Rowland v Director of Public Prosecutions for Western Australia - [2023] WASC 445

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ROWLAND -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 445
CORAM:   MCGRATH J
HEARD:   25 OCTOBER 2023
DELIVERED          :   25 OCTOBER 2023
PUBLISHED           :   22 NOVEMBER 2023
FILE NO/S:   SJA 1070 of 2023
BETWEEN:   MICHAEL JOHN ROWLAND
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

FILE NO/S: SJA 1071 of 2023
BETWEEN: MICHAEL JOHN ROWLAND
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   SJA 1070 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A MAUGHAN
File Number            :   GN 97/2022
For File No:   SJA 1071 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A HOCKTON
File Number            :   GN 2222/2022

Catchwords:

Criminal law - Appeal against conviction of possessing drug paraphernalia - Whether digital scales constitute drug paraphernalia - Appellant convicted after plea of guilty in his absence under s 55 of the Criminal Procedure Act - Appeal against sentence imposed for breaching a CBO - Whether miscarriage of justice demonstrated

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA), s 55, s 71
Misuse of Drugs Act 1981 (WA), s 6(1), s 7B
Sentencing Act 1995 (WA), s 128

Result:

SJA 1071/2023 (Conviction appeal)
Extension of time in which to appeal granted
Leave to appeal granted on ground one
Leave to appeal not granted on ground two
Appeal is allowed

The appellant's conviction on charge GN 2222 of 2022 is set aside and a judgment of acquittal is entered

SJA 1070/2023 (Sentence appeal)
Extension of time in which to appeal granted
Leave to appeal granted on ground three
Leave to appeal not granted on grounds one and two
Appeal allowed

The sentence of the term of imprisonment 7 months conditionally suspended for 12 months on charge GN 97 of 2022 imposed by Magistrate Maughan on 13 October 2022 is set aside

The sentence of the Community Based Order on charge GN 97 of 2022 imposed by Magistrate Hockton on 17 January 2022 is reinstated and is taken to have commenced on 17 January 2022

Representation:

SJA 1070 of 2023

Counsel:

Appellant	:	Ms F Sellers
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

SJA 1071 of 2023

Counsel:

Appellant	:	Ms F Sellers
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220
Maxwell v The Queen (1996) 184 CLR 510
Meissner v The Queen (1995) 184 CLR 132
Project Blue Sky Mining v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Yappo v The State of Western Australia [2021] WASCA 133 (S)

MCGRATH J:

On 25 October 2023, at the hearing of the appeals, I made orders allowing the appeals and stated that I would publish my reasons for doing so at a later time. I allowed both the conviction and sentence appeals for the following reasons.
The appellant was convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA) of one charge of possessing drug paraphernalia, namely digital scales on which there was a residue of a prohibited drug, contrary to s 7B(6) of the Misuse of Drugs Act 1981 (WA) (MD Act).[1] As a consequence of that conviction, the appellant was held to have breached a community based order (CBO) previously imposed for the offence of possessing a prohibited drug contrary to s 6(1) of the MD Act.[2] The CBO was set aside and the appellant was resentenced to a 7 month term of imprisonment conditionally suspended for 12 months.
[1] Prosecution Notice dated 8 January 2022, Charge number GN 2222/2022.
[2] Prosecution Notice dated 23 June 2022, Charge number GN 97/2022.
The appellant appeals against the conviction for possessing drug paraphernalia (conviction appeal). He contends that the digital scales do not constitute drug paraphernalia within the definition under s 7B(1) of the MD Act. Further, the appellant appeals the 7 month term of imprisonment conditionally suspended, which was imposed at the resentencing for the drug possession charge (sentence appeal). He contends that if his conviction for possessing drug paraphernalia is set aside, then he did not breach the CBO imposed for possessing a prohibited drug.
The appellant applies for an extension of time in which to appeal in respect of both appeals. The respondent does not oppose the extension of time and concedes both the conviction appeal and the sentence appeal. The concessions are properly made. I am of the view that the set of digital scales possessed by the appellant do not constitute drug paraphernalia under s 7B of the MD Act. Accordingly, the appellant's conviction must be quashed. Furthermore, the appellant's consequential resentencing for breaching the CBO must be set aside for the reason that the appellant did not commit an offence that breached the CBO. Therefore, I will grant an extension of time in which to appeal, grant leave to appeal and set aside both the conviction for the possession of drug paraphernalia charge and the sentence imposed when the appellant was resentenced for the drug possession charge. I do so for the following reasons.

Background facts

On 8 January 2022, the appellant was charged with having possession of methylamphetamine with intention to sell or supply to another contrary to s 6(1) of the MD Act.[3] The appellant's offending involved the possession of 0.26 g of methylamphetamine for sale or supply.[4]
[3] Prosecution Notice dated 8 January 2022, Charge number GN 97/2022.
[4] Transcript, Geraldton Magistrates Court, 17/01/2022, p 2 - 3.
On 17 January 2022, the appellant appeared in the Magistrates Court and pleaded guilty to the possession of a prohibited drug charge. At the sentencing hearing, the factual circumstances of the offending were not outlined other than the appellant possessing the methylamphetamine. Magistrate Hockton imposed a CBO for a period of 6 months.[5]
[5] Transcript, Geraldton Magistrates Court, 17/01/2022, p 7.
On 16 June 2022, the appellant was charged with possessing drug paraphernalia, namely digital scales on which there was a prohibited drug residue (methylamphetamine) contrary to s 7B(6) of the MD Act.[6] On 14 July 2022, the appellant was convicted of that charge in his absence in the Magistrates Court pursuant to s 55 of the Criminal Procedure Act.[7] Magistrate Hockton imposed a $450 fine.
[6] Prosecution Notice dated 23 June 2022, Charge number GN 2222/2022.
[7] Transcript, Geraldton Magistrates Court, 14/07/2022, p 2.
As I explain below, if an offender commits an offence whilst subject to a CBO, the offender may be brought back before the sentencing court for that Court to consider whether the CBO should continue or should be set aside, and the offender resentenced. On 13 October 2022, the appellant appeared in the Magistrates Court to be resentenced in respect to breaching the CBO imposed for the possession of a prohibited drug charge pursuant to s 128 of the Sentencing Act 1995 (WA). On that occasion, the prosecutor outlined the facts of the possession of prohibited drugs charge to the court. They were that the appellant possessed several clip seal bags, with four bags containing a crystal substance believed to be methylamphetamine, and $250 cash. In addition, the appellant had possession of a set of digital scales with visible discolouration, consistent with being used with methylamphetamine. Magistrate Maughan set aside the CBO and imposed a 7 month term of imprisonment conditionally suspended for 12 months. [8]
[8] Transcript, Geraldton Magistrates Court, 13/10/2022, p 6.

Relevant legal principles

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[9]
[9] Criminal Appeals Act 2004 (WA), s 9(1).
The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.[10] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[11]
[10] Criminal Appeals Act 2004 (WA), s 9(2).
[11] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
In respect to the conviction appeal (SJA 1071 of 2023), the appellant relies upon two grounds:[12]
[12] Notice of Appeal filed 18 August 2023; Order of Registrar Whitbread by consent made 22 September 2023.
1.The learned magistrate erred at law in entering a judgment of conviction in circumstances where the Appellant could not at law be guilty of the offence.
2.In the event that the appeal SJA 1071 of 2023 is allowed and the conviction set aside, the sentence of a term of imprisonment of 7 months conditionally suspended for 12 months (the CSIO) was imposed without jurisdiction and must be set aside:
Particulars
a.The CSIO was imposed at a resentencing following breach, by reoffending, of a Community Based Order (CBO).
b.The offence that breached the CBO is the offence the subject of SJA 1071 of 2023.
c.In the event that SJA 1071 of 2023 is successful, the CBO was not, as law, breached, and there is no basis, at law, for resentencing. The CSIO must therefore be set aside ab initio.
At the hearing of the appeal, counsel for the appellant confirmed that the appellant did not intend to rely upon ground two in respect of the conviction appeal. The appellant only proposed to rely upon that ground in respect to the sentence appeal.
The appellant's notice of appeal pleads three grounds in respect to the sentence appeal (SJA 1070 of 2023) as follows:[13]
[13] Notice of Appeal filed 18 August 2023; Order of Registrar Whitbread by consent made 22 September 2023.
1.The learned magistrate erred at law by failing to give a discount pursuant to 9AA of the Sentencing Act 1995 (WA).
2.The sentence of 7 months imprisonment suspended for 12 months with conditions, was manifestly excessive in light of the maximum penalty prescribed by law for the offence, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender.
3.In the event that the appeal SJA 1071 of 2023 is allowed and the conviction set aside, the sentence of a term of imprisonment of 7 months conditionally suspended for 12 months (the CSIO) was imposed without jurisdiction and must be set aside:
Particulars
a.The CSIO was imposed at a resentencing following breach, by reoffending, of a Community Based Order (CBO).
b.The offence that breached the CBO is the offence the subject of SJA 1071 of 2023.
c.In the event that SJA 1071 of 2023 is successful, the CBO was not, as law, breached, and there is no basis, at law, for resentencing. The CSIO must therefore be set aside ab initio.
I will first determine the conviction appeal.

Conviction Appeal (SJA 1071 of 2023)

The appellant was convicted of the drug paraphernalia charge in his absence under s 55 of the Criminal Procedure Act. Section 55(2) provides that if on the court date the court is satisfied that the accused has been served with the prosecution notice containing the charge and a court hearing notice, or an approved notice notifying the accused of that date, the court may hear and determine the charge in the accused's absence if the accused does not appear.
Section 71(2) of the Criminal Procedure Act provides that an accused may make an application to the court that convicted the accused in absentia to set aside the conviction. The grounds for making the application include that the accused did not receive notice of the court date, or did not receive the notice in enough time for the accused to appear, or the accused failed to appear for some good reason. Section 71(2) of the Criminal Procedure Act is not relied upon by the appellant.
Rather, the appellant submits that there has been a miscarriage of justice for the reason that he could not, in law, have been guilty of the drug paraphernalia offence. A plea of guilty may be set aside as a miscarriage of justice if the offender could not in law have been guilty of the offence.[14]
[14] Meissner v The Queen (1995) 184 CLR 132, 157 (per Dawson J); Maxwell v The Queen (1996) 184 CLR 510, 522 fn 81 (per Toohey J).
The issue that arises is whether the set of digital scales in the possession of the appellant constituted 'drug paraphernalia'. The respondent concedes that the digital scales in the possession of the appellant did not constitute drug paraphernalia under s 7B of the MD Act. That concession is properly made for the following reasons.
Section 7B of the MD Act provides as follows:
7B.Drug paraphernalia, offences as to
(1)In this section -
display, in relation to drug paraphernalia, includes to authorise or allow drug paraphernalia to be displayed;
drug paraphernalia means -
(a)any thing made or modified to be used in connection with manufacturing or preparing a prohibited drug or a prohibited plant -
(i)for administration to a person; or
(ii)for smoking, inhaling or ingesting by a person; or
(iii)to be burned or heated so its smoke or fumes can be smoked or inhaled by a person;
or
(b)any thing made or modified to be used by a person -
(i)to administer a prohibited drug or a prohibited plant to a person; or
(ii)to smoke, inhale or ingest a prohibited drug or a prohibited plant; or
(iii)to smoke or inhale the smoke or fumes resulting from burning or heating a prohibited drug or a prohibited plant.
(2)A person who displays any drug paraphernalia for sale in a retail outlet commits a simple offence.
Penalty: a fine of $10 000.
(3)A person who sells any drug paraphernalia to an adult commits a simple offence.
Penalty: a fine of $10 000.
(4)A person who sells any drug paraphernalia to a child commits a simple offence.
Penalty: a fine of $24 000 or imprisonment for 2 years or both.
(5)It is a defence to a charge of an offence under subsection (2), (3) or (4) to prove -
(a)the accused was a person prescribed; or
(b)the drug paraphernalia displayed or sold was a thing prescribed or of a class prescribed; or
(c)the display or sale occurred in circumstances prescribed,
for the purposes of that subsection.
(6)A person who is in possession of any drug paraphernalia in or on which there is a prohibited drug or a prohibited plant commits a simple offence.
Penalty: a fine of $36 000 or imprisonment for 3 years or both.
(7)It is a defence to a charge of an offence under subsection (6) to prove -
(a)the accused was authorised by or under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 to possess the prohibited drug or prohibited plant; or
(b)the accused had possession of the drug paraphernalia -
(i)only for the purpose of delivering it to a person authorised under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 to have possession of any prohibited drug or prohibited plant in or on it; and
(ii)in accordance with the authority in writing of the person so authorised,
and that, after taking possession of the drug paraphernalia, the accused took all such steps as were reasonably open to the accused to deliver it into the possession of that person; or
(c)the accused had possession of the drug paraphernalia only for the purpose of analysing material in or on it, examining it or otherwise dealing with it for the purposes of this Act in his or her capacity as an analyst, botanist or other expert.
The principles of statutory construction are well known. Statutory construction requires attention to the text, context and purpose of the Act. In SZTAL v Minister for Immigration and Border Protection, the High Court stated:[15]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[15] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14].
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[16]
[16] Project Blue Sky Mining v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69].
In order to convict the appellant, it is necessary for the prosecution to prove that the digital scales were 'made or modified to be used' for one or more of the specific purposes stated in s 7B(1)(a) or s 7B(1)(b) of the MD Act. Digital scales, which are simply equipment for measuring the weight of an item or substance are not, in themselves, drug paraphernalia as defined in s 7B(1) of the MD Act.
It is common knowledge that digital scales may be used by an offender to weigh the amount of a prohibited drug to be sold or supplied to others. The presence of digital scales may therefore, form part of the evidentiary indicia relied upon by the prosecution in proving a drug offence. However, in order to constitute 'drug paraphernalia', the thing must have been made or modified to be used for one of the specified purposes in s 7B. Digital scales as manufactured and sold are not a thing made or modified to be used for one of the purposes specified.
Digital scales are self-evidently not made to be used in connection with manufacturing or preparing a prohibited drug or plant for administration to a person, or for being smoked, inhaled or ingested, or to be burned or heated so its smoke or fumes can be ingested. Nor was there any suggestion in this case that the digital scales in question had been modified for use in connection with any of those purposes.
Further, the context supports the conclusion that Parliament did not intend that digital scales would constitute 'drug paraphernalia'. Section 7B creates specific offence provisions. Section 7B(2) provides that a person who displays any drug paraphernalia for sale in a retail outlet commits a simple offence. Section 7B(3) provides that a person who sells any drug paraphernalia to an adult commits an offence, while s 7B(4) provides a separate offence for selling drug paraphernalia to a child.
If digital scales constituted drug paraphernalia every retailer selling kitchen or baking supplies would commit an offence. Clearly, that is not what the Parliament intended.
Furthermore, there are limited prescribed defences to the offence creating provisions in s 7B. Section 7B(5) provides a defence to a charge of an offence under s 7B(2), s 7B(3) or s 7B(4), if it is proved that the accused was a prescribed person, or the drug paraphernalia was a thing or of a class prescribed, or the display or sale occurred in circumstances prescribed. The Misuse of Drugs Regulations1982 (WA) only prescribes shishas and hookahs, and drug paraphernalia in the course of the conduct of an approved 'needle and syringe programme'.[17]
[17] Misuse of Drugs Regulations1982 (WA), reg 4B.

Section 7B(7) provides a defence to a charge of an offence under s 7B(6) in the limited circumstances there described, namely undertaking an analysis in the capacity as an expert or for delivering the drug paraphernalia under the Medicines and Poisons Act2014 (WA) or the Voluntary Assisted Dying Act2019 (WA).
The MD Act does not provide for a defence of innocent or ordinary usage. Accordingly, if digital scales came within the definition of 'drug paraphernalia' then a retailer who merely displayed digital scales for sale would commit an offence and a person selling digital scales would commit an offence.
Finally, extrinsic material assists in confirming the meaning of the definition of 'drug paraphernalia'. In his Second Reading Speech for the Misuse of Drugs Amendment Act 2011 (WA), the Minister stated that the purpose of the inclusion of s 7B in the MD Act was to: 'Ban the sale of illicit drug use paraphernalia: Drug-use paraphernalia are any products marketed to drug users to assist them in taking illicit drugs, such as cocaine kits, bongs and ice pipes'.[18]
[18] Hansard Second Reading Speech, Legislative Council (Hon Peter Collier) 22 September 2011, p 7617 - 7619.
Accordingly, I am of the view that based upon the facts founding the conviction entered under s 55 of the Criminal Procedure Act, the appellant could not in law be guilty of possessing 'drug paraphernalia'. The appellant has thereby demonstrated a miscarriage of justice. Accordingly, leave will be granted on ground one, the appeal is allowed and the conviction must be set aside. Ground two is not relied upon by the appellant in respect to the conviction appeal. I will consider that ground as part of the grounds of appeal against sentence. Accordingly, leave is therefore not granted on ground two.

Sentence Appeal (SJA 1070 of 2023)

The appellant appeals the term of 7 months imprisonment conditionally suspended, which was imposed upon his resentencing for the charge of possessing a prohibited drug. Ground three contends that if the conviction for the possession of the drug paraphernalia charge is set aside then the learned Magistrate did not have jurisdiction to resentence the appellant. [19]
[19] Appellant's Outline of Submissions, [24] - [28].
In the alternative, the appellant contends by ground one that the learned Magistrate made an express error by not granting a discount pursuant to s 9AA of the Sentencing Act and further, by ground two that the term of suspended imprisonment was manifestly excessive.
I turn to the appellant's primary contention, being that when the learned Magistrate resentenced the appellant under s 128 and s 130 of the Sentencing Act, he did so without jurisdiction given that the conviction is quashed. The respondent, whilst conceding the appeal, submitted that the learned Magistrate did act within jurisdiction.
I do not accept the appellant's contention that the learned Magistrate did not have jurisdiction. At the time of re-sentencing the learned Magistrate was clearly exercising the jurisdiction conferred by the Sentencing Act.
Section 128 of the Sentencing Act provides that if a court convicts a person of an offence (other than offence under s 131(1)) the statutory penalty for which is or includes imprisonment, and the offence was committed while the person was subject to a CBO the court may deal with the offender under s 130 of the Sentencing Act. Section 130 provides that the court may confirm or amend the CBO, or cancel the CBO and sentence the offender for the offence for which the CBO was imposed. The learned Magistrate exercised that jurisdiction when he cancelled the CBO and resentenced the appellant to a 7 month term of imprisonment conditionally suspended for 12 months.
In Commissioner of Railways v Cavanough,[20] Rich, Dixon, Evatt and McTiernan JJ stated that:
Acts done according to the exigency of a judicial order afterwards reversed are protected. … And proceedings which, although based upon a judgement [of conviction], are brought to completion before its reversal are not avoided. …. But upon the reversal of a judgment of any person convicted of an offence, the judgment, execution and all former proceedings thereby become absolutely null and void.[21]
[20] Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220, 225.
[21] Commissioner for Railways (NSW) v Cavanough, 225.
Similarly, Starke J explained that 'the consequences of the reversal of a judgment or conviction is that it is annulled and held for nothing, and the party is restored to all things which, by reason of the judgment, he has lost'.[22]
[22] Commissioner for Railways (NSW) v Cavanough, 228.
In my view, therefore, the quashing of the appellant's conviction for the drug paraphernalia offence means that the appellant is entitled to be restored to what he lost, and to stand in every respect as if he had never been charged with the drug paraphernalia offence. While the learned Magistrate had jurisdiction under the Sentencing Act to re-sentence the appellant at the time, the fact that the drug paraphernalia conviction has been set aside means that the sentence posed by the learned Magistrate becomes null and void.
In other words, given that I have found that the judgment of conviction in respect to the drug paraphernalia charge must be set aside, that necessarily means that there has been miscarriage of justice by virtue of the appellant being re-sentenced for the drug possession offence. The learned Magistrate's order setting aside the CBO and imposing a sentence of a 7 month term of imprisonment conditionally suspended is null and void. The outcome is that the sentence originally imposed by the learned Magistrate on 5 January 2022 in respect to the possession of a prohibited drug charge, namely the CBO, remains as the sentencing outcome for that charge.
In Yappo v The State of Western Australia,[23] the Court of Appeal considered the validity of a lifetime violence restraining order, which had been made in reliance upon a conviction that was subsequently quashed on appeal. Given that the lifetime violence restraining order could not have been made if the appellant was not convicted, the restraining order was held to be null and void. In a supplementary decision, Mitchell JA explained how the Court would deal with that outcome, by its orders. His Honour observed:[24]
In Ardrey, Mazza JA and I held that the requirement in s 30(5) of the Criminal Appeals Act 2004 (WA), that the court set aside a conviction if it allows the appeal, implicitly carried with it the power to declare that an order which could not have been made in the absence of a conviction is null and void. In Ardrey, the question was whether a compensation order that depended on a conviction which the court had set aside should be declared null and void. Justice Mazza and I observed:
The compensation order did not entirely lack legal effect when it was made. A person who executes a judgment may rely on the judgement to justify their conduct (which may otherwise be tortious) notwithstanding its removal, reversal or annulment. Further, an order of a superior court, even when made outside of jurisdiction, is valid until set aside. However, once this court sets aside a conviction, it may declare a consequential compensation order that depends only on the conviction to be null and void. Once the declaration is made, the compensation order is taken never to have had effect, although it may still be relied upon to justify what may otherwise have been unlawful action taken before the declaration to execute the compensation order. (citations omitted)
These observations are equally applicable to a violence restraining order made under s 63A of the Restraining Orders Act depending only on a conviction that has been set aside by this court.
The power to make such an order is also conferred by s 40(1)(l) of the Criminal Appeals Act, which provides that, for the purpose of dealing with an appeal, this court may exercise any power that the Supreme Court may exercise in a civil case. This was the basis on which Buss P held that the inherent power of the Supreme Court, to annul or set aside an order made as a consequence of a conviction that has been set aside on appeal, was 'picked up and brought into play' in Ardrey. The Supreme Court plainly has the power in a civil case to declare null and void an order that has been made in consequence of an order that is set aside on appeal.
Where a conviction has been set aside on appeal, declaring an order that could not have been made in the absence of the conviction to be null and void may also be seen as an exercise of the power conferred by s 40(1)(m) of the Criminal Appeals Act. Section 40(1)(m) allows this court to make any order that is necessary to give effect to the court's decision on the appeal.
[23] Yappo v The State of Western Australia [2021] WASCA 133 (S).
[24] Yappo v The State of Western Australia [2021] WASCA 133 (S), [9] - [11].
Applying the same provisions of the Criminal Appeals Act, which are also applicable in the case of single judge appeals, in a case of the present kind it is open to the Court to make an order declaring that the orders by the learned Magistrate to set aside the sentence of a CBO, and to re-sentence the appellant to a term of 7 months imprisonment conditionally suspended for 12 months, are null and void. However, for the avoidance of doubt in this case, I determined that the preferable course was to set aside the orders made by the learned Magistrate when he re-sentenced the appellant.
Accordingly, in respect to the sentence appeal, I grant an extension of time in which to appeal, grant leave to appeal on ground three and allow the appeal on that ground. The sentence of the term of imprisonment of 7 months conditionally suspended for 12 months on charge 97 of 2022 imposed by Magistrate Maughan on 13 October 2022 is set aside. The sentence of the CBO on charge 97 of 2022 imposed by Magistrate Hockton on 17 January 2022 is reinstated and is taken to have commenced on 17 January 2022. Given that I have allowed the appeal on ground three, it is not necessary to consider grounds one and two and therefore, leave to appeal is not granted on those grounds.

Conclusion

Accordingly, the appellant's conviction for the offence of possessing drug paraphernalia is set aside and a judgment of acquittal is entered for the reason that digital scales do not constitute drug paraphernalia under s 7B of the MD Act. Further, the term of 7 months imprisonment conditionally suspended for 12 months imposed on the appellant at the breach hearing is set aside and the CBO is thereby reinstated and is taken to have commenced on the date of its imposition by the learned Magistrate, being 17 January 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
22 NOVEMBER 2023