CBL v Pritchard
[2023] WASC 345
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CBL -v- PRITCHARD [2023] WASC 345
CORAM: HOWARD J
HEARD: 6 SEPTEMBER 2023
DELIVERED : 11 SEPTEMBER 2023
FILE NO/S: SJA 1065 of 2023
BETWEEN: CBL
Appellant
AND
MARLON PRITCHARD
Respondent
ON APPEAL FROM:
For File No: SJA 1065 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V EDWARDS
File Number : AR 6357 OF 2023
Catchwords:
Criminal law - Appeal against sentencing - Possessing a prohibited drug - Magistrate imposed community-based order with supervision - Whether Magistrate in not granting appellant spent conviction resulted in a miscarriage of justice - Whether Magistrate imposed a sentence that was manifestly excessive - Re-sentence Appellant to spend conviction and a fine
Legislation:
Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Mr Z R Clifford |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Brewer v Bayens (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Goodchild v State of Western Australia [2023] WASC 60
JAD v McRae [2022] WASC 220
Redding v Robinson [2009] WASC 403
Samuels v State of Western Australia (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
HOWARD J:
The appellant's conviction
On 24 May 2023, following her plea of guilty, the appellant was convicted in the Magistrates Court at Armadale of possessing a prohibited drug (cannabis) in contravention of s 6(2) of the Misuse of Drugs Act 1981 (WA).
Following that conviction, the learned magistrate placed the appellant on a community-based order for nine months with supervision and programme requirements and ordered her to pay court costs of $264.30.
From the transcript, the hearing appears to have lasted about two minutes.
Grounds of Appeal
The appellant now seeks to appeal against the sentence imposed.
Her three grounds of appeal were:
1.The learned sentencing Magistrate erred in failing to consider whether to grant the appellant a spent conviction.
2.In the alternative, the appellant not being granted the spent conviction resulted in a miscarriage of justice.
3.The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive.
By her outline of written submissions, the appellant did not press Ground 1 and I have not considered it further.
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(iii) and s 8(1)(a)(b) of the Criminal Appeals Act (2004) (WA).
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of her remaining appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The appellant filed her Appeal Notice on 8 August 2023 when the last date for appealing was 21 June 2023. The appellant seeks leave to appeal out of time. The appellant relies on an affidavit made by her Legal Aid solicitor which seeks to explain the delay in bringing the Appeal. That leave is not opposed. In my judgment, that affidavit adequately explains the delay and I would grant the appellant leave to appeal out of time if I grant leave on either of her two remaining appeal grounds.
The learned Magistrate's not making a spent conviction order was a 'decision' being a 'refusal to make an order that might be made as a result of a conviction' and so was within s 6(g) of the Criminal Appeals Act: Sharpe v Vinning [2020] WASCA 79 [48].
The learned Magistrate's imposing of the community based order was a 'decision' within s 6(f) of the Criminal Appeals Act.
Appellant's material for the Appeal
In addition to the affidavit in support of her application for an extension of time, the appellant seeks leave for her affidavit of 25 August 2023 (with 6 annexures) to be taken as evidence in the Appeal.
For reasons I set out below, I would give leave to the appellant to adduce the evidence in her affidavit made 25 August 2023.
The hearing below
The appellant was 19 when she appeared in the Magistrates Court at Armadale on 24 May 2023 and did not have any legal advice. The affidavit from her Legal Aid solicitor deposes to there not being a duty lawyer at the Magistrates Court at Armadale on that day. That was because:
At that time, the Magistrates Court at Armadale had only recently begun running a list on a Wednesday, and the Legal Aid Commission had not been notified. As such there was no duty lawyer service in attendance.
After the plea of guilty, the prosecutor told the learned Magistrate:[2]
No history at all for Ms [CBL].[3] 10.51am, Tuesday, 28 March, police executed a Misuse of Drugs Act search warrant at [redacted] Byford. The vents of the accused's bedroom where she is a border at the address. Located a clip seal bag containing cannabis. Total weight was 22 grams.
[2] ts 2.
[3] These reasons have been anonymised to preserve the benefit to the appellant of the spent conviction order. Anonymisation of the Appellant’s name was proposed by the Appellant and was not opposed by the Respondent.
The appellant agreed with what the prosecutor had told the learned Magistrate.[4]
[4] ts 2.
The appellant did not apply for a spent conviction order and the learned Magistrate does not appear to have considered whether the pre‑conditions in s 45(1) of the Sentencing Act had been satisfied and whether, if the pre-conditions were satisfied, a spent conviction ought to have been granted with or without any of the other sentencing options set out in s 39(2)(a), (b), (c) and (c(a)).
Ground 2
As Derrick J said in JAD v McRae [2022] WASC 220 [71]:
Where there is additional evidence before the court that was not before the magistrate and which goes to the issue of the appropriateness or otherwise of the making of a spent conviction order in respect of the appellant's conviction, the question whether the magistrate made an error by not making a spent conviction order on the material that was before her is not relevant. The finding of error on the part of a magistrate in not making a spent conviction order is not required for the conclusion a miscarriage of justice has occurred. Rather the question is whether taking account of the additional evidence admitted on the appeal, the magistrate's failure to make a spent conviction order has occasioned a miscarriage of justice (citations omitted).
A similar ground in analogous circumstances was upheld in Redding v Robinson [2009] WASC 403.
In Redding, Hall J took in evidence that was not put before the Chief Magistrate pursuant to s 14(5) of the Criminal Appeals Act and also s 40(1)(e) of that Act: [10], [11].
His Honour did so taking into account the 'very specific circumstances' of the then appellant, namely that:
He was 18 with no record and was unrepresented. The proceedings were very brief and there is nothing to suggest that he appreciated the possible consequences of a conviction or that an application for a spent conviction was a possibility [14].
Taking in account the further evidence, Hall J considered whether the pre-conditions in s 45(1) of the Sentencing Act were satisfied; found they were; and granted the appellant a spent conviction.
In the personal circumstances of the appellant and the adverse consequences for him, Hall J found that the appellant would suffer a miscarriage of justice if he did not receive a spent conviction: [12].
By s 14(5) of the Criminal Appeals Act, this Court, on an Appeal against sentence, may have regard to any relevant matter that has occurred between when the offender was convicted and when the Appeal was heard.
In my view, s 14(5) adds to the material to which a court sitting on an appeal from a court of summary jurisdiction can have regard, notwithstanding the terms of s 39(1) of the Criminal Appeals Act. I do not need to reach a definitive view on that as the admission of the additional affidavit material here was not opposed by the respondent and, in any event, in my view, would seem to fall within s 40(1)(e) of the Criminal Appeals Act.
Taking into account the evidence in this Court, I consider that the pre-conditions in s 45(1)(a) and (b)(ii) of the Sentencing Act are satisfied and I am further satisfied that the appellant should be relieved immediately of the adverse effect that the conviction might have on her.
I note that the appellant did not contend that the offence in this case was 'trivial' within the meaning of s 45(1)(b)(i) of the Sentencing Act. With respect, I consider that is correct when one has regard to what the Court of Appeal said about the word 'trivial' in that provision in both GNR v The State of Western Australia [2015] WASCA 5 [49] (McLure P for the Court) and Sharpe v Vinning [2020] WASCA 79 [59] - [66].
As will be returned to on the re-sentencing exercise necessitated by upholding Ground 3 below, I consider that the appellant would suffer a miscarriage of justice if not granted a spent conviction order.
In granting the appellant a spent conviction order, I have had regard to the principles and approach in the following cases.
The Full Court in Brewer v Bayens (2002) 26 WAR 510 [11] stated:
…
A spent conviction order made at the time of a sentencing an offender can only be made where the Court is satisfied on three questions. First, it must consider if the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider if the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied; see also Taylor v McLernon [2009] WASC 211 [15] (Beech J).
I also adopt the summation of Beech J (as he then was) of key propositions from a number of Full Court and Court of Appeal decisions in Taylor McLernon [2009] WASC 21 [19] where his Honour said:
Among others, the following propositions emerged from these cases:
(a)the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;
(b)the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in the clear case; and
(c)in determining whether to exercise that power, the Court should consider the seriousness of the offence in the circumstances of its conviction and the circumstances personal to the offender.
In my view, s 39(3) of the Sentencing Act is to the effect that whether or not to grant a spent conviction is a part of the sentencing process. If that is correct, then it is artificial to completely separate the question of whether a spent conviction order ought be granted from the question of what would otherwise be the appropriate sentencing disposition. I consider there is an interplay between Grounds 2 and 3.
Given the conclusion I have reached on Ground 3 below, it is unnecessary for me to consider whether upholding Ground 2 alone in the present circumstances would have otherwise led to the re‑sentencing of the appellant.
Ground 3
The respondent conceded Ground 3. That, in my view, was correct and proper.
The appellant's contention under this Ground is, essentially, that the wrong type of sentence was imposed. From the relevant Court of Appeal authorities, Derrick J said in Goodchild v State of Western Australia [2023] WASC 60 [104]:
The principles … are well established. Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred. To put the matter another way, the question for the appellate court is whether it was reasonably open for the sentencing judicial officer, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not appropriate. Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error. (citations omitted)
The following general principles applicable to a manifestly excessive appeal are also well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or an implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account any relevant matter. Implied error arises where the end result is so unreasonable or unjust that the Court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed in respect to it, the place that the criminal conduct occupies in the scale of seriousness for crimes of that type, and the offender's personal circumstances.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed incomparable cases provide a yard stick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations and relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed incomparable cases reveal and reflect.
With or without such a spent conviction order, in my view, the sentence imposed by the learned sentencing Magistrate was manifestly excessive. I have reached that judgment on the basis that I infer error in the imposition of the sentence as I consider that the end result is so unreasonable or unjust that a substantial wrong has occurred.
I would set aside the sentence imposed pursuant to s 14(1)(c) of the Criminal Appeals Act and re‑sentence the appellant pursuant to s 14(1)(d) of the Criminal Appeals Act. As will be seen, as part of the sentencing exercise I have also set out my reasons for granting the appellant a spent conviction order.
Maximum penalty for the offence
By s 34(1)(e) of the Misuse of Drugs Act the maximum penalty is a fine of $2,000 or imprisonment of two years or both.
Sentences imposed in other cases for similar offences
I was greatly assisted by the respondent's review of sentences imposed on offenders in somewhat similar circumstances. I do not need, I think, to recite those in any detail. They are generally to the effect that for a comparatively small amount of cannabis, on a first offence, usually a modest fine would be imposed.
The complicating factor here, on the re-sentencing, is that the appellant has completed some three out of nine months of the community‑based order and the counselling ordered with it. That is, the appellant has already served some of the more onerous sentence (or the manifestly excessive sentence imposed) than was, in all the circumstances, warranted. The appellant in submissions suggested that might go, on the re-sentencing, to whether a fine should be imposed or its size.
The irony was not lost on the appellant that her prospects of rehabilitation and her demonstrating the same to this Court had been somewhat improved by the making of, and her compliance with, the community-based order about which she complains in this Ground.
Gravity of the offending and the seriousness of the offence
As I noted above, the offence for which the appellant was convicted is not a 'trivial' one.
Nor, was her offending such that it would be characterised as 'minor' within s 8B(1)(b)(i) of the Misuse of Drugs Act.[5]
[5] A ‘minor’ cannabis related offence is an offence that involves cannabis if the amount is not more than 10 grams.
Nonetheless, as the prosecutor informed the learned Magistrate, the offence involved the appellant having 22 grams of cannabis which is significantly below the presumption of a quantity held with intent to sell or supply and she was charged with the simple offence of possession.
Appellant's personal circumstances
As noted, the appellant was 19 at the time of the offence and sentencing. The date of this cannabis offence was 28 March 2023.
She is an only child who was raised by her mother and father until she was six when her parents separated. She lived then with her mother and moved a lot between the ages of six and 12 years.
When she was 14, she and her mother went to live with her mother's boyfriend. He was violent and abusive towards both her and her mother. Consequently, she spent a lot of time at the house of 'J' who was 36 and lived across the road. She was babysitting his children who around that time were five and six years old.
'J' started giving her methamphetamine and cannabis at 14 and she used them as an escape.
She was barely going to school because of the stress at home. She moved in with 'J' and dropped out of school when she was 15.
She lived with 'J' until she was 17 and was not working or studying as she was mostly was looking after his children.
'J' was very controlling and violent towards her after she moved in. He had been previously violent towards his children but that stopped on her moving in.
'J' then went to prison and she moved out of that house into her grandfather's house in June 2022. She was looking after her grandfather who is 84 now.
She was still using drugs at this time and at the end of March 2023, her aunty asked her to leave her grandfather's house. She moved back in with her mother and her boyfriend and appears for a while to have moved between that house and her grandfather's house.
At the time of offending she was living at the house with her mother and her boyfriend. On the day of the offence, the police raided the house targeting the mother's boyfriend who was found with cannabis plants.
On 23 April 2023, some three weeks later, the appellant was in a friend's car at the beach in the early hours of the morning. The police came to the car and the appellant was found to have less than .01 gram of methamphetamine in her handbag. She was charged with possession of that amount. She has pleaded guilty to that charge in the Rockingham Magistrates Court and is to be sentenced next month.
At the time of her offending with the methamphetamine, she was not aware that she was to be charged with the cannabis offence which is the subject of this Appeal.
Currently the appellant has a new boyfriend who does not approve of drugs and he has moved in with the appellant and her mother.
The appellant has not had an external job before and has been looking for a job for a number of months. She wishes to obtain a Certificate III in Child Care and then work with children in day care.
She wishes to sort out her mental health issues before she starts working with children. She has recently been prescribed Zoloft for anxiety and depression by her GP and has been on that for two months and has found it very helpful.
She is currently not using prohibited drugs for the first time since she was 14.
As stated above, she is subject to a community-based order which she is complying with and is attending drug counselling as part of that community-based order. She has done five counselling sessions so far and has found them helpful and gets on well with her counsellor.
I was told at the hearing of the Appeal, without objection by the respondent, that the appellant's GP's practice has also a psychologist. If the community-based order, with its counselling requirements, was set aside, I am told she will start private counselling at her GP's practice with the psychologist.
It would be a gross understatement to say that the appellant, largely while a child, has faced challenging circumstances in her young life. By a combination of circumstances, including, I infer the cannabis and methamphetamine charges, the appellant appears now to have come to a position where she is not using drugs and can imagine a different, more healthy, future for herself.
In all of the circumstances, at today's date I consider that the appellant is, within the meaning of s 45(1)(a) of the Sentencing Act, unlikely to commit a similar drug offence again.
The respondent submitted that the appellant's conviction for the methamphetamine offence raised a question as to whether she was likely to commit a similar offence again. I have considered that. I note that the methamphetamine offence occurred about three weeks after the facts of her cannabis charge but before she had received the summons on that cannabis charge.
The factors I have noted above as to the appellant's efforts to change her life have all come after the dates of the cannabis and methamphetamine charges. In those circumstances, I do not consider that the methamphetamine charge takes away from the conclusion I have reached as to her satisfying of the pre‑condition in s 45(1)(a) of the Sentencing Act.
I do not need to reach a level of satisfaction that the appellant will not offend again. Indeed, it would be unusual for somebody in the appellant's circumstances not to have missteps in the course of their rehabilitation. Such an obvious possibility does not, however, take away from the conclusion I have reached that the pre-condition in s 45(1)(a) of the Sentencing Act has been satisfied.
Further, I conclude that in all of the circumstances the appellant's admitted drug use from 14 is not such, when considered with the other relevant factors of her life, to lead to a conclusion that she was not of 'previous good character' and that the pre-condition in s 45(1)(b) of the Sentencing Act was not satisfied.
While I accept that persistent drug use may well militate against a conclusion of good character, the challenges the appellant has faced in her young life are most significant (again to understate it).
The appellant suffered persistent abuse over very many years, and it is unsurprising that, having been supplied cannabis and methamphetamine by a much older man (with whom she was in an abusive relationship), the appellant would have continued to use those substances as an escape from the harsh realities of her life. And, it must be remembered, the appellant was a child for almost all of that time.
I have also taken into account the references which were attached to the appellant's affidavit and which, of course, were not before the learned Magistrate. Particularly, the references given by her aunt and her mother speak lovingly and with force to the challenges which the appellant has faced in her young life to date while not avoiding the appellant's previous drug use. They also speak to the efforts the appellant has made to take a different path without drugs and to bring herself into education and then employment.
I conclude that the appellant was of previous good character within the meaning of s 45(1)(b)(ii) of the Sentencing Act.
Disposition
By reference to s 39(2) and (3) of the Sentencing Act, I have carefully considered whether another option might be appropriate. However, I am satisfied that it is not appropriate to use any of the options in s 39(2)(a) or (b) of the Sentencing Act, and that a fine under Part 8 of the Sentencing Act with the making of a spent conviction order is the appropriate sentencing disposition.
As said, the comparable sentences (to the extent there are any) are of a modest fine. I would have imposed a fine of $300 for this cannabis offence. However, taking into account the compliance by the appellant with the manifestly excessive community-based order (although ironically it has been to her benefit) I would reduce that and impose a fine of $100. I have considered under s 53(1) of the Sentencing Act, the appellant’s limited means and the burden of a fine on her.
I consider that I am required by s 39(3) of the Sentencing Act to consider, with the other sentencing options, whether or not the grant the appellant a spent conviction order once the pre‑conditions in s 45(1) are established as I have found.
The last matter on which I need to be satisfied before I could grant such an order is that the appellant should be relieved immediately of the adverse effect that the conviction might have on her.
As noted, the appellant has given evidence as to wishing to move into child care after she has confronted and stabilised her mental health issues.
The respondent quite properly points to the statutory provisions which will have the effect that this offence will need to be disclosed at the relevant time to the relevant authorities, notwithstanding that it is a spent conviction, if the appellant moves into that work.
Accepting that, I consider, nonetheless, that the appellant would be in a significantly different position in seeking to enter that industry with a spent conviction order, rather than if one were not made.
Further, as said, the appellant is seeking to move her life in a different direction and I consider that the making of a spent conviction order would relieve her of some of the formal adverse effects that the conviction might otherwise have upon her. Of course, the granting of a spent conviction order will not, of itself, go any way to relieving the appellant of the very real trauma she has suffered as a child at the hands of others.
Further, given the appellant is yet to be sentenced for the methamphetamine charge in the Magistrates Court at Rockingham, I consider that it is appropriate that the appellant be relieved of the adverse effect (if not spent) of the cannabis conviction.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
11 SEPTEMBER 2023
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