JJF v Tattersall
[2018] WASC 170
•7 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JJF -v- TATTERSALL [2018] WASC 170
CORAM: DERRICK J
HEARD: 7 JUNE 2018
DELIVERED : 7 JUNE 2018
FILE NO/S: SJA 1059 of 2017
BETWEEN: JJF
Appellant
AND
JAKE TRISTAN TATTERSALL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R BAYLY
File Number : PE 44665/2017
Catchwords:
Appeal - Criminal law - Sentence - Refusal to make spent conviction order - Whether appellant unlikely to commit such an offence again - Whether offence trivial - Whether appellant of previous good character - Whether spent conviction order should be made - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2), s 9(3), s 14(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 7B(6), s 8B, s 8E(1), s 8E(4)(a)
Sentencing Act 1995 (WA), s 39(2)(c), s 45(1)
Result:
Leave to appeal granted
Appeal allowed
Decision of magistrate varied to include spent conviction
Category: B
Representation:
Counsel:
| Appellant | : | Mr A D Wilson |
| Respondent | : | Mr A L Mason |
Solicitors:
| Appellant | : | Frichot & Frichot |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Frewen v Dalgreen [2014] WASC 407
Harper v Page [2004] WASCA 267
HJT v Reichelt [2017] WASC 301
Hull v Castledine [2005] WASC 252
Lee Suarez v Cutler [2012] WASC 171
NLJ v Martin [2010] WASC 310
R v Tognini & Mcguire [2000] WASCA 31; (2000) 22 WAR 291
Riley v Gill (unreported; SCt of WA; Parker J Library No 970731; 8 December 1997)
Samuels v The State of Western Australia [2005] WASCA 193
Tilbrook v Cole [2001] WASCA 94
Wong v Barker [2017] WASC 311
Wright v McMurchy [2012] WASCA 257
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript)
The appeal
The appellant applies for leave to appeal on a number of grounds against the decision of a magistrate refusing to make a spent conviction order in respect of his conviction for an offence (the offence) of possessing cannabis contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (MDA).
On 9 January 2018 Martino J made an order that the application for leave to appeal be heard with the appeal.
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success: Criminal Appeals Act 2004 (WA) (CAA), s 9(2). A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193 [56]. If leave to appeal is refused on each ground the appeal is taken to be dismissed: CAA, s 9(3).
The facts of the offence
At about 7.00 pm on 20 July 2017 the police executed a search warrant at the appellant's residence. During the search the police found approximately 4 g of cannabis. The cannabis was found in the appellant's bedroom. The appellant was questioned by the police about the cannabis. However, he declined to answer any of the questions asked of him.
A Certificate of Analyst was not prepared in relation to the cannabis the subject of the offence. Hence the precise weight of the cannabis was never determined. However, there is no suggestion that the quantity of cannabis was materially in excess of 4 grams. I will therefore proceed on the basis that the weight of the cannabis was 4 grams.
The appellant's conviction and the proceedings before the magistrate
On 26 July 2017 the appellant was charged with the offence.
On 1 September 2017 the appellant pleaded guilty to, and was convicted of, the offence.
On 18 September 2017 the appellant appeared before the magistrate for sentencing. After hearing the facts of the offence the magistrate heard the appellant's counsel's plea in mitigation. Counsel, during his plea, urged the magistrate to make a spent conviction order. Counsel submitted, in substance, that the appellant was unlikely to commit any further drug‑related offences, that the offence was trivial, that the appellant was of previous good character and that if a spent conviction order was not made it was likely that the appellant's employment prospects would be adversely affected. In support of these submissions counsel referred the magistrate to a number of documents that had been put before the court on the appellant's behalf. The documents consisted of the following:
1.A report prepared by Mr James Snell, Senior Counsellor at Cyrenian House Alcohol and Other Drug Treatment Services (Cyrenian House), dated 14 September 2017;
2.A report prepared by Dr Phil Watts, Clinical and Forensic Psychologist, dated 15 September 2017;
3.A letter written by Mr Gary Faria, a work colleague of the appellant, dated 24 January 2017; and
4.A letter written by Mr Simrin Panag, a member of the General Committee for the Uni Camp for Kids Inc (Uni Camp), dated 14 June 2016.
The prosecution opposed the making of a spent conviction order.
During the sentencing hearing the appellant's prior criminal record was provided to the magistrate. The prior record revealed that on 24 April 2017 the appellant had been convicted of an offence of possessing drug paraphernalia (a glass smoking implement) on which there was a prohibited drug (traces of cannabis) contrary to s 7B(6) of the MDA (the drug paraphernalia offence) which he committed on 23 October 2016, and for which he had been fined $300 and granted a spent conviction order.
During the sentencing hearing the magistrate was also informed of the following:
1.The appellant had committed the offence while he was on bail for a charge of possessing a quantity of ketamine with an intent to sell or supply to another contrary to s 6(1)(a) of the MDA (the ketamine offence);
2.The appellant was charged with the ketamine offence on the same date as the date on which he was charged with the drug paraphernalia offence;
3.The ketamine offence arose out of the same circumstances as the drug paraphernalia offence;
4.On 24 April 2017, that is, on the same date as the date on which the appellant had pleaded guilty to the drug paraphernalia offence, the appellant pleaded guilty to the ketamine offence and was committed to appear in the District Court for sentencing for the ketamine offence in October 2017; and
5.The appellant had pleaded guilty to the ketamine offence on the basis that he admitted that he would have shared the ketamine with friends at a music festival.
Ultimately, the magistrate fined the appellant $500 for the offence and refused to make the requested spent conviction order.
Spent conviction orders - general principles
Section 39(2)(c) of the Sentencing Act 1995 (WA) empowers a court sentencing an offender to impose a fine with or without making a spent conviction order.
The preconditions for the exercise of the power to make a spent conviction order are set out in s 45(1) of the Sentencing Act. Section 45(1) 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.
Thus the section operates so as to direct the court not to make a spent conviction order 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 in par (b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
It is well‑established that once the preconditions for the exercise of the power to make a spent conviction order are met, the court has a discretion, not an obligation, to make (or not make) a spent conviction order: R v Tognini & Mcguire [2000] WASCA 31; (2000) 22 WAR 291 [24]; Wright v McMurchy [2012] WASCA 257 [59]. The discretion is to be exercised having regard to the following propositions:
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 a conviction will be a matter of record with all the consequences that may entail into the future;
4.The court should 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 set aside; and
5.The exercise of the discretion involves consideration of the interests of the offender and the public interest: R v Tognini [27] ‑ [28]; Wright v McMurchy [59]; Frewen v Dalgreen [2014] WASC 407 [18], [20] ‑ [21]; Wong v Barker [2017] WASC 311 [39].
The grounds of appeal
The appellant's three grounds of appeal are expressed in the following terms:
1.The learned magistrate's refusal to make a spent conviction order resulted in a miscarriage of justice.
Particulars
1.The quantity of cannabis involved was small (about 4 grams).
2.There were two reports before the sentencing magistrate from a senior counsellor at Cyrenian House and a psychologist Dr Watts that indicated the offender had engaged in drug rehabilitation and counselling and was unlikely to offend in the same manner again.
3.There was material before the sentencing magistrate that indicated a conviction for this offence could adversely affect the offender's career prospects if not spent.
4.The sentencing magistrate ought to have found that, having regard to:
4.1the offender's previous good character or that the offence of possession of 'about 4 grams' of cannabis for personal use was trivial, and
4.2his personal circumstances,
the offender should be relieved immediately of the adverse effects that the conviction might have on the offender.
2.The magistrate's finding that he could not conclude that the offender was unlikely to reoffend was an error of fact.
Particulars
2.1there was evidence that the offender had engaged in counselling and therapy after the commission of the offence;
2.2there was evidence from a senior counsellor from Cyrenian House that the offender's presentation at counselling was consistent with having ceased ketamine and cannabis use since attending counselling;
2.3there was expert opinion evidence from [Dr] Watts that there was every likelihood that [the offender] will actively avoid substance abuse in the future;
2.4the expert opinion evidence of [Dr] Watts was not challenged by the prosecution or controverted by other expert evidence; and
2.5it was not open on the evidence to conclude that the offender was likely to commit such an offence again.
3.The magistrate failed to take into account a relevant consideration at the date of sentencing, namely the unchallenged expert opinion evidence that there was every likelihood that [the offender] will actively avoid substance abuse in the future.
It is convenient to deal first with ground 2, followed by ground 3 and then finally ground 1.
Ground 2
Although ground 2 as expressed is that the magistrate made an error in finding that he could not conclude that the appellant was unlikely to reoffend, the complaint made by the appellant, stated more precisely, is that the magistrate erred in finding that he could not conclude that the appellant was 'unlikely to commit such an offence again' (emphasis added): Sentencing Act, s 45(1)(a). I take the reference to 'such an offence' to mean an offence of a similar kind to that for which the offender has been convicted which, in the circumstances of the present case, means a drug‑related offence: Hull v Castledine [2005] WASC 252 [17].
Section 45(1)(a) requires a conclusion that the offender is unlikely to commit such an offence again, not that the offender will definitely not commit such an offence again: Lee Suarez v Cutler [2012] WASC 171 [25].
The appellant's submission is that in light of the reports of Mr Snell and Dr Watts it was not open to the magistrate to find that it was not unlikely that the appellant would commit a drug‑related offence again. The respondent submits that it was open on the evidence before the magistrate for his Honour to find that he was not satisfied that the appellant was unlikely to commit a drug related offence again and that his Honour did not therefore err in arriving at such a finding. In order to deal with the appellant's submission it is necessary to make some more detailed reference to the reports of Mr Snell and Dr Watts.
In his report Mr Snell confirmed that the appellant was currently engaging in non‑residential counselling at Cyrenian House, and that he was attending in regard to his ketamine and cannabis use and other related issues. Mr Snell stated that the appellant had attended three sessions on 17 August 2017, 31 August 2017 and 14 September 2017, and that his next appointment was scheduled for 5 October 2017.
Mr Snell stated that the appellant had engaged well in the counselling process, and 'appeared to be reflecting on his past choices and decisions and how he can now best support himself to make helpful choices'. He stated that the appellant had reported that he had ceased ketamine and cannabis use since attending counselling and that the appellant's presentation at counselling was consistent with his assertions in this regard.
Mr Snell pointed out in his report that the issues covered in the counselling sessions with the appellant were harm minimisation (which included mindfulness with intention to commitment to change, learning to manage cravings by delaying use, healthy distractions, consequential thinking and managing self‑talk around drug use), identifying and managing high risk situations, and changes in lifestyle so as to avoid high risk social situations.
Dr Watts in his report confirmed that he had seen the appellant for three appointments and that an additional appointment had been scheduled for shortly after the appellant's sentencing. He noted that the frequency of the appellant's appointments had been dictated more by his availability than the availability of the appellant.
Dr Watts stated that the appellant was motivated to participate in the therapy sessions, had a keen mind and appeared to benefit from the sessions. He stated that while the treatment period had been relatively short he and the appellant had covered 'some quite significant ground'.
Dr Watts noted that the appellant had grown up in a 'relatively normal' family, that he had attended a private high school, that he had attended university and studied engineering, that he was in the early stages of his career, and that he was employed as a structural engineer and enjoyed his job.
Dr Watts stated that the appellant had reported that he had stopped all drug use. He stated that the appellant was 'highly remorseful of his offending and significantly aware of the consequences of his drug use'. He stated that the therapy had involved a 'variety of techniques including insight therapy'.
Dr Watts concluded his report by stating that in his opinion the appellant did not have a major substance abuse issue 'to start with', that 'this experience' had been a tremendous 'wake up call' for the appellant, and that he considered that there is 'every likelihood that [the appellant] will actively avoid substance abuse in the future'.
It is, in my view, fair to say that the above referred to uncontradicted content of the reports of Mr Snell and Dr Watts provided a basis for concluding that the appellant was unlikely to commit a further drug‑related offence. The reports revealed that the appellant had ceased using cannabis and ketamine, had on his own volition embarked upon a course of counselling and therapy directed at ensuring that he did not relapse into drug use, had insight into the adverse consequences of his prior drug use, and was gainfully employed. In addition, the report of Dr Watts contained the expressed expert opinions that the appellant did not, prior to engaging in counselling and therapy, have an entrenched substance abuse problem, and that there 'was every likelihood' that the appellant would actively avoid substance abuse in the future.
Against the content of the reports the magistrate took into account that the appellant had committed the offence within approximately nine months of committing the drug paraphernalia offence and the ketamine offence, within approximately three months of being convicted of the drug paraphernalia offence in respect of which he had been granted a spent conviction order, and while he was on bail for the ketamine offence. Indeed, it is clear from a reading of the magistrate's sentencing remarks that it was this sequence of events that led his Honour to find that he could not conclude that the appellant was 'unlikely to commit such an offence again' within the meaning of s 45(1)(a). As his Honour said (ts 8):
The Act requires for a spent conviction, firstly, that I consider - should consider it's unlikely that you're - unlikely to commit such an offence again and, having regard to the fact that the offence is trivial, or your previous good character.
Firstly, in relation to your (sic) likely to reoffend, at the time of this offence, you were on bail for a District Court selling or supplying ketamine and, in addition to which, in April, you appeared before this court for possession of drug paraphernalia and received a spent conviction. If those two aspects or matters themselves, because you would have been advised that you were unlikely to get another spent conviction, wouldn't stop you from having further drugs in your possession, it's a bit hard to see how I can come to the conclusion that you're unlikely to reoffend, even though you have now undertaken some drug rehabilitation, in addition to which the other - well, the other issue is either the offence is trivial or you're of good character.
There was no evidence before the magistrate that the appellant had been advised by the court that had previously granted him a spent conviction order that he would be 'unlikely to get another spent conviction'. In any event, if it is assumed that the appellant was told by the court that had previously granted him a spent conviction order that he would be unlikely to be given another spent conviction order this fact, while of relevance to the likely sentencing outcome for any reoffending on the part of the appellant, was not relevant to the question whether the appellant was, at the time of appearing before the magistrate, unlikely that he would again commit a drug related offence. Accordingly, the magistrate, by making the finding that the appellant would have been told by the court that had previously granted him a spent conviction order that he would be 'unlikely to get another spent conviction', and by relying on this finding in concluding that he was not satisfied that the appellant was 'unlikely to commit such an offence again' within the meaning of s 45(1) made a material error.
If the only material before the magistrate had been the information relating to the appellant's prior record and his commission of the ketamine offence, his Honour's decision that he could not conclude that it was unlikely that the appellant would again commit a drug related offence would in my view be very difficult to challenge. However, this was not, of course, the position. The magistrate had before him the uncontradicted reports which did in my view, and as I have already indicated, provide a basis for concluding that the appellant was unlikely to commit a further drug‑related offence. Moreover, it needs to be borne in mind in this context that it was only since committing the offence that the appellant had engaged in the counselling and therapy. The case is not one in which the appellant committed the offence despite having already engaged in some counselling and therapy.
In summary, when I take into account the matters revealed by the reports, including the appellant's past personal circumstances, his personal circumstances at the time of sentencing (specifically that he was in gainful employment as a project engineer), and the progress that he had made since engaging in counselling and therapy, I am persuaded, despite the appellant's prior conduct in committing the drug paraphernalia offence and the ketamine offence, that the magistrate did make the error of fact alleged. In my opinion it was not open to the magistrate, on the material that was before him, to find that he could not conclude that it was unlikely that the appellant would commit a drug‑related offence again.
If contrary to my above expressed conclusion it was open to the magistrate to find that he could not conclude that it was unlikely that the appellant would commit a drug related offence again, then the error in the magistrate's reasoning process which I have identified (relating to his reliance on a finding that the appellant would previously have been told that he would not receive another spent conviction order) means that the question whether the magistrate's finding was correct falls to be considered afresh by the court. Considering the question afresh, I am satisfied on the evidence that was before the magistrate that the appellant was, at the time of sentencing, 'unlikely to commit such an offence again' within the meaning of s 45(1).
Section 14(2) of the CAA provides that even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. Accordingly, the question which remains so far as this ground of appeal is concerned is whether the error that I have found the magistrate made resulted in a substantial miscarriage of justice. This is a question that can only be answered after I have dealt with the remaining grounds of appeal.
Ground 3
Ground 3 is founded on the above referred to opinion expressed by Dr Watts that 'there is every likelihood that [the appellant] will actively avoid substance abuse in the future'.
There is no question that the expert opinion of Dr Watts was relevant to the question whether or not the requested spent conviction order should be made. Nor is there any question that a failure by the magistrate to take Dr Watts' expert opinion into account in deciding whether to make the requested spent conviction order would constitute an error. The issue, however, is whether the appellant has established that the magistrate did in fact fail to take this aspect of Dr Watts' expert opinion into account.
It is the case that the magistrate did not make any express reference in his brief sentencing remarks to Dr Watts' opinion that there was 'every likelihood' that the appellant would 'actively avoid substance abuse in the future'. Indeed, his Honour's only reference to the reports of Mr Snell and Dr Watts was his statement in the above cited portion of his remarks that the appellant had 'undertaken some drug rehabilitation'. However, during his plea in mitigation the appellant's counsel made express reference to the reports. Counsel submitted that both of the reports gave 'reason to suggest there's every likelihood that [the appellant] will avoid substance abuse in the future', and that the 'preponderance of evidence based on the reports' was that the appellant 'is not likely to commit this offence again' (ts 4). Counsel also submitted that 'both of the counselling reports' suggested that the appellant was 'abstinent and willing and likely to remain abstinent' (ts 6), and that the evidence 'is all one way in that regard' (ts 6).
The fact that the magistrate did not expressly refer in his sentencing remarks to Dr Watts' expressed opinion that 'there is every likelihood that [the appellant] will actively avoid substance abuse in the future' is something that needs to be borne in mind in deciding if his Honour did fail to take into account Dr Watts' opinion. However, when I view the sentencing remarks in the context of the submissions made by counsel just a few moments previously in reliance on Dr Watts' report which were to the effect that the evidence supported the conclusion that the appellant was not likely to offend again, I am not persuaded that the failure by the magistrate to expressly refer to this aspect of Dr Watts' opinion justifies the conclusion that his Honour failed to take the opinion into account. Rather, I am satisfied that the magistrate did have regard to Dr Watts' opinion but nevertheless (erroneously) found that that he was unable to conclude that the appellant was unlikely to commit a further drug related offence.
For the reasons I have stated this ground of appeal has no reasonable prospects of success. I would refuse leave to appeal on this ground.
Ground 1
The first ground of appeal contains, in substance, three assertions. The first assertion is that the magistrate made an error in finding that the offence was not trivial. The second assertion is that the magistrate made an error in finding that the appellant was not of previous good character. The third assertion is that the magistrate's decision not to make a spent conviction order resulted in a miscarriage of justice. I will deal with each of these assertions in turn.
Was the offence trivial?
The magistrate did not, in his sentencing remarks, make any express statement to the effect that he was persuaded that the offence was not trivial. However, it is clear from an exchange between the magistrate and the appellant's counsel that occurred immediately before his Honour made his sentencing remarks that his Honour's finding was that the offence was not trivial. More specifically, in response to the appellant's counsel's submission that the offence was trivial the Magistrate said the following (ts 7 ‑ 8):
Well, I don't accept that – that's a different argument but I don't accept that argument. He has got an illicit substance. It's not a trivial offence. Cannabis does a lot of damage in the community and so he has to rely upon other provisions and he has got some difficulties. That's my view of it.
The appellant's contention that the magistrate erred in finding that the offence was not trivial is founded on the amount of cannabis involved, namely 4 grams. In support of this contention the appellant points to the fact that given the amount of cannabis involved in the commission of the offence, the offence was a 'minor cannabis related offence' as defined in s 8B of the MDA.
It is clear that when a minor cannabis related offence can be dealt with without proceeding to a prosecution by a police officer issuing a cannabis intervention requirement under s 8E(1) of the MDA, the offence should be considered as trivial for the purposes of s 45(2)(b)(i): Harper v Page [2004] WASCA 267 [42] ‑ [46]; HJT v Reichelt [2017] WASC 301 [27]. However, this is not a case in which the appellant's 'minor cannabis related offence' could have been dealt with by way of a cannabis intervention requirement. The offence could not have been dealt with by way of a cannabis intervention requirement because the appellant had, at the time of committing the offence, been convicted of the drug paraphernalia offence: MDA, s 8E(4)(a). Thus the reasoning in Harper v Page and HJT v Reichelt is not directly applicable to the circumstances of the appellant's case.
In addition, it is worth noting in this context that in Harper v Page [41] Le Miere J expressed the view that in general an offence is not to be regarded as trivial if it is a typical example of the behaviour prescribed for such an offence. His Honour's view was that there 'must be something that distinguishes the circumstances of the offence under consideration from what is to be regarded as a typical breach of the particular provision' [41]. In that case the circumstances of the offence which in his Honour's opinion distinguished it from a typical breach of s 6(2) of the MDA was that the offence, given the amount of cannabis involved (1.7 grams), was under the then applicable legislation able to be dealt with without proceeding to prosecution. As I have already said, the appellant's case does not fall into this category.
In Riley v Gill (unreported; SCt of WA; Parker J; Library No 970731; 8 December 1997), the offender was convicted of an offence of being in possession of approximately 1 gram of cannabis. In dismissing the offender's appeal Parker J held that the circumstances of the offence, which involved the offender making a conscious decision to have the cannabis in his personal living quarters at the mine site at which he worked, could not be regarded as trivial for the purposes of s 45(1)(b)(i): [49].
In Tilbrook v Cole [2001] WASCA 94 [55] Hasluck J held, in reliance on the decision in Riley v Gill, that it was open to a magistrate to hold that the circumstances of an offence of possessing cannabis were not trivial notwithstanding that the amount of cannabis in question was less than one gram. In Tillbrook v Cole the cannabis the subject of the offence was found in the lounge room of the offender's house.
In NLJ v Martin [2010] WASC 310 [33] Murray J held that the possession of a small quantity of cannabis (2.5 grams mixed with tobacco in four cigarettes) was a trivial offence for the purposes of s 45(1)(b)(i).
In the above referred to decision in HJT v Reichelt the amount of cannabis the subject of the offence was 3.4 grams.
In summary, and unsurprisingly, the authorities do not provide any definitive guidance as to when a possession of cannabis offence involving a small amount of cannabis which cannot be dealt with by way of a cannabis intervention requirement will qualify as a trivial offence for the purposes of s 45(1)(b)(i). What is revealed by the cases, however, is that the fact that a person is found in possession of a small amount of cannabis does not necessitate the conclusion that an offence is trivial for the purposes of the section.
The present case is not one in which the appellant was found in possession of the cannabis at a location outside of his own private residence, for example, at his workplace. Moreover, even though the offence could not be dealt with by way of a cannabis intervention requirement, it must be said that the quantity of cannabis in question was on any measure small. It was well below the amount of cannabis that is prescribed as being the maximum amount before which an offence of possessing cannabis will not qualify as a 'minor cannabis related offence', namely not more than 10 grams. In these circumstances, and while accepting, as the magistrate noted, that cannabis is a drug which does cause damage to members of the community, I am persuaded that the magistrate did make an error in concluding that the offence was not a trivial offence within the meaning of s 45(1)(b)(i). In my view it was a trivial offence within the meaning of the section. To the extent that it is necessary, in order to arrive at this conclusion, to find that the offence was something other than a typical example of the behaviour prescribed for such an offence (an issue in respect of which I express no concluded view), in my opinion the fact that the offence was a 'minor cannabis related offence' as defined in s 8B of the MDA, and involved an amount of cannabis that was significantly less that the maximum amount before which an offence will not qualify as a ‘minor cannabis related offence’, satisfies this requirement.
Was the appellant of previous good character?
The magistrate stated his reasons for deciding that the appellant was not of previous good character within the meaning of s 45(1)(b)(ii) in the following terms (ts 8):
It's very difficult to come to the conclusion – in fact, I don't come to the conclusion – that you're a person of good character, given that, two months before, you were convicted in this court for having drug paraphernalia and you were on bail for a District Court charge of possession of ketamine with intent to sell or supply, a charge to which you – I'm told you have pleaded guilty and you're going to be sentenced in the District Court.
The appellant submits, in substance, that the magistrate in deciding if the appellant was of previous good character was not permitted to take into account that the appellant had pleaded guilty to the ketamine offence. The appellant makes this submission on the basis that the appellant had not, as at the date of being sentenced for the offence, been convicted of the ketamine offence. All that had occurred is that the appellant had pleaded guilty to the ketamine offence and had been committed to the District Court to be dealt with on indictment for the offence at which time he would, on pleading guilty to the offence on the indictment, be convicted.
I do not accept the appellant's submission in this regard. By pleading guilty to the ketamine offence in the Magistrates Court (on the factual basis explained to the magistrate by the appellant's counsel) the appellant had acknowledged his guilt for the offence. There was no suggestion made to his Honour that the appellant would not maintain his plea of guilty to the ketamine offence when he appeared in the District Court. In these circumstances it was, in my opinion, open for the magistrate to take into account the appellant's admitted commission of the ketamine offence in deciding if the appellant was of previous good character. The magistrate did not err in doing so.
The appellant further submits that the magistrate made an error of law by asking himself the wrong question, namely whether the appellant was a person of good character, when the statutory requirement in s 45(1)(b)(ii) is to 'have regard to' the previous good character of the offender. The appellant submits that the fact that a person has a prior criminal record does not necessarily preclude a finding that the person is of previous good character. The appellant further submits that there was evidence before the magistrate of the appellant's previous good character, and that the magistrate, in light of this evidence, and despite the appellant's prior conviction for the drug paraphernalia offence, should have found that the appellant was of previous good character. The evidence referred to by the appellant in this regard consists of comments made by Dr Watts in his report about the appellant, the letter written by the appellant's work colleague Mr Faria, and the letter written by Mr Panag from Uni Camp.
In my opinion, the stipulation contained in s 45(1)(b)(ii) that the court is to 'have regard to the previous good character of the offender' necessitates a finding by the court that the offender is a person of previous good character: Hull v Castledine [21] – [28]. Accordingly, I do not consider that the magistrate erred by in effect asking himself if the appellant was a person of good character.
I accept that it was open for the magistrate to find, on the basis of Dr Watts' report and the letters written by Mr Faria and Mr Panag, that the appellant had a number of good characteristics and attributes, that he had over a number of years engaged in volunteer work with Uni Camp (a student volunteer organisation involved in assisting disadvantaged children), that he was in stable employment, that he was a valuable employee to his employer, and that he had good future prospects. Nonetheless, in my opinion the appellant's commission of, and prior conviction for, the drug paraphernalia offence within such a relatively short time prior to his commission of the offence, and the appellant's commission of the ketamine offence such a relatively short time prior to his commission of the offence, meant that although it was open to the magistrate to conclude that the appellant had some good characteristics and attributes as well as good prospects, it was not open to his Honour to find that the appellant was of previous good character within the meaning of s 45(1)(b)(ii). I therefore do not accept the appellant's contention that the magistrate made an error in finding that the appellant was not of previous good character.
Did the magistrate's decision not to make a spent conviction order result in a miscarriage of justice?
It follows from my above stated conclusions in relation to ground 2 and the first of the asserted errors the subject of this ground of appeal, that the appellant did establish the pre‑conditions for the exercise of the power to make a spent conviction order and that the magistrate erred in arriving at a contrary conclusion. The question which therefore remains is whether the magistrate's errors and consequential decision not to make a spent conviction order resulted in a miscarriage of justice. In determining this question the court, given the established errors, is able to consider afresh whether a spent conviction order should be made.
The appellant submits that a refusal to make a spent conviction order will impact adversely on his career prospects with his existing employer and any future employer, and further that there is no real public interest in the appellant's conviction for the offence being recorded and exposed to public scrutiny. The appellant submits that in these circumstances the court should exercise its discretion to make a spent conviction order.
In this context the appellant refers to R v Tognini [28] in which it was recognised by Murray J (Malcolm CJ and Wallwork J agreeing) that a circumstance showing that it may be desirable to immediately set aside the adverse effect of a conviction by making a spent conviction order may often be found in the fact that the conviction, if not declared spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment.
In support of his contention that a refusal to make a spent conviction order will impact negatively on his career prospects, the appellant points to the letter written by Mr Faria. It is apparent from the letterhead on Mr Faria's letter that Mr Faria and the appellant are employed by a construction and engineering company. In his letter Mr Faria describes himself as the appellant's 'colleague and superior of three years' and refers to the appellant's contribution to his employer company as a project engineer. In the penultimate paragraph of his letter Mr Faria says the following:
It is my understanding that our company policy and industry standards will inhibit [the appellant] from future development of his career if he is to receive a criminal charge. Police clearance checks are commonplace in the large scale engineering works [the appellant] is currently involved (sic).
Although not expressly stated, the point that Mr Faria is apparently making in his letter is that if the appellant's conviction is not declared spent he will not be able to obtain a police clearance and consequently may not be able to work as a project engineer in large scale engineering works.
The appellant also relies in this context on some additional material that I permitted to be adduced as evidence on the appeal: CAA, s 40(1)(e). The material consists of a letter from the appellant's current employer to the appellant dated 24 March 2014 to which is attached the appellant's employment agreement. Clause 6 of the employment agreement provides, so far as is relevant:
The Company may at its sole discretion terminate your employment at any time, without notice or payment in lieu of notice, in circumstances including but not limited to where:
…
(e)You commit or are convicted of an offence or offences precluding or inhibiting the further performance of your duties under [the employment agreement].
Further, cl 4.3(b) of schedule 2 to the employment agreement relevantly provides:
During the course of your employment you have a responsibility to notify the Company of changes to your personal circumstances, where these are relevant to your ability to carry out your role. An example of such changes may include:
…
(b)Conviction of a criminal offence;
Thus there is little doubt that if the appellant's conviction for the offence is not declared spent the appellant will be required to disclose the fact of the conviction to his employer. The disclosure of the conviction may lead to termination of his employment.
Whether or not disclosure by the appellant of his conviction for the offence will lead to termination of his current employment, I am satisfied, on the basis of Mr Faria's letter and the employment agreement, that a refusal to make a spent conviction order in respect of the offence might impede the appellant's employment and career prospects as a project engineer with his current employer and generally. This factor weighs in favour of the making of a spent conviction order.
As to the issue of the public interest, I accept the submission made by the appellant that there is no real public interest in the appellant's conviction for the offence being recorded and exposed to public scrutiny. There is no suggestion that it is necessary to refuse to declare the conviction spent in order to protect the community. Nor, in my view, can it be said that any business that is in the future considering employing the appellant to work as a project engineer in engineering works will have any real interest in being able to ascertain that the appellant was in July 2017 in possession of 4 grams of cannabis for personal use. In my view this is not a case in which the appellant's short lived cannabis use issues will be of any real relevance to a prospective employer's assessment of the appellant's reliability or suitability for project engineering work.
On the other hand there are two circumstances in the appellant's case that in my view militate against the conclusion that the making of a spent conviction order is appropriate. The first of these circumstances is that the appellant had only been given the benefit of a spent conviction order for an offence similar in nature to the offence approximately three months prior to committing the offence. Although it is clear that the fact that a person has been granted a spent conviction order in the past does not necessarily preclude a court from granting a further spent conviction order to that person (NLJ v Martin [15] ‑ [17], [36] ‑ [40]), to grant a spent conviction order to the appellant for an offence committed by him so soon after he had been given the benefit of a spent conviction order for a similar offence may be said to undermine the established proposition that 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. There is, in my view, a need for the courts to make clear that an offender who is given the benefit of a spent conviction order on one occasion should not expect to be accorded the same benefit again if he or she commits another similar offence within a short period of time of being granted the spent conviction order.
The second of the circumstances which in my view militates against the making of a spent conviction order is that the appellant committed the offence after he had committed, and while he was on bail for, another offence, namely the ketamine offence.
The appellant is 23 years old. He is therefore a relatively young man. Since being convicted of the offence he has taken steps to address his cannabis and ketamine use issues by way of counselling and therapy and he is unlikely to revert to any form of illicit drug use. He has a number of good characteristics and good prospects. He has undertaken a significant course of tertiary study. He is gainfully employed as a project engineer. A refusal to make a spent conviction order may impact adversely on his future career prospects as a project engineer. Further, the offence was right towards the lower end of the scale of seriousness for drug related offences. Ultimately, when I weigh these factors against the factors that I have identified that militate against the granting of a spent conviction order, I am persuaded that this is a case in which it is appropriate to exercise the discretion to grant a spent conviction order in respect of the offence. In my view this is a case in which to relieve the appellant of the adverse effects of his conviction will positively aid in his rehabilitation in a way which may best be seen to accord with the interests of the community: R v Tognini [29].
It follows that in my view the magistrate's refusal to make a spent conviction order did result in a miscarriage of justice.
Conclusion
For the reasons I have stated, I would make orders as follows:
1.Leave to appeal on grounds 1 and 2 is granted;
2.Leave to appeal on ground 3 is refused;
3.The appeal is allowed;
4.The decision of the magistrate is varied by granting a spent conviction order in respect of the offence.
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 DERRICK14 JUNE 2018
4
10
3