Heesom v O'Keefe
[2017] WASC 362
•19 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HEESOM -v- O'KEEFE [2017] WASC 362
CORAM: ARCHER J
HEARD: 23 NOVEMBER 2017
DELIVERED : 19 DECEMBER 2017
FILE NO/S: SJA 1037 of 2017
BETWEEN: PAUL ANDREW HEESOM
Appellant
AND
DANIEL PAUL O'KEEFE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G A BENN
File No :GN 5129 of 2016, GN 5130 of 2016, GN 5131 of 2016, GN 5132 of 2016, GN 5133 of 2016, GN 5134 of 2016, GN 5135 of 2016
Catchwords:
Criminal law - Appeal against conviction and sentence - Possession and cultivation of cannabis - Proof of intention - Spent conviction order
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 9(1), s 9(2), s 14(1)(b), s 14(1)(c), s 14(2)
Misuse of Drugs Act 1981 (WA), s 6(2), s 7(1)(a), s 11, sch V, sch VI
Sentencing Act 1995 (WA), s 39(2), s 45(1)
Result:
Leave to appeal refused in respect of each ground of appeal
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P G Giudice
Respondent: Ms G N Beggs
Solicitors:
Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
HDS v The State of Western Australia [2015] WASCA 148
Hume v The State of Western Australia [2017] WASCA 205
Ninyette v Holmes [2015] WASC 287
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v The State of Western Australia [2010] WASCA 82
Wright v McMurchy [2012] WASCA 257
WS v Gardin [2015] WASC 97
ARCHER J:
Background
The appellant, Mr Heesom, was found guilty after trial of one charge of simple possession of cannabis and one charge of cultivation of cannabis with intent, under s 6(2) and 7(1)(a) of the Misuse of Drugs Act 1981 (WA) respectively. The trial occurred on 4 May 2017 before Magistrate Benn.
The magistrate imposed a global fine of $1,500 for the simple possession of cannabis, the cultivation of cannabis with intent, and some other minor charges to which Mr Heesom had previously pleaded guilty. The magistrate refused to make spent conviction orders.
Mr Heesom seeks leave to appeal against his conviction for cultivating cannabis with intent and against the magistrate's failure to make spent conviction orders.
The application for leave was ordered to be heard at the same time as the appeal.
The issues at trial
Mr Heesom admitted he had been in possession of 28 g of cannabis and had cultivated 16 cannabis plants. The only issue on each charge was whether he had an intention to sell or supply.
The evidence at trial
The police executed a search warrant at Mr Heesom's home in Rangeway in October 2016.
First Class Constable O'Keefe said that it took several minutes of knocking on the door before Mr Heesom opened it. The police told Mr Heesom they suspected he was selling drugs.[1]
[1] ts 12, 4 May 2017.
The search was video recorded.[2]
[2] Exhibit P2 in the trial.
The police found cannabis plants, a quantity of cannabis, and smoking implements. They found more than one set of scales in the house. They found a syringe, which Mr Heesom said was a pH adjuster. Mr Heesom told the police it was the first time he had used Perlite to grow plants. He said he had previously grown plants hydroponically, using garden soil.
Eleven of the cannabis plants were found in a spare bedroom in two tents. Five plants were found in one tent and six in the other. The plants in the first tent were more mature than the other plants. There were timers in the tents to control the lights. The remaining five plants were found elsewhere in the house and in the yard outside.
There was 28 g of cannabis found in the fridge. Cannabis seeds were also found in the fridge.
The police found some synthetic substances, believed to be synthetic cannabis, synthetic cocaine, DMT, synthetic LSD and AMT. Officer O'Keefe agreed that no charges had been laid in relation to those substances, but said that the testing results had not yet been received to confirm what they were.
The police did not find any relevant documents (such as 'tick‑lists'), electronic records, large quantities of clip‑seal bags[3] or money. The police checked Mr Heesom's phone and computer, but there was nothing of relevance on either device.
Admissions made to police
[3] Although clip‑seal bags containing various substances were found in the fridge and one was found on the kitchen worktop - see Exhibit Log, Exhibit P3 in the trial.
Mr Heesom told the police the cannabis plants were for 'personal use and just friends'. He said 'just parties and stuff like that. Just everything'.[4]
[4] Transcript of search video, page 4.
Mr Heesom identified various substances the police found in his fridge. He said that one of the substances was synthetic LSD. He said there were about 50 tablets in the bag. He said the tablets were for himself.[5]
[5] Transcript of search video, page 7.
Later, Mr Heesom identified a substance as synthetic cannabis. He said only he would smoke it, and he did not give it to anybody else. This exchange then occurred:[6]
CON O'KEEFE: You, you mentioned earlier that sometimes you share it amongst friends?
HEESOM: Oh, that's the cannabis.
CON O'KEEFE: Oh, the stuff that you're growing?
HEESOM: Yeah.
CON O'KEEFE: Not, that, you'd keep the synthetic stuff for yourself?
HEESOM: Yes.
[6] Transcript of search video, page 8.
Mr Heesom initially told the police that the synthetic cocaine was for 'personal use'. The police put to him that 50 g was a lot for personal use, and he then said 'Yeah. It's friends'. He said he would give it to friends 'Just, um, at a party or something like that. Just, more for the fact that they were sort of shutting down those websites'. He said he would give it to friends just by taking it in 'a random plastic bag'. He said he would take about a gram. He said 'it's a bit of a help yourself sort of thing'. He said he did not get any money for it.[7]
[7] Transcript of search video, pages 12 ‑ 13.
Later, the police again asked him about the cannabis plants and whether he was going to be selling the cannabis or giving it to others. He said 'Oh, personal and giving it out as well'. He said he had not sold any before and did not need the money. He said 'In a silly sort of way I thought I, if I didn't sell it, I wouldn't be … I wouldn't get in too much trouble sort of thing'.[8]
[8] Exhibit P2. The middle part of this sentence is difficult to hear on the search video, but the beginning and end of the sentence are clear. The transcript of the search video sets out most of this phrase but omits 'I wouldn't be' - transcript of search video, pages 14 ‑ 15.
Mr Heesom said he expected to get about eight ounces of cannabis from the plants, and that would last him four to five months.[9]
[9] Transcript of search video, page 15.
Mr Heesom also drew the attention of the police to the 16th cannabis plant, when it appeared they had not noticed it.[10]
Mr Heesom's evidence
[10] Transcript of search video, page 17. See also ts 55, 4 May 2017.
Mr Heesom's evidence at trial was as follows.
Mr Heesom is a tradesman. He works for Mount Gibson at the Geraldton port. He is single and has never been married. He lived alone in the home searched by the police. He had no criminal record.[11]
[11] ts 24 ‑ 25, 4 May 2017.
Mr Heesom used cannabis and synthetic drugs for different reasons, including to relax and to help him sleep. He also used cannabis to replace alcohol, as he had 'a bit of a problem with alcohol at that time'. He said drinking acted as a depressant, which caused him to drink more.[12]
[12] ts 25 ‑ 26, 4 May 2017.
Mr Heesom said he used cannabis regularly, on most weekday nights. He sometimes smoked it. Sometimes he mixed it with butter and added the butter to his evening meal.[13]
[13] ts 38, 41, 4 May 2017.
He said that, in addition to the cannabis found by the police on this occasion, he had previously grown cannabis on two occasions. He said the prior occasions were about three years and eight years earlier.[14]
[14] ts 29, 4 May 2017.
He said he grew cannabis because he enjoyed the hobby and enjoyed gardening. He also said he did not like buying cannabis as 'I felt a bit shady going around to some of the places where you've got to buy it. I didn't enjoy that at all. I didn't want anyone to see me buying it or know about it'.[15]
[15] ts 30, 4 May 2017.
Mr Heesom described how he grew the plants and described the products and techniques he used. Mr Heesom explained that he gave the less mature plants more light so that they would not flower. He took cuttings from those plants to create more plants.[16] He was obviously very knowledgeable about the process.
[16] ts 32 ‑ 35, 4 May 2017.
Mr Heesom said that the cannabis found by the police was entirely for his own use. He said he thought the more mature plants would be ready for harvest in about a month. He said the cannabis from those plants would last him about five or six months.[17]
[17] ts 35, 4 May 2017.
He said the cannabis in the fridge was from a previous harvest.[18] In cross‑examination, he said the previous harvest had been about seven months before.[19]
[18] ts 31, 4 May 2017.
[19] ts 44, 4 May 2017.
Mr Heesom said that he had the two sets of scales for measuring out the synthetic drugs, as they were fairly strong and it was necessary to be precise.[20]
[20] ts 29, 4 May 2017.
He said he was occasionally subject to random drug tests at work. He kept a clean urine sample at work in a freezer. When he was asked to do a drug test, he would say he had just been to the toilet and would come back when he was able to urinate. He would go and get his clean sample and put it in the microwave. He would thaw it out and heat it up to 38 degrees. He tested the heat with a temperature gun. He said he knew he had to heat it to just above body temperature. He would then put the heated sample in his pants, go and get the test sample container from the office and then go into the toilet. He would then fill the test sample container with the clean sample so he would pass the test. He would then stop using cannabis for enough time to be able to produce a replacement clean sample to keep at work in readiness for the next test. He said he had actually only had to use a fake sample once.[21]
[21] ts 51 ‑ 54, 4 May 2017.
He said he no longer used cannabis and instead drank alcohol. He said he was not drinking in the problematic way he had previously done.[22]
Mr Heesom's explanation for telling the police he gave cannabis to friends
[22] ts 26, 4 May 2017.
In his evidence‑in‑chief, Mr Heesom said that what he told the police, that he would share his cannabis, was not true. He was asked why he told them that. He said 'Because when they came to the door and had the handcuffs on, I was accused of - all I heard was "selling". And I sort of tried to - I don't know - tried to get out of it, sort of thing, to lessen the damage on myself. I didn't think (indistinct)'.[23] Mr Heesom said he was panicking. He believed that the police knew he had marijuana 'in that grow room'.[24]
[23] ts 35, 4 May 2017.
[24] ts 37, 4 May 2017.
In cross‑examination, the prosecutor explored Mr Heesom's statement that the police had accused him of selling. Mr Heesom agreed that the police had told him he was under arrest on suspicion of possessing a drug with intent to sell or supply. He said that he 'sort of thought it [supplying] was the same as selling, sort of'.[25]
[25] ts 45, 4 May 2017.
Mr Heesom agreed he regularly used the term 'personal use' when talking about the cannabis with the police. He said he had heard that term before on YouTube videos. He denied that those videos differentiated between personal use and dealing.[26] The prosecutor asked him why then would the people on the videos use the term 'personal use'. Mr Heesom said 'It was always sort of American where it's ‑ ‑ ‑ legal there, so they've got a medical patient sort of thing … So it would be growers talking about personal use'.[27] This exchange then occurred:[28]
Okay. But wouldn't it be fair to say, by watching these YouTube videos and people using the term 'personal use', that it would become apparent that personal use is less serious than anything else?‑‑‑Looking at it now, yes, but ‑ ‑ ‑
Yes. But you were telling the court today that at the time of being arrested, or the time of being asked about quite a large quantity of plants, that you were of the view that using it all yourself was less serious - sorry, that giving it to others was less serious than using it all yourself?‑‑‑Yes. I considered it less serious than selling, sort of.
[26] ts 45, 4 May 2017.
[27] ts 46, 45 May 2017.
[28] ts 46, 4 May 2017.
Mr Heesom said he falsely told the police he was going to give substances to friends because 'I just thought it was less serious than selling'.[29]
[29] ts 46, 4 May 2017.
Mr Heesom agreed he did not think that supplying was less serious than personal use. He was asked why he had then, according to him, lied to the police. He said 'Just (indistinct) just panicked when - sort of used to mentioning the "friends" term'. He said that when he is asked by work colleagues what he did on the weekend, he says he was 'hanging around with friends'. Mr Heesom said this was not true. He said 'It's sort of - I guess it's a term of - sort of get used to'.[30]
[30] ts 47, 4 May 2017.
Later in cross‑examination, Mr Heesom repeated that he 'sort of' did not know what supplying was.[31]
[31] ts 48, 4 May 2017.
In cross‑examination, Mr Heesom was asked about using the word 'ounces' rather than 'grams' to describe the weight of the cannabis when he was talking to the police. Mr Heesom said 'It's just from watching YouTube videos. You sort of get that lingo sort of thing ‑ ‑ ‑ going, I suppose'.[32]
[32] ts 43, 4 May 2017.
Mr Heesom said it was a coincidence that the cannabis in the fridge weighed 28 g,[33] which is close to one ounce.[34]
[33] ts 51, 4 May 2017.
[34] An ounce is 28.35 g.
Mr Heesom said he did not have any friends other than work friends. He did not socialise with his work friends outside of work. He said he had not been to a party since a Christmas party three years before.[35]
[35] ts 36, 4 May 2017.
During his trial, Mr Heesom produced the records for his mobile phone for the previous six months. He identified the numbers of the shift phone for his work, his work supervisor and a work superintendent. He said probably one or two calls were to his family. He said there were no calls to friends outside of work.[36]
[36] ts 39, 4 May 2017.
Mr Heesom did not call or adduce any further evidence.
Appeals from a decision of a magistrate
Section 8(1) of the Criminal Appeals Act 2004 permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[37]
[37] Criminal Appeals Act 2004 (WA), s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[38] That means that the ground is required to have a real, rational and logical prospect of succeeding.[39]
Principles relating to sentencing appeals
[38] Criminal Appeals Act, s 9(2).
[39] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[40] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court has made an express or implied error.[41]
Power to dismiss if no miscarriage of justice
[40] Ninyette v Holmes [2015] WASC 287 [56.3].
[41] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65].
Even if a ground of appeal (against conviction or sentence) might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[42] Generally, an immaterial or inconsequential error of law or fact will not give rise to a substantial miscarriage of justice.[43]
[42] Criminal Appeals Act, s 14(2).
[43] Ninyette v Holmes [65]; WS v Gardin [2015] WASC 97 [239] ‑ [241].
Appeal against conviction
Grounds of appeal
The grounds of appeal against the conviction of cultivation of cannabis with intent are:[44]
1.The magistrate erred in law in applying the wrong test to determine whether the appellant had discharged the burden of proving he did not have an intention to sell or supply the cultivated cannabis by finding he must decide where the truth lies whereas the appellant had to prove on all the evidence that it was more likely than not that he did not have that intention;
2.The magistrate relied on 'lies' which he found the appellant had told to work colleagues and at his work in relation to drug testing in deciding he was unable to tell where the truth lies in relation to his intention to sell;
3.The magistrate erred in law, in deciding that because he was unable to decide where the truth lies he must find the appellant guilty because of the presumption in section 11(b) of the Misuse of Drugs Act;
4.The conviction was unreasonable and unsafe and unsatisfactory on the evidence.
Section 11 of the Misuse of Drugs Act
[44] Appellant's submissions dated 13 November 2017.
Section 11 of the Misuse of Drugs Act provides:
For the purposes of -
(a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; or
(b)section 7(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession, or to cultivate, prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he has in his possession, or cultivates, a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus.
The quantity specified in sch V in relation to possession of cannabis is 100 g. Mr Heesom was in possession of about 28 g. Accordingly, s 11 did not apply to the possession charge.
The number of cannabis plants specified in sch VI in relation to cultivation is 10 plants. Mr Heesom was cultivating 16 plants. Accordingly, s 11 applied to the cultivation charge. Mr Heesom was deemed, by s 11, to have cultivated the cannabis plants with intent to sell or supply. To avoid that deeming provision, Mr Heesom had to prove, on the evidence as a whole, on the balance of probabilities, that he did not have that intention. The magistrate was entitled to be satisfied beyond reasonable doubt that Mr Heesom intended to sell or supply the cannabis he was cultivating unless he was satisfied on the evidence that it was more likely than not that Mr Heesom did not have that intention.[45]
[45] Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [62].
The only evidence capable of displacing the statutory presumption was the appellant's evidence at trial. That evidence was contrary to his admissions to the police.
The magistrate's reasons for convicting
The magistrate began by correctly identifying the operation of the deeming provision in s 11 of the Misuse of Drugs Act.[46]
[46] ts 73, ts 4 May 2017.
The magistrate then noted Mr Heesom had told the police he did intend to supply the cultivated cannabis to friends but said in his evidence that this was a lie and he did not intend to supply it to friends.[47]
[47] ts 73, 4 May 2017.
The magistrate noted several issues relating to Mr Heesom's honesty.[48]
[48] ts 74, 4 May 2017.
First, Mr Heesom admitted lying to his colleagues about associating with friends on the weekend.
Second, Mr Heesom claimed in his evidence that he lied to the police during the search.
Third, Mr Heesom went 'to some length to deceive his employer in regard to a premeditated and elaborate process to overcome random drug testing at work'.
The magistrate referred to Mr Heesom's evidence that he had no friends outside of work and does not go to parties. He also noted the telephone records tendered in support. However, the magistrate said that accepting this evidence required him to believe Mr Heesom about those matters.[49]
[49] ts 79, 4 May 2017.
The magistrate noted that, from the search video, Mr Heesom appeared to be 'co‑operative with police, very compliant and even assisting police in the course of the search such as pointing out one of the plants outside which it appears police hadn't noticed. And, in the same way, he certainly presents with the impression of having been honest and truthful with the police in the course of the search video and the questions asked of him'.[50]
[50] ts 75, 4 May 2017.
The magistrate accepted that Mr Heesom would have felt a degree of panic when the police arrived. He noted, however, that the police questioning was not forceful and they did not cross‑examine Mr Heesom. The magistrate said that Mr Heesom appeared to be seeking to co‑operate and comply with police. The magistrate said that there was nothing in Mr Heesom's behaviour or the manner in which he answered the questions to indicate that he was lying to police.[51]
[51] ts 75, 4 May 2017.
The magistrate said that Mr Heesom's claim to have lied to police would only make sense if he was actually selling cannabis.[52] The magistrate noted that, if Mr Heesom's reason for lying was applied to the LSD tablets, one would expect that Mr Heesom would have told police he intended to supply the LSD tablets to friends too. However, Mr Heesom told police the LSD tablets were for his own use.[53]
[52] ts 75, 4 May 2017.
[53] ts 76, 4 May 2017.
The magistrate also noted Mr Heesom had been quite categorical in saying that the synthetic cannabis was for his own use as opposed to the cannabis he was cultivating, which he said he would give to others.[54]
[54] ts 75, 4 May 2017
The magistrate accepted it was possible that the different answers could have been the result of the context of the questions and the amounts of different drugs involved. However, the magistrate queried whether, in the context of all of the other evidence, that was probable.[55]
[55] ts 76, 4 May 2017.
The magistrate then said:[56]
And having considered all of the evidence before me, having considered the video search and what Mr Heesom said to police about that in that search, what Mr Heesom said in the course of evidence today, I simply find myself in a position in which I am unable to determine where the truth actually lies. That is, whether Mr Heesom was, in fact, telling the truth in his admissions to police or whether he was telling the truth in his evidence today. And being unable to determine where that truth lies, I am not persuaded that the defence has satisfied its evidentiary burden of proving on the balance of probabilities that the cultivation of the cannabis was not with any intention of supplying it to others. And, as a result of that and as a result of the presumption, I must convict Mr Heesom of the offence of cultivating a prohibited plant with intent to sell or supply.
[56] ts 76, 4 May 2017.
In relation to the charge of possessing cannabis, Mr Heesom did not bear an onus of proof. The magistrate was not satisfied beyond reasonable doubt that Mr Heesom had an intention to supply in relation to that cannabis. Accordingly, the magistrate found him guilty only of simple possession.[57]
Ground 1
[57] ts 77, 4 May 2017.
In support of this ground, the appellant submitted that, in deciding that he was unable to determine where the truth lay, the magistrate 'therefore erroneously equated failure of the appellant to positively prove beyond all doubt where the truth lies with a failure to prove on a balance of probabilities no intention to sell or supply'.[58]
[58] Appellant's submissions dated 13 November 2017 [2].
The magistrate did not apply the wrong test. The magistrate said he could not tell whether Mr Heesom was truthful to the police or whether Mr Heesom was truthful in his evidence to the court. The magistrate said that, because he was unable to determine this, he was not persuaded that Mr Heesom had discharged his burden of proving on the balance of probabilities that he did not have an intention to sell or supply. The above quoted passage from his reasons makes it plain that the magistrate well understood the test was whether he was persuaded that the defence had satisfied its burden of proving on the balance of probabilities that the cultivation of the cannabis was not with any intention of supplying it to others.
It is also clear from the magistrate's reasons that he did not require the appellant to prove anything 'beyond all doubt'. The magistrate expressly referred to the onus being on the balance of probabilities.
I refuse leave to appeal on this ground. It does not have a reasonable prospect of succeeding.
Ground 2
Ground 2 is not a proper ground of appeal.
In support of this ground, the appellant submitted that the lies relied on by the magistrate did not relate to material facts in the trial.
The magistrate relied on the lies only in his assessment of Mr Heesom's credibility. He was entitled to do so.
I refuse leave to appeal on this ground.
Ground 3
Ground 3 and the submissions made in support of it are difficult to follow.
The appellant's primary arguments appear to be as follows:
1.It was illogical to conclude that the alleged lie to the police would only make sense if Mr Heesom was in fact selling the drugs. It was equally open on the evidence to infer that the cannabis was for his own use and that he told the police he would give some away at parties in order to put the police at ease in their suspicion that he was selling.
2.The magistrate relied on the alleged lie as a lie arising from consciousness of guilt.
3.The magistrate erred in law and fact in not taking into account that what Mr Heesom said to the police was not said under oath, whereas his evidence in court was.
4.The magistrate should have made a finding as to intention of the appellant, and that finding should have been in the appellant's favour on a balance of probabilities.
The magistrate's conclusion was not illogical. It was open to the magistrate to conclude that Mr Heesom's evidence as to why he lied to the police did not make sense, given that he had said to the police that other illicit drugs were entirely for his own use. Even if there was another inference 'equally open on the evidence', which I do not accept, this would not discharge a burden of proof on the balance of probabilities.
The magistrate did not rely on the alleged lie as a lie arising from consciousness of guilt. The magistrate did not even accept that it was a lie.
It is inconceivable that the experienced magistrate was not aware that Mr Heesom's evidence at trial was on oath, whereas his statements to the police were not. In addition, there were numerous indicators to suggest that Mr Heesom's admissions to the police were true. First, they were admissions against interest. Second, as noted by the magistrate, Mr Heesom was 'co‑operative with police, very compliant and even assisting police in the course of the search such as pointing out one of the plants outside which it appears police hadn't noticed'. Perhaps this is why counsel for the appellant did not submit to the magistrate that a relevant consideration was the fact that Mr Heesom's evidence was on oath whereas what he said to the police was not.[59]
[59] This was conceded by Mr Heesom's counsel in the appeal - ts 5.
The magistrate was clearly not satisfied on the whole of the evidence that Mr Heesom did not intend to supply the cultivated cannabis. In those circumstances, he was entitled to convict Mr Heesom of cultivation with intent. The magistrate was not required to first say that he found that Mr Heesom had cultivated the cannabis with intent. Given his finding that Mr Heesom had not discharged his burden of proving on the balance of probabilities that he did not have an intention to sell or supply, Mr Heesom was deemed to have had an intention to sell or supply by operation of s 11 of the Misuse of Drugs Act.
I refuse leave to appeal on this ground. It does not have a reasonable prospect of succeeding.
Ground 4
In support of this ground, the appellant refers to the matters raised in the previous grounds.
This court may allow an appeal and set aside a conviction by a court of summary jurisdiction where there has been a miscarriage of justice.[60]
[60] Sections 8(1)(b), 14(1)(b) and 14(1)(c) of the Criminal Appeals Act.
The question is whether the court considers that, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. In other words, whether the magistrate must have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material that might have been taken by the magistrate to be sufficient to preclude satisfaction of guilt to the requisite standard.[61]
[61] HDS v The State of Western Australia [2015] WASCA 148 [51] ‑ [53].
I have reviewed the entirety of the evidence. That review does not lead to the conclusion that the magistrate should have entertained a doubt about the appellant's guilt.
It was open to the magistrate to be satisfied beyond reasonable doubt that Mr Heesom intended to supply the cultivated cannabis. It was open to him to not be satisfied on the evidence as a whole, on the balance of probabilities, that Mr Heesom did not have that intention. The magistrate identified numerous matters that damaged Mr Heesom's credibility. It was open to the magistrate to reject Mr Heesom's evidence. The conviction was not unreasonable. Mr Heesom has not suffered a miscarriage of justice.
I refuse leave to appeal on this ground. It does not have a reasonable prospect of succeeding.
The appeal against the failure to make a spent conviction order
The sole ground of appeal in relation to the penalty is that the magistrate erred in not ordering spent convictions.[62]
Spent conviction orders
[62] Appellant's submissions dated 13 November 2017, pages 3 ‑ 4.
Under s 39(2) of the Sentencing Act 1995 (WA), the court may make a spent conviction order when, among other things, it imposes a fine.
Section 45(1) of the Sentencing Act provides:
(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.
The form of s 45 is important. It is a direction to the court not to make a spent conviction order unless the three conditions are satisfied.[63]
[63] Wright v McMurchy [2012] WASCA 257 [58].
The three conditions are:
1.the court must consider that the offender is unlikely to commit such an offence again;
2.either the offence must be trivial or the offender must be of previous good character; and
3.having regard to the relevant fact in the second condition, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The first two conditions are pre‑conditions that must be established before the court considers whether it is satisfied of the third condition. Generally, the pre‑conditions must be established by convincing evidence.[64]
[64] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14].
Making a spent conviction order is a discretionary power of an exceptional character. The discretion should only be exercised sparingly in a clear case where there are cogent reasons to make the order.[65]
[65] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24], [27].
In determining whether to exercise the power, the court should take as the ordinary rule the fact that a conviction will be a matter of record, with all the consequences that may entail.[66]
[66] R v Tognini [27].
The court should consider the circumstances of the case, including the seriousness of the offence and the offender's personal circumstances. For example, it may be desirable to make a spent conviction order where a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship.[67]
[67] R v Tognini [27] ‑ [28].
The court must also consider the public interest.[68]
[68] Wright v McMurchy [59]; Brewer v Bayens [16] ‑ [19].
One aspect of the public interest is the public interest in an employer being aware of the offender's conduct, where that conduct is relevant in assessing the offender's reliability and suitability for the type of work that the offender does.[69]
[69] Brewer v Bayens [17].
There is also a public interest in maintaining the community's confidence in the judicial system and in achieving deterrence. Each of those goals may be advanced by the public record of convictions.[70]
[70] Brewer v Bayens [18].
The court must also consider the public interest in the rehabilitation of the offender.[71]
[71] R v Tognini [27].
The presence or absence of information showing a specific or concrete adverse consequence if a spent conviction were ordered is a factor to be weighed in the court's analysis. However, a failure to demonstrate a specific or concrete adverse consequence is not necessarily fatal.[72]
Appellant's submissions to magistrate
[72] B v Murphy [2016] WASC 78 [29].
In relation to the pre‑condition in s 45(1)(a), Mr Heesom's counsel asserted that the appellant was unlikely to commit such an offence again.[73]
[73] ts 78, 4 May 2017.
In relation to the pre‑conditions in s 45(1)(b), Mr Heesom's counsel said to the magistrate that he 'couldn't argue it's a trivial offence'.[74] Counsel therefore relied on the alternative pre‑condition of previous good character. The appellant did not have a criminal record prior to committing these offences.
Magistrate's reasons for refusing to make spent conviction orders
[74] ts 78, 4 May 2017.
The magistrate refused to make spent conviction orders because he considered it was not in the public interest to deprive Mr Heesom's current employer or a potential future employer of the knowledge of his offences. The magistrate said that Mr Heesom's employers needed to be able to properly assess, now and in the future, his employment and the risks or otherwise of his employment. From earlier remarks, it is clear the magistrate was focussing on the fact that Mr Heesom used cannabis, rather than on the fact that he supplied it.[75]
[75] ts 79, 4 May 2017.
The magistrate also noted additional, overlapping reasons for his conclusion that spent conviction orders were not appropriate. The additional reasons were:[76]
1.cultivation of cannabis is a serious offence,
2.those cultivating cannabis do so knowing the risk of being caught and the consequences that flow, including being convicted of an offence; and
3.the need for a penalty that strongly acts as a general deterrent in respect of these types of offences, noting that convictions are a part of general deterrence.
Appellant's submissions on appeal in relation to the spent conviction order
[76] ts 83, 4 May 2017.
The appellant's submissions in support of this ground assert that:[77]
[The magistrate] was wrong in deciding that it is not public interest to deprive future employers of knowledge of the conviction because he failed to take into account or place sufficient weight on the fact that there was no finding of intention to sell the cultivated cannabis but only to supply some of the drug on occasions to some friends for no money.
[The magistrate] placed too much weight on the need for general deterrence as a reason to refuse ... the spent conviction application.
The magistrate did not place sufficient weight upon the unfairness to the appellant resulting from the record of convictions not recording an absence of intention to sell in the conviction.
The magistrate erroneously put drug charges in a category of their own by his decision.
Drug offences are not to be treated differently to other offences. Harper v Page [2004] WASCA 267 (19 November 2004).
The prosecutor submitted that the most serious of the charges namely the cultivation with intent of the 16 plants of cannabis was at the lower end of the scale in terms of seriousness. P81 t/c.
Evaluation of the spent conviction ground
[77] Appellant's submissions dated 13 November 2017 [19] ‑ [24].
The magistrate's primary concern in relation to employers was that Mr Heesom used cannabis, and not the fact that he supplied it. He expressly accepted that there was no allegation of an intention to sell.[78]
[78] ts 79 line 1, 4 May 2017.
The magistrate did not 'erroneously put drug charges in a category of their own'. The magistrate was entitled to conclude that it was not in the public interest to deprive Mr Heesom's current employer or a potential future employer of the knowledge of his cannabis use. Mr Heesom's own evidence was that his employer subjected him to random drug tests.
An alleged failure by the magistrate to give any or adequate weight, or a complaint that the magistrate gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the magistrate.[79]
[79] Hume v The State of Western Australia [2017] WASCA 205 [23].
The prosecutor's submission that the cultivation charge was at the lower end of the scale also does not establish error.
The magistrate's refusal to make a spent conviction order was supported by sound reasons. His Honour recognised that he had the discretion to grant such an order but did not consider it appropriate to do so. That conclusion was plainly open.
I refuse leave to appeal on this ground. It does not have a reasonable prospect of succeeding.
Conclusion
Leave to appeal is refused in respect of each ground of appeal. The appeal is dismissed.
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