WHW v Commissioner of Police
[2014] WASCA 153
•26 AUGUST 2014
WHW -v- COMMISSIONER OF POLICE [2014] WASCA 153
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 153 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:93/2013 | 19 JUNE 2014 | |
| Coram: | MARTIN CJ BUSS JA MURPHY JA | 26/08/14 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | WHW COMMISSIONER OF POLICE THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA |
Catchwords: | Appeal against dismissal of an application for spent conviction order Serious sexual offences Whether primary judge erred in failing to take into account the object of the Spent Convictions Act 1988 (WA) Whether the primary judge erred in considering the 'public interest' Relevant considerations Whether risk of reoffending |
Legislation: | Criminal Code (WA) District Court of Western Australia Act 1969 (WA), s 79(1)(a) Equal Opportunity Act 1984 (WA) Interpretation Act 1984 (WA), s 18, s 19(1)(a) Sentencing Act 1995 (WA), s 39(2), s 45 Spent Convictions Act 1988 (WA), s 4(2), s 6, s 7, s 8, s 9, s 10, s 11, s 16, s 25, s 26, s 27, s 32, sch 1 cl 2(2), sch 1 cl 4, sch 3, pt 3 Supreme Court Act 1935 (WA), s 58(1)(m) |
Case References: | A v Corruption and Crime Commissioner [2013] WASCA 288 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 Hall v Vaatuitui [2006] WASCA 195 House v The King [1936] HCA 40; (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHW -v- COMMISSIONER OF POLICE [2014] WASCA 153 CORAM : MARTIN CJ
- BUSS JA
MURPHY JA
- Appellant
AND
COMMISSIONER OF POLICE
Respondent
THE ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervener
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : CIVO 88 of 2013
Catchwords:
Appeal against dismissal of an application for spent conviction order - Serious sexual offences - Whether primary judge erred in failing to take into account the object of the Spent Convictions Act 1988 (WA) - Whether the primary judge erred in considering the 'public interest' - Relevant considerations - Whether risk of reoffending
Legislation:
Criminal Code (WA)
District Court of Western Australia Act 1969 (WA), s 79(1)(a)
Equal Opportunity Act 1984 (WA)
Interpretation Act 1984 (WA), s 18, s 19(1)(a)
Sentencing Act 1995 (WA), s 39(2), s 45
Spent Convictions Act 1988 (WA), s 4(2), s 6, s 7, s 8, s 9, s 10, s 11, s 16, s 25, s 26, s 27, s 32, sch 1 cl 2(2), sch 1 cl 4, sch 3, pt 3
Supreme Court Act 1935 (WA), s 58(1)(m)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr J Kitto
Respondent : No appearance
Intervener : Mr G T W Tannin
Solicitors:
Appellant : Kitto & Kitto
Respondent : No appearance
Intervener : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v Corruption and Crime Commissioner [2013] WASCA 288
Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471
Hall v Vaatuitui [2006] WASCA 195
House v The King [1936] HCA 40; (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
- REASONS OF THE COURT:
Introduction
1 This is an appeal against the dismissal by Sweeney DCJ of an application by the appellant (W) to have certain serious convictions declared spent pursuant to s 6(1) of the Spent Convictions Act 1988 (WA) (the Act).
2 The offences were correctly described by the primary judge as 'very serious indeed'. The conduct included penile vaginal sexual intercourse with a stepchild when she was 11 years of age, and sexual penetration with objects.
3 The respondent in the original application, the Commissioner of Police (the Commissioner), did not take part in the appeal. On 17 October 2013 Newnes JA granted leave to the Attorney General of Western Australia to intervene as amicus curiae, pursuant to Sch 1 cl 2(2) of the Act.
4 The evidence in support of the application for a spent conviction included affidavits by W and his wife and a clinical psychologist. W also gave oral evidence at the hearing. None of this evidence was challenged and it was accepted by her Honour.
5 Senior counsel for the Attorney-General accepted that her Honour made a material error in the exercise of her discretion. Both counsel acknowledged that if W succeeded in the appeal, the appropriate course would be to set aside the primary judge's order and remit the matter to the District Court for fresh consideration, by a different judge in the District Court, of W's application to have the convictions declared spent. For the reasons which follow, material error has been established and the matter should be remitted to the District Court for fresh consideration.
Background
6 The following background is drawn from the judge's reasons and the unchallenged evidence. (All references are to the transcript page numbers of the extemporaneous reasons of the primary judge, unless otherwise stated.)
7 On 16 May 1943, W was born in Holland (BB 66). On 1 December 1950, W arrived in Australia with his parents and sister (BB 66). W said that he loved his parents but they 'were not very good role models'. In or around 1953, when W was 10, his parents joined a nudist club. The family went to the club as a family for several years. The parents adopted the nudist lifestyle at the family home, sometimes inviting friends over who would all sit around naked (BB 33).
8 In 1968, W married his first wife, which W says was a 'disaster'. The couple's relationship ended in its second year. This was one of many setbacks W experienced during his life. Others included an inability to finish his trade due to medical reasons; an inability to remain in the defence force due to his history of having 'Sturge-Weber Syndrome'; and a failed attempt at being a share farmer (BB 33 - 34).
9 In 1972, W married his second wife. His second wife had a daughter from a previous relationship (the stepdaughter), who was seven at the time of the marriage to W (BB 34).
10 In 1976, W and the second wife had a son (the son). The wife spent several weeks in a mother-craft home shortly after the birth because she could not cope with the baby (BB 34). W and his family then moved to Perth (BB 34). The move proved to be 'disastrous' for everyone. The relationship between W and the second wife deteriorated (BB 34).
11 The offences were committed by W against the stepdaughter in the period 1 March 1977 to 27 December 1982 (BB 71). His stepdaughter was 11 years old at the start of that period. The offences included two counts of defilement of a girl under 13; one count of unlawfully and indecently dealing with a child under the age of 14; six counts that while being the guardian of the complainant, a girl under 17 years, he did unlawfully and carnally know such girl; and one count of unlawfully and indecently assaulting the complainant (BB 70). The sexual abuse began when the stepdaughter was aged 11, and continued until she was aged 17 (BB 2).
12 By early to mid-1984, the stepdaughter had confided with two of her friends as to the abuse by W (BB 35).
13 In August 1984, after realising that 'all would shortly be revealed' and that his family would be destroyed, W informed the second wife as to what had occurred. W's marriage to the second wife ended. W's relationship with the son ended, with the son wishing to have no further contact with W (24).
14 On 1 November 1984, W was charged with the abovementioned offences (BB 66). He pleaded guilty. He engaged voluntarily in psychological counselling prior to being sentenced (23 - 24).
15 On 29 March 1985, W was sentenced to a sentence of 10 years' immediate imprisonment with hard labour, to serve a minimum of 5 years (23). W appealed against sentence, but his appeal was dismissed (BB 70 - 73).
16 Whilst in prison, W received a visit from the stepdaughter. W said that he was 'absolutely shocked' when he received a visit from her for the first time. The stepdaughter wanted to know why W had committed the offences. She expressed her regret that he was in prison. W advised the stepdaughter to tell the second wife that she had visited him. The stepdaughter came back and visited him the next day, and they had a long meeting talking about everything, such as family and the house (BB 19 - 20).
17 After these visits, W received at least two letters from the stepdaughter. She was around 20 years of age at the time of writing each of the letters. In one of these letters, the stepdaughter said words to the effect that she would 'never be able to forgive' W, however, she wanted 'to start having a relationship with [W] as a father and the father that [she] wanted to have' (BB 20). The primary judge accepted W's evidence in regard to these visits (24).
18 W completed the sex offenders program in prison (24).
19 In August 1989, W was employed as a labourer while on pre-parole. In 1990, W was managing a small company that manufactured and sold surveying equipment (BB 36).
20 Sometime after W was released he experienced a chance encounter with the stepdaughter and a friend of the stepdaughter at a shopping centre. The stepdaughter was around 23 or 24 years of age. The exchange was brief, during which she said to W, in effect, that she was 'fine and had moved on with her life' (24).
21 In 1991, W met his current wife. She already had three daughters from another relationship (BB 36).
22 In October 1992, W accepted a position as a company manager in an international company. In 1999, W accepted a position as an 'expeditor' on a mining project in Western Australia, and over the course of this employment became the 'lead expeditor' and had responsibility for 12 staff members (BB 36).
23 In 2007, W married his current wife (BB 37).
24 In 2008, W commenced work on a major gas project in Western Australia. He worked on the project until at least 2011 (BB 36).
25 From 8 August 2012 - 8 April 2013, W attended seven sessions of psychological counselling for the purpose of addressing issues related to his offending (BB 52).
26 On 16 May 2013, by way of notice of motion in the District Court, W applied for his convictions to be spent pursuant to s 6 of the Act.
27 By July 2013, W was 70 years of age. He had been in steady employment and had not been unemployed from around August 1989, when he was on pre-parole release from prison. He was retired. For more than 20 years he had been in a 'happy, committed relationship' (25). His son was 37 years of age at the time of the hearing, and W had not seen him since before W was imprisoned in 1985. As at July 2013, his wife's three daughters were 31, 34 and 37 years of age respectively. The 37-year-old lived in Sydney and had no children, however, she was pregnant. The 34-year-old lived in London and had no children, but was in a relationship. The 31-year-old lived 'around the corner' from W and was married (BB 22 - 24). The daughters did not know of W's offending (BB 22).
28 In relation to the appellant's personal circumstances since the offending occurred, the judge said:
Twenty-eight years on, the applicant's personal circumstances have changed. He is now 70 years of age. He has been for more than 20 years in a happy, committed relationship with a woman who has three daughters from a prior relationship. He is clearly a strong father figure to those daughters, now grown women.
29 The uncontested evidence of the clinical psychologist was to the effect that given that the appellant had not reoffended for approximately 30 years, his risk of reoffending was considered 'extremely low or negligible' (BB 54).
The Spent Convictions Act 1988 (WA)
30 The Act had its genesis in a report prepared by the Law Reform Commission of Western Australia in June 1986 entitled 'Project 80 - The Problem of Old Convictions'.
31 As a preliminary matter, it should be noted that applications under the Act are to be distinguished from applications made under s 45 of the Sentencing Act 1995 (WA). Applications made under the Sentencing Act for a spent conviction are made at the time a person is convicted for an offence (s 39(2) and s 45(1) of the Sentencing Act). On the other hand, applications made under the Act are made some years after a person has incurred a conviction (s 6 and s 7 of the Act). Nevertheless, an order made under s 45 of the Sentencing Act is a spent conviction for the purposes of the Act (s 45(2) and s 45(3) of the Sentencing Act).
32 The Act has the long title of:
An Act to make provision for a person who has been convicted of an offence against the law of this State or of a foreign country and who has not re-offended during a specified period to be rehabilitated by limiting the effects of the conviction, to enable that limitation to apply to a conviction against the law of another State or Territory to which a corresponding law thereof applies, to limit the effects of a dismissal or withdrawal of a charge, and for connected purposes.
33 Section 6 of the Act confers the power on a District Court judge to make an order declaring that a conviction is spent. Section 6 provides:
6. Serious convictions
(1) A serious conviction incurred by a person becomes spent if, on application being made by that person to a District Court judge, the judge makes an order declaring that the conviction is spent.
(2) An application under subsection (1) may not be made by a person in respect of a conviction -
(a) until the prescribed period for that conviction has expired; or
(b) if a judge has refused to make an order under that subsection in respect of the same conviction within the preceding 2 years.
(3) The provisions in Schedule 1 apply to an application under subsection (1) and the determination of the application.
(4) The making of an order under subsection (1) is at the discretion of the judge and that discretion shall be exercised having regard to -
(a) the length and kind of sentence imposed in respect of the conviction; and
(b) the length of time since the conviction was incurred; and
(c) whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business or in a particular employment; and
(d) all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application; and
(e) the nature and seriousness of the offence; and
(f) the circumstances surrounding the commission of the offence; and
(g) whether there is any public interest to be served in not making an order.
9. Term used: serious conviction
For the purposes of this Act serious conviction means a conviction in respect of which the sentence imposed is -
(a) imprisonment for more than one year or for an indeterminate period; or
(b) a fine of $15 000 or more.
10. Term used: lesser conviction
(1) For the purposes of this Act lesser conviction means a conviction in respect of which the sentence imposed is not a sentence referred to in section 9 or a sentence of life imprisonment.
(2) Notwithstanding subsection (1), if a person who has incurred a lesser conviction that is not spent incurs a conviction (including a conviction for an offence against Commonwealth law or the law of another State or of a Territory) for which a sentence referred to in section 9 or a sentence of life imprisonment is imposed, the lesser conviction thereafter becomes a serious conviction for the purposes of this Act.
36 Sections 6 and 7 do not apply to a conviction where the penalty is, or includes, a sentence of life imprisonment: s 4(2).
37 In determining an application for a spent conviction, the judge shall not be bound by the rules of evidence, and may inform himself or herself on any matter in such manner as he or she thinks fit: sch 1 cl 4 of the Act.
38 In this case, W was sentenced to in excess of 1 year for all convictions, except for the conviction in relation to the count of indecent assault to which he was sentenced to 1 year's imprisonment (BB 71). In any event, in accordance with s 10(2), the conviction for indecent assault is to be treated as a serious conviction for the purposes of the Act.
39 The 'prescribed period' referred to in s 6 means, relevantly, 10 years plus any period of imprisonment relevant to that conviction (s 11(1) of the Act). Section 11(2) deals with imprisonment for an indeterminate period and s 11(3) provides, in effect, that in all other cases where a sentence of imprisonment is imposed, the period of 10 years commences with the day on which the conviction is incurred and the period of imprisonment (if any) is the period imposed, regardless of the period actually served.
40 Part 3 of the Act is titled 'Effect of a conviction becoming spent'. Division 3 of pt 3 contains extensive provisions prohibiting discrimination against persons on the basis of a spent conviction and making provision for the lodging of a complaint under the Equal Opportunity Act 1984 (WA).
41 The other effects of a spent conviction order are contained in div 4 of pt 3. In broad terms, they include the following:
• References to convictions of a person in written laws of the State are not to be construed as references to spent convictions (s 25).
• Where a written law permits a person to assess the character or fitness of someone, the person undertaking the assessment is not to have regard to the spent conviction or its underlying charge (s 26).
• Questions about, or general law obligations requiring disclosure of, convictions, are not to be taken to include or require disclosure of spent convictions (s 27).
42 Schedule 3 of the Act is titled 'Exceptions to Part 3'. Clause 1 of sch 3 applies to 'all spent convictions'. It includes exceptions to the operation of certain provisions of the Act, including provisions in div 4 of pt 3. The exceptions covered by cl 1 apply, for example, to persons being considered for appointment to law enforcement offices, such as the Commissioner of Police, and to persons applying for the issue of firearm licences.
43 Clause 2 of sch 3 contains exceptions to the operation of s 18 and div 4 of pt 3 in respect of certain spent convictions. It applies to spent convictions with respect to specified offences, including sexual offences under ch XXXI of the Criminal Code (WA) (cl 2(1), cl 2(2)(a)(v)) and to various offences committed against a person under the age of 18 years (see cl 2(1), cl 2(2)(a), cl 2(2)(b) and cl 2(3)). The persons excepted include persons involved in or being considered for employment with children, and persons being assessed for suitability for adoptive parenthood.
44 Section 16 in div 2 of pt 3 provides, in effect, that regulations may be made under s 33 of the Act by which exceptions to the operation of pt 3 of the Act may be amended or added.
45 Section 32(1) provides, in effect, that the application of the Act extends to a conviction incurred by a person before its commencement and s 32(2) provides that for the purposes of subsection (1) of s 32, the prescribed period expires either upon the commencement of the Act, or the day on which it would have expired if the Act had been in force continuously since the day when the conviction was incurred, whichever is the later.
The primary judge's reasons
46 On 25 July 2013, the primary judge heard and gave reasons for her decision in relation to W's application for a spent conviction.
47 The primary judge recounted the facts as to W's offending and the sentence imposed.
48 In relation to the nature of the offence and what her Honour described as 'the reasons behind them', the judge said (24 - 25):
The offences then were very serious indeed. It is likely they have impacted seriously upon the victim. The reasons behind them being committed were broadly typical. The applicant had a childhood that was to a degree dysfunctional with his parents and his father particularly providing poor boundaries for social sexual functioning and privacy and also his father providing poor boundaries in terms of what he confided to his son.
At the time of the offending, the applicant had been in a relationship that was strained and difficult and he felt rejection and isolation. And in those circumstances, turned to his stepdaughter with whom he had been close and a need for affection was perverted into a need for sexual gratification.
49 In relation to the stepdaughter against whom the offending occurred, the judge said (24):
I do not draw … any inference that she was in fact fine and had in fact recovered from her childhood.
… In the absence of evidence from her, I have no way of knowing to what extent she has been able to move on from her childhood experiences, but I can state as a broad proposition that even the most resilient victims of such abuse are likely to suffer some long term impact in their sense of self, their relationships with partners and their relationships with their own children.
50 Her Honour noted that W had not disclosed his offending to his wife's three daughters. Her Honour considered that this absence of disclosure involved an element of 'self-serving' conduct by W and his wife as any disclosure to the daughters could risk a custody issue with his wife's ex-partner (25); that if W had told the daughters, he would have risked his relationship with them; and that should any of the daughters ever have children of their own, his decision not to disclose his offending would deprive them of 'any impetus to put in place protective measures to safeguard their children' (25).
51 The primary judge said that the decision not to disclose the offending to his stepdaughters militated against the submissions made on behalf of W that he had completely accepted responsibility for his past conduct and had done all he could do towards 'redemption'. She also said, in effect, that it reduced the weight to be placed on his submission that he had a good relationship with his wife's three daughters (26).
52 The primary judge accepted that W was disgusted at what he had done and still felt remorse (25).
53 In relation to the risk of reoffending, the judge said (25):
I do not doubt his remorse is genuine and I have a report from [a] forensic psychologist who assesses his risk of reoffending as being low to minimal. There has been no complaint against him for the past 28 years.
54 In relation to that passage, it should be observed that her Honour has not correctly identified the conclusion of the clinical psychologist in relation to the risk of reoffending. As noted earlier, the psychologist concluded that the risk was 'extremely low or negligible' and not merely 'low to minimal'.
55 Her Honour continued (26):
But there are never guarantees to be had. This court sentences men in their 70s for sexual abuse. It also sentences men who have successfully completed the Sex Offenders Program. The fact is the applicant engaged in conduct many years ago which disgusted him then and which he knew to be dysfunctional and he managed to cross very strong societal and moral taboos.
I accept that the applicant represents minimal risk of reoffending, but there is no guarantee and should there be young children in his family, he will deprive their mothers of the knowledge of his past conduct.
56 In response to certain submissions by W's counsel in relation to potential impediments to foreign travel if the convictions were not declared spent, the primary judge said (26):
I am informed from the Bar table and I accept that these convictions are likely to meet with the refusal of entry to some countries, including the United States, Singapore and Malaysia.
If foreign countries take a discretionary view about such conviction as a bar to entry, the length of the sentence, I think, is likely to persuade them to refuse entry. I have no certain information about that, but I intend to work on the basis that these convictions will restrict the ability of the applicant to travel to at least some countries.
Declaring these convictions spent, of course, would not truly expunge them. They would remain admissible against the applicant in a criminal court, but he would be relieved of certain consequences which flow from having such a criminal conviction. He would not be obliged to disclose them upon request in applications to travel. Were he seeking employment, he would not be obliged to disclose such convictions. He is not seeking employment and is retired.
57 Her Honour said that the length of the sentence and the seriousness of the offending were 'all strong factors against the exercise' of her discretion (26).
58 Her Honour also said that there was a 'public interest' in refusing W's application 'on two scores'. The first was that there was a public interest in refusing the application having regard to the deterrent aspect of the sentence. Her Honour said (27):
Firstly, the deterrent aspect of a sentence includes the consequence of having the criminal convictions recorded against your name. Balanced against the natural need of the applicant to be relieved of certain consequences of convictions being recorded against him, it is in the public interest in denouncing in the strongest terms those who would prey upon young children for sexual gratification. …
Where the offences are so serious and where they are offences against a young child in gross breach of trust, the weight comes down in favour of maintaining the full deterrent aspect of the sentence and the full consequences of it upon the applicant.
59 The second aspect of 'public interest' on which the judge relied to refuse W's application was expressed by her Honour in these terms (27):
Further there is a public interest in foreign countries being able to trust the records of this State and to trust that they are being given adequate disclosure when making decisions as to whether to admit entry within their borders to a foreigner.
Foreign travel is not a right but a privilege and I consider that competing with the applicant's desire for both privacy and freedom there is a public interest in maintaining the trust in our judicial system and record keeping and accountability to foreign countries wishing to exercise their discretion in relation to travellers they choose to admit.
I find there is a public interest in them feeling that if they ask for disclosure from an applicant that, in the case of serious convictions such as these, they will be given accurate information. Whereas were I to declare the convictions spent, it [sic] would not be obliged to disclose these convictions in any such application.
60 On 30 July 2013, the primary judge ordered that W's application be dismissed.
Appellate intervention
61 The primary judge's decision is a discretionary decision. In Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79, McLure JA (as her Honour then was) summarised the relevant principles as follows:
In order to succeed in an appeal from a discretionary decision an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law: House v The King (1936) 55 CLR 499 at 505. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted to the Court: Lovell v Lovell (1950) 81 CLR 513 at 519.
62 Error may be inferred if the result is plainly unjust, or unreasonable or manifestly wrong: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
Grounds of appeal
63 The appellant's grounds of appeal as originally filed alleged, in effect, that:
1. The primary judge erred in law in her assessment of s 6(4)(g) of the Act (whether there is any public interest to be served in not making an order) by her reasoning or findings that:
(a) if the application were allowed, foreign countries, in assessing whether to permit the appellant to enter the foreign countries:
(i) would not be able to trust Western Australia's criminal conviction records;
(ii) would not be given adequate disclosure of W's criminal record;
(iii) would not be able to trust Western Australia's judicial system;
(iv) would not be given accurate information by W; and
(v) would have 'nil or inadequate accountability by the State of Western Australia';
(b) foreign travel by W is not a right but a privilege;
(c) there is a public interest in denouncing 'in the strongest terms those who would prey upon young children for sexual gratification'; and
(d) foreign sovereign powers constitute 'the public' for the purposes of considering the public interest (WB 4 - 5).
2. The primary judge erred in law, or alternatively in fact and law, in her assessment of s 6(4)(d) of the Act (having regard to all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application) by finding that W's decision not to disclose his offending to the stepdaughters tended against the grant of a spent conviction order without giving any, or adequate, consideration as to whether W's decision in that regard would favour the grant of a spent conviction order (WB 5).
3. Having found that W's decision not to disclose the offending to the daughters was a 'moral not a legal choice', the primary judge erred in law by 'speculating' as to 'irrelevant matters' which may have arisen as a result of that choice, namely:
(a) that the stepdaughters would be deprived of any impetus to put in place protective measures to safeguard their children;
(b) that the District Court sentences men in their 70s, and men who have successfully participated in a sex offender program, for sexual abuse offences;
(c) that W would deprive mothers of young children in his family of knowledge of his past conduct; and
d) that W had failed to disclose his offending to 'people who have a right to know' (WB 5).
Disposition
Observations on the proper construction and operation of the Act
65 The following observations may be made, for present purposes, as to the proper construction and operation of the Act.
66 First, the purpose of a statute is to be ascertained from its language, construed as a whole, and in this regard reference may be made to its long title: Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471, 477. The provisions of a statute of the Western Australian Parliament are to be construed in a way which will promote the purpose or object underlying the statute (whether expressly stated or not) in preference to a construction which would not promote that purpose or object: s 18 of the Interpretation Act 1984 (WA). In this matter, when the Act is read as a whole, including its long title, it is evident that a fundamental objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the legal and social stigma associated with a conviction may, to a considerable extent, be removed, or at least ameliorated, after the passage of what the legislature regards as an appropriate period of time.
67 That legislative purpose is 'confirmed' (s 19(1)(a) of the Interpretation Act) by the then Attorney-General's observations in the second reading speech of the Spent Convictions Bill (WA). The then Attorney General, the Hon J M Berinson MLC said:
[T]he Government remains committed to the fundamental proposition that criminal offenders must be appropriately punished. However, it is also believed that people should have the opportunity to be relieved of the social stigma and other consequences of a criminal record where that is justified by blameless conduct for a lengthy period. That is in the interests not only of the offenders concerned but also of the general community as well (Western Australia, Parliamentary Debates, Legislative Council, 22 September 1988, p 3285).
68 The then Attorney General also stated that the Bill aimed to provide 'some positive encouragement and incentives for previous offenders to refrain from further unlawful conduct' (Western Australia, Parliamentary Debates, Legislative Council, 22 September 1988, p 3283).
69 Secondly, the structure of the Act is such that it is designed to apply even to the most serious offences (except where a sentence of life imprisonment has been imposed). With respect to persons who have obtained a spent conviction order, its protective provisions are then made subject to a number of elaborate exceptions. Some apply with respect to certain categories of person in relation to all spent convictions. Others apply to designated classes of person with respect to spent convictions in connection with certain specific offences, including sexual offences, and other offences against children.
70 Thirdly, s 6(4) of the Act uses the mandatory language of 'shall'. The factors enumerated in s 6(4) are factors which the court is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39. Both counsel accepted that the factors enumerated in s 6(4) were not exhaustive. That is correct, at least to the extent of the fourth proposition, set out below.
71 Fourthly, it is to be implied, having regard to the subject matter, scope and purpose of the Act, that the court in exercising its discretion under s 6(4) must also have regard to the underlying rehabilitative objective of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (39 - 40).
72 Fifthly, whether and to what extent the particular applicant has rehabilitated himself or herself is also one of the 'circumstances of the applicant … at the time of the application' within the meaning of s 6(4)(d) of the Act. Allied with the question of rehabilitation is the question of whether and to what extent the applicant poses a risk of reoffending.
Ground 1 and ground 1A
73 Ground 1 deals with two aspects of the question of 'public interest' under s 6(4)(g) of the Act upon which her Honour relied to refuse W's application for a spent conviction order. The first concerns the question of foreign travel. Her Honour's reasons as to the public interest in that regard are set out in [59] above.
74 Freedom of movement, both within Western Australia and beyond its borders, is not, in any relevant sense, a 'privilege' in this context. Freedom of movement is not proscribed and is not contingent upon some special dispensation which may be granted or withheld according to some broad concept of the public interest. The right to enter a foreign country will, of course, depend upon, amongst other things, the operation and application of the foreign country's laws with respect to its entry and visa requirements and related matters. If and to the extent that those laws operate to give favourable regard to a person who, despite conviction, has a spent conviction order in this State, then that may be seen as one of the beneficial effects of a spent conviction order. To that extent, it may be seen as one of the benefits of the rehabilitative process which the Act is evidently intended to foster. It may be accepted that the term 'public interest' is a protean concept: see generally the observations of Martin CJ and Murphy JA in A v Corruption and Crime Commissioner [2013] WASCA 288 [79] - [81]. Nevertheless, her Honour erred in law in finding that it was to be assessed on the basis that foreign travel is, in any relevant sense, for the purposes of the Act, a 'privilege'. Her Honour's error was, with respect, compounded by her misconception of the public interest, as discussed below.
75 Her Honour considered it to be a relevant aspect of the 'public interest' in s 6(4)(g) that if there were a spent conviction order in respect of the offences committed by W, this could damage foreign countries' trust in WA's justice system and its record-keeping. This was, with respect, an irrelevant consideration and formed no part of the 'public interest' in s 6(4)(g). If, on the proper construction and application of the Act in the particular circumstances of the case, a spent conviction order is appropriate, it is irrelevant to speculate about the expectations, or even misgivings, which a foreign country might have about Western Australia's system of justice in general or its record-keeping in particular.
76 Thirdly, there is no reason to think that making an order under the Act would have any effect on a foreign country's perception of WA's record-keeping. As the primary judge observed, an order made under the Act does not expunge the conviction from the records maintained by the authorities of this State. The effects of an order under the Act relate principally to the extent to which, under the law of Western Australia, a person is required to disclose the conviction and the extent to which a conviction can be taken into account when making employment or other relevant decisions. The extent to which a prior conviction (including a spent conviction) has to be declared to the authorities of a foreign country prior to or at the time of entry to that country will be governed by the law of that country. To the extent that the primary judge implicitly considered that the Act could have some extraterritorial operation, and affect the legal obligations owed by the applicant to another country with respect to his entry into that country, she erred.
77 Senior counsel for the Attorney-General acknowledged, in effect, that her Honour had erred in relation to the above matters.
78 To the extent that the appellant contends, as an aspect of ground 1, that the interests of foreign countries are always necessarily irrelevant to the exercise of the discretion to make an order under the Act because their interests fall outside 'the public interest', that contention must be rejected. It reflects an inappropriately parochial view of the public interest and ignores the considerations of comity which apply to the relations between this State and other States and Territories of the Commonwealth of Australia, and to relations with other nations. For the purposes of this appeal, the significant aspect of ground 1 is that an order under the Act would have no effect upon a foreign country.
79 The second aspect of 'public interest' raised by ground 1 concerns her Honour's finding that there was a public interest in the continuing denunciation of offenders who had committed offences of the kind committed by W. This aspect of ground 1 may be considered with ground 1A, referred to in [64] above.
80 As indicated earlier, her Honour was bound to consider the underlying rehabilitative object of the Act in the exercise of discretion under s 6(4). There is no indication in her Honour's reasons that she did so and, on a proper construction of her reasons, she did not. To that extent, her Honour, with respect, was in error. That error is also apparent from her Honour's finding to the effect that the public interest would be served by not making an order because the public interest required that, for offences of this kind, the full deterrent aspect of the conviction, and its full consequences for the offender, should be maintained.
81 Her Honour's findings in that regard indicate, with respect, that her Honour has misunderstood the scope and nature of the statutory task. The Act applies to all kinds of serious offences (except where life imprisonment has been imposed). There is nothing in the Act to indicate that the public interest requires that offences of this particular kind should fall outside of the scope of its ordinary operation. That is particularly so in light of the express exceptions to the operation of the protective provisions of the Act with regard to persons who have committed sexual offences and other offences against children. Further, her Honour's finding indicates that her Honour has failed to recognise and take into account the underlying rehabilitative purpose of the Act. Whilst her Honour was undoubtedly required to take into account the nature and seriousness of W's offences (s 6(4)(e)) and to give those factors whatever weight she considered appropriate in all the circumstances, her Honour was nevertheless also required to consider W's application in light of the evident rehabilitative object of the Act. Consistently with that underlying legislative objective, it is inevitable that the denunciatory effect of a conviction will be ameliorated by the grant of a spent conviction order. Her Honour appears to have regarded an important aspect of the intended legislative benefit of the order to be a reason for not making the order. In that regard, her Honour erred.
82 Grounds 1 and 1A should be upheld.
Grounds 2 and 3
83 Grounds 2 and 3, in substance, concern the judge's findings in relation to the appellant's failure to inform his wife's daughters of the offending, and the inferences of fact, including in relation to the risk of reoffending, that might properly be drawn from her Honour's findings about that non-disclosure.
84 In light of the conclusion reached in relation to grounds 1 and 1A, it is strictly unnecessary to determine these grounds for the purposes of the disposition of the appeal. Also, given that the matter should be remitted to the District Court for fresh consideration, it is undesirable for this court to make any positive findings about the inferences (if any) to be drawn from the appellant's failure to inform his wife's daughters of the offending. Nevertheless, it may be useful to set out some preliminary observations as to her Honour's reasoning process which are raised by grounds 2 and 3.
85 First, the judge appears to have concluded that the decision not to disclose the offending to his wife's daughters indicated that the appellant had not completely accepted responsibility for his past conduct. As noted above, it is unnecessary and inappropriate to express a final view as to whether that inference was open to her Honour. It may nevertheless be observed that the decision not to inform the daughters, at least arguably, appears to have been in substance a joint decision made between the appellant and his wife. It appears, on one view of it, to have been taken in order to allow both the appellant's wife, and the appellant, to maintain a harmonious relationship with the wife's daughters. It was also, presumably, thereby taken with a view to assisting in the maintenance and preservation of their own relationship. The judge described their decision in that regard as 'self-serving'. That might be thought to be an unnecessarily pejorative expression to describe a decision designed apparently (on one view of it) to preserve relationships within the new family. In any event, even if it were 'self-serving', the decision would not on that account alone necessarily signify a failure by the appellant to take full responsibility for his previous conduct.
86 Secondly, the question of whether the appellant had failed properly to acknowledge his wrongdoing would be relevant to the question of whether, and to what extent, he continued to be at risk of reoffending. However, her Honour has not made a clear finding as to the appellant's risk of reoffending.
87 As noted earlier, the judge appears to have accepted the psychologist's report, but has misstated the psychologist's opinion as to the appellant's risk of reoffending. Also, to the extent that the judge has impliedly suggested that the appellant is at some risk of reoffending, she has apparently done so on the basis of the court's experience as to sentencing offenders even in their 70s. However, in that regard the court is typically sentencing persons in their 70s who have recently offended, or persons who have offended many years earlier and the conduct has only more recently come to light. Her Honour has not made it plain whether and to what extent she regarded it as common for the court to sentence men in their 70s for recently committed sexually offences in circumstances where they had been tried and convicted of such offences many years ago in respect of which they had served their sentence, and where they had undertaken relevant psychological counselling and had not reoffended over the next 30 years.
88 It will be important, at least ordinarily, for the court to make a clear finding as to whether, and to what extent, the applicant for a spent conviction order poses a continued risk of reoffending as one of the relevant circumstances of the applicant at the time of the application (s 6(4)(d)).
Other matters
89 Senior counsel for the Attorney-General also raised, in his written outline of submissions, the question of whether the appeal was incompetent.
90 Senior counsel in this regard noted that:
• the general statutory right of appeal against a judgment of the District Court is found in s 79(1)(a) of the District Court of Western Australia Act 1969 (WA) (District Court Act), confirmed by s 58(1)(m) of the Supreme Court Act 1935 (WA) (Supreme Court Act);
• a general statutory right of appeal from a decision of a particular court to a higher court will be excluded where there is subsequent legislation making the relevant decision of the court 'final': Hall v Vaatuitui [2006] WASCA 195 [8];
• the Act, as it was originally passed, included s 6(5) which provided:
An appeal against a decision of the judge shall lie to a single judge of the Supreme Court on a question of law.
• section 6(5) was repealed on 8 December 1989 by the Spent Convictions Amendment Act 1989 (WA) (the Amendment Act); and
• the relevant parliamentary debates in relation to the Amendment Act indicate that 'the intended effect of the amendment was to remove the right of appeal altogether'.
However, senior counsel for the Attorney-General also observed that:
• the apparent intention expressed in the parliamentary debates was not borne out by the language of the Amendment Act, that is, there is no express provision in the Act stating that a decision under s 6(1) is 'final', or other words to that effect; and
• neither the Act nor the Amendment Act make reference to s 79(1)(a) of the District Court Act or s 58(1)(m) of the Supreme Court Act.
91 Ultimately, senior counsel for the Attorney-General acknowledged that there did not appear to be any statutory basis for suggesting that the provisions of s 79(1)(a) of the District Court Act and s 58(1)(m) of the Supreme Court Act do not operate to confer a right of appeal. That acknowledgement appears to be sound.
Conclusion
92 The appellant has succeeded in relation to grounds 1 and 1A of the grounds of appeal. It is unnecessary to determine finally the questions raised by grounds 2 and 3. The primary judge heard the appellant's application in July 2013. This court has no up to date information about the appellant. It is appropriate to set aside the orders of the primary judge and remit the matter to the District Court for a fresh determination by a different judge of the appellant's application for a spent conviction order in light of all the relevant facts and circumstances existing as at the date of the hearing of that application.
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