Sacked mine worker granted third spent conviction in decision magistrate admits would likely be overturned

A sacked mine worker has been granted his third spent conviction for family violence offences in a decision a Kalgoorlie magistrate said would likely be overturned if appealed. Kalgoorlie magistrate Janie Gibbs said she believed if the prosecution appealed the decision she made for Sargon Nicholas, who was hoping to regain employment in the mining industry, the spent conviction would be “overturned by the Supreme Court”. Nicholas pleaded guilty and was fined $500 for breaching a family violence restraining order when he appeared in Kalgoorlie Magistrates Court on Thursday. The 41-year-old breached the order by making comments about his ex-partner having a relationship with someone else throughout the course of their relationship, during a conversation about their children. His lawyer, Carmel McKenzie, launched a bid for the conviction to remain off Nicholas’ record, stating he had already lost his employment, as well as subsequent employment, due to the pending charge on his police clearance. Magistrate Gibbs asked for evidence an employer would not hire him because of a breach FVRO charge on his record, which Ms McKenzie said she could not provide, but believed him losing his jobs should be evidence enough. Ms Gibbs said she was aware of people with various convictions on their record being employed in the industry and questioned why it was different for Nicholas. Ms McKenzie said his record was often not an issue for his direct employer but would become an issue depending on what mine site he was contracted to work on. Having been granted spent convictions on two separate occasions previously — for common assaults which saw him push a box into his ex-partner and a child as well as another breach of the FVRO — Ms Gibbs expressed hesitancy to grant another one. She said the Supreme Court outlined spent convictions were to be used “sparingly” and for those with exceptional character. Highlighting this breach offence occurred about four weeks after he was sentenced for the assaults and granted a spent conviction, Ms Gibbs said Nicholas had already had his opportunity to keep a clean record. However, after Ms McKenzie submitted the conviction would not only adversely affect Nicholas, but also his children as he was the “primary provider” for them, she granted the order by the “barest of margins”. “Ordinarily, people get one shot at a spent conviction,” she said. “If the prosecution appealed this decision, it’d probably be overturned by the Supreme Court. “That is a matter for the prosecution.”