CHM -v- WA POLICE [2026] WASC 238

[2026] WASC 238 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : CHM -v- WA POLICE [2026] WASC 238 CORAM : PALMER J HEARD : 11 JUNE 2026 DELIVERED : 11 JUNE 2026 FILE NO/S : SJA 1086 of 2025 BETWEEN : CHM Appellant AND WA POLICE Respondent ON APPEAL FROM: For File No : SJA 1086 of 2025 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE L ATKINS File Number : PE 47697 of 2025, PE 47698 of 2025, MH 5272 of 2025, MH 5273 of 2025 Catchwords: Appeal - Criminal law - Sentence - Refusal to make spent conviction order - Whether appellant unlikely to commit such an offence again - Whether appellant of previous good character - Whether spent conviction order should be made - -- 1 of 14 -- [2026] WASC 238 Page 2 Turns on own facts Legislation: Criminal Appeals Act 2004 (WA) Criminal Code Sentencing Act 1995 (WA) Firearms Act 2024 (WA) Result: Leave to appeal granted Appeal allowed Decision of magistrate varied to include spent conviction Category: B Representation: Counsel: Appellant : In Person Respondent : C Economidis Solicitors: Appellant : In Person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 GNR v The State of Western Australia [2015] WASCA 5 M v Seidner [2013] WASC 395 Manchanda v WA Police [2025] WASC 49 Norbu v WA Police [2024] WASC 473 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Wright v McMurchy [2012] WASCA 257 -- 2 of 14 -- [2026] WASC 238 PALMER J Page 3 PALMER J: Introduction 1 On 24 October 2025, in the Mandurah Magistrate's Court, the appellant was convicted before Magistrate Atkins on guilty pleas of: (a) one count of assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code; (b) one count of damaging property contrary to s 445 of the Criminal Code; and (c) two counts of failing to store a firearm or related thing contrary to s 306(1) Firearms Act 2024 (WA) in compliant storage. 2 Magistrate Atkins imposed a global fine of $4,000.00 and ordered the appellant to pay costs of $300.80. The appellant's lawyer sought a spent conviction order but Magistrate Atkins refused to make that order. 3 The appellant now seeks to appeal her Honour's decision to refuse to make a spent conviction order. In support of his appeal, the appellant seeks to rely upon additional evidence that was not before the Magistrate. 4 At the hearing of the application for leave to appeal and the appeal, I indicated that I would give leave to the appellant to both rely upon the additional evidence and to appeal and that I would allow the appeal. I said that I would publish my reasons for doing so. These are my reasons. Why leave to appeal is required and when it is granted 5 Section 7(1) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. The term 'decision' is defined in s 6(g) of the Criminal Appeals Act to include a refusal to make an order that might be made as a result of a conviction or acquittal. The refusal to make a spent conviction order is such an order. -- 3 of 14 -- [2026] WASC 238 PALMER J Page 4 6 Section 8 of the Criminal Appeals Act provides that an appeal may be made on the grounds that the court made an error of law or fact or both, or on the basis that there has been a miscarriage of justice.1 7 Leave to appeal is required for each ground.2 An application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act. 8 Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,3 meaning that the ground is required to have a rational and logical prospect of succeeding.4 Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.5 The proposed grounds of appeal 9 While it is plain from the notice of appeal that the appellant wishes to appeal Magistrate Atkins's decision to refuse to make a spent conviction order, the notice of appeal does not identify any properly drafted grounds of appeal. The part of the notice of appeal in which the appellant is required to identify the grounds of appeal makes submissions about why a spent conviction order should be made. 10 The appellant represented himself on the appeal and has no legal training. He has had some difficulty with criminal procedure and the law. 11 The various materials that the appellant has filed suggest that the ground of appeal that he seeks to pursue is that the Magistrate's failure to make a spent conviction order constituted a miscarriage of justice. The respondent helpfully and properly submitted that the appeal should proceed on the basis that the ground of appeal was that: The learned magistrate's refusal to grant a spent conviction order in respect of each of the appellant's convictions has resulted in a miscarriage of justice. 12 At the hearing of the application for leave to appeal and the appeal, the appellant agreed that the appeal should proceed on that basis. 1 Criminal Appeals Act s 6(c), s 7(1) and s 8(1). 2 Criminal Appeals Act s 9(1). 3 Criminal Appeals Act s 9(2). 4 Richard Lee Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. 5 Criminal Appeals Act s 9(3). -- 4 of 14 -- [2026] WASC 238 PALMER J Page 5 When a spent conviction order will be made 13 The power to make a spent conviction order is found in s 39(2)(a) - (d) of the Sentencing Act 1995 (WA) (the Sentencing Act). Section 45 of the Sentencing Act sets out the conditions for the making of a spent conviction order. Relevantly, s 45 provides: (1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless – (a) it considers that the offender is unlikely to commit such an offence again; and (b) having regard to – (i) it the fact that the offence is trivial; or (ii) the previous good character of the offender, it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. … (2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988. (3) The Spent Convictions Act 1988, other than pt 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made. (4) A spent conviction order is to be taken as part of the sentence imposed. 14 Section 45 of the Sentencing Act therefore directs the court not to make a spent conviction order unless three conditions are satisfied:6 (a) first, the court must consider that the offender is unlikely to commit such an offence again; (b) secondly, the offence must be trivial, or the offender must be of previous good character; and (c) thirdly, having regard to the condition that the offence must be trivial, or the offender must be of previous good character, the 6 Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 (Brewer) [11]. -- 5 of 14 -- [2026] WASC 238 PALMER J Page 6 court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. 15 The first two conditions must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order. Those conditions must be established by convincing evidence.7 16 If the conditions for the making of a spent conviction order are satisfied, the court is not obliged to make a spent conviction order. The sentencing court has a discretion, not a duty, to make a spent conviction order.8 Consideration must be given to all the circumstances of the offence and the offender, as well as the public interest.9 17 It has been observed that a spent conviction order should only be made in a 'very special case'.10 In R v Tognini,11 Murray J (with whom Malcolm CJ and Wallwork J agreed) explained the principles concerning the making of spent conviction orders as follows:12 In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, 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 pre-conditions are 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 personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all of the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside. That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the 7 Norbu v WA Police [2024] WASC 473 [26]. 8 GNR v The State of Western Australia [2015] WASCA 5 [44]. 9 Wright v McMurchy [2012] WASCA 257 [59]. 10 Brewer [14]. 11 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 (R v Tognini). 12 R v Tognini [27] - [28]. -- 6 of 14 -- [2026] WASC 238 PALMER J Page 7 adverse effects of the conviction would positively aide that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community. 18 In JAD v McRea,13 Derrick J summarised the principles applicable to the exercise of the discretion by reference to the authorities, as follows:14 The discretion is to be exercised having regard to the following propositions: 1. The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case; 2. In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender; 3. The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future; 4. The court should look to see if there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender, but also, having regard to his or her rehabilitation, from the point of view of the community why the adverse effect of the conviction should be set aside; 5. The exercise of the discretion involves the consideration of the interest of the offender and the public interest; 6. One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect; and 7. Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the offender's reliability or suitability for a particular type of work. 19 I respectfully agree with and gratefully adopt Derrick J's summary. 13 JAD v McRae [2022] WASC 220 (JAD v McRae). 14 JAD v McRae [70]. -- 7 of 14 -- [2026] WASC 238 PALMER J Page 8 The sentencing hearing in the Magistrates Court The facts of the offending 20 After the appellant entered guilty pleas,15 the prosecutor read the following facts in relation to the aggravated assault and property damage counts.16 21 At 9 pm on 13 August 2025, the appellant was at home with his stepdaughter, whom he had known for seven years. A baby was also present. 22 The appellant was 56 years old, 193 centimetres tall, weighed 100 kgs and was of solid build. His stepdaughter was 16 years old, 165 centimetres tall, weighed 55 kgs and was of slim build. 23 The appellant and his stepdaughter had an argument over dinner. He became angry and grabbed his stepdaughter's arm in the bicep area with both hands, bruising her. 24 The appellant and his stepdaughter made their way into the bedroom. He then dragged his stepdaughter off the bed and threw her to the ground. 25 Shortly afterwards, he left the house. 26 Sometime during the argument the appellant picked up his stepdaughter's mobile telephone and threw it to the ground, damaging its screen. Repairing the screen cost $80.00. 27 At 10:00pm the police arrived. The appellant told the police 'I'm sorry. I wish I had not done it'. 28 In relation to the two firearms charges, the prosecutor read the following facts.17 29 At the relevant time, the appellant held a firearms licence for a rifle, a condition of which was that the rifle and any ammunition be stored safely. When the police were at the appellant's house, they discovered the rifle stored under his bed and 1,239 bullets for the rifle in a bucket next to the bed. The appellant told the police that 'I have a safe, but it's in a box at my other house'. 15 ts 2 - ts 3. 16 ts 3 - ts 4. 17 ts 4. -- 8 of 14 -- [2026] WASC 238 PALMER J Page 9 The sentence imposed and the refusal of a spent conviction order 30 The appellant's lawyer told Magistrate Atkins that the appellant conceded the facts, other than to clarify that he had known his stepdaughter for nine years. 31 With regard to the assault, the appellant's lawyer told the Magistrate that the appellant got into an argument with his stepdaughter and lost his temper. She said that the appellant was ashamed of his conduct and acknowledged that he made the wrong choice and should have just walked away. He admitted to throwing the phone in the heat of the moment and said that he had had it fixed the next day. 32 With regard to the firearms, the appellant's lawyer said that the appellant had moved into the property in May 2025 but had not had time to install the safe. She said that after the incident he had handed in his firearms and given up his licence. 33 The appellant's lawyer told the Magistrate that the appellant was 56 years old and his last offence was a driving offence committed in 1989. She said that he lived with his wife and stepson and his stepdaughter now lived with her father. 34 The appellant's lawyer said that the appellant had worked his entire life as a mechanical fitter but that since the incident he had been working casually because he was unable to obtain full-time work without a police clearance. She said that he worked 'FIFO' and wanted to return to doing so. She handed up some character references. 35 The appellant's lawyer submitted that the offences were out of character for the appellant and he would be unlikely to commit them again. She said that the appellant had attended counselling and completed an anger management course. She said that he was also a full-time carer for his 94 year old father. 36 The Magistrate asked the prosecutor whether he wished to be heard on whether a spent conviction order should be made. The prosecutor indicated that a spent conviction order was opposed because there was a community expectation that matters such as these are recorded. The appellant's lawyer submitted in response that the appellant's actions were extremely out of character, he had taken responsibility for his actions and taken steps to address his anger issues. -- 9 of 14 -- [2026] WASC 238 PALMER J Page 10 37 The Magistrate indicated that she would give the appellant full credit for entering an early guilty plea. 38 After discussing the facts of the appellant's offending and the materials she had been provided with by the appellant's lawyer, the Magistrate said that the appellant had engaged in an act of family violence and assaulted a child. Her Honour said that the appellant was a grown man who had assaulted a 16 year old girl and that was unacceptable. Her Honour said that the appellant had shown blatant disregard for the safety of his firearms and ammunition. 39 The Magistrate said that she had considered making a community based order but as the appellant had already taken steps to address his anger management, her Honour did not consider it necessary to make such an order. 40 The Magistrate said that a penalty needed to be imposed that brought home to the community that such conduct would not be condoned. Her Honour imposed a global fine of $4,000.00 and ordered the appellant to pay costs of $300.80. 41 With regard to the spent conviction order, the Magistrate did not consider that the offences were trivial but accepted that the appellant was of good character. Her Honour said it was necessary to decide whether the appellant should be relieved of the burden of a conviction being recorded against his name. 42 The Magistrate referred to the appellant's former employer, Mr Radcliffe, saying that the appellant needed a police clearance to work in the mining industry and that the conviction would be a burden on the appellant. 43 The Magistrate said, however, that there needs to be a message to the community that when people decide to assault their stepdaughters and are so blasé about their firearms and ammunition that convictions are the normal outcome. Her Honour said that noting the content of the references and the objection, she would not make a spent conviction order. The additional evidence that the appellant relied upon 44 The additional evidence that the appellant sought to rely upon is attached to two affidavits he has had made and filed on 20 November 2025 and 12 March 2026. -- 10 of 14 -- [2026] WASC 238 PALMER J Page 11 45 The second affidavit attaches a letter from the appellant in which he said that after his conviction, he has applied for numerous positions as a mechanical fitter but he has been declined an interview once his police record is disclosed. He said that this has made it difficult for him to return to the workforce. 46 The appellant stated that is wife gave up her fulltime employment in November 2024 for mental health reasons and is currently unable to return to work. He said that he wished to return to employment and work for the next 10 years to support his family and provide them stability. 47 The second affidavit also attached copies of various emails from recruitment consultants listing job vacancies. Most, although not all, of the positions required a national police clearance. 48 A letter from the appellant's stepdaughter is also attached to the second affidavit. She says that she was not in a good place when the incident happened and she had attempted suicide the week before. She says that the appellant cannot get a job and that she did not ever mean this to be the outcome of her decision to contact the police. She said that it would be good if the appellant could get a clean police record and he could support her and his other family. 49 The appellant's wife also provided a letter which confirms that her husband has been unable to work. She says that the appellant had provided for her and her children for nine years and has been a wonderful father. 50 The first affidavit and the second affidavit also attached a number of letters which spoke to the appellant's good character. 51 Section 39 of the Criminal Appeals Act provides that subject to an appeal court's power under s 40 to admit new evidence, the appeal court must decide the appeal on the evidence and material that was before the lower court. 52 Section 40(1)(e) of the Criminal Appeals Act provides that for the purposes of dealing with an appeal, an appeallate court may admit other evidence. 53 The respondent does not oppose the appellant's application to rely on further evidence. -- 11 of 14 -- [2026] WASC 238 PALMER J Page 12 54 In determining whether the failure to make a spent conviction order has resulted in a miscarriage of justice, the court may have regard to new information which has been obtained for the purposes of the appeal and supports a finding concerning the appellant's good character and the likely consequences of a conviction.18 55 In my view, the further evidence that the appellant sought to rely upon was relevant to both the appellant's good character and the consequences that a conviction has had on both him and his family. For this reason, I considered that he should have leave to rely upon that evidence. Whether there has been a miscarriage of justice 56 Magistrate Atkins considered that the appellant was unlikely to commit an offence again and that he was of previous good character. The respondent also conceded these matters. In my view, that concession was properly made. The material before me establishes the good character of the appellant, that his offending was an aberration and that he is unlikely to commit such an offence again. 57 While the respondent acknowledged that there were discretionary factors that favoured the exercise of the discretion to make a spent conviction order, the respondent argued that the seriousness of the offences and the public interest in general deterrence meant that the discretion should not be exercised to make a spent conviction order. 58 In my view, the circumstances of the appellant's case warranted the exercise of the discretion to relieve him from the adverse effects of his conviction. I have reached this conclusion for four reasons. 59 First, the evidence before me suggests that the conviction is having a significant impact on the appellant's ability to obtain employment. This is causing financial hardship to both the appellant and his family, including his stepdaughter. 60 Making a spent conviction order would positively aid the appellant's rehabilitation and permit him to return to being a productive member of society. The appellant's rehabilitation and reintegration into the workforce is in the interests of the community and the appellant's family, including his stepdaughter. 18 M v Seidner [2013] WASC 395 [27] - [28]. -- 12 of 14 -- [2026] WASC 238 PALMER J Page 13 61 Secondly, I consider that the fine that the Magistrate imposed provides adequate general deterrence. In reaching this conclusion I have had regard to the nature of the appellant's offending, the remorse that he has demonstrated, and the positive steps that he has taken towards rehabilitation. I do not consider that general deterrence requires that the appellant be prevented from working and suffer ongoing significant financial hardship. 62 Thirdly, the respondent's submissions about the seriousness of the offending were partly founded on the proposition that all family violence offences are inherently serious and that the offending in this case was in the mid to upper range of seriousness. The respondent's submissions referred to and relied upon the decision of Whitby J in Manchanda v WA Police.19 63 It is important that the criminality of domestic violence should not be minimised. Children and domestic partners are entitled to live in an environment free from violence perpetrated by those who are supposed to love and protect them. 64 It must be recalled, however, that a proper assessment of the criminality of the appellant's conduct requires close regard to the particular circumstances of his offending. This is equally the case in a case involving domestic violence. 65 In my view, Manchanda is not a useful comparator to this case. The offending in that case was considerably more serious than in this case. The aggravated common assault in Manchanda involved the offender grabbing his former partner's 65 year old mother by the back of the head and pushing her into a brick wall. This occurred in the context of a relationship breakdown between the offender and his former partner, his former partner obtaining a family violence restraining order (FVRO), the offender smashing a window in the house he shared with his former partner when she told him about the FVRO and the offender breaching the FVRO on 23 occasions by calling his former partner. 20 66 Fourthly, as the respondent properly acknowledged, given the nature of the convictions and the appellant's occupation, there is no strong public interest in the appellant's employers being aware of these convictions. 19 Manchanda v WA Police [2025] WASC 49 (Manchanda). 20 Manchanda [4] - [9]. -- 13 of 14 -- [2026] WASC 238 PALMER J Page 14 67 In all of these circumstances, I consider that the failure of Magistrate Atkins to make a spent conviction order resulted in a miscarriage of justice. Conclusion 68 For these reasons, I gave leave to appeal and allowed the appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VS Associate to the Hon Justice Palmer 11 JUNE 2026 -- 14 of 14 --