JAD v McRae - [2022] WASC 220

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JAD -v- MCRAE [2022] WASC 220
CORAM:   DERRICK J
HEARD:   1 JULY 2022
DELIVERED          :   1 JULY 2022
FILE NO/S:   SJA 1032 of 2022
BETWEEN:   JAD
Appellant
AND
TARYN MCRAE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE ATKINS
File Number            :   MH 3281 of 2021

Catchwords:

Criminal law - Appellant convicted of driving with a prescribed illicit drug present in his oral fluid contrary to s 64AC(1) of the Road Traffic Act 1974 (WA) - Whether magistrate made an error in sentencing the appellant on the basis that the penalty for a first offence against s 64AC(1) included a mandatory minimum fine of $600 - Whether magistrate imposed a manifestly excessive sentence by disqualifying the appellant's driver's license - Whether the magistrate's failure to make a spent conviction order occasioned a miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)

Result:

Extension of time within which to appeal allowed
Leave to appeal allowed
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	G Yin
Respondent	:	E A Heywood

Solicitors:

Appellant	:	Andrews Legal
Respondent	:	State Solicitor's Office (WA)

Case(s) referred to in decision(s):

AZY v McIntosh [2021] WASC 34
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Carney v The State of Western Australia [2010] WASCA 90 [41]; (2010) 201 A Crim R 537
Crocker v Vinicombe [2019] WASC 416
Dillon v The State of Western Australia [2020] WASCA 24
Duckworth v The State of Western Australia [No 2] [2018] WASCA 2
EA v The Director of Public Prosecutions for Western Australia [2021] WASC 370
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Elmi v Rozario [2013] WASC 38
Harding v The State of Western Australia [2015] WASCA 27
Hiemstra v The State of Western Australia [2021] WASCA 96
JJF v Tattersall [2018] WASC 170
Kelly v The State of Western Australia [2020] WASCA 29
Lancaster v The Queen [1989] WAR 83
M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17
Majewski v Ingram [2020] WASC 286
Mason v The State of Western Australia [2018] WASCA 43
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Nang & Associates Pty Ltd v Chan [2022] WASC 12
Neach v Hobbs [2021] WASC 135
Page v The State of Western Australia [2018] WASCA 76
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia[2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
Stack v Joye [2021] WASC 322
Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18
TWFE v Greenlees [2019] WASC 330
Wright v McMurchy [2012] WASCA 257; (2011) 42 WAR 113

DERRICK J:

Introduction

The appellant applies for an extension of time within which to appeal and for leave to appeal against the sentence imposed upon him by a magistrate for an offence of driving a motor vehicle with a prescribed illicit drug present in his oral fluid contrary to s 64AC(1) of the Road Traffic Act 1974 (WA) (RTA). The appellant's appeal includes an allegation that a miscarriage of justice has occurred by reason of the magistrate's failure to make a spent conviction order under s 45 of the Sentencing Act 1995 (WA).
The respondent does not oppose the application for an extension of time within which to appeal and concedes the appellant's three grounds of appeal.
For the reasons that follow, I have decided that all three of the appellant's grounds of appeal have been made out, that the application for an extension of time within which to appeal should be allowed and that the appeal should be allowed.

Background to the appeal

At approximately 7.20 pm on Saturday, 4 September 2021 the appellant was driving his vehicle on Pinjarra Road near Barragup. The appellant was stopped by the police and required to submit to a preliminary oral fluid test. The appellant submitted to the test. Subsequent analysis of the oral fluid sample provided by the appellant produced a positive result for tetrahydrocannabinol (cannabis).
On 24 September 2021 the appellant was, as a result of the positive analysis result, charged with an offence of driving a motor vehicle with a prescribed illicit drug present in his oral fluid contrary to s 64AC(1) of the RTA.
After the appellant was charged with the offence against s 64AC(1) a court hearing notice was issued to him under s 28(4) and s 30(1) of the Criminal Procedure Act 2004 (WA) (CPA). The court hearing notice complied with the requirements of s 33(1) and s 33(2) of the CPA and was served on the appellant in accordance with cl 3(2) and cl 3(3) of sch 2 of the CPA.[1] The court hearing notice stated that the charge in the attached prosecution notice would be dealt with by the Magistrates Court on 27 October 2021. The prosecution notice containing the charge under s 64AC(1) was attached to the court hearing notice.[2]
[1] CPA, s 33(3). The court hearing notice and the attached prosecution notice were served on the appellant by post at the address that the appellant had provided to the police at the time that he was required to submit to the preliminary oral fluid test.
[2] CPA, s 33(1)(b).
On 27 October 2021 the charge came before Magistrate Atkins for hearing. The appellant did not appear at the hearing.
At the hearing the magistrate was satisfied that the appellant had been properly served with the court hearing notice and the prosecution notice containing the charge and proceeded to convict the appellant of the charge and to deal with the appellant for the charge pursuant to s 55(2), s 55(4) and s 55(5) of the CPA.[3] The magistrate was provided with a copy of the appellant's 'court history' which revealed that he had no prior convictions.[4] The prosecutor read to the magistrate the above stated facts of the appellant's offence.[5] The prosecutor did not make any submissions in relation to the sentence to be imposed for the offence and requested 'the analyst's fee of $200 and court costs of $259.30'. The magistrate then proceeded to sentence the appellant. The magistrate's sentencing remarks were as follows:[6]
First, offence of this nature, the fine minimum is $600. Costs $259.30, analyst's fee, $200. Disqualification, 3 months.
[3] ts 2, 27 October 2021.
[4] ts 2, 27 October 2021.
[5] ts 2, 27 October 2021.
[6] ts 2, 27 October 2021.
On 14 January 2022 the appellant made an application to set aside the magistrate's decision pursuant to s 71(2) of the CPA.
On 23 February 2022 Magistrate Atkins heard the appellant's application to set aside her decision. The magistrate, in determining the application, found that the appellant had been properly served with the court hearing notice and the prosecution notice but also found that despite the proper service the appellant did not actually become aware of the court hearing notice and the prosecution notice until after the court hearing date.[7] Nonetheless, despite finding that the appellant had not become aware of the court hearing notice and the prosecution notice until after the court hearing date, the magistrate found that there was no merit in the application and dismissed the application.[8]
[7] ts 5, 23 February 2022.
[8] ts 5, 23 February 2022.
On 22 March 2022 the appellant filed his applications for an extension of time within which to appeal and for leave to appeal against the sentence imposed on him for the offence.[9]
[9] The applications were made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 20 April 2022 a registrar of this court made an order that the applications for an extension of time within which to appeal and for leave to appeal were to be heard together with the appeal.
On 17 May 2022 a registrar of this court made by consent and pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (CAA) and r 70 of the Criminal Procedure Rules 2005 (WA) (CPR) an order that the appellant be permitted to rely on additional evidence at the hearing of his application for leave to appeal, the additional evidence being comprised of an affidavit affirmed by the appellant on 10 May 2022.[10]
[10] In the affidavit the appellant deposes to matters relevant to his contention that the magistrate should have made a spent conviction order. In these circumstances it was, with respect, appropriate for the registrar to make the orders that she did by consent: M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 [26] - [28]; cited with approval in TWFE v Greenlees [2019] WASC 330 [40] and EA v The Director of Public Prosecutions for Western Australia [2021] WASC 370 [50].

The grounds of appeal

The grounds of appeal as pleaded are as follows:
1.A miscarriage of justice was occasioned by the Magistrate not making an order for a spent conviction pursuant to s 45 of the Sentencing Act 1995.
2.The Magistrate erred by sentencing the appellant in accordance with the incorrect section of the Road Traffic Act 1974.
3.The decision to disqualify the appellant's licence for three months was manifestly excessive in all the circumstances of the case, having regard to the statutory penalty, the absence of any aggravating factors and the absence of any criminal history.
As is apparent from the grounds of appeal the appellant does not seek to challenge the amount of the fine imposed for the offence.

Jurisdictional issues

Section 7(1) of the CAA provides that a person who is aggrieved by a 'decision' of a court of summary jurisdiction may appeal to this court. The term 'decision' used in s 7(1) is defined in s 6 of the CAA to include:
…
(f)a sentence imposed, or order made, as a result of conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
…
Section 8(1) of the CAA specifies the grounds on which an appeal under s 7 may be made. The specified grounds include that the court of summary jurisdiction made an error of law,[11] that the court of summary jurisdiction imposed a sentence that was excessive[12] and that there has been a miscarriage of justice.[13]
[11] CAA, s 8(1)(a)(i).
[12] CAA, s 8(1)(a)(iii).
[13] CAA, s 8(1)(b).
Ground 2 of the appellant's grounds of appeal is directed at the magistrate's 'decision' within the meaning of s 6(f) of the CAA comprised of the sentence imposed on him for the offence. The ground alleges, in substance, that the magistrate made an error of law in imposing the sentence which she did. Accordingly, the ground of appeal is a permissible ground by reason of s 8(1)(a)(i) of the CAA.
Ground 3 of the appellant's ground of appeal is directed at the magistrate's decision to disqualify him from holding or obtaining a driver's licence for 3 months. The magistrate's decision disqualifying the appellant from holding or obtaining a driver's licence for three months was an order made as a result of the appellant's conviction for the offence. Accordingly, the magistrate's decision disqualifying the appellant from holding or obtaining a driver's licence was a 'decision' within the meaning of s 6(f) of the CAA and consequently this ground, which alleges that the decision was manifestly excessive, is a permissible ground of appeal by reason of s 8(1)(a)(iii) of the CAA.
That leaves ground 1 of the appeal. The ground of appeal as pleaded does not expressly allege that a 'decision' of the magistrate resulted in a miscarriage of justice. Rather, the ground alleges that the miscarriage was occasioned by the magistrate not making a spent conviction order.
The magistrate did not in her sentencing remarks expressly state that she had considered making a spent conviction order and had decided not to do so. However, given the terms of s 39(2)(c) of the Sentencing Act, which empowers a court sentencing an offender to impose a fine with or without making a spent conviction order, the magistrate's failure to make a spent conviction order must, in my view, be taken to constitute a refusal to make an order which might have been made as a result of the appellant's conviction for the offence within the meaning of s 6(g) of the CAA.[14] It therefore follows, in my opinion, that ground 1 of the appeal is a permissible ground by reason of s 8(1)(b) of the CAA.
[14] AZY v McIntosh [2021] WASC 34 [24] - [30].

The application for an extension of time

The last day for the appellant to apply for leave to appeal against the decision of the magistrate was 24 November 2021.[15] The appellant filed his Appeal Notice on 22 March 2022, that is approximately four months out of time.
[15] CAA, s 10(3).
The appellant has filed in support of his application for an extension of time within which to appeal an affidavit sworn by his solicitor, Mr Benjamin Clarke, on 22 March 2022. The appellant also relies in support of his application for an extension of time on portions of his abovementioned affidavit affirmed on 10 May 2022.
As I have already indicated, the respondent does not oppose the application for an extension of time.
Ultimately, the question is whether it is in the interests of justice to grant an extension of time.[16] In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[17]
[16] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14].
[17] Duckworth v The State of Western Australia[No 2] [2018] WASCA 2 [24] - [25].
Where there has been a lengthy delay a court should only grant an extension of time within which to appeal if exceptional circumstances are shown or if a failure to grant an extension would result in a substantial miscarriage of justice.[18]
[18] Lancaster v The Queen [1989] WAR 83, 85; Elmi v Rozario [2013] WASC 38 [15]
The delay in filing the Appeal Notice is reasonably significant albeit not inordinate. However, the delay is adequately explained by Mr Clarke and the appellant in their affidavits. The respondent has not been prejudiced by the delay and does not oppose the delay. Further, given the view I have arrived at in relation to the merits of the grounds of appeal, to refuse the application for an extension of time will prejudice the appellant. In these circumstances I grant the requested extension of time.

Leave to appeal - principles

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[19] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[20] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[21]
[19] CAA, s 9(2).
[20] Samuels v The State of Western Australia[2005] WASCA 193; (2005) 30 WAR 473 [56].
[21] CAA, s 9(3).

Ground 2

It is convenient to deal with ground 2 first.

The materiality issue

By the ground of appeal the appellant alleges that the magistrate made an express error of law.
In her written submissions the respondent proceeds on the basis that it is necessary for the appellant, in order to make out the ground of appeal, to establish not only that the alleged error was made by the magistrate but also that the error was material.[22]
[22] Respondent's Outline of Submissions dated 17 June 2022 (Respondent's Submissions), par 28 - 33.
Different views have been expressed by judges of this court in relation to whether the court's jurisdiction to allow an appeal against sentence under s 14(1)(b) of the CAA is enlivened once any error of law is established, or whether the error must be material to the exercise of the sentencing discretion.[23] An error of law will not be material to the exercise of the sentencing discretion if it did not affect, or was incapable of affecting, the sentence imposed.[24]
[23] There is a useful discussion of the different views in Crocker v Vinicombe [2019] WASC 416 [42] - [60] (Fiannaca J). See also Stack v Joye [2021] WASC 322 [27] - [32] (Archer J), Neach v Hobbs [2021] WASC 135 [17] - [22] (Archer J) and Nang & Associates Pty Ltd v Chan [2022] WASC 12 [10] - [14].
[24] Harding v The State of Western Australia [2015] WASCA 27 [73] - [75]. See also Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [14] and Hiemstra v The State of Western Australia [2021] WASCA 96 [120].
The question whether the error of law must be material to enliven the court's jurisdiction to allow an appeal against sentence is not one in relation to which I need to express a concluded view in order to deal with this ground of appeal. I say this because if the appellant establishes the alleged error it will, as is conceded by the respondent, necessarily follow that the magistrate made a material error of law (that is, made an error that affected the sentence imposed or that was at least capable of affecting the sentence imposed).

Analysis and decision

Section 64AC(2)(a) of the RTA provides that a person convicted of an offence against s 64AC(1) is liable for a first offence to a fine of not more than 25PU. 25PU equates to a fine of $1,250.[25] The appellant did not have any prior convictions for an offence against s 64AC(1). Accordingly, the maximum fine that could be imposed on the appellant for the offence was $1,250.
[25] RTA, s 5; Road Traffic (Administration) Act 2008 (WA), s 7.
Section 64AC(2)(a) does not provide for the imposition of a mandatory minimum fine for a first offence against s 64AC(1). There was no mandatory minimum fine that had to be imposed on the appellant for the offence.
Section 64AC(2)(a) does not provide for the imposition of a mandatory period of disqualification from holding or obtaining a driver's licence for a first offence committed against s 64AC(1). There was no mandatory period of disqualification that had to be imposed on the appellant for the offence. However, by virtue of s 105(1) of the Sentencing Act it was open to the magistrate, upon convicting the appellant of the offence, to order that he be disqualified from holding or obtaining a driver's licence for the period specified by her Honour (3 months).
Section 64AC(2)(a) can be contrasted with s 64AC(2)(b). Section 64AC(2)(b) does for a second or subsequent offence committed against s 64AC(1) provide for the imposition of a mandatory minimum fine (25 PU) and a mandatory minimum period of disqualification from holding or obtaining a driver's licence (6 months).
It is common ground between the parties that there are only two offences contained within the Road Traffic Act the penalty for which is a minimum fine of $600 and a minimum licence disqualification of 3 months. The two offences are driving with any blood alcohol content and with a prescribed illicit drug in oral fluid or blood contrary to s 64C(1) and failing to comply with a requirement to provide a sample contrary to s 67AC(2).
The appellant submits that the only inference that can reasonably be drawn from the magistrate's reference to a 'minimum' fine of $600 when there is no statutory minimum fine that must be imposed for an offence against s 64AC(1), is that the magistrate 'was looking at the incorrect section when she sentenced the appellant'.[26] The appellant further submits that support for this contention arises from the fact that the magistrate imposed the 3-month licence disqualification in circumstances in which the prosecution did not ask for a period of disqualification, the offence of which the appellant had been convicted did not require the imposition of a period of disqualification and the magistrate did not give reasons for exercising her discretion to impose a period of disqualification under s 105(1) of the Sentencing Act.
[26] Appellant's submissions dated 13 May 2022 (Appellant's submissions), par 41.

As I have already pointed out, in sentencing the appellant and in fining him $600 for the offence the magistrate stated that for a '[f]irst offence of this nature the fine minimum is $600'. In my view the only inference that can reasonably be drawn from the magistrate's statement is that her Honour sentenced the appellant on the basis that the penalty for a first offence against s 64AC(1) included a mandatory minimum fine of $600. Her Honour made an error of law in doing so.
My finding that the magistrate erroneously sentenced the appellant on the basis that the penalty for a first offence against s 64AC(1) included a mandatory minimum fine of $600 is of itself sufficient to require the ground of appeal to be upheld. It is not strictly necessary for me to make a finding as to whether the magistrate 'was looking at the incorrect section' when she sentenced the appellant. Nonetheless, I state for the sake of completeness that in my view the fact that the magistrate disqualified the appellant from holding or obtaining a driver's licence for a period of 3 months without making any reference to s 105 of the Sentencing Act and without giving any reasons for imposing the period of disqualification provides compelling evidence that her Honour was erroneously 'looking at' or at least thinking about s 64C(1) or s 67AC(2) when she sentenced the appellant.
For the reasons I have given the alleged material error has been established. The ground of appeal has been made out.

Ground 3

It is convenient to next deal with ground 3.
By this ground the appellant alleges that disqualification by the magistrate of the appellant's driver's licence was manifestly excessive in all the circumstances having regard to the statutory penalty for the offence, the absence of any aggravating factors and the absence of any criminal record. Accordingly, the ground alleges that the imposition of the period of disqualification reveals implied error.
As is apparent from what I have already said, the magistrate did not expressly state that she was imposing the driver's licence disqualification pursuant to the power given to her by s 105 of the Sentencing Act. However, given that s 105 was the only source of power for the magistrate to make the disqualification order I will, in dealing with this ground, proceed on the basis that the magistrate did, in making the disqualification order, exercise the power given to her by s 105.

Legal principles

The principles to be applied by an appellate court in a case where the allegation is that the wrong type of sentence was imposed are by analogy applicable to the allegation contained in this ground of appeal. The principles are well-established.
An appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised a sentencing discretion differently. Rather, an appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred.[27] Accordingly, the question for me is whether it was reasonably open for the magistrate to find that the imposition of a fine without a period of licence disqualification was not an appropriate sentence for the appellant's offence.[28]
[27] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].
[28] Mason v The State of Western Australia [2018] WASCA 43 [55] - [56]; Dillon v The State of Western Australia [2020] WASCA 24 [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Sentencing Act, s 39(3).
In order to determine whether it was reasonably open to the magistrate to find that the imposition of a fine without the imposition of a period of licence disqualification was not an appropriate sentence for the appellant's offence, the offence needs to be viewed in light of the sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence (if any), the place that the criminal conduct occupied in the scale of seriousness of offences of the kind in question and the appellant's personal circumstances.[29]

Analysis and decision

Statutory penalty

[29] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] - [70]; Page v The State of Western Australia [36].

As I have already pointed out, the statutory penalty for a first offence against s 64AC(1) does not include a period of licence disqualification. It is therefore apparent that the Parliament has not deemed it necessary to mark a first offence of the type committed by the appellant with a mandatory licence disqualification.

The seriousness of the appellant's conduct

In his previously referred to affidavit the appellant deposes to the circumstances which led to him committing the offence. The circumstances as deposed to are not challenged by the respondent. The circumstances as deposed to are in essence as follows.
On 26 August 2021 the appellant's wife, AC, returned to Canada to study for her four year degree in sociology. AC is a Canadian citizen. The plan was for the appellant to join AC in Canada after he had wound down his business here in Perth and had obtained a special visa permitting him to enter Canada. The plan was also for the appellant and AC to live in Canada while AC was undertaking her studies but for them to ultimately return to Australia.
In the week after AC returned to Canada the appellant was sad, lonely, depressed and bored. On 3 September 2021 he cooked dinner at home by himself. He drank several beers. He decided to walk to a party that he and AC had been invited to prior to AC's departure. He decided to go to the party to enjoy some socialising and in an attempt to forget his pain arising from AC's departure.
When the appellant got to the party he ate and drank alcohol. He drank more alcohol than he normally would because he was upset about AC's departure. While drinking alcohol he consumed a cookie.
After eating the cookie the appellant found out that it contained cannabis. He is not a cannabis user. He would not have eaten the cookie if he had known that it contained cannabis. He did not eat another cookie after learning that the one he had eaten contained cannabis. He walked home from the party at about 1.00 am.
When the appellant was pulled over by the police at about 7.20 pm on 4 September 2021, he was not pulled over due to his manner of driving. Rather, he was pulled over at a mobile drug and alcohol testing station.
At the time of being pulled over for the random drug and alcohol testing the appellant provided a sample to the police and to his surprise found out that the preliminary analysis had produced a positive result. It was at this point that he remembered that he had consumed the cannabis cookie the night before. He had forgotten that he had done so. He was not feeling impaired and the police, at the time of pulling him over for the random testing, did not have any concerns about the manner of his driving or his appearance.
So that is a statement of the appellant's account of the events that led to his commission of the offence.
In light of the appellant's account of events it is, I think, fair to say that the circumstances in which he committed the offence are a little unusual in that he did not at the time of eating the cookie know that he was consuming cannabis. In other words, his consumption of the cannabis was not deliberate.
The appellant did not drive his car until some considerable time after he had consumed the cannabis cookie. The appellant was not at the time of driving his car feeling in any way impaired by the cannabis that he had inadvertently consumed. The appellant did not make a calculated decision to drive his car knowing that the cannabis was still in his system or in the belief that he might in any way still be affected by the cannabis.
In the circumstances to which I have referred, it is my opinion that the appellant's conduct in committing the offence fell at the lower end of the range of seriousness for offences of its type.

Standards of sentencing customarily observed

Neither the appellant nor the respondent suggests that there is any range of sentences customarily imposed with respect to the offence committed by the appellant. I have not been able to locate any appellate decision in which detailed consideration has been given to the range of sentences customarily imposed for an offence of the type committed by the appellant.

Criminal record

The appellant has no prior convictions in this State or anywhere else. He is of good prior character. This is a significant mitigating factor.

Decision

The Parliament has not deemed it necessary to mark a first offence of the type committed by the appellant with a mandatory period of licence disqualification. The appellant's offence was at the low end of the range of seriousness for offences of its type. He has no prior convictions. He is of good character. Personal deterrence had little or no role to play in the sentencing process. In these circumstances I am satisfied that it was not reasonably open to the magistrate to find that the seriousness of the offence warranted the imposition, in addition to the $600 fine, of a 3-month driver's licence disqualification, or for that matter any period of licence disqualification. In my opinion the imposition by the magistrate of the licence disqualification fell outside the range of a sound exercise of the sentencing discretion and was so unreasonable or unjust as to amount to a substantial wrong.
For the reasons I have given the alleged material error has been established. The ground of appeal has been made out.

Ground 1

I turn finally to deal with ground 1.

Spent conviction orders - statutory provisions and general principles

Before turning to directly address the question whether the decision by the magistrate not to make a spent conviction order occasioned a miscarriage of justice, it is necessary to refer in more detail to the relevant statutory provisions and to the legal principles to be applied in determining if a spent conviction order should be made in any given case.
Section 39(1) and s 39(2)(c) of the Sentencing Act, when read together, relevantly provide that subject to s 45 a court sentencing an offender who is a natural person may impose a fine with or without making a spent conviction order.
Section 45(1) of the Sentencing Act provides:
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.
Thus the section operates so as to direct the court not to make a spent conviction order under s 39(2) unless the court considers that the offender is unlikely to commit such an offence again and, having regard to one or other of the factors specified in subsection (1)(b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.[30] Therefore, there are two pre‑conditions that must be established before the court is permitted to consider if the offender should be relieved immediately of the adverse effect that the conviction might have on them.[31] First, that the offender is unlikely to commit such an offence again.[32] Second, that the offence is trivial,[33] or the offender is of previous good character.[34]
[30] Wright v McMurchy [2012] WASCA 257; (2011) 42 WAR 113 [50] and [102].
[31] Sharpe v Vinning [2020] WASCA 79 [94].
[32] Sentencing Act, s 45(1)(a).
[33] Sentencing Act, s 45(1)(b)(i).
[34] Sentencing Act, 45(1)(b)(ii).
It is well established that if the pre-conditions for the exercise of the power to make a spent conviction order are satisfied, the court has a discretion, not an obligation, to make a spent conviction order.[35] The discretion is to be exercised having regard to the following propositions:[36]
[35] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11]; Wright v McMurchy [59]; Sharpe v Vinning [96].
[36] R v Tognini [27] - [28]; Brewer v Bayens [18] - [24]; Wright v McMurchey [59]; JJF v Tattersall [2018] WASC 170 [16].
1.The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;
2.In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;
3.The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future;
4.The court should look to see if 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 set aside;
5.The exercise of the discretion involves the consideration of the interest of the offender and the public interest;
6.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; and
7.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 offender's reliability or suitability for a particular type of work.

The nature of the ground of appeal

The ground of appeal does not allege that the magistrate made an error by not making a spent conviction order. Rather, and as I have pointed out earlier in these reasons, the ground alleges the occasioning of a miscarriage of justice because the magistrate did not make a spent conviction order. Accordingly, in a case such as the present 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 the magistrate in not making a spent conviction order is not required for the conclusion that a miscarriage of justice has occurred.[37] 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. As Pritchard J stated in M v Seidner (citations omitted):[38]
For the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction.

The first pre-condition - is the appellant unlikely to commit such an offence again?

[37] Carney v The State of Western Australia [2010] WASCA 90 [41]; (2010) 201 A Crim R 537.

[38] M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 [26] - [28]; cited with approval in TWFE v Greenlees [2019] WASC 330 [40]. See also Majewski v Ingram [2020] WASC 286 [17].

The appellant is not a drug user. He consumed the cannabis that was later found in his system unknowingly. At the time of committing the offence he had no prior convictions of any sort. In these circumstances I am satisfied that the appellant is unlikely to commit such an offence again.

The second pre-condition

Was the offence trivial?

In Sharpe v Vinning[39] the court said the following in relation to the expression 'the offence is trivial' in s 45(1)(b)(i):
The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act directs attention primarily to the type or nature of the offence in question, including the inherent seriousness of the offence and the maximum penalty, having regard to the spectrum of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.
As we have mentioned, the term 'offence' in s 45(1) refers to the acts or omissions (that is, the factual ingredients or elements) under a written law in respect of which the offender is to be sentenced in accordance with the Sentencing Act and the written law which imposed the criminal penalty for the relevant acts or omissions. It is apparent, therefore, that the material facts establishing guilt, which are the specific acts or omissions which establish the particular offender's criminal responsibility under the written law, must also be taken into account in determining whether the offence is 'trivial', within s 45(1)(b)(i). However, the relevant factors to be taken into account in determining whether an offence is trivial do not extend beyond the material facts establishing guilt, so as to include such matters as mitigating factors that are not part of the material facts establishing the offender's guilt or the objective and subjective personal circumstances of the offender.
[39] Sharpe v Vinning [110] - [111].
The appellant does not contend that the offence can be regarded as 'trivial'.
Objectively, the offence created by s 64AC(1) does not fall at the high end of the spectrum of seriousness of criminal offences in this State. Accordingly, and having regard to the specific conduct of the appellant comprising his commission of the offence to which I have already referred, it seems to me that it could reasonably be argued, in accordance with the above statements of principle made in Sharpe v Vinning, that the offence was 'trivial' within the meaning of s 45(1)(b)(i). However, given that the appellant does not advance such an argument, and given my below expressed finding in relation to the issue of good character, it is neither appropriate nor necessary for me to attempt to address the issue any further. I add, at the risk of stating the obvious, that nothing I have just said should be taken as suggesting that it will always be reasonably arguable that an offence committed against s 64AC(1) is 'trivial' for the purposes of s45(1)(b)(i). Obviously, the particular circumstances of an offender's conduct in committing an offence against s 64AC(1) may well preclude any such argument.

Is the appellant of previous good character?

The appellant's submissions

The appellant submits that I should find that he is of previous good character for essentially two reasons. First, because he has no prior convictions. Second, because there is before me positive evidence of his good character in the form of character references annexed to his affidavit.

Applicable legal principles

In Tambyrajah v Gablonski[40] Le Miere J said the following:
There are two aspects to 'good character'. If the Court is told that nothing is known against a man, it assumes that he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. Secondly, there may be positive evidence as to a man's character and reputation that adds considerably to the weight that the Court attaches to the defendant's favourable record.

Decision

[40] Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18 [28].

The character references annexed to the appellant's affidavit are written by AC and two long-term friends of the appellant, DF and GJ.

AC's reference is dated 11 May 2022. In her reference AC describes the appellant as an honest and trustworthy person who has 'always gone above and beyond' for her and her family. She confirms that the appellant has never been a drug user of any kind.
DF's reference is undated but is expressed to have been written in support of the appellant's request for a spent conviction order on the appeal. In his reference DF states that he has known the appellant for over 12 years as a colleague, friend and employee. He describes the appellant as a diligent and honest worker who was always looking out for his colleagues and friends. He states that he knows the appellant's offence to be out of character.
GJ's reference is dated 7 April 2022. In his reference GJ states that he has known the appellant for over 10 years as a close friend. He states that he has not observed the appellant to be a user of illicit drugs. He describes the appellant as an honest person 'who values highly his moral principles particularly around doing the right thing by his friends and others in general'. He describes the appellant as a person of high personal ethics and morals who has an inherent desire to help others where he can whether through his work or more generally by providing support through challenging times. He describes the appellant as somebody who has an unwavering attitude of doing the right thing and doing things the right way in everything that he does. He expresses the belief that the offence is out of character for the appellant.
In my opinion it is clear from the appellant's good prior record and the positive evidence of his good character in the form of the character references that the appellant is of 'previous good character' within the meaning of s 45(1)(b)(ii).

The exercise of the discretion

It follows from what I have said that in my opinion the pre-conditions for the exercise of the discretion to grant a spent conviction order in respect of the appellant's offence have been met. I therefore turn to consider whether a spent conviction order should be made in the exercise of the discretion. I do so bearing in mind the already referred to propositions to which regard must be had in exercising the discretion.
In his affidavit the appellant deposes that he is a qualified electrician, that he owns his own electrical contracting business and that if he is not granted a spent conviction order this will significantly impact on his chances of gaining employment in Australia in the electrical industry. He also deposes that he has made enquiries about available electrician positions and that all the positions require the provision by applicants of a national police clearance. He deposes that the role of an electrician is a highly dangerous and responsible one, that the position usually includes provision of a vehicle, and that the type of offence that he has committed is 'frowned upon'.
In his affidavit the appellant also deposes as to the impact that the failure to make a spent conviction order in respect of the offence will have on his ability to move to Canada to be with AC for the four years that she needs to be there to complete her degree. In essence, the appellant deposes that it is his understanding that if he is not granted a spent conviction order he will not be able to enter Canada, but that if he is granted a spent conviction order he will be able to enter Canada on a work permit visa and to then apply for a spousal visa.
The appellant deposes that AC is studying for a four-year degree and wants to be around her immediate family for the foreseeable future. He deposes that he does not know what he will do if he is unable to join her. He deposes that if a spent conviction order is not granted to him he is worried that his marriage will not survive.
The appellant's deposed to concerns relating to his inability to travel to Canada if his conviction for the offence is not spent are supported by a letter annexed to his affidavit written by his Canadian-based immigration agent, Ms Lisa MacKay, dated 4 May 2022. Ms MacKay is the Managing Director of Discover Immigration Service which is based in Toronto, Canada. In her letter Ms Mackay states the following:
1.She is writing at the request of the appellant who is her client;
2.The appellant and AC retained her services in the matter of a Spousal Support Sponsorship for Permanent Residency so as to enable them to reunite and continue their married life in Canada;
3.The appellant, as a professional electrician, will have excellent employment prospects in Canada;
4.She is aware that the appellant has been convicted of the offence;
5.The appellant's conviction for the offence will prevent him from being able to enter or work in Canada and the process to reinstate his admissibility to Canada could take up to 10 years; and
6.If the appellant is granted a spent conviction order he will be eligible to enter and work in Canada. He will be able to enter Canada immediately while waiting for his spousal visa. The spousal visa could take up to four months to be approved. There should be no issues with the appellant obtaining a spousal visa.
The appellant submits that in light of the matters deposed to by him the adverse consequences for him of the conviction in the absence of a spent conviction order are disproportionate to the circumstances of his offending.
The appellant submits that his personal circumstances and the nature of the offence are such that his conviction for the offence should not operate as a bar to his plan, that was in place before he committed the offence, to relocate to Canada to live with his wife. He also submits that his conviction for the offence should not be permitted to be used against him in determining his character if he at some point in the future seeks employment as an electrician in this State.
I am satisfied based on the evidence before me that a refusal to make a spent conviction order in respect of the appellant's conviction will have a very significant adverse consequence for him. The significant adverse consequence is the enforced separation of the appellant from his wife for very lengthy periods while she completes her degree in Canada.
I am satisfied based on the evidence before me that there is a possibility that the enforced separation of the appellant from his wife for lengthy periods will ultimately result in the breakdown of the marriage.
I am also satisfied based on the evidence before me that a refusal to make a spent conviction order in respect of the appellant's conviction will impact adversely on his future ability to secure employment in Australia as an electrician.
Given the circumstances in which the appellant came to consume the cannabis which was found in his system at the time he was tested, I do not consider that this is a case in which there is a strong public interest in ensuring that the appellant's conviction for the offence is exposed to public scrutiny or that that there is a strong public interest in an employer or potential employer being made aware of the conviction. In my view the circumstances in which the appellant came to consume the cannabis compels the conclusion that the offence is not relevant to the assessment of the respondent's suitability for working as an electrician.
Ultimately, when I take into account that the offence falls towards the lower end of the range of seriousness for offences of its type, the appellant's prior good record and prior good character, the significant adverse consequences for the appellant if a spent conviction order is not made and the absence of any compelling public interest reasons for not setting the adverse consequences of the conviction aside, I am satisfied that a spent conviction order should be made in respect of the appellant's conviction. In my opinion the adverse consequences to the appellant of the magistrate's decision not to make a spent conviction in respect of the offence are disproportionate to the circumstances of the offence and the circumstances of the appellant.
It follows that I am satisfied that a miscarriage of justice has been occasioned by the magistrate not making a spent conviction order. I am also satisfied that it cannot be said that the miscarriage of justice is not substantial.[41] The ground of appeal has been made out.
[41] CAA, s 14(2).

Resentencing of the appellant for the offence

The alleged material errors the subject of grounds 1 and 2 having been established, the magistrate's sentencing decision must be set aside and the appellant must be resentenced.[42]
[42] CAA, s 14(1)(c); Hiemstra v The State of Western Australia [2021] WASCA 96 [120].
I have before me the material necessary to enable me to resentence the appellant.[43]
[43] CAA, s 14(1)(d).
In resentencing the appellant it of course falls to me to exercise the sentencing discretion afresh in accordance with the principles embodied in the Sentencing Act. These principles, so far as is relevant in the present context, may be stated in brief terms as follows. [44]
[44] Hiemstra v The State of Western Australia [120].
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[45] In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[46] Aggravating factors are factors that in the court's opinion increase the offender's culpability or moral blameworthiness.[47] Mitigating factors are factors that in the court's opinion decrease the offender's culpability or decrease the extent to which the offender should be punished.[48]
[45] Sentencing Act s 6(1).
[46] Sentencing Act, s 6 (2).
[47] Sentencing Act, s 7(1).
[48] Sentencing Act, s 8(1).
The respondent concedes that a fine 'towards the lower end of the sentencing range' is appropriate.[49]
[49] Respondent's Submissions, par 69.
In my opinion a fine of $500 is commensurate with the seriousness of the appellant's offence taking into account the penalty for the offence, the circumstances of the commission of the offence and the mitigating factors comprised of the appellant's good record and good character.
For reasons that are apparent from what I have said in dealing with ground 3, I would not impose as part of the sentence for the offence a period of driver's licence disqualification.
For reasons that are apparent from what I have said in dealing with ground 1, I would make a spent conviction order in respect of the appellant's conviction for the offence.

Orders

For the reasons I have given I make orders in the following terms:
1.The application for an extension of time within which to appeal is allowed;
2.The application for leave to appeal is allowed;
3.The appeal is allowed;
4.The sentence imposed by Magistrate Atkins for the offence the subject of charge MH 3281/2021 is set aside;
5.The appellant is sentenced to a fine of $500 for the offence the subject of charge MH 3281/2021; and
6.The appellant's conviction for the offence the subject of charge MH 3281/2021 is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA).
The appellant will, of course, remain liable to pay the legal costs of $259.30 and the analyst's fee of $200 as ordered by the magistrate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
1 JULY 2022