Tambyrajah v Gablonski - [2004] WASCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: TAMBYRAJAH -v- GABLONSKI [2004] WASCA 105

CORAM: LE MIERE J

HEARD: 9 MARCH 2004

DELIVERED : 21 MAY 2004

FILE NO/S: SJA 1140 of 2003

BETWEEN: JULIAN SIMON MAHESON TAMBYRAJAH
Appellant
AND
NICOLAS EDWARD GABLONSKI
Respondent

Catchwords:

Criminal law - Conviction for possession of prohibited drug - Appeal - Whether conviction ought to have been made spent - Effect of a spent conviction order - Discretionary power to award - Circumstances justifying spent conviction order - Likelihood of reoffending - Triviality - Previous good character - Detrimental effect of conviction upon employment prospects - Public interest

Legislation:

Justices Act 1902

Misuse of Drugs Act 1981
Sentencing Act 1995, s 39, s 41, s 42, s 43, s 44, s 45
Spent Convictions Act 1988, s 25, s 26, s 27

Young Offenders Act 1994, s 189

Result:

Appeal allowed
Spent conviction order made under s 39(1) of the Sentencing Act

Category: B

Representation:

Counsel:

Appellant: Mr A O Karstaedt
Respondent: Ms C Conley

Solicitors:

Appellant: Max Crispe
Respondent: State Solicitor's Office

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

R v Tognini (2000) 22 WAR 291

Case(s) also cited:

Brewer v Bayens (2002) 26 WAR 510
Brewer v Bayens (2002) 127 A Crim R 189
Docker v Faulkner (2000) 116 A Crim R 389
Game v Whitehead [2000] WASCA 50
Koenig v Alizadeh [2002] WASCA 267
Koenig v Ryan [2001] WASCA 339
Neale v Sloan (1997) 27 MVR 246
Nisbet v Fullarton, unreported; SCt of WA; Library No 930265; 14 May 1993
Riley v Gill, unreported, SCt of WA; Library No 970731; 8 December 1997
Rowlands v Caporn [2001] WASCA 66

LE MIERE J: The appellant appeals, by leave of this Court, from a decision of a Magistrate refusing to make a spent conviction order.

Further Evidence

The appellant sought leave to have his affidavit, sworn on 3 March 2004, and the annexures thereto, admitted into evidence pursuant to s 196(1)(b) of the Justices Act 1902. The respondent agreed that it was appropriate to admit the affidavit into evidence. Accordingly, I granted leave.

Circumstances of Offence

The appellant pleaded guilty to, and was convicted of, having had in his possession a prohibited drug, namely amphetamine, in contravention of s 6(2) of the Misuse of Drugs Act 1981. The circumstances of the offence are disclosed in the statement of material facts. At about 8.30 am on Thursday 22 August 2002, the appellant was at Burswood Casino. After sitting at a poker machine, the appellant stood up and walked away. As he did this he dropped his wallet on the floor. The wallet was picked up by a cleaner and handed to security staff. Security staff searched the wallet for owner identification and located a small plastic sealed bag containing white powder. Police subsequently attended and spoke to the appellant. The appellant admitted the wallet and small plastic bag belonged to him. He stated the white powder was amphetamine and it was for his own personal use. The appellant was conveyed to Belmont Police Station where a video record of interview was conducted. Full admissions were made on video by the appellant. The weight of amphetamine detected was less than 1 gram.

Personal Circumstances

The appellant was born on 14 June 1970. He was aged 32 years at the time of the offence and 33 years at the time of his conviction. The appellant's qualifications include a Bachelor of Commerce majoring in accounting and an Associate Diploma in business administration. He is, and has been since 2001, a member of the National Institute of Accountants. The appellant has worked as a bookkeeper, accountant or financial officer since January 1991. From June 1986 to February 1998 he was the state accountant for Western Australia for Normandy Mining Ltd. He was commercial manager for Woodroffe Industries Pty Ltd for approximately 2 years after its takeover by Hills Industries. He was chief financial officer in Australia for Durban Roodepoort Deep, an international gold producer, from January 2000 until mid 2002.

Proceedings in Court of Petty Sessions

The appellant appeared in the Court of Petty Sessions on 24 November 2003. He was represented by the duty lawyer. The appellant pleaded guilty. Duty counsel presented a plea in mitigation and asked for a spent conviction order. Duty counsel stated that the appellant had a drug problem at the time he was charged in August 2002. He had been married and his marriage had broken down and that had led to amphetamine use which led to some degree of dependency upon amphetamines. Counsel stated that the appellant has a 10‑year‑old son from the marriage and "things have settled down in that department now and he sees his child every weekend". Counsel stated that the appellant had sought help soon after August 2002 for his drug dependency and had taken steps to rehabilitate himself. Counsel stated that the appellant was a qualified accountant and that some jobs require him to either state whether he has a conviction or to obtain a police clearance. Counsel said that the appellant was at a point where he had rehabilitated himself and he was ready to rejoin the workforce. Counsel asked for a spent conviction order on the basis that the appellant was a qualified accountant, that some jobs require him to state whether he has a conviction or not and that he may be prejudiced in returning to the workforce by having a conviction on his record.
When counsel first asked for the spent conviction order, the learned Magistrate made the following comment:
"Now, this is a drug offence and amphetamines are the most rife drug in the community; cannabis is too, but amphetamines, they have a far greater hold on people. And it's very, very unusual to give a spent conviction for a drug offence and, in fact, almost impossible."
Her Worship then stated that spent convictions are only ordered in "trivial matters, shoplifting, other matters".
The prosecutor stated that the prosecution had no submissions in relation to the spent conviction. Her Worship then delivered sentence in these words:
"In relation to the matter I am going to impose a fine, give you sufficient time to pay that fine off, but considering your current position and that you will need to find employment. I am not persuaded that a spent conviction is appropriate for a drug offence of this nature and therefore I'm going to fine you $300 which I think is very low in the circumstances, $57.70 costs and an order for destruction, with sufficient time to pay that."

Spent Convictions

Section 39 of the Sentencing Act 1995 sets out the sentencing options that are available to the Court. Subsection 39(2) provides, in effect, that, subject to ss 41 to 45, a Court sentencing an offender may make a spent conviction order regardless of whether any other sentence is imposed. Section 45(1) provides that 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."
Subsection 45(2) provides that a spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988. The Spent Convictions Act 1988 makes provision for a person who has been convicted of an offence and who has not reoffended during the specified period to be rehabilitated by limiting the effects of the conviction. Generally, under the provisions of the Spent Convictions Act it is unlawful to discriminate against a person on the ground of a spent conviction in respect of matters of employment and the like, or membership of professional and trade organisations. By s 25 of the Spent Convictions Act, the conviction would not be a matter of disqualification for any purpose. By s 26 it could not be taken into account in determining good character, fitness, propriety or the like, as a qualification for office. By s 27, the spent conviction would not be required to be disclosed for any purpose.
The power conferred on a sentencing Judge by s 45 of the Sentencing Act was described by Murray J, with whom Malcolm CJ and Wallwork J agreed, in R v Tognini (2000) 22 WAR 291 at [20], as bearing a very particular character. 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 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 him and function in the future without the need to disclose the conviction. Section 45 of the Sentencing Act is in terms directed to relieve the offender, immediately following the conviction, of its adverse effect. It is a discretionary power and the matters enumerated in s 45(1) 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 the power. Murray J stated, in R v Tognini at [24], that:
"It follows from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable."

Did the Magistrate Err?

An appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the sentencing Magistrate. The appellate court must be satisfied that the Magistrate made a material error of fact or law.
The first ground of appeal is that the learned Magistrate erred in law and/or in fact in holding that "it's very, very unusual to give a spent conviction for a drug offence and, in fact, almost impossible." The second ground of appeal is that the learned Magistrate erred in law and/or in fact in considering that spent conviction orders are only made in: "trivial matters, shoplifting, other matters", and without having proper regard to the relevant statutory provisions as contained in s 45(1) of the Sentencing Act.
The third ground of appeal is that the learned Magistrate erred in law in deciding that a spent conviction was not appropriate purely by reason of the nature of the offence, and without having proper regard to the relevant statutory provisions as contained in s 45(1) of the Sentencing Act.
In my view, the learned Magistrate erred in the ways asserted.
In considering whether the Court could, or should, make a spent conviction order, her Worship addressed only the nature of the offence. Her Worship considered that the Court could not, or should not, make a spent conviction order because the appellant had been convicted of a drug offence. Her Worship considered that spent conviction orders are only made in trivial matters like shoplifting. Her Worship failed to address the statutory criteria. Section 45(1) of the Sentencing Act provides, in effect, that the Court may make a spent conviction order if it considers that the offender is unlikely to commit such an offence again and, having regard to 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. The Court may make a spent conviction order in those circumstances even though it is not satisfied that the offence is trivial.
Furthermore, in determining whether the offence is trivial, the offence to be considered is the offence committed by the offender and not the offence in the abstract. Triviality cannot be determined by reference to the class of offence committed, but must be ascertained by reference to the conduct which constitutes the offence for which the offender was convicted and to the actual circumstances in which the offence was committed. It is erroneous to determine the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty. In my view, the learned Magistrate was wrong to consider that the offence could not be trivial because it was a drug offence.

Exercise of Discretion

Having established that the Magistrate made a reviewable error, I may turn to consider whether I ought exercise the discretion in substitution for the decision made at first instance.
The first question is whether the necessary preconditions which enliven the discretion have been satisfied.
I am satisfied that the requirement of s 39(1)(a) is satisfied. That is, I consider that the appellant is unlikely to commit such an offence again.
Dr Amatal Uzma is a psychiatric registrar with Next Step, a drug and alcohol services agency within the Drug and Alcohol Office, the Government Agency which works across the Government and non‑Government sector to address drug and alcohol issues in the community. Dr Uzma has been in charge of the appellant’s management and rehabilitation at Next Step. In a letter of 31 December 2003, Dr Uzma says that the appellant has been abstinent from using any illicit drugs since November 2002. The appellant had been seeing a clinical psychologist and Dr Uzma on a regular basis. Dr Uzma states: "I strongly believe that (the appellant) is unlikely to reoffend" and has made a "full recovery". There is other evidence to support the finding that the appellant is unlikely to commit such an offence again but it is not necessary to refer to it.
The second requirement for the exercise of the discretion under s 45(1) is that having regard to the fact that the offence is trivial or to the previous good character of the offender, the Court considers the offender should be relieved immediately of the adverse effect that the conviction might have.
In my view, the offence of which the appellant was convicted is not trivial.
An offence is not to be regarded as trivial if it is a typical example of the behaviour prescribed for such an offence. There must be something that distinguishes the circumstances of the offence under consideration from what is to be regarded as a typical breach of the particular provision.
In my view, the offence of which the appellant was convicted is a typical example of the behaviour prescribed for such an offence. Furthermore, the conduct of the appellant was conscious and deliberate.
I consider that at the time of sentencing by the learned Magistrate the appellant was of previous good character so as to enliven the discretion conferred by s 39(1). The appellant had a number of convictions in the Children's Court. However, the respondent submitted, and I accept, that those offences are not to be regarded as a conviction for present purposes because of the provisions of s 189 of the Young Offenders Act 1994.
The appellant has been convicted of a number of traffic offences as an adult. It is not to be assumed that traffic offences are not serious matters and are to be lightly disregarded. However, the offences disclosed by the appellant's record do not appear to be serious matters.
There are two aspects to "good character". If the Court is told that nothing is known against a man, it assumes that he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. Secondly, there may be positive evidence as to a man's character and reputation that adds considerably to the weight that the Court attaches to the defendant's favourable record.
There is evidence before the Court of the appellant's good character. David Serra‑Sanfenlin is a personal, family friend and business associate who has known the appellant for 18 years. Mr Serra‑Sanfenlin stated his opinion that the appellant is "of exceptionally good character always ready to help, a high achiever, paying his taxes, a dedicated father and has been accepted back into his congregation, a good Christian and now a regular at attending Church."
Mr Serra‑Sanfenlin's comments about the appellant's work history are borne out by the appellant's curriculum vitae. Dr Uzma saw the appellant regularly between August 2002 and December 2003. Dr Uzma stated: "It has been a pleasure for me to treat (the appellant) and observe his full recovery. My impression of (the appellant) is that he is a man of good character."
On the evidence before the Court I consider that the appellant is a man of previous good character.
The Court has a discretion whether to make a spent conviction order. In exercising that discretion, the Court may have regard to any relevant consideration. The Court is not confined to the matters referred to in par (a) and par (b) of s 45(1) of the Sentencing Act.
In R v Tognini, at [27] and [28], Murray J said:
"[27]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 preconditions are satisfied, 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.
[28]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."
The Second Reading Speech of the Honourable Attorney‑General introducing the Sentencing Bill into the Parliament shows that the detrimental effect that a conviction may have on an offender's employment prospects was intended by the Legislature to be a circumstance that may justify the making of a spent conviction order. Hansard for 25 May 1995, page 4258, records the Minister as saying:
"One of the progressive elements of the Sentencing Bill is that, where the Court determines that the offence is not serious - for example in the case of minor shoplifting – and the antecedents of the offender are good, and where the conviction might have a detrimental effect on an offender's employment prospects, clauses 39 and 45 in Pt 5 enable a Court to order that a conviction be spent. This will mean that the protections afforded by the Spent Convictions Act 1988 will immediately apply. This is not to mean that the offender is not punished. However, it is anticipated that this power will provide a significant incentive to refrain from further offending by allowing the stigma of a conviction to be lifted which could otherwise have disqualified them from pursuing their chosen career."

In this case there is evidence that the conviction, if not declared to be spent, may have a detrimental effect on the appellant's employment prospects, and making a spent conviction order may enable the appellant to pursue his career and facilitate his rehabilitation.
Aidan O'Grady, the Western Australian Manager of the National Institute of Accountants, in a letter of 19 February 2004, states that having a criminal record will severely impede the appellant's employments prospects in the accounting and finance professions. Mr O'Grady says that it is common practice for employers in these professions to require police clearances. He states further that for the appellant to have his conviction made spent would significantly increase the appellant's employment prospects.
Shirani Kandasamy is an employment consultant. Mr Kandasamy says that he has made inquiries with accounting firms and found that the appellant will require a police clearance for most if not all of the jobs he applies for. Mr Kandasamy adds his own opinion, given in his capacity as an employment consultant, that the appellant will require a police clearance for most of the jobs for which he applies, and that this will significantly reduce or impede his future employment prospects.
Mr Kandasamy concludes that a spent conviction order is of paramount importance, both to the appellant's financial stability and to his continued employment.
Dr Uzma has stated his belief that the presence of a criminal record will impede the appellant's employment prospects and delay his complete rehabilitation. Ms B Matthews is a senior counsellor and co‑ordinator at Cyrenian House, a drug treatment and rehabilitation centre at which the appellant has been receiving treatment. Ms Matthews says that the appellant has his rehabilitation and recovery under control and furthermore that, given the period of time throughout which the appellant has abstained, and given that he has addressed some of his personal issues, it is increasingly less likely that he shall in the future relapse. However one of the main challenges left for the appellant, according to Ms Matthews, is to successfully return to work.
In my view, the appellant's conviction is a serious impediment to him resuming his career as an accountant. A spent conviction order would facilitate the appellant resuming his accounting career and advance, if not complete, his rehabilitation. In that way, a spent conviction order is in the interests of not only the appellant, but also of the community.
It is necessary to consider whether there is any pressing public interest in prospective employers and others being able to continue to have access to the fact of the appellant's conviction as part of the process of securing the protection of the community. In my view, there is no such interest in the circumstances of this case. The appellant's offence occurred in circumstances that have now passed. The evidence before the Court has led me to find that the appellant is not likely to reoffend. The offence was not one of dishonesty. Importantly, the Western Australian Manager of the National Institute of Accountants is aware of the appellant's conviction and says that the Institute is prepared to retain and support the appellant's membership. The Institute's Western Australian Manager goes on to support the making of a spent conviction order for the purpose of assisting the appellant in his endeavours to return to work in the accounting and finance profession. In all of the circumstances, I do not consider there is any pressing public interest in being able to continue to have access to the fact of the appellant’s conviction.
For the reasons stated, the appeal will be allowed and a spent conviction order will be made under s 39(1) of the Sentencing Act.