be able to drive a passenger bus for five years. The miscarriage of justice is said to be, as I have explained, that the period of five years, as compared to the three-month disqualification of the sentence, is disproportionate in circumstances where Mr Smith's employment and income is derived from that activity. The circumstances in which a spent conviction order can be made are governed by the Spent Convictions Act and by the Sentencing Act. The applicable principles are well established. There was no controversy between the parties as to the principles ordinarily applicable in respect of the grant of a spent conviction order. The relevant principles were conveniently summarised by Derrick J in BA v Director of Public Prosecutions for Western Australia [2021] WASC 370 (BA) as follows (citations omitted):[18][18] BA v Director of Public Prosecutions for Western Australia [2021] WASC 370, [60] - [63].Section 39(1) and s 39(2)(c) of the Sentencing Act, when read together, relevantly provide that subject to s 45 a court sentencing an offender who is a natural person may impose a fine with or without making a spent conviction order.Section 45(1) of the Sentencing Act provides:Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -(a)it considers that the offender is unlikely to commit such an offence again; and(b)having regard to -(i)the fact that the offence is trivial; or(ii)the previous good character of the offender,it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.Thus the section operates so as to direct the court not to make a spent conviction order under s 39(2) unless the court considers that the offender is unlikely to commit such an offence again and, having regard to one or other of the factors specified in subsection (1)(b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. Therefore, there are two pre‑conditions that must be established before the court is permitted to consider if the offender should be relieved immediately of the adverse effect that the conviction might have on them. First, that the offender is unlikely to commit such an offence again. Second, that the offence is trivial, or the offender is of previous good character.It is well established that if the pre-conditions for the exercise of the power to make a spent conviction order are satisfied, the court has a discretion, not an obligation, to make a spent conviction order. The discretion is to be exercised having regard to the following propositions: 1.The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;2.In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;3.The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future;4.The court should look to see if 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 set aside; and5.The exercise of the discretion involves the consideration of the interest of the offender and the public interest.The impact of a spent conviction order in these circumstances

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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