Rogers v Kuser
[2015] WASC 334
•14 AUGUST 2015
ROGERS -v- KUSER [2015] WASC 334
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 334 | |
| Case No: | SJA:1032/2015 | 14 AUGUST 2015 | |
| Coram: | TOTTLE J | 14/08/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROSS WESLEY ROGERS TERRENCE RUSSELL KUSER |
Catchwords: | Criminal law and procedure Sentencing Refusal to grant spent conviction order Application for extension of time to bring application for leave to appeal against sentence No miscarriage of justice No error by Magistrate No reasonable prospect of success |
Legislation: | Criminal Appeals Act 2004 (WA), s 9(1) Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c) Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6) Sentencing Act 1995 (WA), s 45(1) |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 R v Tognini [2000] WASCA 31 Samuels v The State of Western Australia [2005] WASCA 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TERRENCE RUSSELL KUSER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 109054 of 2014, PE 109055 of 2014, PE 109056 of 2014, PE 109057 of 2014
Catchwords:
Criminal law and procedure - Sentencing - Refusal to grant spent conviction order - Application for extension of time to bring application for leave to appeal against sentence - No miscarriage of justice - No error by Magistrate - No reasonable prospect of success
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6)
Sentencing Act 1995 (WA), s 45(1)
Result:
Application refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R Williamson
Respondent : Mrs B M Allen
Solicitors:
Appellant : Williamson Criminal Lawyers
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
R v Tognini [2000] WASCA 31
Samuels v The State of Western Australia [2005] WASCA 193
- TOTTLE J:
(This judgment was delivered extemporaneously on 14 August 2015 and has been edited from the transcript.)
1 This is an application for an extension of time within which to bring an application for leave to appeal against the refusal of the making of a spent conviction order.
2 The background to the application is as follows. On 6 November 2014 the appellant was convicted in the Magistrates Court following pleas of guilty of four offences: first, driving without authority contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA); secondly, possession of 1 1/2 grams of cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA); thirdly, possession of two MDMA tablets, contrary to s 6(2) of the Misuse of Drugs Act 1981; and finally, possession of drug paraphernalia, being a glass smoking pipe containing traces of methamphetamine, contrary to s 7B(6) of the Misuse of Drugs Act 1981.
3 The application does not concern the road traffic offence and I will not mention it again.
4 The appellant was referred to the North Metro Community Drug Service via the Pre-Sentence Opportunity Programme, and pursuant to that programme the appellant attended nine counselling sessions.
5 The appellant came back before the court for sentencing on 5 March 2015 and on that occasion was fined $750 in respect of the possession of cannabis offence, $750 in respect of the possession of the ecstasy tablets offence, and $500 in respect of the possession of the drug paraphernalia offence. The appellant applied to the Magistrate for a spent conviction order in respect of his convictions for the drug-related offences.
6 This application is brought in respect of the refusal of that application.
7 The facts were not in dispute and were as follows.
8 At about 7.23 pm on 19 October 2014 the appellant was stopped by police officers when he was driving in Trigg. The police officers established that the appellant had no authority to drive. The appellant tested positive to a preliminary drug wipe. The appellant produced to police officers a small clip seal bag containing approximately 1 1/2grams of cannabis. A second small clip seal bag containing two white ecstasy tablets was found on the ground where the appellant was standing. The appellant did not dispute that the ecstasy tablets were his. In the course of a subsequent search of the appellant's car the appellant directed the police officers to a glass smoking pipe containing traces of methamphetamine.
9 The appellant was taken to a mobile drug testing station, where he tested positive for drugs. The appellant admitted that the drugs and the pipe were owned by him. The appellant contended that the drugs were for his own personal use and this contention was not challenged.
10 The appellant was 31 years old at the time of the offences.
11 At the outset of the plea in mitigation counsel for the appellant foreshadowed an intention to apply for a spent conviction order in respect of the drug offences. By way of mitigation, counsel told the Magistrate that the appellant had been diagnosed with depression and anxiety in 2014 and was prescribed Pristiq. The Magistrate was informed that the appellant had stopped taking Pristiq and, in its place, used cannabis and methamphetamine. It was said that the appellant had not been a heavy user of these substances. Counsel informed the Magistrate that since the offences the appellant had ceased using cannabis and methamphetamine and had returned to using Pristiq.
12 Counsel drew the Magistrate's attention to the fact that the appellant had participated in a Pre-Sentence Opportunity Programme and had completed nine sessions of that programme. An exchange then took place between counsel and the Magistrate in the following terms (ts 3):
HIS HONOUR: Yes, but that report only suggests that he has cut down his methylamphetamine use rather than that he has given it up.
WILLIAMSON, MR: Since October 2014 to March he said he has only used twice in that period, your Honour.
HIS HONOUR: So he's not not using, he's just not using it as often.
WILLIAMSON, MR: He's certainly not using, your Honour. It might have been two relapses, but that's inevitably going to happen in most cases, your Honour. He is employed as a surveyor, your Honour. He did work for Rio Tinto for two and a half years. He's currently at TAFE at East Perth obtaining his Advanced Diploma in Surveying and Spacial Sciences and he's still working part-time whilst at TAFE with Statewest Surveys. Obviously he is required to drive as part of his job being a surveyor, so he will be heavily penalised not having his driving licence for the disqualification periods imposed, your Honour. He earns approximately $500 per week, so he will require time to pay in relation to the fines. Also, and I reiterate, my application for the spent conviction in relation to the drugs charges, your Honour.
13 Up until that point in counsel's submissions there had been no articulation of the basis of the application for the spent conviction order.
14 The Magistrate asked counsel to clarify the basis upon which the application was being made and, in the exchange which followed, counsel identified the following factors as grounds for the making of the spent conviction order: first, references which had been handed up attesting to the appellant's good character; secondly, the fact that the appellant intended to travel later in the year to Canada and the United States to visit friends and it was submitted criminal convictions would prevent him from entering those countries; thirdly, the appellant had no previous criminal convictions; fourthly, the amounts of drugs involved were small amounts and that the offences were trivial on the scale of the offences; and fifthly, the convictions might have an adverse effect on the appellant's employment prospects.
15 I pause there to observe that no submissions were directed specifically to the threshold requirement that the Magistrate be satisfied that the appellant was unlikely to commit such an offence again.
16 At the conclusion of counsel's submissions there was the following exchange about the application for a spent conviction order:
HIS HONOUR Do you put some evidence behind it, some basis for it? The provisions of the Sentencing Act in relation to spent convictions or the Spent Convictions Act?
WILLIAMSON, MR: And that's what I've addressed you on, your Honour, but the good character in the past and also the trivial nature of the offences in the scheme of things.
HIS HONOUR: Would you like to adjourn and think about it?
WILLIAMSON, MR: Other than obtaining a letter from any future employer.
HIS HONOUR: I'm not telling you what you need to do. I'm just suggesting well, do you want to do something about it?
WILLIAMSON, MR: I don't believe there's any purpose in further adjournment, your Honour.
17 Immediately after that exchange the Magistrate gave short reasons for refusing the application, (ts 5), as follows:
All right. In that case the application is refused. You've not satisfied me that the spent conviction order should be made. I haven't been given the grounds under the Act to consider it. The Supreme Court authorities have set out the basis upon which applications can be made. This application is not made in conformity with any of those. Certainly the matters can be dealt with by way of a fine.
18 His Honour then proceeded to sentence the appellant.
19 An appeal of this nature can only proceed with leave. That is provided by s 9(1) of the Criminal Appeals Act 2004 (WA) (the Act). Section 9(2) of the Act provides that leave to appeal should not be given unless the court is satisfied that the ground of appeal has a reasonable prospect of success. Section 9(3) of the Act provides that if leave to appeal is refused on each ground the appeal is taken to be dismissed.
20 In Samuels v The State of Western Australia [2005] WASCA 193 the Court of Appeal examined the words of s 9 of the Act in their context and concluded that a grant of leave under s 9 requires that each ground of appeal should have a rational and a logical prospect of succeeding.
21 The appellant requires an extension of time within which to bring his application. His appeal notice was lodged on 20 April 2015. It is common ground that the notice should have been lodged by 2 April 2015, thus to proceed the appellant must apply for and be granted the extension of time.
22 The appellant's solicitor swore an affidavit on 17 April 2015 which provides some explanation for the delay in lodging the appeal notice. In essence, the explanation is to the effect that although the appellant was advised about the possibility of an appeal on 6 March 2015 and provided with a costs estimate, he was unable to raise the required funds to pursue an appeal until 15 April 2015.
23 I will consider the substantive merits of the application for leave to appeal and return to consider whether it is in the interests of justice that time should be extended in the light of that consideration.
24 Before doing so I should mention a further affidavit sworn by Mr Williamson on 17 April 2015 which was filed and served. This affidavit was described as being an affidavit in general support of the appeal. The main purpose of the affidavit appears to have been to put before the court the character references and the report of the Pre-Sentence Opportunity Programme which were handed up to the Magistrate in the course of the hearing on 5 March 2015. Mr Williamson also outlined the chronology of the appellant's appearances before the Magistrates Court. There was no objection to the affidavit being read for those limited purposes.
25 At the commencement of the application Mr Williamson, on behalf of the appellant, handed up a letter from Statewest Surveys in the nature of a reference, and in substance by way of additional evidence. The letter is signed by Mr Ronald J M Rogers who, although the letter itself does not say so, is the appellant's father. The purpose of the letter appears to be to put before the court evidence to the effect that from time to time surveyors, for the purposes of their work, are required to obtain police clearance certificates. In its central paragraphs the following appears:
Apart from onsite safety instruction and training the most important is the Police Clearance Certificate that is requested at times depending on the job and customer.
Statewest Surveys would appreciate your consideration in giving Ross a chance to receive a Police Clearance Certificate as this would then benefit our companies' (sic) performance.
26 There was no objection by the respondent to my receiving that letter.
27 The applicable principles to the grant of spent conviction orders are well known. Section 45(1) of the Sentencing Act 1995 (WA) requires the sentencing court to determine: first, whether the offender is unlikely to commit such an offence again; and secondly, whether either the offence is trivial or the offender is of previous good character. If these questions are determined in the affirmative, the court may then consider whether the offender should be relieved immediately of the adverse effect that the conviction may have on the offender.
28 The leading authority on the principles applicable to the making of spent conviction orders in this jurisdiction is Murray J's guideline judgment (with which Malcolm CJ and Wallwork J agreed) in R v Tognini [2000] WASCA 31. Counsel has taken me to the critical paragraphs of that judgment and they appear at [27] and [28]. I direct myself in accordance with the contents of those paragraphs and for the purposes of determining this application will be guided by the principles which are set out in therein.
29 Importantly, the decision as to whether to make a spent conviction order or not is discretionary. As such, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently. The question on an appeal is whether the failure of the Magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons or by implication from the failure to make a spent conviction order in circumstances which required the Magistrate to make such an order: Lowndes v The Queen (1999) 195 CLR 665.
30 I turn now to consider the proposed grounds of appeal. In their written form the grounds of appeal appear to be one ground, namely, that there had been a miscarriage of justice, supported by seven particulars. Mr Williamson clarified that I should read the appeal notice as seven grounds of appeal alleging miscarriages of justice in seven respects, and those miscarriages being those itemised in the seven paragraphs of the appeal notice.
31 I must consider whether each of those grounds has a reasonable prospect of succeeding. As the Court of Appeal has held, this involves assessing whether the grounds have a rational and logical prospect of success.
32 The first ground contends that the Magistrate failed to give due regard to the relevant considerations pursuant to s 45(1) of the Sentencing Act 1995. It was not clear to me whether this was a ground in itself or merely a preamble to the remaining six grounds, but Mr Williamson clarified that it was intended to be a stand-alone ground. The ground itself does not identify the respects in which the Magistrate is said to have failed to give due regard to the relevant considerations.
33 A contention expressed at this level of generality is not persuasive. Be that as it may, when the Magistrate's reasons for refusing the application for a spent conviction order are read in the context of the exchanges which had taken place with counsel, it is plain that the Magistrate had both the provisions of s 45(1) of the Sentencing Act and the relevant principles very much at the forefront of his mind.
34 In the exchanges which took place with counsel the Magistrate asked counsel what the basis of the application was (ts 4) and he directed counsel's attention to the provisions of the Sentencing Act.
35 In his reasons for refusing the application the Magistrate said (ts 5):
I haven't been given the grounds under the Act to consider it.
- and made a general reference to the authorities. He then went on to say that the application had not been made in conformity with those authorities. In my view, and with respect, the Magistrate was correct in reaching that conclusion.
36 Whilst counsel did address the questions of whether the offences were trivial and whether the appellant was previously of good character, he did not specifically address the threshold question of whether it was unlikely that the appellant would commit such offences again. Moreover, no evidence was adduced to establish cogent reasons why a spent conviction order should be made.
37 Counsel did not take up the opportunity for an adjournment to adduce further evidence.
38 Against that background, it was the application for a spent conviction order and not the Magistrate's consideration of it which did not have regard either for the relevant statutory provisions or the relevant principles.
39 The contention raised in the first ground of appeal is without merit.
40 In the second ground it is contended that it was unlikely that the appellant would commit such offences again, having satisfactorily completed the Pre-Sentence Opportunity Programme and not having a record for any past criminal offences. On my reading of the exchanges with counsel and the Magistrate's brief reasons, I am satisfied that it is implicit in what the Magistrate said that he could not be satisfied that the appellant was unlikely to commit such offences again.
41 Thus, I am not persuaded that the Magistrate was in error in the manner contended for in the second ground of appeal. As the Magistrate pointed out to counsel, the appellant had used methamphetamine since the offences. It was clear from the materials before the court that the appellant had not overcome his substance abuse difficulties. In my view, these matters evidenced a risk of reoffending which stood in the way of concluding that it was unlikely that the appellant would commit such offences again.
42 In the third ground of appeal it was contended that the offences were trivial because the quantities of drugs involved were small and that the offences were at the lower end of the scale. I do not accept the contention that the offences were trivial. Two different illicit drugs were found in the appellant's possession and there were traces of a third in the glass smoking pipe.
43 In the fourth ground of appeal the appellant contends that his previous good character, as demonstrated by the character references handed up on his behalf, was a factor which weighed in favour of the making of a spent conviction order. I accept, as does the respondent, that the appellant was previously of good character.
44 If the Magistrate had been satisfied that the appellant was unlikely to commit such an offence again, then the appellant's previous good character would have enlivened the discretion to make a spent conviction order. For the reasons I have already outlined, I am satisfied that the Magistrate concluded that he could not be satisfied that the appellant was unlikely to offend again, thus on its own, the appellant's previous good character was not sufficient to enliven the discretion to make a spent conviction order. Even if one were to assume in the appellant's favour that it was unlikely that he would commit such offences again, with the result that the discretion to make a spent conviction order was enlivened, the appellant would still have the difficulty that he had not adduced any evidence to establish a cogent reason why the adverse effect of a conviction should be set aside immediately.
45 If one assumes in the appellant's favour that it was unlikely that he would not commit such offences again, in essence, this ground of appeal asks me to substitute the exercise of my discretion for that of the Magistrate. The authorities in relation to the restraint that should be exercised by appellate courts in relation to matters of sentencing suggest that I should not interfere with the exercise of the Magistrate's discretion, as in this case there was no discernible error in the Magistrate's approach to the exercise of that discretion.
46 Thus, for those reasons, I consider that the contention embodied in the fourth ground of appeal has no merit.
47 In the fifth ground of appeal it is contended that it is open to argue that had the appellant signed and returned to the court an endorsed plea of guilty, he may well have been granted a spent conviction. Any contention that begins with the words 'it is open to argue' has obvious difficulties. It is an entirely speculative contention without any foundation. It has no merit.
48 In the sixth ground of appeal it is contended that the Magistrate failed to give appropriate consideration to the appellant's voluntary engagement in drug counselling. This ground of appeal does not identify precisely how it is said that the Magistrate failed to give appropriate consideration to the appellant's participation in the drug counselling programme. The Magistrate expressly referred to the Pre-Sentence Opportunity Programme report in his exchanges with counsel. In my view, those exchanges disclosed that the Magistrate had a clear understanding of what could be taken from the report. I do not consider that there is any basis upon which it could be said that the Magistrate failed to give appropriate consideration to the appellant's participation in the drug counselling program, or indeed any basis upon which I should substitute my discretion in relation to those matters for that exercised by the Magistrate.
49 In the seventh ground of appeal it is contended that there was no suggestion that the appellant used either cannabis or MDMA since being charged with the drug possession offences. Given the appellant's continued use of methamphetamine, the fact that he may not have used cannabis or MDMA provided no support, in my view, for the making of a spent conviction order. I consider that there is no merit in the seventh ground of appeal.
50 For the reasons I have outlined I have concluded that none of the grounds of appeal have a reasonable prospect of success. I refuse to extend the time within which to apply for leave to appeal and I dismiss the application.
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