Vulin v Kirkman - [2012] WASC 331

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: VULIN -v- KIRKMAN [2012] WASC 331

CORAM: HALL J

HEARD: 4 SEPTEMBER 2012

DELIVERED : 14 SEPTEMBER 2012

FILE NO/S: SJA 1060 of 2012

BETWEEN: DANA VULIN
Appellant
AND
ANTHONY CHARLES KIRKMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE TARR
File No  :PE 20223 of 2012, PE 20224 of 2012, PE 20225 of 2012

Catchwords:

Criminal law - Appeal against conviction and sentence - Whether guilty pleas obtained by inducement - Whether appellant entered one plea on a misunderstanding as to a possible defence - Whether spent conviction orders should have been made

Legislation:

Weapons Act 1999 (WA), s 7
Weapons Regulations 1999 (WA), reg 7

Result:

Appeal allowed in part
Conviction on one charge set aside
Spent conviction orders made on remaining charges

Category: B

Representation:

Counsel:

Appellant: Mr O Paxman
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: Paxman & Paxman
Respondent: State Solicitor for Western Australia

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

Borsa v The Queen [2003] WASCA 254
Glover v Reyne (2001) 124 A Crim R 496; [2001] WASCA 305
Hogue v The State of Western Australia [2005] WASCA 102
Hull v Castledine [2005] WASC 252
JJA v Yow [2008] WASC 69
Koenig v Ryan [2001] WASCA 339
Liberti (1991) 55 A Crim R 120
Meissner v The Queen (1995) 184 CLR 132

HALL J: On 5 April 2012 the appellant, Dana Vulin, entered written pleas of guilty to a charge of possessing a prohibited weapon, namely a taser, contrary to s 6(1)(b) of the Weapons Act 1999 (WA), a charge of possessing two controlled weapons, namely two oleoresin capsicum (OC) sprays, contrary to s 7(1) of the Weapons Act and one charge of possessing a prohibited drug, namely 0.5g of methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). On 26 April 2012 a magistrate recorded convictions for those offences and imposed fines of $100 in each case. The appellant filed an appeal notice on 18 May 2012 seeking leave to appeal against the convictions and sentences.
In regard to conviction, two issues are raised. First, it is contended that the appellant was induced to make the written pleas of guilty and that those pleas did not represent a free and voluntary acceptance of guilt on her part. Second, it is contended that the appellant's plea of guilty to the OC spray possession charge was made on the erroneous understanding that she had no defence to that charge.
In regard to the sentences it is contended that the magistrate erred by not making spent conviction orders. The appellant sought spent conviction orders on the form in which she submitted her pleas of guilty. The magistrate considered this application but declined to make the orders. It is submitted that in doing so his Honour made an express error in that he assumed the appellant had prior convictions. It is also said that the magistrate failed to take into account relevant considerations, in particular the unlikelihood that the appellant would commit offences of this nature again and that the particular circumstances of the case justified the appellant being relieved of the immediate burden of convictions.
The grounds as stated in the appeal notice are as follows:
1.The endorsed pleas of guilty were obtained by improper inducement and erroneous advice by a police officer in the absence of legal advice and a miscarriage of justice has occurred.
2.Based upon the admitted facts the Appellant could not in law have been guilty of the offence PE 20225/12 because she was in imminent fear of danger and a miscarriage of justice has occurred.
3.In the alternative, a spent conviction order should have been made.

Ground 1 - Were the pleas of guilty improperly induced?

The circumstances in which the appellant came to be charged with the offences are of significance. On 16 February 2012 police attended at the appellant's home in Rivervale because she had been attacked and set on fire. She suffered burns to 60% of her body. She was initially in a coma before being treated in the burns unit at Royal Perth Hospital.
A search was conducted by police at the appellant's home. A plastic clip‑seal bag containing approximately 0.5g of methylamphetamine was found in the appellant's handbag. An electric shock weapon, otherwise known as a taser, was found in a drawer of her kitchen. Two cans of OC spray were also located in the kitchen. One was in the same drawer as the taser and the other was on the floor.
The statement of material facts states that the appellant was later spoken to by police and admitted that the methylamphetamine was hers. There is no indication as to when or in what circumstances this interviewed occurred. The statement also refers to the taser as being 'functional'.
The appellant has filed two affidavits in relation to the circumstances in which she made the written pleas of guilty. In her affidavit sworn on 16 July 2012 she states that sometime after she was moved from intensive care to the burns unit at Royal Perth Hospital, she was visited by Constable David Johnson. She says that Constable Johnson was the officer who was investigating the attack on her and that he told her that after the fire the police had found some methylamphetamine, OC spray and a taser. She says that he asked if the items were hers and that she nodded in agreement.
In a later affidavit filed on 30 August 2012 the appellant states that she was not given a caution before Constable Johnson asked if the items were hers. She states that whilst she was coherent at the time, she was also heavily sedated and extremely depressed because of her injuries. She says she was also anxious because there had been extensive media coverage of the attack on her.
Constable Johnson had a prosecution notice with him. The appellant says that she understood what the papers were, but did not read them. She says that Constable Johnson explained that the charges related to the items found at her unit and that he gave her the form to sign and said words to the effect of 'it is for your own benefit and will help in the long run in making things look fair in your trial with (her alleged attacker)'. She says that because she trusted Constable Johnson she signed the form without asking any questions of him and that she was not told that she could think about the charges and post the form in later. She alleges that she was not given an opportunity to speak to a lawyer about the charges.
The appellant says that she pleaded guilty to the charges because of what Constable Johnson said to her regarding the trial of her alleged attacker, her desire to avoid publicity and her belief that Constable Johnson could assist her in obtaining a spent conviction. In regard to the latter two matters, she says that Constable Johnson said to her that she deserved a spent conviction and that he would 'speak to his boss about it'. She says that Constable Johnson also said that if she pleaded guilty there would be no publicity.
The appellant says in her affidavits that she signed the form at the hospital. She says she did this by signing one letter of her name because owing to her condition she could barely hold the pen. The copy of the form obtained from the Magistrates Court, however, does not appear to be signed. In the box for the accused's signature the printed words 'unable to sign due to my skin condition' appear. In another box the contact details of the appellant appear. This includes her printed name. Whether any part of that writing is the appellant's is not known. Importantly, however, it is not disputed by the appellant that she authorised completion of the form, either by endorsing it or by authorising Constable Johnson to fill it out.
The form has a tick in the box next to the words 'I plead guilty to the charges in the prosecution notice'. The form states that the hearing of the charges was to take place on 26 April 2012. The box indicating that the appellant would not be attending on that date was ticked. There is a space on the form which allows for a person who is not attending to write any information that they wish the court to take into account when deciding sentence. In this section the following handwritten words appear; 'spent conviction due to my current status, in the burns unit at RPH. I agree I had the OC spray in my possession but I did not use it, I had it for personal protection'.
The respondent has filed an affidavit from Constable Johnson. He says that he attended Royal Perth Hospital on 10 April 2012 for the purpose of serving the appellant with the prosecution notice and the court hearing notice. He was accompanied by another police officer. The date of 10 April 2012 appears to be at odds with the date on the written plea, which is 5 April 2012.
Constable Johnson states that he asked the appellant if she was coherent enough to continue and that she answered that she was. He says that after explaining to the appellant the nature of the charges she said that she did not agree with the OC spray charge and that he then told her that it was illegal to have OC in her possession but that she could tick the not guilty box if she wished to do so.
Constable Johnson denies saying to the appellant that she should plead guilty for her own benefit. Rather, he states that he said that if the appellant signed the form and pleaded guilty he would take the brief directly to the police prosecuting section. He said that he told the appellant that charging her with the three possession charges would make the police appear fair and ensure that it could not be said that they were taking sides in the investigation of the attack on the appellant.
Constable Johnson states that he explained 'numerous times' what would happen if the appellant signed the form. He says that the appellant kept saying in response, 'just give it here and I will sign it'.
Constable Johnson denies saying that the appellant deserved a spent conviction or that he thought she had a good chance of getting one. Rather, he says that he told the appellant that he would request a spent conviction on all charges but that he did not think she would receive one in relation to the drugs charge due to her criminal history. He said that he told the appellant that he would push for a spent conviction order in relation to the other two charges, particularly the OC spray charge, on the basis that she carried that spray for personal protection as she had felt threatened. He said that he would write a request on the summons and hand it to the police prosecuting section. I infer from this that the handwritten reference to a spent conviction on the written plea is in the writing on Constable Johnson.
Constable Johnson denies saying that if the appellant pleaded guilty there would be no publicity. Rather, he says that he told the appellant that hopefully there would be no publicity if the charges were dealt with quickly, but that he could not guarantee that the media would not find out.
Constable Johnson says that his usual practice when serving a summons is to simply serve the person and walk away. However, he says that because he knew the appellant he stayed and spoke to her about the three charges. He says that he was at all times concerned to assist her because he had sympathy for her. He says that he also understood that she was very concerned about media publicity.

When a conviction can be set aside following a guilty plea

Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been entered. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove and Newman JJ agreement). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).
Before an appellate court will set aside a conviction based upon a plea of guilty, the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa Steytler J referred to three well‑recognised circumstances in which a conviction based on a plea of guilty will be set aside:
(1)where the appellant did not understand the nature of the charge and did not admit guilt;
(2)if upon the admitted facts the appellant could not in law have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or the like.
Where an appellant seeks to appeal against conviction following a plea of guilty, he or she bares the burden of demonstrating that it should be set aside because a miscarriage of justice has occurred. Where it is claimed that a plea of guilty was made in circumstances which call for it to be set aside the appellant must establish those circumstances on the balance of probabilities: Glover v Reyne (2001) 124 A Crim R 496; [2001] WASCA 305 [57].
In Meissner v The Queen (1995) 184 CLR 132 the appellant was charged with attempting to pervert the course of justice by improperly endeavouring to influence another person to plead guilty to a charge. In those circumstances, the impropriety of the appellant's conduct was a significant factor. In the present case the ultimate issue is not whether Constable Johnson acted improperly but whether the appellant's pleas were made voluntarily. However, notwithstanding that difference, some attention was given in Meissner to the distinction between providing a person with advice on the one hand and seeking to induce them to plead guilty on the other. Brennan, Toohey and McHugh JJ said:
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a persons free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such case is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution (143).

The merits of ground 1

In this case it has not been suggested that the appellant failed to understand the nature of the charges or the significance of her pleas of guilty. Notwithstanding her injuries and the fact that she was still being medicated, the appellant does not suggest that she lacked the ability to comprehend what occurred. There is one important exception to this and that is in relation to the OC spray charge, and I will return to that later. In respect of that charge she says she was misled into thinking she had no possible defence to that charge.
This ground of appeal relies principally upon alleged inducement, not on lack of understanding. In these circumstances it is of critical importance to consider whether the pleas were induced by anything that was said by Constable Johnson. This requires that he gave something more than mere advice or encouragement. It requires that the appellant was deprived of the ability to make a free choice as to whether or not to plead guilty.
There is no suggestion that Constable Johnson stated to the appellant that she had to plead guilty, or that she needed to make a decision at the time that the prosecution notice was served. The appellant says rather that her impression was that she had to sign the prosecution notice there and then. However, the real issue before the court is whether her decision to plead guilty was a decision that was freely made. It follows that it is necessary to consider the matters which the appellant says actually induced her to make the decision to plead guilty. She says that those factors were the possible negative effect on any trial of her alleged attacker, her desire to avoid publicity and her belief that she could obtain a spent conviction. She says that in respect of each of these things Constable Johnson said things to her which influenced and ultimately persuaded her to plead guilty.
It is important to stress that there are significant differences between the affidavit evidence of the appellant and that of Constable Johnson. Those differences go to what was said by both parties at the time that the papers were served. When asked about how this difference could be resolved, counsel for the appellant said that even if the evidence of Constable Johnson was accepted in preference to that of the appellant, Constable Johnson's evidence established that the plea was not entered voluntarily. I do not accept that contention.
According to Constable Johnson's affidavit, his reference to the trial of the appellant's alleged attacker was put as an explanation as to why it was important for the police to act impartially and to not be seen to be taking sides in the investigation. That was a justification for the charges being laid, it was not an inducement to plead guilty to them.
As regards publicity, Constable Johnson denies making any promise that there would be no publicity, rather he says that he told the appellant that if the charges were dealt with quickly there may be less possibility of publicity. That was a factor that may well have encouraged the appellant to make her choice to plead guilty. It is not, however, something that was either designed, or likely to, induce an involuntary plea of guilty. The appellant's concern to avoid publicity may have influenced her decision to plead guilty; but that appears to be because she saw it as being in her interests to avoid publicity if possible. What Constable Johnson says in this regard could not amount to an improper inducement.
As regards what Constable Johnson said about a spent conviction order, his expression of doubt that the appellant would receive one in respect of the drug charge was unlikely to induce the appellant to plead guilty. To the contrary. In respect of the other charges, Constable Johnson said he would make favourable representations to those responsible for the prosecution. It is not unusual for a person who is facing charges to seek a concession from the prosecution regarding their attitude to possible sentences before they enter a plea of guilty. Where the response is favourable this may well encourage the person to plead guilty. That, however, does not mean that the decision is not a voluntary one.
It could be suggested that the appellant was vulnerable at the time Constable Johnson saw her in hospital. She was suffering from significant injuries for which she was still being treated, and had formed a relationship of trust with Constable Johnson. It is arguable that it may have been preferable for Constable Johnson to have left the documents with the appellant to give her time to consider her position. If this had occurred the appellant may have sought legal advice, though there is no suggestion that she expressed a desire to do so. On the other hand, Constable Johnson appears to have been genuinely motivated by concern for the appellant. He clearly thought that, if she wished to plead guilty, it may be in her interests to have the matter dealt with as quickly as possible. He placed before the appellant factors that could be relevant to her decision making. He asked if she was coherent and she agreed that she was. She does not now dispute this. In these circumstances it must have been open to the appellant to enter the pleas of guilty if she wished to do so. The evidence is that she did wished to do so and acted upon that wish. I note that a copy of the prosecution notice was left with the appellant and she made no subsequent attempt to withdraw her pleas. That was a course that would have been open to her at any time prior to the hearing date of 26 April 2012: s 51(6) Criminal Procedure Act.

Even on the appellant's affidavits I am unable to conclude that she was improperly induced to plead guilty. She says that she was told she should plead guilty because it would impact negatively on the trial of her alleged attacker (affidavit of 29 August 2012 [16]), but in her earlier affidavit she says that the words used were, 'It's for your own benefit and will help in the long run in making things look fair in your trial with [the alleged attacker]' (affidavit of 16 July 2012 [12]). This is not materially different from what is said by Constable Johnson and is more consistent with an explanation for the police laying the charges, rather than an improper inducement proffered by Constable Johnson for her to plead guilty. As regards the possibility of spent convictions, the appellant does not say that Constable Johnson made any promise, rather she says that he expressed a personal view that she deserved one and he would make representations in that regard. On the face of it such comments are self‑evidently not promises or improper inducements and could not reasonably be seen as such.
As regards publicity, the appellant says that Constable Johnson said if she pleaded guilty there would be no publicity. He would have no power to ensure this and it seems to me very unlikely he would make a statement in such unequivocal terms. In this regard his recollection seems to me much more credible and I prefer it.
In these circumstances the claim that the written pleas of guilty were improperly induced and not freely or voluntarily entered into has not been made out. Since analysis of this ground has required consideration of affidavit evidence I will grant leave in respect of it, but the ground cannot succeed, at least as regards inducement. There is another aspect of the ground, which relates to erroneous advice and I will deal with this in my consideration of ground 2.

Ground 2 - Was the conviction on the OC spray charge wrong in law?

This ground, as expressed, is misconceived. It seeks to rely on that limb of Borsa which refers to a conviction being set aside where a person has pleaded guilty but could not in law have been guilty of the offence on the admitted facts. However, the facts here, brief as they were, were clearly capable of supporting a conviction for possession of a controlled weapon.
The appellant's argument was that she raised a defence to this charge by telling Constable Johnson that she had the OC spray for her own protection. It is true that this is referred to on the written plea. However, a reference to a possible defence by an accused person does not necessarily mean that their conviction is not open as a matter of law. That is particularly so if the reference is to an excuse the onus of which it is on the accused to prove.
The real issue is not whether a conviction was open on the prosecution facts, but whether the appellant's plea of guilty to this charge was made on the mistaken basis that her conduct could not be excused if she possessed the OC spray for her protection. This is the aspect of ground 1 that I referred to earlier; that is, whether the appellant received erroneous advice in respect of this charge that caused her to plead guilty.
Before turning to consider what was said to the appellant about the OC spray possession charge, it is necessary to refer to the relevant statutory provisions.
Section 7 of the Weapons Act provides as follows:
Controlled weapons
(1)Except as provided in section 10, a person who, without a lawful excuse, carries or possesses a controlled weapon commits an offence.
Penalty: imprisonment for 2 years and a fine of $24 000.
(2)Except as provided in section 10, a person who has a lawful excuse to carry or possess a controlled weapon commits an offence if the person carries or possesses it in a manner that could reasonably be expected to cause someone -
(a)to be injured or disabled; or
(b)to fear that someone will be injured or disabled.
Penalty: imprisonment for 2 years and a fine of $24 000.
(3)In this section a lawful excuse to carry or possess a controlled weapon does not include the excuse that the weapon is carried or possessed for defence.
(4)Subsection (3) does not apply to a controlled weapon of a kind prescribed for the purposes of this subsection as long as it is carried or possessed in such circumstances, if any, as the regulations may prescribe.
(5)Regulations under subsection (4) may apply generally or to a particular person or class of persons.
The phrase 'controlled weapon' is defined in s 3 of the Weapons Act to mean, amongst other things, an article prescribed by the regulations. OC spray is prescribed by the Weapons Regulations 1999 (WA): reg 5 and sch 2 item 17.
Section 7(3) of the Weapons Act provides that it is not a lawful excuse to possess a controlled weapon for defence. However, this does not apply to controlled weapons prescribed for the purposes of s 7(4) by the regulations, provided that they are carried or possessed in such circumstances as the regulations prescribe.
Regulation 7 of the Weapons Regulations provides that OC spray is prescribed for the purposes of s 7(4) of the Act. Regulation 7(2) provides that s 7(3) of the Act does not apply to OC spray if it is carried or possessed by a person for the purpose of being used in lawful defence in circumstances that the person has reasonable grounds to apprehend may arise.
Section 11 of the Act provides that the burden of proving any exception or lawful excuse, including one under s 7, is on the person seeking to rely upon it.
Constable Johnson accepts that he told the appellant that possession of the OC spray was illegal. It is not disputed that he said this to her when she raised with him that she possessed the two cans of spray for her own protection. Given that she was in hospital as a result of an attack upon her there was obviously a reasonable basis for such a claim. In these circumstances it was open to the appellant to seek to rely on the excuse in reg 7 of the Weapons Regulations.
It is clear that there were grounds upon which the appellant could have sought to raise this excuse. She entered a plea of guilty in respect of this charge on a mistaken assumption that her possession of the OC spray was not excused. This was because Constable Johnson told her that possession of OC spray was unlawful. He said this in response to her reference to self‑protection and this implied that no such excuse was available at law. That the appellant nonetheless maintained her position is shown by the endorsement regarding self‑protection on the written plea.
In these circumstances I accept that the appellant's plea of guilty to the OC spray charge was entered into on the basis of a material misunderstanding of the law. Accordingly, her appeal against conviction in respect of that charge must succeed. That is, properly, an aspect of ground 1, not ground 2. Ground 2 is without merit and leave in respect of must be refused. However, this aspect of ground 1 must succeed.
I also note that it was possible for the Magistrates Court to have struck out the plea of guilty to the OC spray charge on the basis that the appellant had a defence to it: see s51(5) Criminal Procedure Act (1986). The written endorsement on the plea of guilty to the effect that the appellant had possession of the OC spray for her own protection was sufficient in the circumstances to have raised the possibility that the appellant had a defence to that charge. In those circumstances the Magistrates Court should have set aside the plea and adjourned the matter so that the appellant could consider her position.

Ground 3 - Should the magistrate have granted spent conviction orders?

In his brief sentencing remarks the magistrate referred to the appellant having a prior conviction. It was submitted in the appellant's written submissions that this was an express error of fact. However, in oral submissions it was conceded that the appellant had a prior conviction for driving a vehicle with a prescribed drug in her oral fluid contrary to s 64AC of the Road Traffic Act 1974 (WA). The only other information regarding that prior conviction is that the appellant was fined $100 and lost three demerit points. It was characterised by the appellant's counsel as a traffic offence and I accept that it was not an offence of a particularly serious character.
The magistrate was obviously far more influenced by the appellant's physical condition. He made inquiries in that regard and said he was aware that she had suffered serious burns. There was no response to his questions as to her present condition.
His Honour then said:
I think in all the circumstances I will just impose nominal fines on each. She has probably suffered enough. There will be a fine of $100 on each. They are not the sort of penalties I would normally have imposed and I wont make an order for costs and I will make an order for destruction of the methylamphetamine.
The police prosecutor then raised the question of the spent conviction application. This was clearly a reference to the words endorsed on the written plea of guilty. His Honour then said:
I would normally have not made a spent conviction for these types of offences, there are three of them. The prohibited weapon was a serious type weapon. So I am not going to make a spent conviction order.
A spent conviction order cannot be made unless the court sentencing an offender considers that the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial to or the previous good character of the offender, considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender: s 45 Sentencing Act 1995 (WA).
In the present case the principle factors that the magistrate referred to were the nature of the offences and the number of them. He specifically referred to the fact that there were three offences. That was a factor that clearly influenced him to come to the conclusion that it was inappropriate to make a spent conviction order in respect of any of the charges. Given that I have concluded that the appeal against conviction should be allowed in respect of the charge dealing with the OC spray, the circumstances in which the discretion as to whether to grant a spent conviction came to be exercised have now changed. In these circumstances it is open to me to reconsider the question.
In exercising the sentencing discretion again it is possible to have regard to any relevant matter that has occurred between when the appellant was convicted and when the appeal was heard: s 14(5) Criminal Appeals Act 2004 (WA). The appellant's affidavits include some relevant material in this regard. I note that the ground is expressly confined to the issue of whether spent conviction orders ought to have been granted. The fines imposed are not challenged; they were, of course, very low, as the magistrate recognised.
Having regard to the extremely serious injuries that the appellant suffered there are very good reasons to conclude that she is unlikely to commit offences of this nature again. Whilst possession of a prohibited weapon, namely the taser, and possession of methylamphetamine could not be described as trivial offences, they were not offences of the greatest seriousness. Furthermore, even when offences are not trivial, previous good character can justify a conclusion that an offender should be relieved immediately of the adverse effect of a conviction. A person may have past convictions and still be of good character: Hull v Castledine [2005] WASC 252 [24] ‑ [25]. This was not a case involving a person with a significant criminal record or who had committed offences of the same or similar type. In JJA v Yow [2008] WASC 69 the appellant had three convictions of possession of different kinds of drugs but his use and his apparent motivation to overcome his drug addiction resulted in a spent conviction order being made on appeal.
It is certainly true that the discretionary power to make a spent conviction order under s 45 is of an exceptional character and requires consideration of whether there are particular circumstances that justify the adverse effect of a conviction being immediately set aside: Koenig v Ryan [2001] WASCA 339 [23] per Hasluck J.
In her most recent affidavit the appellant refers to having attended university and obtaining Bachelor of Communications and Bachelor of Business degrees. She was employed prior to the attack on her. She would like to work again in the future, when she is able. She also says that she may need it to travel overseas for specialist physical rehabilitation. She anticipates the need for a visa to travel to some overseas countries and adverts to the possibility that criminal convictions may affect a visa application. The appellant has also annexed to her affidavit two character references which attest to her past good character and the unlikelihood of her re‑offending.
In the circumstances I am satisfied that it is appropriate to grant spent conviction orders in respect of the remaining two charges. I have come to that conclusion having regard to the appellant's previous good character and the unlikelihood that she will re‑offend.

Conclusion

The appeal against conviction in respect of the OC spray charge is allowed. The effect of this will be to set aside the conviction on that charge. The reason for that is that the plea of guilty to that charge was entered on a misunderstanding as to whether the appellant's possession of the OC spray could have been excused. Such an excuse was open on the available evidence. Since the onus is on the appellant to establish such an excuse it is not possible for me to determine that charge on these appeal proceedings. It will therefore be necessary to remit that charge to the Magistrates Court to be determined according to law. Of course, it may be open to the prosecution to discontinue that charge if they accept that the appellant is able to establish the excuse to the requisite standard. The respondent's counsel had no instructions in that regard at the hearing of the appeal.
The orders of the court are as follows:
1.Leave to appeal is granted in respect of grounds 1 and 3.
2.Leave is refused in respect of grounds 2.
3.The appeal is allowed in part in that the conviction for possession of the two OC sprays, being charge no 12/20225, is set aside, the written plea of guilty in respect of that charge is struck out and that charge is remitted to the Magistrates Court to be dealt with according to law.
4.Spent convictions are granted in respect of the remaining two charges being charge no 12/20223 and 12/20224 (the fines and orders for forfeiture and destruction being otherwise unaffected).
5.The appeal is otherwise dismissed.