UK vs. Taylor

Australia

07.05.2021

Criminal

Discretion to make a spent conviction order should be regarded as of an exceptional character

The Appellant was convicted on 27 October 2020 of breach of bail in Kalgoorlie Magistrates Court. She was fined $100 and ordered to pay costs. The Appellant filed a notice of appeal containing the sole ground that, there was a miscarriage of justice in the failure to grant the Appellant a spent conviction.

The discretion to make a spent conviction order should be regarded as of an exceptional character. The Court must consider, not only from the point of view of the offender, but also from the point of view of the community, why an offender should immediately be relieved of the adverse consequences of a conviction. This may be because the conviction will affect the offender's prospects of employment, would result in exceptional hardship to the offender, or because a spent conviction order will assist in the offender's rehabilitation in a way that accords with the interests of the community.

The Appellant is 18 years of age. She has been accepted into university and plans to begin studying in second semester. While currently unemployed, the Appellant has stated that, she is looking for a job prior to beginning her studies. She has expressed an interest in working in the mining industry during her studies. For a young person, at the beginning of their working life, a conviction may have a detrimental and long lasting impact.

The failure to grant a spent conviction order might deny the Appellant the full benefit of Section 189 and Section 190 of the Young Offenders Act, in circumstances where future employers may infer from the breach of bail conviction that, the Appellant had committed further offences. The Respondent submitted that, it is speculative whether the presence of the conviction would result in hardship in future employment.

The court is required, however, to assess the likely effect of a conviction, and the possible need to disclose it if an order is not made. Finally, the Respondent submitted that the appellant can apply for a spent conviction order under the Spent Convictions Act after 10 years. The legislature has, however, provided for the grant of a spent conviction order at the time of sentencing where the Court considers the offender should be immediately relieved of the adverse consequences of a conviction.

The Appellant is only 18 years old, she attempted to return to Kalgoorlie, and then handed herself into the police station upon her return. She had no criminal record at the time of sentencing, and the alleged offending for which she was on bail was as a young offender. The failure to grant a spent conviction order in these circumstances was a miscarriage of justice. A spent conviction order should necessarily be made. Appeal allowed.

Tags : Spent conviction Entitlement Hardship

Share :