Waldock v Taylor
[2003] WASCA 43
•4 MARCH 2003
WALDOCK -v- TAYLOR [2003] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 43 | |
| Case No: | SJA:1008/2003 | 25 FEBRUARY 2003 | |
| Coram: | ROBERTS-SMITH J | 4/03/03 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Applications granted, Extension of time to apply for leave to appeal granted, Leave to appeal granted | ||
| A | |||
| PDF Version |
| Parties: | CHAD JASON WALDOCK KEVIN TAYLOR |
Catchwords: | Appeal Justices Act 1902 (WA) Application for extension of time and leave to appeal Delay of 31/2 years Exceptional circumstances Failure of Magistrate to make spent conviction order Applicant refused employment Whether miscarriage of justice would remain uncorrected if extension not granted Consideration of merits of proposed appeal Appeal Justices Act 1902 (WA) Sentence Grounds of appeal "Some other reason sufficient to justify a review of the decision" Whether appellant must show error |
Legislation: | Justices Act 1902 (WA), s 186 Sentencing Act 1998 (WA), s 47 |
Case References: | Lancaster v The Queen [1989] WAR 83 Stafford v The Queen, unreported; SCt of WA; Library No 4154; 28 May 1981 Tognini (2000) 109 A Crim R 411 Allen v Powell [2000] WASCA 65 Boomalli Limited v Hake [1985] WAR 7 Di Camillo v Wilcox [1964] WAR 44 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson (1990) 64 ALJR 458 Gavin v The Queen (1992) 6 WAR 195 Jackamarra v Krackouer (1998) 195 CLR 516 Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Slater v Marshall [1965] WAR 222 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WALDOCK -v- TAYLOR [2003] WASCA 43 CORAM : ROBERTS-SMITH J HEARD : 25 FEBRUARY 2003 DELIVERED : 4 MARCH 2003 FILE NO/S : SJA 1008 of 2003 BETWEEN : CHAD JASON WALDOCK
- Appellant
AND
KEVIN TAYLOR
Respondent
Catchwords:
Appeal - Justices Act 1902 (WA) - Application for extension of time and leave to appeal - Delay of 31/2 years - Exceptional circumstances - Failure of Magistrate to make spent conviction order - Applicant refused employment - Whether miscarriage of justice would remain uncorrected if extension not granted - Consideration of merits of proposed appeal
Appeal - Justices Act 1902 (WA) - Sentence - Grounds of appeal - "Some other reason sufficient to justify a review of the decision" - Whether appellant must show error
Legislation:
Justices Act 1902 (WA), s 186
Sentencing Act 1998 (WA), s 47
(Page 2)
Result:
Applications granted
Extension of time to apply for leave to appeal granted
Leave to appeal granted
Category: A
Representation:
Counsel:
Appellant : Mr M C Owens
Respondent : Ms C Ide
Solicitors:
Appellant : Max Owens & Co
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Lancaster v The Queen [1989] WAR 83
Stafford v The Queen, unreported; SCt of WA; Library No 4154; 28 May 1981
Tognini (2000) 109 A Crim R 411
Case(s) also cited:
Allen v Powell [2000] WASCA 65
Boomalli Limited v Hake [1985] WAR 7
Di Camillo v Wilcox [1964] WAR 44
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
Gavin v The Queen (1992) 6 WAR 195
Jackamarra v Krackouer (1998) 195 CLR 516
Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Slater v Marshall [1965] WAR 222
(Page 3)
1 ROBERTS-SMITH J: This is an application for extension of time pursuant to s 206C(1) of the Justices Act 1902 (WA) and for leave to appeal under s 185 of the Justices Act. Order 65A r 2(b) of the Rules of the Supreme Court stipulates that applications for leave to appeal must be filed and served on the clerk of the Court of Petty Sessions within 21 days after the day on which the decision was given.
2 The proposed appeal is one against sentence imposed by Mr Fisher SM in the Court of Petty Sessions at Bunbury on 15 October 1999 on the applicant's plea of guilty to a charge that he, being a person bound by a restraining order, breached it in that he on 25 September 1999 attended at certain premises contrary to that order. The learned Magistrate recorded a conviction and imposed a conditional release order for six months in the sum of $200.
3 The application was filed on 6 February 2003. It is therefore almost 3-1/2 years out of time. The grounds upon which the extension of time are sought are essentially that it was not until recently when he applied for a position with Qantas that the applicant realised he actually had a conviction recorded against him and that in the interim period he was unable to process the appeal for a short period of time because of the intervention of the Christmas break.
4 So far as the proposed appeal is concerned the applicant intends to rely on two grounds. The first is that the learned Magistrate erred in law and fact in not considering in the circumstances the making of a spent conviction order, that he erred in law and in fact in not making a spent conviction order in the circumstances of the applicant's case and that he erred in law and fact when reaching the conclusion under s 47 of the Sentencing Act 1955 (WA) to not then in the circumstances as presented to him make a spent conviction order.
5 The second ground is that there are reasons which in any event are sufficient to justify a review of the decision to not order a spent conviction, in reliance upon s 186(1)(b) of the Justices Act.
6 The particulars given in respect of ground 2 essentially are that having regard to the extraordinary nature of the offence and its circumstances, as well as circumstances personal to the applicant, a spent conviction order should be made and that it would be unfair, considering everything that has happened, that the applicant should be hindered in his future prospects because of what happened on the day of the offence.
(Page 4)
7 Should his application be successful the applicant seeks orders that a spent conviction order be made in respect of the complaint and that the appeal be heard by a single judge at Bunbury and various other procedural orders. It will at once be appreciated that the first order is not an order which can be made on an application for extension of time and for leave.
8 Although the application is ex parte the respondent was in fact served and was represented on the hearing of it. Under those circumstances I inquired whether counsel wished me to hear the application as the appeal (see s 190 of the Justices Act). Although counsel for the applicant was content for it to be dealt with that way then counsel for the respondent was not. She indicated she had come to argue the application for leave and for extension of time, not the substantive appeal. I shall therefore deal only with the present applications.
9 A delay of almost 3-1/2 years in the filing of an application for leave to appeal is quite inordinate. Where the delay is substantial an extension of time will be granted only where exceptional circumstances are shown or where there has been a substantial miscarriage of justice which would remain uncorrected if the extension were not granted: Lancaster v The Queen [1989] WAR 83 at 85 and 91.
10 The exceptional circumstances must ordinarily afford a reason for the delay such that it would be unjust to hold the applicant to the statutory time limit. It is in that sense that reason for the delay must be satisfactorily explained. The longer the time which has elapsed, the more exceptional the circumstances have to be: see Stafford v The Queen, unreported; SCt of WA; Library No 4154; 28 May 1981.
11 The question whether there has been a substantial miscarriage of justice which would remain uncorrected if the extension of time were not granted necessitates a consideration of the merits of the proposed appeal. As to that the applicant relies on his own affidavit filed on 6 February 2003.
12 On 22 October 1998 four interim violence restraining orders were made against the applicant in the Bunbury Court of Petty Sessions in respect of four individuals. The orders were otherwise in identical terms, which included a stipulation that the applicant not enter upon any premises where the protected person lives or be within 100 metres of the nearest external boundary of such premises. The protected persons were Jan Page, Adrian O'Dell, Krystal Priest and Renee Priest.
(Page 5)
13 Jan (or Janet) Paige is the applicant's mother. Adrian O'Dell is a former de facto of Janet Paige. Krystal and Renee Priest are stepsisters of the applicant.
14 According to the applicant's affidavit, there is a somewhat complicated and unhappy family history, and the circumstances of the breach order were unusual, to say the least.
15 The applicant was born on 28 August 1977. His mother married his father Kevin Baldock in 1974. They had two children, namely, his older brother Troy born in 1975 and the applicant. His father left his mother in 1977 just after he was born. In 1980 his mother met and had a de facto relationship with another man. They had two children together, Jaydn born in 1980 and Aleisha born in June 1982. The family was then living in Perth. The applicant's mother left that man in 1983 or 1984 and the family moved to Australind. She then married a Mr Harry Priest.
16 The applicant's mother and Mr Priest had two children, namely, Krystal born in 1984 and Sharlee born in 1985. His mother and Mr Priest separated in 1988. Prior to that they had been living in Paraburdoo. Following the separation, the applicant and his siblings went to Boddington where they remained with his grandparents for some time. His mother then resumed her relationship with the applicant's father in the same area in 1988 and they all later moved to Australind.
17 The applicant found that difficult as he found himself being bullied both physically and emotionally by his father. In fact his father was gaoled in 1994 for sexual abuse charges against one of the applicant's sisters. The applicant witnessed some of this and told his brother Troy, who told his mother. She did not tell the police but the matter was reported by another relative. The applicant's maternal uncle had been gaoled in 1993 for sex offences against the applicant's cousin.
18 The applicant's father was sent to gaol for a period of some years. The applicant's mother took up again with his father after he was released from gaol. That lasted only for a period of 12 to 18 months until they separated again.
19 The applicant's mother then began a relationship with Adrian O'Dell in early 1998. They then lived with the children in 2 Kingfisher Terrace, Australind.
20 In the meantime the applicant had left school about 1996 and obtained his first full-time employment in early 1998 as a storeman at
(Page 6)
- Millennium Chemicals at Australind. Not long before the applicant's mother started her relationship with Mr O'Dell the applicant had helped and encouraged her to buy the premises at 2 Kingfisher Terrace by way of a HomeStart loan and he also paid some loan payments and helped establish gardens and did various aspects of maintenance around the property. He established a credit card facility to help financially.
21 When the applicant's mother commenced her association with Mr O'Dell, the latter moved in with the family. In the home at that time were the applicant's mother, Mr O'Dell, the applicant, his brother Jaydn, and his three sisters, Aleisha, Krystal and Sharlee. His brother Troy had left home at about the time that it was discovered that their father was abusing one of the daughters. As a consequence the applicant found himself adopting a protective and fatherly role to his sisters, which he says he still maintains to the present day.
22 The relationship between the applicant's mother and O'Dell was not a happy one, for the children at least. According to the applicant, O'Dell came into the house and took over. He made rules and did not seem to want any of the children around. He gave them no care and, it is said, even got to the stage of putting padlocks on the fridge so they could not get food when he did not want them to. The brother Jaydn was not able to cope with this and left home a couple of months after that relationship began.
23 The applicant, however, remained until there was a particular incident involving one of his sisters in which O'Dell abused her in quite offensive terms over an issue involving food. There was an argument about who had access to food in the fridge and whether or not the sister would come with the applicant to get food. The applicant remonstrated with O'Dell about the manner in which he had spoken to the sister. O'Dell brandished a broom at the applicant and told him to get out of the house. The police attended and the applicant did leave the house, and that was the last time he lived with his mother. At that stage he was 21 years of age.
24 He went to live with his father for a short time at the Eden Caravan Park but then shifted in with a friend. Within a few days of having left the premises at 2 Kingfisher Terrace he was served with the interim violence restraining orders which I have mentioned.
25 It is the applicant's understanding that the applications were made either at O'Dell's instance, or at least with his encouragement. The
(Page 7)
- applicant refers in his affidavit to a number of apparent errors in the applications for the violence restraining orders which he says point this up.
26 At the time he was served with the violence restraining orders the applicant was in a state of some psychological weakness and was on antidepressants prescribed by a doctor at Australind. He had also been diagnosed as suffering from a condition called social phobia.
27 Significantly, notwithstanding the restraint orders that had been made, the applicant was regularly contacted by his mother and sisters. His mother apparently told him that it was not her who had applied for the restraining orders but it does appear that it was she who filled out the applications for the sisters. In any event, as I have said, the applicant's explanation for this is that it was as a result of pressure from O'Dell at the time.
28 A number of the calls which the applicant was receiving about that time from his mother and sisters were requests for assistance by way of money and food or, alternatively, simply for social contact with him as a family member. He deposes that prior to 25 September 1999 he would have returned to the premises on their express invitation at least a dozen times and probably more.
29 It seems that he would be telephoned by his mother or sisters when O'Dell was not around and be asked to come and visit them. He says he had been made aware by them that neither his sisters or his mother wanted the restraining orders and told him that they had been made at the instance of O'Dell.
30 On 25 September 1999 the applicant was living at the Bunbury Village caravan park and still working for Millennium Chemicals. He was telephoned by one of his sisters, who was pregnant at that stage. His mother also spoke to him on the phone. They asked him to come and get the sisters to obtain some food and take them away so they could have a break from O'Dell, who was being particularly difficult at the time.
31 The applicant immediately drove from the Bunbury Village caravan park, which was about 10 to 15 minutes from the premises. He had been told that O'Dell was not at home at that stage as apparently had been the case on each other occasion when he had attended by that kind of invitation. He went with three friends in his car, parked the car in the driveway and stood on the front lawn to wait for his sisters. To his surprise, O'Dell then appeared at the front door.
(Page 8)
32 The applicant decided to leave and had actually returned to his car and got into it but before he was able to reverse out of the property, the police from Australind had arrived. Although they were both pleasant and sympathetic they told him he had to be charged.
33 He has little recollection of what occurred on the occasion of his first appearance, which was on 1 October 1999.
34 He saw the duty lawyer on 15 October but was able to have only a few minutes with him in the interview room prior to the commencement of court. The applicant told the duty lawyer as much about the situation as he could in the limited time. He was advised that he could plead not guilty but if he did it would go on for a very long time. He says he was still depressed and did not want to make any public issues about the matter so decided to get it over and done with and pleaded guilty.
35 A police statement of material facts was read out and the duty lawyer made a plea in mitigation. The applicant is unable now to recall what the Magistrate said. He was given what he describes a good behaviour bond which he thought meant that he was, as he put it, "let off."
36 I shall return shortly to the content of the police statement of material facts and the matters which, it appears, were put to the learned Magistrate on that occasion.
37 Significantly, that was the only occasion that the applicant has ever been to court charged with anything.
38 Following 15 October 1999 he made an application to cancel the restraining orders. They came before the court ultimately on 19 November and no-one attended on that occasion except the applicant and his grandmother. The applicant gave evidence and all the orders were then annulled except for that in respect of O'Dell.
39 The balance of the applicant's affidavit concerns events since that time. He says that by the year 2000 he was having trouble coping with work, suffering from lack of sleep and missing days off. His employment was terminated at the end of January 2000.
40 He obtained another job where he remained for about 6 months until February 2001. During that period his three sisters were made to leave the mother's premises and came to live with him in Bunbury. His mother and O'Dell then went to live in Perth.
(Page 9)
41 The applicant looked after his three sisters until January or February 2002. By then his mother had left O'Dell and returned to live in Busselton. Two of his sisters have been living with their mother at Busselton since, the other one lives in Perth with her boyfriend.
42 Around December 2001 or early 2002 the applicant lost his job and was finding it very difficult to cope with looking after his teenage sisters and trying to keep them under control. He became exhausted at work, but when he applied for time off he was refused.
43 He went to live with his grandparents in Boddington and returned to Bunbury about mid-2002. Since then he has been working at the abattoir at Harvey as a shift operator, commuting from Bunbury.
44 The applicant had wanted all his life to be a flight attendant or a flight officer. He says that had been his ambition for as long as he could remember. He finally got around to apply for such a position with Qantas in December 2002, having previously undertaken a hospitality course, obtained a first aid certificate and done general studies at TAFE.
45 When he applied for the job at Qantas he was told he had to have a police clearance. He deposes that he actually thought he was clear with the police and that he had no record. He attended a first interview with Qantas on 4 December 2002 and then a phone interview in mid-December. He was advised in the course of that telephone call that Qantas would no longer be pursuing his job application.
46 He did not then understand nor appreciate why that was so and it was not until later that it occurred to him that it may have been something to do with the court proceedings in October 1998. Just before Christmas 2002, he made inquiries with the Bunbury police and discovered that he did have a conviction recorded which was, of course, the conviction for the breach of the violence restraining order.
47 As I say, at that stage he had reached the Christmas break and his attempts to obtain legal advice he found somewhat difficult. There is, I think, no need to describe in any detail what those were. The delay from that point is satisfactorily explained.
48 To return to the hearing before the learned Magistrate, the applicant says that to the best of his recollection nothing was said or submitted about a spent conviction and nothing was asked of him about his future employment prospects. Indeed, in October 1999 he had no idea what a spent conviction was, nor had he ever heard of one.
(Page 10)
49 He says he was shattered and devastated when he realised that as a result of that conviction he was unable to obtain the employment for which he has always longed.
50 His mother is now in another relationship with another individual, her relationship with O'Dell having broken up in Perth around the end of 2001. The applicant is in regular contact with his sisters and says he is always there for them and is in contact with his mother but not as regularly as with his sisters.
51 There are some obvious and substantial difficulties in the way of the proposed appeal. Such an appeal would be by way of rehearing (see O 63 r 2 and contrast that with O 65 r 10 of the Rules of the Supreme Court). It is not a rehearing de novo.
52 Section 186(1) of the Justices Act provides that an application for leave to appeal may only be made on a ground or grounds coming within the following:
(a) that the Justices
(i) made an error of law or fact or both law and fact;
(ii) acted without or in excess of jurisdiction,
(iii) imposed a sentence that was inadequate or excessive
or
(b) there is some other reason that is sufficient to justify a review of the decision.
53 Thus, an appeal will ordinarily not be allowed unless the appellant can demonstrate some error in the decision appealed from. However, s 186(1)(b) considerably widens the basis upon which an appeal may be allowed.
54 The words of the provision are to be given their ordinary meaning. There is nothing in the context, nor their expression, which would necessitate a strict or narrow reading. Quite to the contrary. The clear intent of the legislature was to give the court a discretion to allow an appeal for any reason which is sufficient to justify a review of the decision. That cannot be confined to a demonstration of error because that already falls within subs (1)(a). Section 186(1)(b) must therefore necessarily mean some reason other than demonstrable error in the original decision or the process by which it was made.
(Page 11)
55 The applicant is unable to show what was actually put to the learned Magistrate or said by him. Nonetheless, some of it can be gleaned from the limited material available, and the prosecution's statement of material facts itself does lend obvious support to the applicant's account and to the unusual and extenuating circumstances.
56 I received without objection on the hearing of these applications a Health Summary in respect of the applicant from the Australind Medical Centre. There are two particularly relevant entries. The first is in respect of an attendance on 21 August 1998, which is marked as a long consultation, and notes two years of increasing agoraphobia, panic symptoms, deteriorating self-confidence, self-image, anxiety, slight depression but no major depressive symptoms and multiple somatic symptoms of anxiety. He was given medication, including Serepax.
57 As to his attendance on 18 November 1998, the clinical notes record that the applicant was "turfed out of his family home by mother's new partner", not allowed to see his sisters or mother although they contact him all the time and was advised to speak with Legal Aid. He was also prescribed further medication.
58 The first proposed ground of appeal does assert error. Put shortly, it is that the learned Magistrate erred in not making a spent conviction order. The indications are that he did not consider that possibility, no doubt because he was not asked.
59 The preconditions for the making of a spent conviction order under s 45 of the Sentencing Act 1999 are that the offender is unlikely to offend again and either the offence is trivial, or by reason of his previous good character the offender should be relieved immediately of the adverse effect of the conviction.
60 In Tognini (2000) 109 A Crim R 411, the Court of Criminal Appeal of this State discussed the application of spent conviction orders and the principles applicable thereto. The headnote does accurately summarise the effect of what the Court said in that case, and so I shall refer briefly to that. The Court held:
"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 were 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
(Page 12)
- personal to the offender. It should be taken as the ordinary rule 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 it would be desirable not only from the point of view of the offender, but also, having regard to his or here rehabilitation, and the point of view of the community, why the adverse effects of the conviction should be immediately set aside."
- The court went on to say:
"The adverse effect may be found if the conviction might be a particular impediment to the offender following a particular career, or it would be productive of exceptional hardship to the offender or his family, or that to relieve of the adverse effects of the conviction would positively aid the person's rehabilitation and be seen to best accord with the interests of the community. …"
62 While any breach of a violence restraining order is a serious matter circumstances do vary and in this case the offence was clearly one of the least serious of its kind. That is apparent not only from what the applicant himself says about it but is reflected in the few records that are available and indeed in the disposition of it by the learned Magistrate. The police statement of material facts recites the facts to be as follows:
"About 8.50pm on Saturday the 25th of September 1999 the defendant went to the complainants (sic) home address of 2 Kingfisher Terrace, Australind.
The defendant parked his motor vehicle in the driveway and stood on the front lawn. At the time three other persons were with the defendant.
As a result of a complaint received Police attended, arrested the defendant and conveyed him to Australind Police Station where the present charge was preferred.
(Page 13)
- The complainant was issued a Violence Restraint Order against the defendant, a condition of which is for him Not to enter any premises where the person protected lives or be within 100 metres of the nearest external boundary of such premises.
The Order was served on the defendant on 27/10/1998.
Explanation: 'My Mum invites me over all the time, it's only when Adrian's home that anyone complains. I see my sisters all the time'.
Court Information: Also living at 2 Kingfisher Terrace are the defendants (sic) mother and three of his sisters. Violence Restraint Orders also exist for the four against the defendant. Charges were not laid in relation to these as it appears the mother by her own admission contacts her son and arranges visits by him. Suggest the court reviews these orders."
63 According to the handwritten notes of the duty lawyer he gave a brief explanation to the learned Magistrate which included the point that the applicant went there to see his sister whose baby was sick. Details were given of the applicant's financial circumstances and it was pointed out by counsel that the applicant's mother's boyfriend had a violence restraining order against the applicant and had also taken such orders out for the mother and sisters, but the mother and sisters kept calling the applicant around. Counsel reiterated that on this particular occasion the applicant's sister had called him over to the house. These were, counsel pointed out, interim restraining orders. There seems to be no other information available as to what was actually put to the learned Magistrate.
64 The position was therefore, and the learned Magistrate seems to have accepted, that the applicant had been asked by his mother and sisters to go to the premises, but all he did when he got there was to stand on the lawn and he was actually in the process of leaving when the police arrived.
65 In my view a spent conviction would positively aid the applicant's rehabilitation and in that sense would also be in the best interests of the community. That prospect, as well as the seriously adverse effect of conviction on the applicant, has become manifest in recent times. That of course was not something the learned Magistrate knew, but consequences such as those could have been anticipated even then had matters been adequately put to his Worship. That is not always possible when duty counsel is acting under considerable pressure to represent a number of defendants with little time to take instructions and in that way the court is
(Page 14)
- sometimes not in a position to render a disposition which really meets the justice of the case.
66 The broadly remedial nature of s 186 (1)(b) of the Justices Act is intended to cover such cases. The evidence now available, which demonstrates the practical consequences which have followed upon the applicant's conviction, brings home what was before the learned Magistrate only a potentiality.
67 I do not think that events some years after a conviction, going only to demonstrate the adverse consequences of it, could of themselves in some way demonstrate error on the part of the sentencing court, nor could they be expected to give rise to a reason which would be sufficient to justify a review of the decision. A reason that an offender had not appreciated the consequences of a punishment imposed upon him where that was otherwise an appropriate disposition and within the scope of the proper exercise of the sentencing discretion of the court at first instance would not be a sufficient reason within the meaning of that expression in s 186(1)(b) of the Justices Act. I do not therefore accept the "floodgates" argument advanced by the respondent.
68 In this case the very strong considerations going to a spent conviction order appear not to have been appreciated by the learned Magistrate, probably simply because they were not ventilated before him.
69 In making the conditional release order the learned Magistrate must necessarily have found that the applicant was not likely to offend again, because under s 47 of the Sentencing Act such a finding is a precondition for the making of such an order.
70 In the circumstances the offence could not properly be regarded as other than trivial. That was certainly enough to enliven the Magistrate's discretion to make a spent conviction order, but the applicant also had in his favour his previous good character which would also have had that effect.
71 Whilst I would not be prepared to conclude that it would have been a miscarriage of the learned Magistrate's exercise of discretion to have refused to make a spent conviction order I am satisfied that the applicant can demonstrate that his Worship fell into error by not considering that possibility. That being so, the sentencing discretion would have to be exercised afresh.
(Page 15)
72 With the benefit of the material now available, particularly as to the dramatic adverse consequences to the applicant of the fact of his conviction, it would be appropriate to make a spent conviction order.
73 The present case is an exceptional one which does demonstrate some quite unique features. Even on the material which was or should have been before the learned Magistrate there was no imperative dictating that the community interest that the ordinary rule that the applicant's conviction be a matter of record, with all the consequences that might entail into the future, necessarily had to apply.
74 There were particular circumstances showing it was desirable from the point of view of the applicant and having regard to his rehabilitation, and from the point of view of the community, why the adverse affect of the conviction should have been immediately set aside. There was no element here of a need to protect the community.
75 The conviction could reasonably have been anticipated to have been, and as events have shown it has proved to be, a particular impediment to the applicant following his chosen career.
76 In summary, therefore, I am satisfied the applicant would succeed on his appeal on both grounds, namely error of law and under s 186(1)(b) of the Justices Act. That being so, a substantial miscarriage of justice would remain uncorrected if the extension of time were not granted. The respondent submits that would not be so, because under s 7 of the Spent Convictions Act 1988 (WA) the applicant's conviction will be automatically expunged by the Commissioner of Police on the applicant's application after the expiration of 10 years from the date of conviction. I do not accept that submission. The applicant would still suffer the adverse effects of the conviction until that occurred and that procedure would not have the effect of remedying the substantial miscarriage of justice demonstrated here.
77 The application for extension of time will be granted and there will be a grant of leave to appeal.
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