Aug. 7th, 2010

sjy: (Default)

JLW v The State of WA [2010] WASC 179
heard 29 June 2010; delivered 29 June 2010

This was an appeal against the sentence for an offence under s 76 Criminal Property Confiscation Act 2000 (WA). That section gives police the power to "require a person to give to the officer any information within the person’s knowledge or control that is relevant to determining whether or not property is confiscable" when conducting a search, even if that information tends to incriminate them (although incriminating information cannot be admitted in evidence). The maximum penalty is a $100,000 fine and imprisonment for 5 years. s 73 allows police to conduct such a search if they reasonably suspect that the person has confiscable property, and use "any necessary force". (s 4 summarises the definition of 'confiscable property'. It includes 'unexplained wealth' and all property owned, controlled or given away by a declared drug trafficker.)

The appellant's brother was charged with the unlawful possession and sale of cannabis, and police discovered that he had paid money into the appellant's bank account. The police advised her that they would interview her and inquire into the source of the money. She telephoned a lawyer and was incorrectly advised that she was required only to give the police her name and address. On the basis of this advice, she refused to answer questions. She was then charged under s 76 and the police froze her bank accounts. Six months later, the police discontinued confiscation proceedings after discovering that the monies were loan repayments from legitimate income and the appellant's bank accounts were unfrozen.

The appellant pleaded guilty and was fined $1,000 and ordered to pay costs of $114.20. The magistrate's reasons were as follows:

[15] Stand up, Ms [W], please. You have entered a plea of guilty. It was initially an endorsed plea of guilty at an early stage but I determined that the matter was far too serious to have it dealt with in your absence. It is a serious matter. There does need to be both specific and general [deterrence] deterrents and a message needs to be sent to the public that this sort of requirement to provide this kind of information to the police is very important because the police are investigating whether or not a sum of money is obtained as a result of – whether it's proceeds of crime or not.
That's important for them and then they make a particular application to the court. Now, I've heard what [counsel] said on your behalf in relation to certain legal advice that you obtained. Obviously, from the statement of material facts it sounds like the police were informing you that really, you were required to give them that information and an explanation which you refused to comply with and that's obviously why you're here today. Now, I do have regard to the fact that you don't have any previous convictions. You are a person of previous good character, but in relation to the matter, it's my view, there's no evidence before me that this is going to have a detrimental affect on your employment and I'm not persuaded that it is appropriate to grant a spent conviction order. It's my view on the contrary that it's in the public interest that a conviction of this type be known to your employer given the type of offence that is here. So that in relation to the matter, you will be fined $1000 and you are ordered to pay costs of $114.20. Yes, thank you.

The appellant sought a spent conviction order because spent convictions need not be disclosed to employers. On appeal, Heenan J found that the magistrate had erred in failing to consider the circumstances under which a spent conviction order should be made.

[25] certainly could not be said that this offence, in its generic sense, was trivial. The learned magistrate was undoubtedly correct to stress the importance of this legislation in the pursuit and deterrence of crime and in the need for the public to be informed of the obligation to provide information to the police when they conduct inquiries in search of the proceeds of crime. The particular offence, as committed by this offender, has a number of mitigating factors which have been identified and which, in her case, significantly diminish her level of culpability, but I see no basis for contending that the learned magistrate was in error in not treating the offence as trivial.
[26] Nevertheless, the third statutory criterion was present, namely the previous good character of the offender ... Accordingly, the statutory power to make a spent conviction order was present and full attention needed to be given to that possibility.

The appeal was allowed and a spent conviction order was made.



You should not rely on these case notes for any purpose. They contain my views at the time they were written. They do not represent my employer's views, and may be outdated or differ from my current views.