Frewen v Dalgreen
[2014] WASC 407
•5 NOVEMBER 2014
FREWEN -v- DALGREEN [2014] WASC 407
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 407 | |
| Case No: | SJA:1041/2014 | 28 OCTOBER 2014 | |
| Coram: | BEECH J | 5/11/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | JACKSON DEAN FREWEN RYAN JAMES DALGREEN |
Catchwords: | Criminal law and sentencing Application for spent conviction order Possession of cannabis and drug paraphernalia Application refused Whether additional evidence means refusal of application gives rise to a miscarriage of justice Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 40(1)(e) Sentencing Act 1995 (WA), s 45 |
Case References: | Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Gray-Herewini v Lee [2013] WASC 200 Hamlin v Lawson [2009] WASC 303 Hull v Castledine [2005] WASC 252 Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 McKenzie v Daly [2008] WASC 284 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 Taylor v McLernon [2009] WASC 211 Wheeler v R [No 2] [2010] WASCA 105 Wright v McMurchy [2012] WASCA 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RYAN JAMES DALGREEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S M LANE
File No : MH 423 of 2014, MH 424 of 2014, MH 425 of 2014
Catchwords:
Criminal law and sentencing - Application for spent conviction order - Possession of cannabis and drug paraphernalia - Application refused - Whether additional evidence means refusal of application gives rise to a miscarriage of justice - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Sentencing Act 1995 (WA), s 45
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J L Winton
Solicitors:
Appellant : D G Price & Co
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Gray-Herewini v Lee [2013] WASC 200
Hamlin v Lawson [2009] WASC 303
Hull v Castledine [2005] WASC 252
Lowndes v R [1999] HCA 29; (1999) 195 CLR 665
McKenzie v Daly [2008] WASC 284
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Taylor v McLernon [2009] WASC 211
Wheeler v R [No 2] [2010] WASCA 105
Wright v McMurchy [2012] WASCA 257
- BEECH J:
Introduction
1 The appellant appeals against the magistrate's refusal to make a spent conviction order in respect of his convictions for three drug related offences.
2 For the reasons that follow, I would dismiss the appeal.
The charges
3 The appellant was charged with:
(a) possession of drug paraphernalia, being a green plastic bottle, in or on which there was cannabis, contrary to s 7B(6) of the Misuse of Drugs Act 1981 (WA);
(b) possession of cannabis, contrary to s 6(2) of the Misuse of Drugs Act; and
(c) possession of drug paraphernalia, being a glass pipe, in or on which there was methamphetamine, contrary to s 7B(6) of the Misuse of Drugs Act.
He pleaded guilty to these charges.
The facts
4 The facts were not in dispute before the magistrate, and were as follows.1
5 On 1 November 2013, the appellant was stopped by police officers while he was driving on a street in Mandurah. The police searched the vehicle. They located a smoking implement with traces of cannabis behind the passenger seat. The appellant admitted that it was his and that he used it to smoke marijuana.
6 A little later in this search the police officers located two small clip-seal bags containing approximately 2.8 g of cannabis and a small tin with something less than 1 g of cannabis. Again, the appellant admitted that the cannabis was his and that he intended to smoke it.
7 The police also located a glass smoking implement containing methamphetamine residue. The appellant admitted that it was his and that he used it for smoking methamphetamine.
Submissions before the magistrate
8 The appellant put forward the following documentary material in support of his application for a spent conviction order:
(a) a letter from Ms Sharron Freitas, undated and unsigned;
(b) a letter from Beverley Freitas, undated and unsigned;
(c) letter of Mark Frewen and Maree Wann, undated and unsigned;
(d) report dated 10 April 2014 from Mr Malcolm Heckenberg, psychologist and addictions therapist;
(e) two reports from Pathwest entitled 'Urine drugs of abuse screen' bearing the appellant's name, dated 11 April 2014 and 15 April 2014.
9 At the outset, the magistrate stated that she accepted that the appellant was of good character, but identified that the problem she had was that the documents relied on by the appellant did not address what immediate impact or adverse effect the recording of a conviction would have on the appellant.2 There followed an interchange between her Honour and counsel for the appellant about the absence of any cogent evidentiary material to support any conclusion that the appellant should be relieved of the adverse effect that the conviction might have in that he intended to become employed in the mining industry, and that endeavour would be impeded by the recording of a conviction. In the course of that exchange, counsel for the appellant accepted that it was 'very much a question of speculation'3 whether the conviction would have that adverse effect.
10 The magistrate accepted that, to his credit, the appellant had taken meaningful steps to move away from this type of behaviour.4
Magistrate's decision
11 In sentencing the appellant the magistrate stated that she had read the documents that had been provided and listened to counsel's submission but concluded that the appellant did not meet the criteria under the spent conviction provision of the Sentencing Act 1995 (WA). In the context of the exchanges that had gone before, in my view it is clear that her Honour thereby found that she was not satisfied by any material that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. In particular, there was insufficient evidentiary foundation to identify the adverse effect sought to be relied on, namely exclusion from employment in the mining industry in accordance with the future plans of the appellant, and to sustain a conclusion that the appellant should be relieved from any such effect.
Legal principles
12 Section 45(1) of the Sentencing Act provides as follows:
(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.
14 It is evident from the language of the section that the power to make a spent conviction order arises only if three conditions are satisfied. First, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.6
15 It is well-established that once these preconditions to the exercise of the power are satisfied the court has a discretion, not a duty, to make (or not make) a spent conviction order.7
16 In R v Tognini,Murray J (Malcolm CJ & Wallwork J agreeing) said as follows:8
Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
…
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 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 conviction as part of the process of securing the protection of the community.
17 These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State.9
18 Among others, the following propositions emerge 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 a 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 commission and the circumstances personal to the offender.
19 In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender, but also to the public interest.10
20 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.11
21 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 person's reliability or suitability for a particular type of work.12
22 Because the decision whether to make a spent conviction order is discretionary, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently.13 The question on an appeal is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law, revealed either by the reasons of the sentencing court or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order.14
23 In sentencing appeals, the court has broad powers to admit further evidence.15 Both parties agreed in the appeal that the test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed, referring to what had been said in Wheeler v The Queen [No 2].16Wheeler dealt with an appeal to the Court of Appeal. In that context, Owen JA held (McLure P agreeing) that the test for admission of evidence under s 40(1)(e) correlates with the grounds that enliven the power to allow an appeal against sentence in s 31(4)(a) - that a different sentence should have been imposed. Part 2 of the Criminal Appeals Act deals with appeals from courts of summary jurisdiction. It does not have any provision analogous to s 31(4)(a). Nevertheless, the parties in effect agreed that the same approach should be applied. That would appear to be essentially on the basis that an appeal against sentence should be allowed only if there was a miscarriage of justice and that this would be so only if a different sentence should have been imposed. I am content to proceed on this agreed basis.
24 However, as Owen JA observed in Wheeler v R,17 the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its facts and circumstances. The circumstances in which the additional material came to light, and its probative value, will be significant considerations in deciding whether an appellant should have leave to adduce it.
25 Evidence of facts since the sentence was imposed is not ordinarily relevant. Evidence of such facts may be received to show facts relevant to the sentencing process which existed at the time of the sentence but were either not known to the sentencing judge or not properly appreciated at the time.18
Grounds of appeal
26 The single ground of appeal was in the following terms:
The learned magistrate erred by imposing a sentence that was manifestly excessive by failing to grant a spent conviction order.
27 On its face, the ground of appeal asserts that the failure to order a spent conviction order revealed implied error; in other words that the rejection of the application was not a reasonably available exercise of discretion. Any such contention would be entirely untenable in the circumstances of the case, and in light of the material that was before the magistrate.
28 However, despite a contrary position asserted at an early stage of oral argument on the appeal,19 it ultimately emerged that the gravamen of the appellant's case on appeal is that in light of additional material that was not put before the magistrate, a spent conviction order should be made, to avoid what would otherwise be a miscarriage of justice.
29 The appellant sought leave at the hearing to amend the ground of appeal so it reads as follows:
In light of the additional material before this court, there was a miscarriage of justice where the learned magistrate refused to grant the spent conviction order.
30 The respondent did not oppose the amendment,20 and I granted leave to amend.
The disposition of the appeal
31 The power of an appeal court to receive additional evidence under s 40 of the Criminal Appeals Act does not mean that an appeal provides a second hearing at which the appellant is free to present whatever new material he or she chooses and what occurred before the primary magistrate, based on the material before that court, can be ignored. The appeal is not a hearing de novo. The appeal court must be satisfied that, in light of the additional material, there was a miscarriage of justice before it can justifiably overturn the primary decision. It is for an appellant to satisfy the appeal court of the miscarriage of justice.
32 For the reasons that follow, I am not satisfied by the additional material relied on by the appellant that the refusal of a spent conviction order gives rise to a miscarriage of justice.
33 The starting point is that the grant of a spent conviction order is of an exceptional character, to be sparingly exercised in a clear case.
34 I accept, as did the magistrate, that the appellant wants to pursue his apprenticeship as a boilermaker so that he can obtain employment in the mining industry.
35 Part of the additional material is a letter from Mr Rodger Murdoch, a senior project manager at Barminco Ltd. He says he has been in the oil and gas and hard rock mining industries since 1987, and a supervisor in the industries for the last 10 years. After referring to the stringent systems and policies adopted by mining companies to ensure a safe system of work, he expresses the view that any record of violence, reckless behaviour or drugs and alcohol convictions will mean that a person will not gain employment with mining companies.
36 Mr Murdoch can, of course, speak authoritatively of the approach to employment taken by the company for which he works. What he says goes well beyond that. The weight to be given to Mr Murdoch's assertions about the mining industry must be tempered by the very limited extent to which his letter provides a foundation for opinions about universal employment practices across the whole of the oil and gas and hard rock mining industries. The only apparent foundation for any such opinions is to be found in his having worked in those industries since 1987, and having been a supervisor in the industries for the last 10 years. Apart from the last 10 years, there is no evidence or information about the capacity in which he worked. There is nothing to identify how his work and experience would enable him to speak of universal employment practices by all the different companies in those industries. The same is true of his time working as a supervisor.
37 This is an appeal against the magistrate's decision on the ground that the additional material now before the court demonstrates that the decision to refuse to make a spent conviction order gives rise to a miscarriage of justice. Viewed in that context, Mr Murdoch's letter does not satisfy me that unless a spent conviction order is granted, the appellant will be unable to obtain employment in any part of the oil and gas and hard rock mining industries. However, Mr Murdoch's letter supports the conclusion that the appellant's employment prospects in those industries may be harmed, to some degree, by his convictions.
38 That latter conclusion is enough to have enlivened the discretion under s 45(1) of the Sentencing Act to grant a spent conviction order. That is by no means sufficient to sustain this appeal. Once the preconditions to the exercise of power are satisfied, the court has a discretion, not a duty, to make a spent conviction order. On the appeal, the question is whether an adverse exercise of discretion gives rise to a miscarriage of justice.
39 In assessing the weight to be given to the finding in the last sentence in [37], it is relevant that, on the material before the court, any refusal or reluctance on the part of a mining company to employ a person with a drug conviction is founded on a concern to ensure a safe work place. As the respondent submits, in those circumstances some weight should be given to the public interest in the fact of a drug conviction being available to a prospective employer.
40 The character of the appellant's offending is also relevant. The offences of which the appellant was convicted involved him being in possession of about three and a half grams of cannabis, and drug paraphernalia used for smoking not only cannabis, but also methamphetamine.
41 The additional material relied on by the appellant does not satisfy me that the rejection of his application for a spent conviction order occasions a miscarriage of justice arising from the adverse effect that the convictions may have on his prospects of future employment in the mining industry.
42 The appellant also relied, in his oral submissions on the appeal, on the adverse effect of the convictions on the employment he held at the time of his conviction and sentencing.
43 In this regard, the appellant relies entirely on the contents of an email dated 21 October 2014 from his solicitor to his counsel recording the appellant's instructions about recent events concerning his employment. The email was provided to the court, and to the respondent, just before the commencement of the hearing of the appeal. This is, to say the least, a less than ideal means of adducing additional evidence on an appeal on the ground that the additional evidence demonstrates a miscarriage of justice.
44 The email records the appellant's instructions that:
(a) he was employed as an apprentice boilermaker by a named employer, commencing in late 2012;
(b) there were six people, including the appellant, employed by the employer in the boilermaker division;
(c) on 7 October 2014, four of the six employees of the employer in the boilermaker division went to a job on a mine site in Dampier. The two people that were left behind had criminal convictions. One of them was the appellant;
(d) on 8 October 2014, the appellant's employment was terminated;
(e) the employer told the appellant that his employment was terminated on account of being late to work. The appellant had received warnings in the past for this; and
(f) the most recent time the appellant was late to work and received a warning was at least two weeks prior to the termination of his employment.
45 The appellant invites, from this material, an inference that his employment was terminated because of his criminal convictions. The appellant relies on the fact that both of the people who did not go to Dampier have a criminal record, and the fact that the day after the trip to Dampier by others, the appellant's employment was terminated.21 In the context of the very limited known facts, that is an inadequate foundation for the inference invited by the appellant. The appellant's convictions occurred in May 2014. His employment was terminated five months later, on 8 October 2014. When it was terminated, the employer stated a reason for the termination. I am not satisfied by the limited available material that it should be inferred that the reason for the termination was the fact of the appellant's criminal convictions, as distinct from the reason stated by the employer.
46 Further, and in any event, I am not persuaded that evidence is admissible under s 40 of the Criminal Appeals Act to establish termination of the appellant's employment, after the conviction, based on the conviction. Evidence of facts occurring since the sentence was imposed is not ordinarily relevant, but may be received to show facts that existed at the time of the sentence that were either not known to the sentencing court or not properly appreciated.22 In this case, the appellant's submissions before the magistrate sought a spent conviction order solely on the basis of the adverse effect which his conviction might have on his future employment in the mining industry. There was no suggestion before the magistrate that the appellant's then current employment was, or would be, in any way jeopardised by his convictions.
47 The appellant submits that the present case is 'on all fours'23 with Hamlin v Lawson.24 In that case, before the magistrate, the appellant had foreshadowed his concern that he would lose his job as a result of his conviction. Subsequently, as a result of the conviction, he lost his job. In those circumstances McKechnie J concluded that a spent conviction order should be made, implicitly on the ground that in light of the additional evidence there was a miscarriage of justice.
48 This case is different for at least two reasons. First, I am not satisfied that in this case it can be inferred that the reason for termination of the appellant's employment was his convictions. Secondly, in this case there was no submission before the magistrate that his convictions might jeopardise his then current employment.
49 For these reasons, I am not satisfied by the additional material relied on by the appellant that the rejection of his application for a spent conviction order occasions a miscarriage of justice arising from the adverse effect that the convictions might have on his then current employment.
Conclusion
50 For these reasons, I would dismiss the appeal.
1 ts 2 May 2014, 2-3.
2 ts 2 May 2014, 3.
3 ts 2 May 2014, 6.
4 ts 2 May 2014, 8.
5Taylor v McLernon [2009] WASC 211 [15] - [23].
6Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].
7R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [11], [16]; Wright v McMurchy [2012] WASCA 257 [59].
8R v Tognini[24], [27] - [28].
9Brewer v Bayens [14] - [16]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [72].
10Tognini [27] - [28]; Brewer v Bayens [16] - [18]; Wright v McMurchy [59].
11Brewer v Bayens [18].
12Brewer v Bayens [17].
13Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 [15]; Wright v McMurchy [60].
14Hull v Castledine [2005] WASC 252 [10]; McKenzie v Daly [2008] WASC 284 [23].
15Criminal Appeals Act 2004 (WA) s 40(1)(e).
16Wheeler v R[No 2] [2010] WASCA 105 [3], [53]. See also Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28].
17Wheeler v R [No 2] [53].
18Colwell v The State of Western Australia [No 2] [30]; Gray-Herewini v Lee [2013] WASC 200 [21] - [24].
19 Appeal ts 3.
20 Appeal ts 7.
21 Appeal ts 10 - 11.
22Colwell v The State of Western Australia [No 2] [30].
23 Appeal ts 2.
24Hamlin v Lawson [2009] WASC 303.
9
12
2