M v Di Gregorio
[2014] WASC 255
•18 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: M -v- DI GREGORIO [2014] WASC 255
CORAM: SIMMONDS J
HEARD: 30 APRIL 2014
DELIVERED : 30 APRIL 2014
PUBLISHED : 18 JULY 2014
FILE NO/S: SJA 1121 of 2013
BETWEEN: M
Appellant
AND
GUISEPPE DI GREGORIO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MR R DECKE
JUSTICE OF THE PEACE
File No :PE 39934 of 2013
Catchwords:
Criminal law - Appeal against sentence - Whether order should be made for spent conviction
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2)
Magistrates Court Act 2004 (WA)
Sentencing Act 1995 (WA), s 39, s 45(1)
Spent Convictions Act 1988 (WA)
Result:
Appeal allowed
Spent conviction order
Category: B
Representation:
Counsel:
Appellant: Mr N R Barber
Respondent: Ms A B Preston-Samson
Solicitors:
Appellant: NR Barber Legal
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Furtak v Timmers [2001] WASCA 65
Game v Whitehead [2000] WASCA 50
Harper v Page [2004] WASCA 267
JJA v Yow [2008] WASC 69
Krigen v Conti [2003] WASCA 114
Mohamed v Wellinger [2012] WASC 470
NLJ v Martin [2010] WASC 310
Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SIMMONDS J:
(This judgment was delivered extemporaneously on 30 April 2014 and has been edited from the transcript.)
Introduction
This is an appeal against the failure by a Justice of the Peace in proceedings in the Magistrates Court to make a spent conviction order in respect of an offence of driving with a prescribed illicit drug present in the offender's oral fluid. The respondent has conceded that the appeal should be allowed, and further indicated no wish to be heard against the making of orders on the appeal of the kind that I will indicate are appropriate.
I have determined that the appeal should indeed be allowed on the first of the two grounds upon which the appeal was made, and that orders should be made that include the granting of a spent conviction order as sought. The following are my reasons.
Background
The following is taken for the most part from the submissions made to the Justice by counsel for the appellant, who was also counsel for the appellant before me, in support of an application 'to suspend conviction for a traffic offence' on 25 September 2013 and from the affidavit in support of the appeal of the appellant sworn on 1 October 2013. No issue was taken with any of the following by the respondent.
It was not in contest before me that counsel's application to the Justice was for the making of a spent conviction order. Notwithstanding the language of the Justice's determination, which echoed the language of counsel to the Justice, the Justice determined that application by declining to make the order.
The appellant is approximately 45 years old. He has no criminal record and no traffic record, save for minor traffic infringements. He has been driving for some 27 years.
He has a degree with honours from a Western Australian university, and until mid‑May 2013 he held a position in a research and teaching centre at a Perth university. He had worked at that university for some 20 years.
On 3 July 2013, the appellant, on a visit to a friend, and after initially declining to do so, accepted an invitation to take a substance that he was told was cocaine. It is the first time he had ever tried that drug, or indeed any other illicit drug like it, leaving aside experiments with cannabis decades earlier. In fact, the drug he was invited to take and did take was methamphetamine. The appellant did not realise that at the time, nor indeed subsequently, until the results of a test that I will describe became known to him.
The appellant had accepted the invitation to take what he thought was cocaine while suffering the physical and emotional effects of the loss of his employment, as well as depression, anxiety and insomnia from a variety of causes. He had been suffering from some of those causes for some time; others were very recent. Further, on 2 July 2013, he had visited the grave of his father that being a date of some significance to him, and that had left him very upset.
By 6 July 2013, the appellant had recovered sufficiently from a number of the conditions I have referred to that he considered himself able to attend a social gathering in Scarborough and to act as designated driver for those at the gathering. He drove friends back to their home in Bassendean. During the trip from Bassendean to his own home, he was pulled over by a police vehicle on Mitchell Freeway and given both a breath and saliva test.
The breath test did not return a result for illicit substances, but the saliva test did, for methamphetamine. There was some delay apparently in the production of those results.
The result of the saliva test was that the appellant was charged that, on 6 July 2013, he drove a vehicle on Mitchell Freeway in Perth while there was a prescribed illicit drug, methamphetamine, in his oral fluid, contrary to Road Traffic Act 1974 (WA), s 64AC(1).
On 25 September 2013, the appellant, who was represented as I have indicated, pleaded guilty to the charge before Justice of the Peace Decke in the Magistrates Court in Perth. Counsel for the appellant made oral submissions, as I have indicated, in support of an application for a spent conviction order.
The determination of the Justice of the Peace as to penalty and the application came immediately after that submission. That determination appears from the transcript as follows:
His Honour: I - the nature of the charge - - -
ACCUSED: If I may - - -
HIS HONOUR: - - - is that it's a prescribed illicit drug was found present in the oral fluid. Even if it was mistakenly a non‑illicit, it's still not a defence as we know under 64 AC, subsection (5). From the bench, we are not going to issue a suspended conviction order and on matter 39934 charges approved, conviction is recorded. There will be a fine of $250 in court costs of $129.35. Thank you Mr Barber. Thank you. Please take a seat (ts 4).
By appeal notice dated October 2013 and filed in the court on 22 October 2013, the appellant applied for leave to appeal against the sentence, which it was common ground before me was in fact an appeal as to the failure to make a spent conviction order. There were two grounds of appeal as follows, and I quote them from the appeal notice:
1.The learned Justices [sic] discretion miscarried when gave [sic] no reasons for declining the application for a spent conviction order. Hence, it cannot be determined whether the decision was the proper exercise of discretion.
2.In any event, the learned Justices [sic] discretion miscarried when they determined not to grant a spent conviction for the offence:
Particulars
(a)The Appellant was and is of good character;
(b)There was and is no likelihood he will reoffend;
(e)There was and is good reason for him to be immediately relieved of the adverse effect that the conviction might have on him.
By orders made by Corboy J on 12 December 2013, the application for an extension of time in which to appeal and the application for leave to appeal were to be heard at the same time as the appeal.
In view of the date on which the appeal notice was lodged with the court, it was not apparent to me that it was necessary that there be, and the application notice did not itself request, an extension of time for leave to appeal. Neither counsel was able to indicate to me why an order for consideration of an application for extension of time was made. To the extent any such order is necessary, it seems to me that indeed it should be made. There seems to me to have been, at most, only a very short period of time after the period allowed for in s 10(3) of the Criminal Appeals Act 2004 (WA) to have been involved here, and the merits of the case, as will become apparent, are very strong. In those circumstances, to the extent it is necessary, I would grant the necessary extension.
Further, on my analysis of the merits of the appeal, leave to appeal would be granted on at least the first ground. This is on the well‑understood test for the application of the requirement in Criminal Appeals Act s 9(2) from Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA) that the ground have 'a rational and logical prospect of succeeding'. The basis for such success in this case is that the first ground states an error of law. I should add that it is unnecessary in view of my conclusions to consider the second ground.
The law applicable to the first ground
I acknowledge my considerable debt to the very convenient statement for my purposes of the law applicable in this case in Mohamed v Wellinger [2012] WASC 470 (Edelman J):
Section 39 of the Sentencing Act 1995 (WA) provides for the power to make a spent conviction order as one of the sentencing options. The power to make a spent conviction order arises whenever a fine is imposed.
Section 45(1) 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.'
The combination of s 39 and s 45 means that the conditions in s 45(1) only enliven discretion to make a spent conviction order. They do not mandate such an order. The power to make a spent conviction order has been described as an exceptional power, and it is a matter of discretion whether it should be exercised.
In R v Tognini [[2000] WASCA 31; (2000) 22 WAR 291], in passages which have been cited and applied numerous times in this State, including by the Full Court and Court of Appeal of this Court, Murray J said:
'Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre‑conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act [1988 (WA)] that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
...
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.'
...
... the discretion to make a spent conviction order requires the court to have regard not only to the interests of the offender but also to the public interest. One aspect of the public interest is general deterrence which includes the exposure to public scrutiny of a conviction which may have a general deterrent effect. As Burchett AuJ said in Brewer v Bayens [[2002] WASCA 271; (2002) 26 WAR 510, 516 [18]]:
'If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from response to inquiries, and placing a legal impediment in the way of some inquiries. The court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, 'the preservation of confidence in the judicial system' requires publicity…'
...
A magistrate will not always be required expressly to advert to whether a spent conviction should be imposed. In relation to issues of law, s 31 of the Magistrates Court Act 2004 (WA) requires that a magistrate 'need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so'. A failure expressly to mention a sentencing option does not necessarily mean that it was not considered.
Whether a magistrate should advert expressly to consideration of a spent conviction will depend upon all the circumstances. The reasons given by a magistrate must be read as a whole in all the circumstances and the reasons include findings which can be inferred. A relevant circumstance is whether it is reasonably arguable that the power to grant a spent conviction is enlivened. Another relevant circumstance is whether a spent conviction is sought; if it is not sought, the reasons of the learned magistrate would be expressed in response to matters not canvassed in argument. However, in relation to the factor of whether a spent conviction is sought, it is also a relevant factor whether an offender is legally represented.
...
... In relation to exercises of discretion, it is a basic principle that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion [19] ‑ [22], [33], [36] ‑ [37], [40].
I note in particular from [40] the statement appearing at the end of that paragraph:
However, it may be that an error of law could occur if the discretion is enlivened but there is no express reference by the magistrate to reasons for the exercise of discretion
I note that there is support for the proposition that it is an error of law for a sentencing officer not to state why a spent conviction which had been requested was not made: see Furtak v Timmers [2001] WASCA 65 [35] (Roberts‑Smith J). Whether that statement is wholly compatible with Mohamed [36] ‑ [37], is a matter I do not consider that I am required to determine. That is because of the following matters.
Application of the law
It is not in contest in this case that the requirements of the Sentencing Act 1995 (WA) s 45(1)(a) and s 45(1)(b)(ii) were satisfied. I agree. Thus, the discretion to make a spent conviction order was enlivened.
In Mohamed, there was no reference in the reasons of the magistrate to whether or not a spent conviction order should be made. However, it appears that that case was decided on the basis that, as a result of new or fresh evidence there, it was apparent to Edelman J that the discretion to make a spent conviction order was enlivened. I note [46] and [49] read with [41].
In this case, there was no statement in the reasons of the Justice of the Peace why the Justice declined to make the order. Further, it seems to me that it is not possible to infer any such reasons from anything else stated by the Justice in the matter, or otherwise appearing from the context as shown by the transcript of the hearing. This is notwithstanding that the transcript shows a lengthy submission by counsel for the appellant in support of the making of a spent conviction order having been made to the Justice. I note in particular that there is no indication from the transcript of a reply to that submission having been made by the respondent on the basis of which it might be suggested, but cannot in this case, that the Justice had implicitly accepted that contrary submission.
In those circumstances, it seems to me to be clear that, on any view, it was an error of law for the Justice to provide no statement of his reasons for declining to make a spent conviction order.
It follows therefore that leave to appeal should be granted on ground 1, and that the appeal should be allowed. This would then take me to the matter of the appropriate disposition of this appeal and the matter of a consequential order.
The disposition of this appeal
The decision of the Justice to decline to make a spent conviction order should be set aside: see Criminal Appeals Act s 14(1)(c).
It was not in contest before me that rather than send the matter back for a fresh determination likely by a differently constituted court, this court should make the decision that should have been made by the court of summary jurisdiction: see Criminal Appeals Act s 14(1)(d).
I note again, as I did at the outset, that this does not represent, so far as the respondent is concerned, a concession or statement as to how my discretion in the determination of the appeal should be made, but rather no wish to put a submission against the disposition I have described being made.
I consider that in this case a decision should be made to make a spent conviction order, and I do so for the following reasons.
I accept that this is not a trivial offence. I so determine by reference to the substance, methamphetamine, involved, and the context of the offence, driving on a major public road. At the same time, it is not apparent to me, and it was not suggested, that the appellant was aware that methamphetamine was in his blood at the time. It was not suggested, and it is not apparent to me, that there was, on the evidence, a matter involving the appellant being intoxicated, or otherwise having his ability to control his vehicle impaired at the relevant time.
There is ample evidence from the affidavit of the appellant that I have referred to as to the circumstances of the offending and the improbability of reoffending, such that it could readily be seen that this offence was significantly out of character for this offender.
Further, I note what appears from the affidavit of the appellant and the material attached to it in support, that the appellant has highly specialised qualifications of a kind placing him in a very specialised employment market, and that his present and prospective employment is such that the possibility of international travel, to which a criminal record would be an impediment, is a matter of some significance.
Further, it seems to me that the matter appearing from the affidavit and the supporting materials is such that, both in relation to the matter of international travel and more generally, there would indeed be a significant adverse effect on the employment of such a specialised person as a result of his conviction.
Finally, I note that there does not appear to me to be any compelling public interest in the conviction remaining on the public record, and the respondent has specifically so accepted.
I also note the authorities showing that spent conviction orders have been made, or the possibility for such orders to be made specifically accepted, in connection with possession of drug offences and offences of driving with a blood alcohol percentage exceeding 0.08%: see NLJ v Martin [2010] WASC 310; JJA v Yow [2008] WASC 69; Harper v Page [2004] WASCA 267; Krigen v Conti [2003] WASCA 114; cf Game v Whitehead [2000] WASCA 50; Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997).
I further note that there does not appear to be any case in which a failure to make a spent conviction order for an offence against Road Traffic Act s 64AC has been the subject of consideration.
In all of those circumstances, it seems to me that it is indeed appropriate in accordance with Sentencing Act s 45 in the exercise of my discretion to make a spent conviction order, and I do so.
It was common ground that the question then arose whether there should be a suppression or at least anonymisation of the name of the appellant and other matters of identification of him in this decision. It must be accepted that an order of either kind would represent an incursion into the principle of open and transparent justice. At the same time, such an order might be appropriate in some cases where spent conviction orders are made: Mohamed [52].
The respondent has indicated no opposition to the making of such an order, and the appellant has specifically requested such an order, or at least approach to the matter of a statement of reasons. With both counsel, I rehearsed why and how anonymisation might proceed, and it was my understanding of both counsel that, for the appellant's part, anonymisation would meet the appellant's objective, and for the respondent's part would fall within the position that the respondent had articulated in the respondent's written submissions.
It seems to me, on balance, that anonymisation and other crafting of the reasons in pursuit of the same aim was appropriate. The particularly sensitive character of at least some of the employment opportunities available to the appellant are such that matters of the kind to which an approach of the kind I have described would be a response are appropriate.
Conclusion and orders
The appeal should be allowed, and leave to appeal on ground 1 accordingly granted. The decision of the Justice not to make a spent conviction order should be set aside. In lieu thereof, a spent conviction order should be made. These reasons, subject to the editing I have described, should be published.
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