Sherlock v Cordiner - [2023] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SHERLOCK -v- CORDINER [2023] WASC 308
CORAM:   FORRESTER J
HEARD:   18 APRIL 2023 & 2 AUGUST 2023
DELIVERED          :   17 AUGUST 2023
FILE NO/S:   SJA 1088 of 2022
BETWEEN:   JOSEPHINE SHERLOCK
Appellant
AND
ALEX CORDINER
Respondent

ON APPEAL FROM:
For File No:   SJA 1088 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number            :   NG 938 of 2022

Catchwords:

Criminal law - Single judge appeal - Being an occupier of premises, knowingly permitting those premises to be used for the purpose of the use or preparation of a prohibited plant - Section 5(1)(a)(ii) of the Misuse of Drugs Act 1981 (WA) - Appeal against failure to make a spent conviction order - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Veterinary Practice Act 2021 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T M Petherick
Respondent	:	C L Arnold

Solicitors:

Appellant	:	Petherick Cottrell Lawyers
Respondent	:	State Solicitor's Office

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Hull v Castledine [2005] WASC 252
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
JJF v Tattersall [2018] WASC 170
M v Seidner [2013] WASC 395
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79

FORRESTER J:

Introduction

On 22 November 2022, the appellant was convicted in the Narrogin Magistrates Court on a charge that, being an occupier of premises, she knowingly permitted those premises to be used for the purpose of the use or preparation of a prohibited plant, namely cannabis, contrary to s 5(1)(a)(ii) of the Misuse of Drugs Act 1981 (WA) (charge NG 938 of 2022).
The appellant was fined $1,000.
The appellant seeks leave to appeal her sentence on the basis that no spent conviction order was made.

The hearing

When the matter was called, the learned magistrate asked the appellant if she was representing herself. The appellant responded that she was not; she had a lawyer. She told the learned magistrate that, as far as she was aware, the charges were being 'amended', so her lawyer did not think that it was necessary for him to attend that day.
The charges originally listed on 22 November 2022 did not include charge NG 938 of 2022. The prosecutor informed the learned magistrate that charge NG 938 of 2022 was listed on 20 December 2022.
The following exchange then occurred:[1]
[PROSECUTOR]: … I would seek on the basis of a guilty plea to 938 of '22, which is currently first listed for 20 December, your Honour, and I will be in a position to discontinue the three remaining charges.
HER HONOUR: All right. Do you just want to - is what you're asking, [the appellant], is to early list the charge from 20 December?
ACCUSED:Does that mean we deal with it today?
HER HONOUR: Yes
ACCUSED:Yes, that should be fine.
[1] Transcript, Alex Cordiner v Josephine Sherlock, Magistrates Court of Western Australia, 22 November 2022, 2 (Transcript 22 November 2022).
The charge was then put to the appellant, who was asked if she understood the charge and what her intentions were. She said she did understand the charge, and said she would plead guilty. The learned magistrate then said:[2]
HER HONOUR: All right. And you understand that if you're pleading guilty, you're pleading guilty to the facts. There will be a conviction and a penalty involved.
ACCUSED:Yes, I do, your Honour.
[2] Transcript 22 November 2022, 3.
The appellant then pleaded guilty and the facts were read as follows:[3]
It's 10.20 in the morning, 8 September this year. Ms Sherlock is at [redacted address]. Registered owner of the address, a rural acreage there. Police undertaking a Misuse of Drugs Act search warrant at the property. 44 plants in total seized. 10 plants about a half metre high, five flowering plants about a metre high and 29 seedlings not producing. 10 November just gone, she has attended at the Boddington Police Station, has provided a statement under caution in relation to other matters.
And she has admitted to allowing her ex-partner to grow cannabis in the shed on her property.
[3] Transcript 22 November 2022, 4.
The appellant was invited to make submissions, and asked if she could apply for a spent conviction. The learned magistrate asked to hear her explanation for her offending first.[4]
[4] Transcript 22 November 2022, 5.
The appellant told her Honour that the man she had been seeing for eight to nine months had set up the hydroponic equipment in the shed and she did not stop it. She was unaware of how much there was. When her Honour asked why she did not go in and look, the appellant responded that she worked very long hours. The learned magistrate described that as a 'really thin explanation in light of the photographs' and asked the appellant if she 'just showed wilful blindness'. The appellant replied that it was 'stupidity' on her part; that she trusted someone that she loved that she would not get in trouble for his conduct.
The appellant submitted that she had a young child and she ran a business and comes home from work and has paperwork to do, so she really did not have much time.[5]
[5] Transcript 22 November 2022, 5.
The prosecutor submitted that the set up was professional and there would have been a significant draw on electricity, as well as chemicals to be stored. The shed was large. He submitted that it would have been impossible for the appellant not to know about what her partner was doing.

Spent conviction application

The learned magistrate then invited submissions from the appellant as to the spent conviction application. In response, the appellant said she was a veterinary surgeon with a mobile practice, and that a conviction would not be favourably looked upon by the Veterinary Surgeons Board. The learned magistrate asked how that followed with respect to the appellant's 'myriad of traffic‑related convictions' and the appellant informed her Honour that the Board did not require notification of traffic convictions.
The appellant told her Honour that there were no prospects of reoffending on her part and she would not have permitted the offence on the part of her partner if she had been aware of the severity of what he was doing. Her Honour asked how that could be, given the extent of the operation, and said that the most generous categorisation she could put on the offending was that the appellant was wilfully blind.
The appellant said that it had started with 'one outdoor plant', to which her Honour responded, 'I see. So you did know there was some growing going on.' The appellant said she had told everything to the police and that there was one outdoor plant and after that she had no understanding of the severity of what was happening.
The appellant submitted that she was 'pretty much' the only vet for 1000km who would see any kind of animal and she would not have risked her reputation or career in such a way.[6]

Reasons for decision

[6] Transcript 22 November 2022, 7 - 8.

Her Honour described the operation as a 'commercial‑style operation' and found the appellant's explanation to be 'unconvincing and thin' in light of the extent of the set‑up, and did not accept the lack of awareness the appellant professed to have.
As to the application for a spent conviction, the learned magistrate said that she had 'nothing more than Ms Sherlock's statement from the bar table that [the traffic] offences would not be taken into account for the purposes of being a veterinary practitioner'. Her Honour said:[7]
If Ms Sherlock is a veterinary practitioner, I have no reason to doubt that, but she should well know better about having illicit substances on her property at all ever, whether they're in the garden with the roses or this commercial‑style operation in the shed.
It is difficult to be satisfied that she is of prior good character given the history before the court but if I was to answer that positively, I could possibly answer positively that she's unlikely to commit these offences again, possibly. The question is whether she ought to be relieved of the immediate effects that the conviction would have. Balanced against the seriousness of the offence, in my view the seriousness of this offence and the need for general deterrence is such that I am not satisfied that her personal circumstances warrants the application for a spent conviction and I refuse the application for a spent conviction.
[7] Transcript 22 November 2022, 9.

Grounds of appeal

The appellant filed an amended appeal notice dated 12 April 2023, alleging four grounds of appeal. However, the first three, alleging errors on the part of the learned magistrate, were abandoned at the hearing of the appeal. The surviving ground is:
The learned Magistrate's sentence in not allowing a Spent Conviction was excessive and a mistake of fact and law.

Application to adduce additional evidence

The appellant has also made an application to adduce additional evidence, pursuant to s 40(1)(e) and s 41(4)(a) of the Criminal Appeals Act 2004 (WA) (CA Act). The additional evidence sought to be adduced is:
(1)three character references;
(2)an affidavit of the appellant;
(3)transcript of the sentencing proceedings of the principal offender; and
(4)a letter from the appellant's treating psychologist.

Statutory framework and legal principles

The appeal

The application for leave to appeal is made under div 2 pt 2 of the CA Act.
A refusal to make an order that might be made as a result of a conviction is a decision which may be appealed.[8]
[8] CA Act s 6(g) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[9] meaning that the ground is required to have a rational and logical prospect of succeeding.[10] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[11]
[9] CA Act s 9(2).
[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[11] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12]

Spent convictions

[12] CA Act s 14(2).

The power to make a spent conviction order is found in s 39(2)(a) to (d) of the Sentencing Act 1995 (WA). Preconditions for the making of such an order are set out in s 45 of the Act, which reads:
(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.
The precondition in s 45(1)(b) cannot be satisfied unless either the offence is trivial or the offender is of previous good character.[13]
[13] GNR v The State of Western Australia [2015] WASCA 5 [45].
If the preconditions in s 45(1)(a) and (b) are satisfied, the court has a discretion, not a duty, to make a spent conviction order.[14]
[14] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11], [16].
In the absence of a spent conviction order made at the time of sentence, an application can be made for a serious conviction to be declared spent after 10 years has elapsed since the applicant's latest conviction.[15]

Admission of additional evidence

[15] Spent Convictions Act 1988 (WA) s 11.

An appeal court must decide an appeal on the evidence and material that were before the court below.[16] However, the court has broad powers to admit other evidence, pursuant to s 40(1) of the CA Act.
[16] CA Act s 39(1).
In determining whether the failure to make a spent conviction order constituted a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal which shows the appellant's good character and the likely consequences of a conviction.[17]
[17] M v Seidner [2013] WASC 395 [28]; see also Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234 [80].

Appellant's submissions

The appellant contends that the learned magistrate's sentence was 'excessive' by reason of the failure to make a spent conviction order and 'a mistake of fact and law'.
The appellant submitted that, prior to this offence, she had no criminal record and was of good character. She repeated the submissions made by her at first instance. She submitted that based on her age, profession and previous good character she is unlikely to reoffend. While she acknowledged that the principal offence was not trivial, she argued that her participation in the commission of the principal offence was minimal and, as such, her offence can be categorised as minor or trivial.
The appellant submitted that a spent conviction should be ordered, having regard to the 'particular impediment' a conviction would place on her practising her profession, the benefit which would flow to the appellant's 'rural and agriculturally centred community' from a spent conviction, the hardship which a conviction would create for the appellant's family, and the fact that the protection of the community is not assisted by the public being aware of the conviction.

Respondent's submissions

The respondent submitted that it was open for the learned magistrate to have been satisfied that the appellant was unlikely to reoffend, although it was unclear whether her Honour actually did make such a finding. However, the respondent contended, it can be inferred that her Honour formed the view that the offending was not trivial, a finding which the respondent submitted was correct. Further, the respondent argued, the additional evidence the appellant sought to adduce does not justify the making of a spent conviction order.

Disposition

At the hearing of the appeal, the appellant's counsel clarified that the real contention is that there was a miscarriage of justice as a result of the learned magistrate's failure to make a spent conviction order. That contention is supported by the additional evidence sought to be adduced on the appeal. The appeal was clearly understood by the respondent to be on that basis and I will deal with it on that basis.

Unlikely to commit such offending again

The first precondition giving rise to a discretion to make a spent conviction order is that the appellant is unlikely to commit such an offence again. The phrase 'such an offence' means an offence of a kind similar to that of which the offender has been convicted.[18] The respondent concedes, in my view properly, that it was open for the learned magistrate to find that the appellant was unlikely to commit an offence of such a nature in the future.

Is the offence trivial?

[18] JJF v Tattersall [2018] WASC 170 [19]; Hull v Castledine [2005] WASC 252 [17].

The second precondition is that the offence was 'trivial'.
Neither party submitted that the offence could be categorised as trivial. Having regard to the statements of the court in Sharpe v Vinning[19] as to the meaning of that expression, it is my view that the offence in this case could not be so categorised.

Good character

[19] Sharpe v Vinning [2020] WASCA 79.

An alternative basis for enlivening the discretion to make a spent conviction order is that set out in s 45(1)(b)(ii); that the appellant is of previous good character. The appellant submitted that this precondition was made out. After consideration of the additional evidence, the respondent did not oppose a finding that the appellant was of good character, although emphasised that the matter was one for the court to determine.
In Hull v Castledine, Le Miere J observed:[20]
Traditionally, for evidence to be probative of good character, evidence of good works or positive, demonstrable character traits, are required. However, for the purposes of sentencing, the absence of discreditable acts or convictions will usually suffice.
Difficulty arises in respect of 'blemished offenders', that is offenders whose record is not wholly free of discredit. For the purposes of s 45(1)(b)(ii) of the Sentencing Act a person may have past convictions and still be of good character. Whether a defendant with previous convictions is of previous good character is a complex problem. It is an area in which generalisations are hazardous. Whether such a person is to be treated as of good character is for the Judge to determine.
Some past offences may be such as to lead to the offender losing the mantle of good character entirely. Similarity between the offences past and the current offence tend to diminish the chances of the offender being of good character as will repeated offences and more recent criminal activity.
[20] Hull v Castledine [23] - [25].
The character references relied upon by the appellant refer to the importance of the appellant's mobile veterinary practice which she operates in regional Western Australia, and how difficult it would be to find another vet to carry out the same work the appellant does. They speak of the appellant's caring and hard‑working nature. One attests to the appellant's willingness to volunteer and sponsor local events, and her assistance with the rescue of wildlife, although the writer does not indicate she is aware of the charge against the appellant or the purpose of her reference.
The appellant has a traffic record commencing in 2015. She has been convicted of driving without authority while suspended due to outstanding fines (twice), convicted of driving while suspended by a disqualification notice (twice), convicted of driving with a blood alcohol level of more than .05% and 0.08%, convicted of driving contrary to an extraordinary licence (twice) and driving with a blood alcohol level of more than 0.02% when subject to an extraordinary driver's licence. She was last convicted in January 2019.
It is difficult to reconcile the appellant's traffic offending with the value she claims to place on her mobile veterinary practice, which relies so heavily on her having a driver's licence. It is also difficult, in light of that record, to conclude that the appellant is of good character, when by her driving she has shown such disregard for both lawful authority and the welfare of others.
Ultimately, however, I have reached the conclusion that the appellant can be regarded as a person of previous good character. It is apparent that the issues which were present between 2015 and 2018 have not resurfaced since the appellant had her youngest child and, in the circumstances, her good deeds and contribution to the community enable a positive finding in this regard. I have also taken into account that the present conviction is of a wholly different kind to the appellant's traffic history.

Exercise of the discretion

Having concluded that the preconditions for the exercise of the discretion to make a spent conviction order have been satisfied, I turn to consider whether a spent conviction order should be made.
In R v Tognini, Murray J (with whom Malcolm CJ and Wallwork J agreed), said:[21]
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 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.
[21] R v Tognini [24], [27] - [28].

It was strongly submitted that the risk of adverse consequences to the appellant's employment warranted the grant of a spent conviction order. The appellant's counsel submitted that there was a 'real possibility' that disclosure of her offending to the relevant regulatory authority would result in the cancellation of her registration. However, apart from the appellant's assertion to that effect, no evidence of this was adduced.
Section 10(e) of the Veterinary Practice Act 2021 (WA) provides that, in order to be registered as a WA veterinarian, the person must be a fit and proper person to hold registration in that capacity. Section 18 relevantly provides that in determining whether a person is a fit and proper person, the Board must have regard to:
(c)the person's criminal history, to the extent that it is relevant to the person's suitability to practise as a veterinarian or veterinary nurse;
(d)any behaviour of the person that shows that the person is not of good fame and character;
…
(f)whether the person has engaged in conduct that is unprofessional conduct or professional misconduct.
Section 80 provides that conduct that results in conviction of an indictable offence punishable by more than one year's imprisonment is capable of constituting unprofessional conduct or professional misconduct. The offence in this case, being a simple offence, does not fall within this category.
It is arguable that the appellant's offence would be one which is relevant to her suitability to practise as a veterinarian. The appellant submitted it is likely to be. In any event, if it were not relevant under s 18(c), it would potentially fall within s 18(d).
On the other hand, if a spent conviction order were made, the conviction and conduct would be exempt from consideration or disclosure pursuant to pt 3 of the Spent Convictions Act 1988 (WA).
If the Board did not consider the appellant's conduct relevant to her ability to practise her profession and the protection of the public, it would not be able to take it into account in considering her registration. However, if it did consider it to be relevant to those matters, the public interest in it being able to take it into account would be high.
However, even if the Board were able to have regard to the conviction or behaviour of the appellant in this case, that does not necessarily mean that the appellant's employment would be adversely affected. It is to be expected that the Board would also have regard to the appellant's explanation for her conduct, her risk of re‑offending, and her personal circumstances, as well as her standing in the profession and her region.
Further, in the event that the Board were to consider taking steps in relation to the appellant's conduct, there are many options available to a regulator which fall short of preventing or restricting a practitioner's registration.
Ultimately, and on the basis of the available evidence, I am not satisfied that disclosure of the conviction poses a real risk of adverse consequences to the appellant's employment in this case. Further, in my view, there is a strong public interest in the Board being able to take it into account as it sees fit.
In light of some of the appellant's submissions in the course of the hearing, it is appropriate to observe that, having regard to the exceptional nature of a spent conviction order, the mere assertion that a conviction may adversely affect employment will often be insufficient, of itself, to justify the making of such an order. Further, when the employment is regulated, it is likely at least to be necessary to justify the assertion by reference to the regulatory framework. While what will be sufficient to persuade a court to make a spent conviction order will always depend on the circumstances of the particular case, additional material may also be required. That observation applies regardless of whether the application is being made in the Magistrates Court or a superior court.
The appellant submitted that, should her offending become public knowledge, drug‑using members of the public may attend her property seeking drugs on the assumption that she has them there. This, it was said, will compromise her safety and her ability to properly secure the medications of her practice.
In my view, this provides no basis for a spent conviction order. Apart from the fact that this concern did not deter the appellant at the time of the offending, there is no reason to believe that any such person who is not already aware of the appellant's prior conviction would now become aware of it and assume that there are still prohibited drugs on the appellant's property.
In her affidavit sworn on 25 July 2023, the appellant deposed that she had a traumatic childhood, resulting in her leaving home at 14 years. She almost immediately went into a relationship with a partner who was very abusive. She was in a relationship with him for eight years, leaving when she was 22 years old, with two young children. She then managed to complete her tertiary studies while raising those children. She now resides in regional WA and has operated a mobile veterinary practice since 2014. Her practice involves very long hours. She is entitled to prescribe medicines and anaesthetics in accordance with the relevant regulations.
In December 2019, the appellant had her third child, which placed considerable pressure on her time.
The appellant stated that her then partner was living with her and was a heavy cannabis smoker. She does not use illicit substances. Her partner was not working as a result of the pandemic and started to grow and tend cannabis plants. The appellant said she was aware he had planted 'a couple of plants'. She did not frequent the shed where he was growing them. On the rare occasion she went into the shed, the 'hut' where he was growing them was always zipped closed. She failed to question her partner because she relied on him for support. She has now separated from him.
The appellant has also adduced a report from her psychologist dated 26 June 2023. The appellant had initially sought assistance between July and October 2021 and, at that time, appeared to be struggling to maintain balance in her life. She reported significant exhaustion and stress. She was trying to deal with issues with her parental relationships.
It is unclear when the appellant resumed treatment with her psychologist, but it appeared to be after her appeal was lodged. She told her psychologist that she had not contemplated the seriousness of her partner's conduct, or the possible consequences. She said that at the time she was struggling to cope and she did not want to cause conflict with him which might have resulted in his withdrawal of support. She was also fearful of conflict, given her previous abusive relationships. Since her sentencing, she has taken steps to separate from her partner, engaged staff to assist her at work, engaged additional childcare, and reduced her working hours. She is also having ongoing therapy.
Like the learned magistrate, I am unable to accept that the appellant was unaware of the extent of her partner's conduct. The photographs tendered at the sentencing show at least three sizable huts or tents, with lighting and ventilation. If the appellant went into the shed, she could not have failed to appreciate that there were more than a 'couple of plants', even if she did not go into the tents.
However, in light of the matters set out in the psychological report, there is some explanation as to how the appellant came to turn a blind eye to her partner's offending, namely her fear of conflict, the pandemic, her work situation and the challenges of looking after her young child.
It is also of some relevance that the prosecution elected to proceed against the appellant's partner for simple possession and cultivation only.
It is promising that the appellant has now sought assistance to deal with some of her past trauma. However, in light of the lack of evidence that there will be any adverse effect of a conviction on the appellant's employment, there is no apparent connection between the appellant's rehabilitation and the making of a spent conviction order. Specifically, there is no suggestion that the conviction itself will inhibit the appellant's progress towards dealing with her past trauma.
Likewise, there is no evidence that the fact of a conviction will result in any hardship to the appellant or her family.
As a result, I am not satisfied that the appellant's circumstances have been established to be of such a nature that the exceptional step of immediately relieving her of the consequences of her conduct should be taken. Accordingly, I decline to make a spent conviction order.
While I would grant leave to appeal, the appeal should be dismissed.

Orders

Leave to appeal granted.
Appeal dismissed.
I will hear from the respondent as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
17 AUGUST 2023