Turner v Kinghorn
[2013] WASC 129
•15 APRIL 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TURNER -v- KINGHORN [2013] WASC 129
CORAM: LE MIERE J
HEARD: 20 FEBRUARY 2013
DELIVERED : 15 APRIL 2013
FILE NO/S: SJA 1081 of 2012
BETWEEN: JOY RUTH TURNER
Appellant
AND
THERON JAMES KINGHORN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R G W BAYLY
File No :PE 17529 of 2012
Catchwords:
Practice and procedure - Application for leave to appeal against decision not to grant spent conviction order - Miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 39, s 40
Health Practitioners Regulation National Law Act 2010 (WA)
Mental Health Act 1996 (WA)
Sentencing Act 1995 (WA), s 39(2), s 45
Spent Convictions Act 1988 (WA), s 1, s 18, s 19, s 20, s 21, s 22, s 23, s 26
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr K P Bates
Respondent: Ms J N Harman
Solicitors:
Appellant: Bates Legal Pty Ltd
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
R v Tognini (2000) 22 WAR 291
Rumi v Wood [2008] WASC 119
LE MIERE J: The appellant was convicted in the Magistrates Court of assault and sentenced to a community based order for 12 months. The sentencing magistrate declined to make a spent conviction order under the Sentencing Act 1995 (WA) s 39(2). The appellant applies to this court for leave to appeal against the decision of the magistrate not to make a spent conviction order. At the hearing of the application the grounds of appeal were amended. The single ground of appeal is:
A miscarriage of justice was caused by the learned Sentencing Magistrate not making an order for a spent conviction pursuant to section 45 of the Sentencing Act.
The offence
On 7 February 2012 the appellant was working as a nurse at the Free Baby Health Clinic at the Belmont Forum Shopping Centre in Cloverdale. In the early afternoon the complainant, a female cleaner aged approximately 27 years, entered the Baby's Room inside Belmont Forum Shopping Centre for the purposes of cleaning. The appellant engaged the complainant in conversation. The complainant thought that the appellant was behaving strangely and decided to go outside. The appellant, without provocation or any reason to do so attacked the complainant. The appellant kicked the complainant in the stomach, put her hands around the complainant's neck and squeezed tightly, punched the complainant on her upper lip and tried to hit her with a broom the complainant had dropped. The complainant was subsequently treated by a doctor, received counselling and was off work for six weeks.
After the assault, the police observed that the appellant was behaving oddly. Later the same day, after the appellant had returned home, the police, in response to the concerns of a neighbour, took the appellant to Royal Perth Hospital where she was initially thought to be sufficiently psychiatrically disturbed to warrant detention as an involuntary psychiatric patient under the Mental Health Act 1996 (WA). The hospital discharge letter describes the appellant as being difficult to interview, agitated, very cheerful, disorganised and tangential in her speech. She was distractible with impaired judgment and absent insight. The appellant's psychiatric symptoms and signs settled down over two days and she was discharged to the care of her general practitioner with a referral to psychological care. The hospital staff diagnosed an acute stress reaction.
Personal circumstances of appellant
The appellant was aged 43 years at the time of the offence and at the time of sentencing. She is a single parent with a 5‑year‑old son. The appellant has a Bachelor of Science degree from Curtin University which she undertook as part of a remote area scholarship. She is a registered nurse and has worked as a nurse for approximately 20 years in Western Australia and Queensland, particularly in remote areas in Western Australia. She has worked at the Mental Health Department of Fremantle Hospital and Midland Hospital. She has also worked as a private counsellor for a medical practitioner.
As I have said, at the time of the offence the appellant was working at the Baby Health Clinic at the shopping centre in Cloverdale. Shortly after the incident at the shopping centre, the clinic, or the nurses contracting agency for the clinic, terminated the appellant's employment because of what had happened. The appellant has been unemployed since.
At the time of the incident on 7 February 2012 the appellant was undertaking a teacher's assistant course at Edith Cowan University on weekends. The appellant withdrew from the course as she did not believe that she would be able to cope with it in addition to everything else that was happening in her life at that time. The appellant also withdrew from some voluntary work that funds immunisation in third world countries. The appellant commenced weekly counselling with Anglicare in order to address the stress related issues that she was facing. The appellant's son is at a special language development school.
The appellant continued counselling with Anglicare until approximately June 2012 when she commenced seeing a psychiatrist, Dr McCarthy. The appellant commenced seeing Dr McCarthy voluntarily and subsequently saw him as part of her community based order.
In June 2012 the appellant recommenced speech therapy with her son. She takes him to a speech therapist fortnightly. She also works with her son to practice his speech at home to address an issue with stuttering.
On 1 June 2012 the appellant was advised by the Australian Health Practitioner Regulation Agency that following a meeting held on 11 May 2012 the Nurses and Midwifery Board of Australia (Board) resolved to investigate her offence pursuant to s 160 of the Health Practitioners Regulation National Law Act 2010 (WA) (National Law). The appellant was advised that the Board had appointed an investigator to conduct the investigation but the matter was put on hold pending the outcome of the criminal proceedings.
The appellant has no previous convictions. References presented to the magistrate established that the appellant's behaviour which gave rise to the offence is out of character and that she is of previous good character.
Evidence
Section 39 of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. That material includes the character references to which I have referred and a report from Dr McCarthy dated 16 July 2012. Section 40(1)(e) of the Criminal Appeals Act provides that an appeal court may admit any other evidence. At the hearing of this appeal the appellant sought leave to adduce further evidence in the form of affidavits sworn by the appellant on 26 November 2012 and 29 January 2013 and by her solicitor, Kenneth Bates, sworn on 26 November 2012 and 29 January 2013 and the attachments to those affidavits. The attachments include a further report from Dr McCarthy dated 29 November 2012 and a letter from her general practitioner, Dr Bourke dated 27 November 2012. The respondent did not object to the court receiving the further evidence. After hearing from counsel for the appellant, Mr Bates, and having regard to the principles concerning the admission of other evidence under the Criminal Appeals Act s 40(1)(e) referred to by Newnes JA (with whom Pullin and Mazza JJA agreed) in Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] ‑ [30], I admitted the further evidence as evidence in the appeal.
Power to make spent conviction order
The power to make a spent conviction order is found in s 39(2)(a) - (d) of the Sentencing Act 1995 (WA). No criteria, however, are given in that section for the making of the order. Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order and other provisions relating to a spent conviction order. Section 45 relevantly provides:
(1)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.
(2)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.
(3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4)A spent conviction order is to be taken as part of the sentence imposed.
Therefore the statutory criteria conditioning the making of a spent conviction order are that the offender is unlikely to commit such an offence again (meaning the particular category of offence or offences with which she has been charged) and also that there be one, or both, of two subsequent conditions simultaneously satisfied: namely, that the court considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender, having regard to the fact that the offence is trivial or to the previous good character of the offender: Rumi v Wood [2008] WASC 119 [30] (EM Heenan J).
If the conditions for making a spent conviction order are satisfied, the court may have regard to any relevant consideration in exercising its discretion to make an order. In R v Tognini (2000) 22 WAR 291 Murray J, with whom Malcolm CJ and Wallwork J agreed, said the following in relation to the making of a spent conviction order:
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].
Of course, that is not an exhaustive list of relevant considerations.
Reasons of sentencing magistrate
The sentencing magistrate refused to make a spent conviction order. His Honour was not satisfied based upon the evidence before him that the appellant is unlikely to commit such an offence again. His Honour found that the appellant is a person of previous good character but because his Honour was not satisfied that the appellant is unlikely to commit such an offence again, the conditions for making a spent conviction order were not met. It is common ground that the offence is not trivial. His Honour further said that in all the circumstances it would not be appropriate to make a spent conviction order because of the seriousness of the offence and the work the appellant does, that is, nursing. His Honour said that it would be inappropriate for a potential employer 'not to know what the position was'.
The ground of appeal
The appellant does not contend that the sentencing magistrate made an error of law or fact. The single ground of appeal asserts that there has been a miscarriage of justice. The appellant contends that, having regard to the further evidence admitted on appeal, a spent conviction order is appropriate and not to make a spent conviction order in this case would be a miscarriage of justice.
Conditions for making spent conviction order
The appellant submits that the evidence before the court on appeal should satisfy the court that the appellant is unlikely to commit such an offence again. In his report of 29 November 2012 Dr McCarthy, a consultant psychiatrist, says that between February and November 2012 he saw the appellant in his private rooms for treatment at approximately monthly intervals, that she has made good progress and has been compliant with treatment. Dr McCarthy says that he is cautiously optimistic about the appellant's psychiatric and behavioural prognosis. Dr McCarthy refers to a number of factors against the appellant re‑offending. There is no previous or subsequent behaviour of the type that led to the charge. There is no history of chronicity, diversity or escalation of any violent or antisocial behaviour. The appellant's psychological adjustment to the event has been good. She was remorseful without any attempts at minimisation or extreme denial. She does not have attitudes that support or condone violence and she does not have significant problems with self‑awareness. She does have some problems with stress and coping for which she has voluntarily sought successful treatment. There is no history of psychopathic or other personality disorder or of a major mental illness. There is no history of substance abuse, of violent, racist or suicidal ideation or a chronic behavioural deviance. The appellant's social adjustment is adequate and she is able to participate in intimate and non‑intimate relationships. She relates well to her family and has tolerated the recent death of her father well. She has not previously had any problems with her employment. For those reasons Dr McCarthy concludes that the appellant is not likely to re‑offend.
Dr Bourke is the appellant's general practitioner. In a letter of 27 November 2012, Dr Bourke says he does not believe the appellant will re‑offend.
I consider that the appellant is unlikely to commit such an offence again. That finding is based on the evidence of Dr McCarthy and Dr Bourke and the evidence of the appellant of what has happened since the offence. The appellant has undergone counselling with Anglicare and treatment from Dr McCarthy. Stressful events have occurred in the appellant's life since the offence but have not led to any acute stress reaction.
The sentencing magistrate found, and it is common ground, that the appellant is of previous good character. The conditions for making a spent conviction order are satisfied. The court has a discretion whether or not the order should be made.
Discretion
The appellant is an experienced nurse. However, she has been unable to gain employment since the offence. In September 2012 the appellant applied online to a job agency for employment. She advised that she had a conviction and the nature of it. She received a formal acknowledgement of her application but heard nothing further. In October the appellant applied online to a nursing employment agency. She advised that she had a criminal conviction. She did not receive a response from the employment agency. Since October 2012 the appellant has actively been looking for employment as a nurse. All the advertisements which she has seen for nurses require a current National Police Clearance. The appellant is unable to obtain a clearance because of her current conviction.
I find that the appellant's conviction is a serious impediment to her obtaining employment as a nurse, and also hinders her obtaining other employment. The appellant is a single parent with a 5‑year‑old son who requires more than usual care because of a speech difficulty. I am satisfied that to relieve the appellant of the adverse effects of the conviction will positively aid her rehabilitation in a way which may be seen to best accord with the interests of the community.
The respondent submits that a spent conviction order would not be of assistance to the appellant in regards to employment sought in the public hospital system. Part 3 div 3 of the Spent Convictions Act 1988 (WA) provides that it is unlawful for employers (s 18), principals (s 19 and s 20), organisations of employees and employers (s 21), authorities that confer qualifications (s 22) and employment agencies (s 23) to discriminate against a person on the ground of a spent conviction. Section 26 in div 4 provides that where a written law of this State permits or allows a person to consider, take into account or determine the good character, fitness, propriety, or other like attribute, the person shall not have regard to spent convictions of the individual who is the subject of the character assessment. However, sch 3 sets out exceptions to pts 3 and 4. Clause 1(7) provides that the specified persons are excepted from the provisions of s 18, s 19, s 20 and s 22 and div 4 of pt 3 in respect of all spent convictions. The specified persons are a person who is employed or seconded, or who is being considered for employment or secondment, by the Director General of the Department of Health under the Health Act 1911 (WA), Hospitals and Health Services Act 1927 (WA), Mental Health Act or Alcohol and Drug Authority Act 1974 (WA). Clause 1(8) of sch 3 provides that in the case of those specified persons the exception extends to any other person who has employed, seconded or placed the person or is considering the person for employment, secondment or placement. Nevertheless, no exception applies for employees of private health operators. The exception would not apply to an agency considering the appellant for employment in the private health sector.
I am satisfied that making a spent conviction order would facilitate the appellant obtaining employment as a nurse and that it would positively assist her rehabilitation following the offence, conviction and aftermath. That is in the interests of the community.
The respondent submits that the fact that persons employed in, or seeking employment in, the public hospital system as a nurse are excepted from those in the Spent Convictions Act demonstrates the public interest in the conviction remaining a matter of record.
Protection of the community is part of the wider public interest. The respondent submits that there is a public interest in enabling employers or potential employers in many cases to assess the significance of a conviction. The fact of a conviction will have relevance to the offender's suitability and reliability for the type of work they wish to pursue in cases such as nursing. Where the occupation the appellant pursues involves considerable responsibility for safety, there is a public interest in any employer or potential employer being aware of the appellant's conduct demonstrated by the offence, because that conduct has relevance in assessing the reliability and suitability for the type of work pursued. In summary, the respondent submits that there is a strong public interest in the conviction remaining on the record given that the offence is relevant to the nature of the appellant's work.
The Board is the statutory authority for the registration and regulation of nurses. The role of the Board is to protect the public. The appellant informed the Board of her conviction as she was required to do by s 130 of the National Law. The procedure to be followed by the Board is summarised by Mr Bates in his affidavit sworn 26 November 2012. Once a notification is received, a preliminary assessment is conducted into the notification in order to ascertain whether it will be investigated. If a decision is made to proceed with the complaint, then an investigator is appointed. The investigator then conducts an investigation. The investigator has very broad powers to compel people to produce documents and answer questions. At the end of the investigation the investigator provides a report to the Board. The Board then comes to a conclusion as to whether it is going to make a finding of unsatisfactory professional performance, or whether it will refer the matter to a panel in relation to unprofessional conduct or to the State Administrative Tribunal in relation to professional misconduct. In the event of a finding of unsatisfactory professional performance, unprofessional conduct or professional misconduct by either the Board, a panel, or the State Administrative Tribunal, then there are a range of penalties that can flow from that finding, ranging from a caution through to a condition or conditions on registration, and the State Administrative Tribunal may cancel registration. The Board, panel or State Administrative Tribunal will look at the conduct and make the relevant finding and then determine a penalty.
As I have said, the Board has resolved to investigate the matter and has appointed an investigator to conduct the investigation. However, the Board has determined that the matter will be put on hold pending the outcome of the criminal proceedings. After the appellant's conviction and sentence on 18 July 2012 she advised the mediator to the Australian Health Practitioner Regulation Agency of the outcome of the court proceedings. The investigation remains on hold pending the outcome of this appeal.
I find that the fact of conviction of this offence is likely to have a detrimental impact upon the appellant and be a serious impediment to her obtaining employment as a nurse. I consider that there is no pressing public interest in persons generally being able to continue to have access to the fact of the appellant's conviction since she is unlikely to commit such an offence again and there is nothing to indicate that the community requires protection from the appellant.
Notwithstanding the making of a spent conviction order, relevant authorities will continue to have access to the fact of conviction. That includes employers and employment agencies placing nurses in the public health sector. The Board will investigate the appellant's offence and consider whether or not, in the interests of the public, any conditions should be placed on the appellant's registration or other measures taken. In my view those are adequate safeguards of the public interest in relation to the appellant practicing as a nurse.
Conclusion
I find that having regard to the material before the court on the hearing of this appeal, the refusal to grant the spent conviction order produced a miscarriage of justice. I will grant leave to appeal. The appeal should be allowed and a spent conviction order should be made in respect of the offence.
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