SURTY v Bowyer - [2009] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SURTY -v- BOWYER [2009] WASC 286

CORAM: JENKINS J

HEARD: 17 AUGUST 2009

DELIVERED : 24 SEPTEMBER 2009

FILE NO/S: SJA 1027 of 2009

BETWEEN: XERXES BEHRAM SURTY
Appellant
AND
JOHN KEITH BOWYER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R B LAWRENCE
File No  :PE 6472 of 2009, PE 6473 of 2009, PE 6474 of 2009

Catchwords:

Criminal law - Sentencing - Drug offences - Application for spent conviction orders - Relevance of offenders intention to become a commercial pilot - Turns on own facts

Legislation:

Air Navigation Regulations 1947 (Cth), reg 90(3)
Crimes Act 1914 (Cth), Pt VIIC, s 85ZV(3)
Misuse of Drugs Act 1981 (WA), s 6(2)
Road Traffic Act 1974 (WA), s 60(1a)
Sentencing Act 1995 (WA), s 39(2), s 45
Spent Convictions Act 1988 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr S D Freitag
Respondent: Mr E M Heenan

Solicitors:

Appellant: CB Legal
Respondent: State Solicitor for Western Australia

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

Brewer v Bayens (2002) 26 WAR 510
Harper v Page [2004] WASCA 267
Nichols v Harnett [2004] WASCA 311
R v Tognini (2000) 22 WAR 291
Riggall v The State of Western Australia (2008) 37 WAR 211
Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)
Robertson v Lawrence [2008] WASC 111

JENKINS J:

The decision under appeal

This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Perth on 27 February 2009. The appeal is against the decision of the magistrate to refuse the appellant spent conviction orders in respect to a number of drug offences for which he was sentenced on that date.

Grounds of appeal

The appellant was given leave to appeal on the following ground:
1.The Learned Magistrates' discretion miscarried erred in law and in fact in refusing to grant a spent conviction order despite finding that the 'pre‑conditions' set out in s 45 of the Sentencing Act were met in that:
a)His Honour considered that the 'serious nature of the offences' counted against the exercise of his discretion, when the type and quantity of the drugs involved were not so serious as to exclude the exercise of the discretion in the [Appellant's] favour;
and
b)His Honour placed undue weight on the nature of the industry (aviation) that the [Appellant] was proposing to enter.
The respondent submits that the magistrate was at liberty to take into account both the seriousness of the offences and the nature of the appellant's proposed profession in deciding not to grant the spent conviction orders.

Details of charges and proceedings

The Prosecution Notice alleged that the appellant had committed three offences being:
1.On 6 December 2008 at West Perth he had in his possession a prohibited drug, namely Amphetamine, contrary to the Misuse of Drugs Act 1981 (WA), s 6(2);
2.On 6 December 2008 at West Perth he had in his possession a prohibited drug namely MDMA, contrary to the Misuse of Drugs Act 1981 (WA), s 6(2); and
3.On 6 December 2008 at West Perth he had in his possession a prohibited drug, namely MDMA, contrary to the Misuse of Drugs Act 1981 (WA), s 6(2).
The maximum penalty for each of the offences is a fine not exceeding $2,000 or imprisonment for a term not exceeding 2 years or both.
The appellant, who was represented by counsel, appeared before a magistrate on 2 February 2009. The charges were adjourned to 20 February, and, on that date, to 27 February 2009, at his request.
On 27 February the appellant entered pleas of guilty to all three offences. The prosecutor then read out the facts. The transcript of this part of the sentencing proceedings is not available but the parties agree that the facts as stated by the prosecutor were that at about 12.20 am on Saturday, 6 December 2008 the appellant was in the front passenger seat of a motor vehicle being driven along Hay Street, West Perth.
Police stopped this vehicle for an unrelated matter. Police searched the vehicle and its four occupants under the Misuse of Drugs Act 1981 (WA).
The appellant told the police conducting the search that he did not have any drugs on him. However, a search recovered three, small, self seal, deal bags from the front of his trousers, secreted near his groin.
These bags contained 0.45 g of amphetamine, four pink Ecstasy/MDMA tablets and a yellow capsule with 0.41 g of Ecstasy/MDMA in a granular form.
The appellant was arrested and taken to the Perth Police Station where he declined to participate in a recorded interview or to make any comment.
On 30 September 2008 the appellant was convicted of reckless driving, committed on 2 February 2008, contrary to the Road Traffic Act 1974 (WA) s 60(1a). I was advised at the hearing of the appeal that he may also have had a spent conviction as a juvenile.
The appellant's counsel then presented a plea in mitigation. Unfortunately, the transcript of the commencement of the plea is also unavailable.
The parties agree that there was little of relevance said to the magistrate before the point at which the transcript commences. The parties also agree that the magistrate was informed that this was the first time the appellant had possessed drugs and that he intended to use them for his own use. His Honour was also told that the appellant helped to support his parents and that his mother was ill. The Prosecution Notice states that the appellant was born on 11 November 1988 and, thus, he was 20 years of age when he committed these offences.
A number of character references were tendered. Three of these were from peers who had known the appellant for less than two years. The fourth reference is from the appellant's employer for whom he previously worked 10 ‑ 15 hours per week for approximately 12 months. It states he worked in 'promotions' but the particulars of this work are not disclosed. The fifth reference is from the mother of a friend of the appellant. She says that she has known the appellant for three years since he arrived in Perth to study for his pilot's licence. The reference speaks of the appellant being away from home. If that is true, then it seems strange to me that it was not mentioned in the transcript of the sentencing proceedings or to me. The remarks of the magistrate led me to believe that the appellant had a supportive and caring role for his parents, an impression which would require further explanation if his parents did not live in Perth or if he lived away from home. All referees speak of the appellant's good character, in fairly general terms, as being the impression they had gained from their contact with him. They speak of the 'charge' or 'charges' as being out of character. The writer of the fifth statement states that she was told by the appellant that he had been charged with possession of 'an illicit drug'. Two other referees indicate that they are aware that the appellant's 'charge' is, or 'charges' are, drug related. If character references are to carry significant weight it is necessary for the referees to state their understanding of the charges that the subject of the reference is facing.
Counsel told the magistrate that the appellant was training to be a pilot and that he had paid $35,000 of the $50,000 required to complete his course. Receipts tendered showed that $10,000 of this money had been paid by a company. The relationship of the company to the appellant and where the appellant had got the balance of the money from has not been explained to me. A log book tendered at the hearing of the appeal confirmed that the appellant has substantially completed the hours required of him to obtain his single engine, commercial pilot's licence. On 27 February 2009, the same log book records, complete up to the date of the hearing before the magistrate, were tendered. Counsel also tendered information from the Civil Aviation Safety Authority (CASA) in regards to the granting of an Aviation Security Identification Card (ASIC). I will consider this information in detail later in these reasons.
It was pointed out to the magistrate that the documents advised that if a person had an adverse criminal record they may not be granted an ASIC. His Honour said that in his view this was 'very sensible'. His Honour said:
The person is going to be flying other people around as a commercial pilot and he is taking drugs or in possession of drugs. Why should he be given permission to do so?
The appellant's counsel submitted that these charges arose out of only one incident. His Honour enquired where the drugs had come from and he was told that the appellant's fellow passengers in the car had provided them to him. His Honour then asked why he took possession of them. There was no explanation given but counsel told the magistrate that the appellant admitted that it was a foolish thing to do. The magistrate then asked what the appellant was going to do with the drugs and he was told that the appellant was on his way to Subiaco. The magistrate repeated his question and counsel said:
BLOXHAM, MR: Well he had never used them before, your Honour. He caught up with peer pressure ‑ friends taking him out to Subiaco. He's 20 years of age, he's not involved in these sort of activities. He is mostly involved with studying to become a pilot. He's moved quite a long way through that course. You can see from the receipts. He's looking at becoming a commercial pilot. So most of his time is taken up by studying to become a pilot to eventually support his family.
Obviously, it's those reasons he has instructed me to seek a spent conviction in this case. If he was to get a record the chances of becoming a commercial pilot would be significantly reduced. In fact I have spoken with the authority and they say they won't issue asset card at all if he doesn't receive ‑ if he doesn't have a clean record. If there are no further questions, that concludes my submissions, your Honour.
The prosecution opposed the granting of spent conviction orders. The prosecutor submitted that the offences were not trivial and that this was an occasion on which potential employers and 'certain places' needed to know about the appellant's antecedents and criminal history.
His Honour then proceeded to sentence the appellant. His Honour said:
HIS HONOUR: Well, the seriousness of the offences speak for themselves, Mr Surty. You were in possession of those quantity of drugs and what exacerbates the seriousness of your situation is the fact that it was two separate types of drugs. And particularly having regard for your personal situation I find great difficulty in accepting that this was a spur of the moment decision and that you were the subject of peer group pressure.
If the references are correct you are an intelligent person and you would have been fully aware of the repercussions of being found in possession of these items. You chose to take possession of them for whatever reason and you will now suffer the consequences. You will be fined a global penalty of $600 with costs of $114.20 and there are formal orders for the destruction of the drugs in each case.
In relation to your application for a spent conviction, there is a guideline judgement of Tognini. There are numerous other judgements including Scanlon v Bove, Ennis v D'Andrilli.
The discretion pursuant to s 45 of the Sentencing Act 1995 (WA) should only be exercised in circumstances which are of such an exceptional character and should only be exercised sparingly if you should be immediately relieved of such a conviction and the prerequisites must be satisfied.
That is there is little likelihood of you committing the offence again. Well, on that basis there is no evidence to suggest otherwise. There is evidence before me that you have been of previous good character and I accept that you are studying to be a commercial pilot. You are substantially through that course. You have incurred considerable expense to further your education in an attempt to obtain those qualifications.
You are supporting a family and I accept that your mother is seriously ill and that your father is about to retire. So any recorded conviction in relation to these matters will obviously have an adverse effect upon you, particularly in relation to your potential employment in the airline industry.
Having regard for the requirements concerning the authorities' discretion to grant you permission to fly and it is contained in (indistinct) information sheet and it is quite obvious ‑ and it should be obvious to the simple person that any person who is found to be in possession of narcotics and convicted of such an offence should be taken into consideration in determining whether or not he should be granted a licence to fly. There must be cogent and reliable evidence to support the fact that you will suffer some detriment in determining a discretion and the prerequisites must be met.
These are not trivial offences. I accept fully that there will be some detriment to you if there are convictions recorded against you. But having regard for the nature of the drugs, the quantities of the drugs and the industry in which you are attempting to become involved in and the fact that there are very serious consequences, it is my view that you should not be relieved immediately of the conviction and there will be no spent convictions because of the serious nature of the offences and the nature of your personal circumstances.

Considerations of the grounds of appeal

The Sentencing Act 1995 (WA) s 39(2) provides that a court sentencing an offender may, with or without making a spent conviction order, fine an offender. Section 45 of that Act states that 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.
A spent conviction order made under s 39 is an order that the conviction to which it relates is a spent conviction for the purposes of the Spent Convictions Act 1988 (WA) (Spent Convictions Act). When a conviction becomes a spent conviction for the purposes of the Spent Convictions Act, it is unlawful for a person to discriminate against the offender on the ground of that spent conviction.
Examples of unlawful discrimination on the grounds of a spent conviction order include discrimination by an employer in respect to determining who should be offered employment, discrimination by an authority that is empowered to confer or renew an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in an occupation and discrimination by a principal against a contract worker. If a person has been granted a spent conviction order then, even where a written law requires a person to disclose or acknowledge matters relating to convictions, they do not have to disclose or acknowledge a spent conviction or the charge to which the spent conviction relates. There are other protections granted to persons who have been given a spent conviction order.
The principles relating to the granting of spent conviction orders are well known as they have been set out in a number of cases including Riggall v The State of Western Australia (2008) 37 WAR 211. Most recently, I have referred to them in Robertson v Lawrence [2008] WASC 111 [38] ‑ [41]. I apply the principles, which I there stated, to the facts of this case. I will not repeat them.
The parties were content to argue the appeal on the basis that the magistrate found that the appellant was unlikely to commit such offences again but that the offences were not trivial. As the magistrate also found that the appellant was of previous good character, the only issue that remained for the magistrate was whether the appellant ought to be relieved immediately of the adverse effect the convictions may have on him.
The reason the magistrate gave for exercising his discretion not to grant spent conviction orders was that, whilst records of convictions in respect of these offences would have an adverse effect on the appellant, the appellant's convictions should be taken into consideration by the relevant authority when determined whether or not the appellant should be granted a licence to fly an aeroplane. This determination appears to be based on the magistrate's view of the nature of the drugs in the appellant's possession, the quantity of the drugs and the nature of airline industry.

Ground of appeal 1(a)

The appellant submits that the magistrate placed too much weight on what his Honour regarded as the serious nature of the offences, given that the offences were not so serious as to disqualify the appellant from being granted spent convictions orders.
The seriousness of the offences was one matter which the magistrate did, and was obliged to, take in to account in the exercise of his discretion.
In R v Tognini (2000) 22 WAR 291 Murray J (Malcolm CJ and Wallwork J agreeing) said:
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 [27] - [28].
It would be unfair to the very experienced magistrate to select his use of 'serious' and conclude that he misconceived the offences as being more serious than they were. From the magistrate's comments it is clear to me that in using 'serious' he was not suggesting that the offences were serious examples of their kind. Rather, he was referring to the fact that the circumstances of these offences were more serious than they may have been because there was more than one sort of drug, different forms of drugs and an amount of drugs that was more than minimal. His Honour's conclusions in this regard were open to him.
The failure of defence counsel to tell the magistrate what the appellant was going to do with the drugs, even though the magistrate asked the question twice, did not assist the appellant in respect to his application for spent convictions orders. If an offender wishes to be granted spent convictions orders then the court has a right to expect that there will be an honest explanation given to it of all matters relevant to the exercise of its discretion.

The appellant relies on Harper v Page [2004] WASCA 267 [46]. The facts of that case were quite different. However, I contrast the full and frank explanation and apology given to the court on that occasion with the sparse information about the circumstances surrounding the commission of the offences provided to the court by the appellant's counsel. Not surprisingly, the magistrate found some of the explanation he received difficult to accept.
The appellant submits that if the magistrate considered the perceived seriousness of the offence as a disqualifying fact for spent conviction orders, the magistrate was in error.
I do not read the magistrate's reasons as stating that the seriousness of the offences rendered the appellant ineligible to receive spent conviction orders. In my opinion the magistrate did nothing more than do what he was required to do. That is, after having determined that the preconditions for the grant of spent conviction orders were established he went onto consider the seriousness of the offence, having regard to the circumstances of their commission and the appellant's circumstances.
In my opinion, there is no merit in this ground of appeal.

Ground of appeal 1(b)

The second ground of appeal contends that the magistrate placed too much weight on the nature of the aviation industry that the appellant was proposing to enter. The appellant submits that the magistrate ought to have confined his considerations to the specific criteria in the Act s 45.
I can not accept the submission that the magistrate ought to have confined his considerations to the criteria mentioned in s 45, as such a submission is in direct conflict with the authority of Tognini [28] which requires a sentencing court to take into account factors relating to securing the protection of the public when deciding whether to grant spent conviction orders. So much is accepted at another point of the appellant's written submissions when the submissions refer to Brewer v Bayens (2002) 26 WAR 510.
In support of the contention that the magistrate placed too much weight on the nature of the appellant's proposed profession, the appellant submits that the magistrate erred when he 'effectively made a negative determination of the appellant's fitness to hold a pilot's licence'.
In the course of an exchange with counsel, the magistrate made the remark which I have quoted at [17] of these reasons. The comment was made in the context of counsel's submission that a person with 'an adverse criminal record' may not be able to obtain an ASIC or similar authorisation.
I do not read his Honour's comments then or later in his sentencing remarks as including a finding that the appellant was unfit to hold a pilot's licence or an ASIC. This view is borne out by the magistrate's later comment that a person's conviction for possession of narcotics ought to be 'taken into consideration in determining whether or not he should be granted a licence to fly'. This is a very different finding from one that the appellant alleges that the magistrate made.
The appellant submits that the magistrate's finding that these convictions ought to be available to be taken into account in determining whether or not the appellant ought to be granted a licence to fly is contrary to his Honour's earlier finding that the appellant was not likely to commit these offences again.
The magistrate appears to have come to the latter finding on the basis that there was no evidence to suggest that the appellant would offend in a similar manner in the future. There is barely a basis for such a finding. In order for such a finding to be made in this context, I would expect the sentencing magistrate to point to positive factors justifying such a conclusion. Despite the fact that this was not done by the magistrate, the respondent's counsel advised me that the respondent is content for the appeal to be determined on the basis that the magistrate found that the appellant is unlikely to commit such offences again.
There may be thought to be a tension between a finding to that effect and the finding, made in this case, that the authority determining whether the appellant ought to or ought not to be licensed to fly a plane should be informed of the convictions. In other words why, if the appellant is unlikely to commit such offences again, should a licensing authority be advised of the convictions?
Before directly answering that question it is instructive to note that this is an issue which has arisen in other cases. For example, in Nichols v Harnett [2004] WASCA 311, McKechnie J considered that there was an inconsistency in such reasoning [10]. On the other hand in Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997) Parker J, on the assumption that it was unlikely that the appellant would re‑offend, still found that a spent conviction order ought not be made for a number of reasons including the public interest in an employer or potential employer being aware of the conviction because the offending conduct had 'clear relevance' in assessing the offender's reliability and suitability for the type of work which he pursued in the mining industry.
In my view, the answer to the question I posed is that in a profession which requires trustworthiness, maturity and the ability to make sound and reliable judgments in order to protect the public safety, a licensing authority or prospective employer needs to know as much as possible about a candidate for entry in order to assess the candidate's suitability for the profession.
For these reasons, I do not accept that the magistrate erred as contended. However, even if the magistrate did so err, the appellant still has to point to a particular circumstance which made it desirable from both the appellant's and the community's perspective that the detrimental effect of these convictions ought to be set aside. The onus is on the appellant to produce such evidence.
The evidence which was before the magistrate establishes that the appellant will require an ASIC in order to obtain employment as a commercial pilot. CASA is an issuing authority for an ASIC. When applying for an ASIC the appellant will have to advise CASA, amongst other things, about his criminal proceedings, prior convictions or findings of guilt involving prohibited drugs.
The exception to this general rule is that applicants are not required to disclose any convictions which may be protected by pt VIIC of the Crimes Act 1914 (Cth) (the Crimes Act), except where an exclusion applies. There is no evidence before me that an exclusion applies.
Pursuant to that part of the Crimes Act, and in particular s 85ZV(3), if the appellant was granted spent conviction orders, he would not be required to disclose the fact that he had been charged with or convicted of the offences subject to this appeal, to CASA when applying for an ASIC.
Consequently, without the benefit of spent conviction orders, the appellant will be required to disclose these convictions. It is a different issue as to whether such a disclosure would result in CASA refusing to issue him an ASIC.
The Air Navigation Regulations 1947 (Cth) reg 90(3) provides that CASA may not issue an ASIC to a person who has an adverse criminal record. Sub‑regulation (4) provides that a person has an adverse criminal record if he or she has, amongst other things, been convicted of an offence involving the possession of narcotics and been sentenced to imprisonment. This provision would not apply to the appellant.
The appellant relies on an information sheet published by CASA for the benefit of potential applicants for an ASIC which states:
For ASICs, the Department of Transport and Regional Services assesses your Police History Certificate in accordance with the regulations. You will be assessed as having an adverse criminal record if you have been convicted of an aviation‑security‑relevant offence and sentenced to imprisonment, or if you have been convicted twice or more of an aviation‑security‑relevant offence or offences, but no sentence of imprisonment was imposed ‑ one of those convictions occurred within the previous 12 months.
If you are applying for an ASIC and have been convicted twice or more of aviation‑security‑relevant offences; and no sentence of imprisonment was imposed for any of those convictions, and none of those convictions occurred within the 12 months ending when the background check was carried out, the ASIC would be issued subject to the condition that a further background check will be carried out within 12 months.
Neither party directed me to any legislative basis for the advice in the information sheet that an applicant would be assessed as having an adverse criminal record if they had been twice or more convicted of an aviation‑security‑relevant offence, no sentence of imprisonment having been imposed but one of those convictions having occurred within the previous 12 months. However, assuming that this information is correct, the information in the information sheet only indicates that the appellant will not be able to obtain an ASIC within 12 months of the date of his convictions for these offences, being 27 February 2009. It does not support the submission that these convictions will prevent the appellant from obtaining an ASIC, beyond that period.
While this conclusion would support the magistrate's finding that these convictions would be detrimental to the appellant, it does not indicate that such detriment will be of any significance. There was no evidence before the magistrate and no evidence before me that a delay until March 2010 in the applicant being able to obtain an ASIC will 'be productive of exceptional hardship' to the appellant, such as would justify the granting of spent conviction orders.
It was not submitted to the magistrate or to me that the convictions will result in such exceptional hardship because they are likely to result in the appellant being unable to obtain employment as a commercial pilot. Whilst it is not difficult for me to imagine that employers, in a competitive market, would be less likely to employ persons with criminal convictions than persons without such convictions, without evidence as to the nature of the employment market which the appellant will be competing in, it is not possible for me to conclude that any such imagined detriment will have practical effect. For example, it may be that the commercial pilot industry is swamped with prospective pilots and therefore the appellant has very little chance of gaining employment in it in any event. Alternatively, there may be a dearth of prospective pilots, in which case his convictions for these offences, as long as he can obtain an ASIC, may not be of significance. The position may be somewhere between these two extremes. Without evidence and submissions on these matters, it is not appropriate for me to determine the appeal on the basis of them.
For these reasons the appeal is dismissed.