Kretzmann v. Vinicombe - (17 Apr 2019)

Spent conviction orders are not made, when public interest is involved

Criminal

The Appellant seeks leave to appeal against penalties imposed upon him following his conviction of road traffic offences. The penalties were imposed by different magistrates at separate sittings of the Magistrates Court of Western Australia. In each case, the Appellant argues that the magistrate should have made a spent conviction order even though the appellant did not apply for such an order.

Section 14(5) of the Criminal Appeals Act, 2004 provides that, on a sentencing appeal, a court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard. For the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction

The making of a spent conviction order does not automatically flow, once the criteria in Section 45 of Sentencing Act, 1995 are satisfied. Consideration must be given to all the circumstances of the case. The merits of each case must be determined on the facts that are presented to the court. Present Court is not satisfied that spent conviction orders should have been granted.

Drink driving offences are serious offences. This was not a case in which the blood alcohol content was only marginally over the limit or in which there were other circumstances relating to the offence that were mitigatory. General deterrence is an important sentencing consideration - one which is undermined, if the granting of a spent conviction order is not regarded as being of an 'exceptional character to be exercised sparingly in a clear case'. The fact that, the Appellant's employment prospects may be adversely affected is not exceptional or even unusual. It is a consequence flowing from the ordinary rule that, a conviction is a matter of record.

There were no other (non-employment related) considerations personal to the Appellant that warranted the grant of a spent conviction order. Implicitly, this was accepted by the Appellant's initial decision to abide the magistrates' decisions. The fact that employers in certain sectors of the economy insist on prospective employees obtaining 'Police Checks' as part of pre-employment screening evidences the existence of the public interest in employers knowing whether applicants have a criminal record.

In present case, public interest would be undermined, if spent conviction orders were made. The appellant did not adduce evidence from which it might have been concluded that, some other aspect of the public interest or some personal interest outweighed the public interest in employers knowing of his convictions. There was no miscarriage of justice in either matter. The appeal is dismissed.

Tags : PUBLIC INTEREST CONVICTION VALIDITY