Docker v Faulkner
[2000] WASCA 282
•29 SEPTEMBER 2000
DOCKER -v- FAULKNER [2000] WASCA 282
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 282 | |
| Case No: | SJA:1026/2000 | 20 SEPTEMBER 2000 | |
| Coram: | MILLER J | 29/09/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | CHARLOTTE ERANA DOCKER MARK LLOYD FAULKNER |
Catchwords: | Criminal law Sentence Whether order for spent convictions should be made Principles Relevance of occupation in security industry Whether Magistrate in error in declining to make orders |
Legislation: | Misuse of Drugs Act 1981, s 6(2), s 7(1)(a), s 7(2) Security and Related Activities (Control) Act 1996, s 52, s 67, s 80, s 81 Sentencing Act 1995, s 39(2), s 45 |
Case References: | Aitkin v Wilson [1974] WAR 166 Allen v Powell [2000] WASCA 65 Game v Whitehead [2000] WASCA 50 Leyte v Fisher, unreported; SCt of WA; Library No 990213; 9 April 1999 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 Tognini & McGuire v R (2000) 109 A Crim R 411 House v King (1936) 55 CLR 499 Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 July 1998 Miller v R [1999] WASCA 66 Neale v Sloan (1997) 27 MVR 246 R v Peterson [1984] WAR 329 R v Tait (1979) 46 FLR 386 Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MARK LLOYD FAULKNER
Respondent
Catchwords:
Criminal law - Sentence - Whether order for spent convictions should be made - Principles - Relevance of occupation in security industry - Whether Magistrate in error in declining to make orders
Legislation:
Misuse of Drugs Act 1981, s 6(2), s 7(1)(a), s 7(2)
Security and Related Activities (Control) Act 1996, s 52, s 67, s 80, s 81
Sentencing Act 1995, s 39(2), s 45
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr B G Grubb
Respondent : Ms C L Bathurst
Solicitors:
Appellant : Nicholson Clement
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Aitkin v Wilson [1974] WAR 166
Allen v Powell [2000] WASCA 65
Game v Whitehead [2000] WASCA 50
Leyte v Fisher, unreported; SCt of WA; Library No 990213; 9 April 1999
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Tognini & McGuire v R (2000) 109 A Crim R 411
Case(s) also cited:
House v King (1936) 55 CLR 499
Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 27 July 1998
Miller v R [1999] WASCA 66
Neale v Sloan (1997) 27 MVR 246
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386
Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
(Page 3)
1 MILLER J: The appellant was charged in the Court of Petty Sessions at Pinjarra that on 23 December 1999 at Pinjarra she had in her possession a prohibited drug, namely cannabis (Misuse of Drugs Act 1981, s 6(2)), and that on the same date, she, with intent to sell or supply a prohibited plant to another, cultivated the prohibited plant, namely 74 cannabis plants: Misuse of Drugs Act 1981, s 7(1)(a). The matter came before Mr T McIntyre in the Court of Petty Sessions at Pinjarra on 3 February 2000. The police prosecutor sought to amend the charge of cultivation with intent to sell or supply to a charge of simple cultivation (Misuse of Drugs Act 1981, s 7(2)). Although the learned Magistrate initially queried how the prosecution could do that, when the matter was called on later in the day his Worship granted leave for the amendments sought, with the result that the appellant then faced a charge of cultivation of 74 cannabis plants. She pleaded guilty to both charges and a short statement of facts read by the prosecutor to the court was as follows:
"PROSECUTOR: The facts are it was 11 o'clock in the morning, the police attended the defendant's address and executed a search warrant. During the search they located three grams of cannabis leaf material on the kitchen table and one gram of seeds in the main bedroom and 74 plants ranging in size from five centimetres to 25 centimetres in an old boat which was parked in the back yard. She admitted they were hers and for her own use and had tended the plants. I seek an order for destruction, sir. She has no record whatsoever."
- The appellant was represented by counsel who put forward a plea in mitigation of penalty. He urged the learned Magistrate to accept that the cultivation of cannabis was amateurish by reason of the fact that there was no "automatic watering apparatus or any shadecloth or the like" and a number of the plants had already died. Those which were discovered were between only 5 and 25cm in height. It was pointed out to the learned Magistrate that the appellant was 42 years of age, born in New Zealand but living permanently in Western Australia. She had no record of prior convictions either in New Zealand or Australia and persons who knew her had given excellent references as to her character. Her consulting doctor had indicated that she had been treated for depression for a number of years and according to counsel, possession of the cannabis leaf was "her way of dealing with the depression". It was urged that the seeds had been planted merely with a view to cultivating the cannabis for her own use.
(Page 4)
2 The learned Magistrate questioned whether the appellant was married and whether her husband was aware of the cannabis plants. When counsel questioned the relevance of this the learned Magistrate said that he considered it was relevant. Counsel then responded that the husband did not use cannabis but was aware that his wife did, was unhappy about it, was aware that she had planted the seeds and that when the plants had matured she would use that cannabis for her own purposes.
3 The main thrust of counsel's plea was that as a result of the charges preferred against the appellant she had lost her employment and was likely to lose part-time employment as a security guard by reason of the fact that she was unlikely to be able to keep her licence for that occupation. The learned Magistrate was also told that as a result of the charges preferred against the appellant her husband had lost his job and these circumstances constituted to sufficient punishment in themselves. The court was asked to impose a fine combined with a spent conviction order.
4 The learned Magistrate proceeded to deal with the appellant immediately. He questioned whether the cultivation of 74 cannabis plants could have been for the appellant's own personal use, saying that there was "very strong inference that it was not for your own personal use because as I say, commonsense says you don't need 74 plants …". This observation was unfortunate, because there is no doubt that the appellant was charged only with simple possession and it was not open to the learned Magistrate to draw any inference that the cannabis was otherwise than for her personal use. This much was conceded by counsel for the Crown at the hearing of the appeal and rightly so. In Leyte v Fisher, unreported; SCt of WA; Library No 990213; 9 April 1999 where McKechnie J (at 2) stressed that where a plea to simple cultivation of cannabis is accepted by the prosecution in satisfaction of a charge of cultivation of cannabis with intent to sell or supply "it does raise issues whereby both the prosecution, the defence and the Magistrate have to be very careful as to the actual facts founding the charge". It follows that the learned Magistrate was in error in expressing the view that there was a strong inference that the appellant intended to use the cannabis otherwise than for personal use. Likewise, his Worship's comments that "the use of cannabis in the community is an extremely common scenario and by way of broad generalised comments there are plenty of people around who are making money out of cultivating cannabis" were inappropriate to this case.
(Page 5)
5 It was urged by counsel for the appellant that the learned Magistrate had also erroneously taken into account the question whether the appellant's husband knew of the cultivation of cannabis and (therefore) had effectively considered there to have been some sort of conspiracy between the appellant and her husband. However, I do not interpret his Worship's enquiries about the husband's knowledge of the cultivation to have that effect. Be that as it may, there were clear errors by the learned Magistrate in the way in which he categorised the appellant's cultivation of cannabis as being for likely commercial purposes.
6 His Worship did, however, clearly understand the principles which were applicable to the question whether a spent conviction should be ordered. Reference was made at the outset of his Worship's remarks to a decision of Parker J, a reference which was clearly to Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997. What his Worship said was as follows:
"Mrs Docker, you have pleaded guilty to cultivating cannabis and possession of cannabis. If it had been a simple situation of possession of a small quantity of cannabis I could take into account the comments that were made by Parker J in a matter where he considered whether or not it would have been appropriate to make a spent conviction order against a person who was found with a small quantity of cannabis in their possession. You've been found with a small quantity of cannabis in your possession but you've also been found in circumstances where you were cultivating 74 cannabis plants."
7 His Worship made reference to the fact that the appellant and her husband had both lost their jobs and that the appellant had "certainly punished herself" in that respect. However, he took into account the fact that the appellant was a woman of mature years and she must have known without reservation that use of cannabis was against the law. The conclusion which his Worship reached in relation to the question of ordering a spent conviction was:
"The penalties are substantial and I have no reservations in saying that it is not appropriate to make a spent conviction order for someone who is caught cultivating 74 plants despite the overall circumstances, your personal circumstances and other factors. To do so would be to send a completely incorrect message to those that are involved in the use and cultivation of cannabis."
(Page 6)
- In the result a fine of $150 was imposed in relation to the charge of possession of cannabis and $1250 for the charge of cultivation.
8 On 3 April 2000 Ipp J granted the appellant leave to appeal the penalties imposed by the learned Magistrate. The grounds of appeal were amended at trial. In essence they contend that the learned Magistrate erred in not exercising his discretion to grant a spent conviction pursuant to s 45 of the Sentencing Act 1995 and in particular, failed to give sufficient weight to the appellant's good character before passing sentence. The grounds also identify a number of alleged irrelevant considerations taken into account by the learned Magistrate and with these I have already dealt. They also contend that the learned Magistrate failed to give sufficient consideration to the hardship already suffered by the appellant and her husband and the hardship to be further suffered by the appellant in relation to her occupation as a security officer if forced to disclose a criminal record.
9 On the hearing of the appeal counsel for the appellant and for the respondent were basically agreed in relation to the relevant principles to be applied when considering whether or not a spent conviction order should be made. Section 39(2) of the Sentencing Act is the source of jurisdiction for a Magistrate sentencing an offender to make a spent conviction order. It is conditioned by s 45(1) of the Sentencing Act which is in the following terms:
"45. Spent conviction order: making and effect of
(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) 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."
(Page 7)
10 Before a spent conviction order can be made the court must be satisfied of two matters. The first is that the offender is unlikely to commit the offence again. The second is that the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, having regard to one or other of two factors: the triviality of the offence or the previous good character of the offender. As observed by Parker J in Riley v Gill (supra) (at 8) the power to make a spent conviction order under s 45 does not arise for exercise unless each one of the two distinct criteria are satisfied.
11 In Tognini & McGuire v R (2000) 109 A Crim R 411, Murray J (with whom Malcolm CJ and Wallwork J agreed) said (at 417):
"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 preconditions 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 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 adverse effects of the conviction will positively aid 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
(Page 8)
- conviction as part of the process of securing the protection of the community."
12 Judgment in this case was delivered on 22 February 2000, which was a little over a fortnight after the learned Magistrate had considered the present case. In Allen v Powell [2000] WASCA 65 Scott J was dealing with the question whether a spent conviction order should have been made in a case in which an 18-year-old girl had pleaded guilty to two counts of stealing as a servant. She had no prior convictions for any offence and was likely to be prejudiced in her future employment with convictions recorded against her. His Honour said (at [21 - 22]):
"[21] In some respects this is a marginal case and I should make it clear that in my view stealing as a servant involves a fundamental breach of trust, which in the eyes of the law is of particular seriousness. In that respect the sum of money stolen is not of significance. It is the breach of trust that constitutes the gravamen of the offence. In addition, in this case, the fact that there were two offences also makes this a marginal case. On the other hand, the fact that the appellant was just 18 years of age when the offences occurred, and her personal circumstances including her prospective work prospects, have persuaded me, but only just, that this is a case where a spent conviction order should be made.
[22] I am of the view that the appellant is unlikely to commit such an offence again, having regard to her previous good character and I consider that she should be relieved immediately of the adverse effects of the convictions (s45(1) of the Sentencing Act 1995)."
13 Counsel for the appellant argued on the hearing of the appeal that the primary reason why a spent conviction order should have been made was that the appellant will, with the two convictions otherwise recorded against her, be prevented from fulfilling her ambition of performing work as a security guard. It was contended that she should be relieved of the adverse consequence which would thus be suffered by her in the absence of a spent conviction order. It was put that the court could still mark its disapproval of the offence and achieve the sentencing object of deterrence by imposing an appropriate fine. Reference was made to the prior good character of the appellant, and particular reference was made to the character references which had been tendered before the learned
(Page 9)
- Magistrate and about which he made no comment in the sentencing process. One of these was from Mr W R A Wyllie AM, chairman of the Wyllie Group Pty Ltd. Mr Wyllie is a very successful Perth businessman who has been a substantial contributor to charitable organisations and medical research. The appellant and her husband were employed on his property at Murray River Farm Coolup but the appellant resigned on 31 December 1999 when arrested and charged with the two matters before the court. Mr Wyllie described the appellant in these terms:
"In all the time that she worked for the Wyllie Group, who own Murray River Farm, we have found Charlotte to be honest and generally hard working. I do know that she has had some personal tragedies in her life, in particular, a number of miscarriages which have made it impossible for her to have children, something that she and her husband, I know, have desperately wanted. In addition, her husband has been continually ill with what I believe to be a thyroid problem.
While I understand the gravity of the charge which has been brought before you, I do not believe that Charlotte is a bad person or that she is someone who is likely to offend again in this way if treated leniently by the Court on this occasion."
A reference from Mr John Wyllie, Manager of Murray River Farm was to similar effect. He described the appellant as "motivated, reliable and totally trustworthy" and expressed the opinion that the offences committed by her were totally out of character. The medical report which was tendered to the learned Magistrate indicated that the appellant had suffered from clinical depression and was acting out of character in growing marijuana. Dr Brian Wiseman expressed the view that the appellant was honest, courteous, punctual and good mannered.
14 Counsel for the respondent contended that there was no material before the learned Magistrate from which any inference would be drawn that the appellant was unlikely to re-offend. However, in my view there was sufficient material contained within the references tendered to the court to enable an inference to be drawn to this effect. It was put by counsel for the respondent that the offences were not trivial and with this submission there can be no argument. A "trivial offence" in the context of s 45 of the Sentencing Act means "of little importance, petty, frivolous, trifling": Riley v Gill (supra) per Parker J at 6. Counsel for the respondent pointed out that the mere absence of a criminal record for the appellant could not of itself be the basis for exercise of a discretion to make a spent conviction order, citing Aitkin v Wilson [1974] WAR 166
(Page 10)
- per Burt J at 168. In that case the only evidence before the court was that the offender had been driving a vehicle since 1950 without a conviction for a traffic offence and had not otherwise suffered any conviction. As was pointed out by Burt J, that was merely to say that the offender was a first offender and no more. However, in the present case there was, in the character references to which I have referred, ample evidence to allow an inference to be drawn that the appellant was a person of prior good character.
15 The respondent's stronger submission was that there was insufficient material before the learned Magistrate to indicate that the appellant should be relieved immediately of the adverse effect that the convictions might have on her in that there was no evidence to suggest that she would lose her job as a security officer. Reference was made to the Security and Related Activities (Control) Act 1996, and in particular to s 52 which provides (inter alia) that a licensing officer is not to issue a licence under that Act unless the officer is satisfied that the applicant is of good character and is a fit and proper person to hold a licence. There is a power in s 67 of the Act for a licensing officer to revoke a licence if he or she considers that the licensee no longer meets the requirements described in s 52. It is thus argued that so far nothing has occurred which would indicate that the appellant is going to lose her security licence issued under the provisions of the Act. She may, on an application for renewal of her licence, yet be able to establish that she is of good character and fit and proper to hold a licence (particularly in light of the references tendered to the court) and it remains unknown whether any application will be made by a licensing officer to revoke the licence.
16 The respondent contends that the offences when taken together were of such a serious nature that a spent conviction order was inappropriate, notwithstanding the personal circumstances of the appellant. Reliance was placed upon Game v Whitehead [2000] WASCA 50 where Scott J reached that view in a case in which the appellant had been charged with three offences, they being possession of a cannabis cigarette, an MDMA ecstasy tablet and small plastic bag holding three plastic bags, each of which contained 0.1 gram of amphetamine. Not surprisingly, Scott J considered that these offences could not be described as trivial and the existence of three discrete drugs in the appellant's possession justified in his Honour's view the penalty of $700 which was imposed. The wider interests of the public were a relevant factor in his Honour's decision that a spent conviction order would have been inappropriate.
(Page 11)
17 In the present case counsel for the respondent argued that the public interest requires that the relevant licensing authorities and potential employers should know of the appellant's criminal convictions. Sections 80 and 81 of the Security and Related Activities (Control) Act 1996 were relied on to underline the importance of the authorities knowing of any drug convictions of any person holding a licence. Those provisions provide for compulsory blood or urine analysis for prescribed drugs for holders of crowd controller's licences. A crowd controller's licence may be revoked in the event that a sample so taken is found on analysis to be a non-complying sample. Although the appellant did not hold a crowd controller's licence she was a person licensed under the same Act. It is therefore argued that it is essential that those who issue the licences be aware of any drug convictions recorded against any licence holder.
18 In the end the question is whether the learned Magistrate, had he been uninfluenced by irrelevant considerations, ought as a matter of discretion to have made a spent conviction order in relation to each of the convictions. Because of the identifiable errors made by the learned Magistrate, it is really for me to decide the matter afresh. This is particularly so, having regard to the decision in Tognini & McGuire (supra) which was delivered after the learned Magistrate dealt with this case. The passage to which I have already made reference makes it clear that it is not just a question of establishing the necessary preconditions set out in s 45 of the Sentencing Act. Assuming that they were present in this case, the question is whether, having regard to the seriousness of the offence before it "in the circumstances of its commission and in the circumstances personal to the offender", a spent conviction order should have been made. In that regard it is relevant to look to see whether, from the point of view of both the offender and the community, the adverse effect of the conviction should be immediately set aside. Important to that decision is the question whether if the conviction is not declared to be spent, there may be some particular impediment to the offender following a particular career.
19 In the present case I am of the view that the appellant is unlikely to commit an offence again and is a person of previous good character. The offence of possession of cannabis was not a particularly serious offence, but that of cultivation of cannabis was. It involved a cultivation of 74 plants. Granted that they were between only 5 and 25cm in height, the fact remains that there was a substantial quantity of them. It is true that the attempt at cultivation was properly described as amateurish, but nevertheless the offence of cultivation of cannabis in that quantity is
(Page 12)
- properly described as serious. The circumstances of the commission of the offence are unfortunately such that the appellant went about the process of cultivation of a prohibited drug in what can only be described as defiance of the provisions of the criminal law. It is unfortunate that the appellant and her husband have lost the employment they had on the Wyllie property but the appellant has a licence under the Security and Related Activities (Control) Act 1996 to work in the security industry where she has held part-time employment for some period. Whether she will lose that licence or whether it will be revoked remains unknown.
20 In all the circumstances and balancing all factors, I am unable to say that the learned Magistrate erred in this case in declining to make spent conviction orders in relation to the two convictions. The appeal is therefore dismissed.
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