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Byas -V- Foulkes - (16 May 2017)

An appeal Court cannot intervene simply on basis that, it might have exercised discretion differently


In facts of present case, on 1st September 2016, Appellant was convicted after a trial in Magistrates Court of five offences of stealing as a servant contrary to Section 378(7) of Criminal Code (WA). Appellant was fined $7,000 and ordered to pay costs of $88.50. Appellant applied for a spent conviction order to be made in accordance with Section 39(2)(c) and Section 45 of Sentencing Act, 1995 (WA) in respect of each of his five convictions. Magistrate declined to make a spent conviction order. Appellant appeals against that decision. Sole ground of appeal is that, magistrate 'erred in law in all circumstances of this matter by declining to grant a spent conviction order'.

Power to make a spent conviction order arose in present case because a fine was imposed. Section 39(2)(c) of Sentencing Act provides that, a Court may impose a fine 'with or without making a spent conviction order'. A spent conviction order is to be taken as part of sentence imposed. Section 45(2) of Act, stipulates that, 'a spent conviction order in respect of a conviction is an order that, conviction is a spent conviction for the purposes of Spent Convictions Act 1988'. Section 3 of Spent Convictions Act, defines 'spent conviction' to include a conviction that is spent by virtue of a spent conviction order made under Section 39 of Sentencing Act. Part 2 of Spent Convictions Act, provides procedures for applications to be made, after expiration of lengthy specified periods (relevantly 10 years for present purposes) and depending on nature of conviction, for a declaration from a District Court judge or a certificate from Commissioner of Police that, conviction is spent. Effect of a spent conviction order made under Section 39 of Sentencing Act, is to confer on offender immediately benefits that could only otherwise be obtained by an application under Spent Convictions Act after relevant period of time had elapsed.

As decision whether to grant or refuse a spent conviction order involves an exercise of discretionary judgment, in order for appeal to succeed, in absence of specific error, appellant must demonstrate that, no other option was properly open to magistrate than to make a spent conviction order. If it was reasonably open for magistrate to conclude that, a spent conviction order was not appropriate, ground must fail. An appeal Court cannot intervene simply on basis that, it might have exercised discretion differently. If Appellant succeeded in establishing that, magistrate had made a specific error of principle, it would still be necessary for Appellant to show that, it has resulted in a miscarriage of justice, so as to justify the granting of an extension of time in which to appeal.

Magistrate did have regard to the fact that the recording of the convictions may have adverse consequences for viability of Appellant's current and future employment. Respondent submits that the evidence does not establish that, Appellant would suffer exceptional hardship. There was no evidence that, Appellant could not find work in a different field, if he could no longer work in the industry, he was in, at time of his offending. It is clear from magistrate's sentencing remarks that his Honour regarded seriousness and circumstances of offending, involving as it did a very significant breach of trust, as outweighing factors in favour of a spent conviction order. His Honour properly had regard to wider public interest.

This was a case in which general deterrence was a significant sentencing consideration. Need for general deterrence is a relevant factor in deciding whether to make a spent conviction order at the time of sentencing. Appellant's offending did not involve an isolated incident or difficult personal circumstances or other factors resulting in impaired judgment which might diminish importance of general deterrence. It was a persistent course of conduct over a lengthy period that seems to have stemmed from a belief that, it was perfectly acceptable to use company's funds to meet his personal expenditure. Such a belief was legally and morally wrong.

It was reasonably open to magistrate to conclude that, Appellant's offending was of a kind which ought to be attended with ordinary consequences of conviction as a measure of deterrence. Magistrate had regard to all relevant factors. Weight to be accorded to those factors in exercise of his discretion was a matter for magistrate. It would not be appropriate for this Court to intervene on basis it might have exercised discretion differently. However, magistrate's decision was an entirely appropriate exercise of discretion in all circumstances of this case. Present was not a clear case for taking exceptional step of relieving Appellant of ordinary consequences of conviction.

Appellant has not established specific error or that discretion exercised by magistrate not to make a spent conviction order in respect of each of convictions was unreasonable or plainly unjust, and, ground of appeal had no reasonable prospect of succeeding. Appellant's application for leave to adduce additional evidence is refused. Application for leave to appeal is refused. Application for an extension of time in which to appeal is refused. Appeal is dismissed.


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