SWS v WA Police - [2024] WASC 280

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SWS -v- WA POLICE [2024] WASC 280
CORAM:   WHITBY J
HEARD:   7 AUGUST 2024
DELIVERED          :   7 AUGUST 2024
FILE NO/S:   SJA 1022 of 2024
BETWEEN:   SWS
Appellant

AND

WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1022 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HOLGATE
File Number            :   AR 644 of 2024

Catchwords:

Spent conviction order - Whether appropriate - New evidence not before magistrate - Miscarriage of justice - Spent conviction order made - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	F Sellers
Respondent	:	J Kasbergen

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office

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

Ada v Director of Public Prosecutions (WA) [2022] WASC 112
Brewer v Bayens [2002] WASCA 271
JAD v McRae [2022] WASC 220
R v Tognini [2000] WASCA
Samuels v The State of Western Australia [2005] WASCA 193

WHITBY J:

(This judgment was delivered extemporaneously on 7 August 2024 and has been edited from the transcript.)

On 22 November 2023, the appellant was charged with four offences - possession of drug paraphernalia, namely a glass smoking implement, possession of a prohibited drug with intent to sell or supply namely, 1.9 g of methylamphetamine, receiving stolen goods (later amended to possession of stolen or unlawfully obtained property) and never held a driver's licence. I will refer to these as the first charges.
On 5 January 2024, the appellant was charged with being in possession of drug paraphernalia, namely a glass smoking implement, on which there was a prohibited drug, namely methylamphetamine. I will refer to this as the second charge.
On 1 February 2024, the appellant was convicted of the second charge in his absence in the Armadale Magistrates Court pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CP Act). The learned magistrate imposed a fine of $300, ordered costs in the sum of $272.70 and ordered destruction of the implement.
On 1 March 2024, the appellant was convicted of the first charges in the Armadale Magistrates Court. The learned magistrate made spent conviction orders with respect to the first three of the first charges and otherwise imposed fines, a community based order and made orders for destruction and forfeiture.
The appellant seeks an extension of time within which to apply for leave to appeal against the sentence imposed for the second charge. The sole ground of the appeal is that the learned magistrate's refusal to grant a spent conviction order resulted in a miscarriage of justice.
The last day to file the appeal was 29 February 2024 - the notice of appeal was not filed until 3 April 2024. The appellant requires an extension of time to appeal. The appellant relies upon the affidavit of Faye Elisabeth Sellers affirmed on 3 April 2024 in support of the application for an extension of time to appeal. Ms Sellers deposes to the fact that she did not receive a grant of legal aid in relation to this matter until 26 March 2024 and filed the appeal as soon as possible after obtaining the grant.
The respondent does not oppose an extension of time being granted.
Given the reasons for the delay, the strong merits of the ground of appeal and the absence of any prejudice to the respondent if an extension is granted, I consider that it is in the interests of justice for an extension of time to appeal to be granted.
The appellant also seeks to admit additional evidence in the appeal in the form of the transcript of the hearing of the first charges and relies upon an affidavit of Ms Sellers affirmed on 20 June 2024. Again, this application is not opposed by the respondent.
The court has a discretion, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (CA Act) to admit any other evidence. The test as to whether additional evidence should be admitted is whether, had the additional evidence been before the sentencing magistrate, a different sentence would have been imposed.
I consider that a different sentence may have been imposed had that evidence in the form of the transcripts been before the sentencing magistrate and therefore, I admit the additional evidence.
This is an appeal under div 2 pt 2 of the CA Act.
The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[1]
[1] CA Act s 6(f) and s 7(1).
Section 6(g) of the CA Act provides that a 'decision' of a court of summary jurisdiction includes 'a refusal to make an order that might be made as a result of a conviction'.
The learned magistrate's refusal to make a spent conviction order was 'a refusal to make an order that might be made as a result of a conviction' and is therefore, a decision within s 6(g) of the CA Act.
Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. In this instance, the appellant is appealing on the ground that there has been a miscarriage of justice.[2]
[2] CA Act s 8(1)(b).
The appellant must obtain leave to appeal.[3] If leave to appeal is not granted, the appeal is taken to have been dismissed.[4] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[5]
[3] CA Act s 9(1).
[4] CA Act s 9(3).
[5] Samuels v The State of Western Australia [2005] WASCA 193.
The power to make a spent conviction order is contained in s 39 (2)(a)-(d) of the Sentencing Act 1995 (WA) (Sentencing Act).
Section 45 of the Sentencing Act provides that the court must not make a spent conviction order under s 39(2) unless the following prerequisites are satisfied:[6]
1.the court must consider that the offender is unlikely to commit such an offence again;
2.the offence must be trivial, or the offender must be of previous good character; and
3.having regard to the pre-condition that the offence must be trivial, or the offender must be of previous good character, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
[6] Ada v Director of Public Prosecutions (WA) [2022] WASC 112 [31].
Even if the first two preconditions are met, the court has a discretion, but not a duty, to make a spent conviction. In R v Tognini, Murray J observed:[7]
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.
[7] R v Tognini [2000] WASCA 31 [24].
The discretion is of exceptional character and should only be exercised in clear cases. There is a significant hurdle for applicants to overcome where the discretionary power is enlivened.[8]
[8] Brewer v Bayens [2002] WASCA 271 [16].
To succeed on appeal, the appellant does not need to show error on the part of the learned magistrate. The appellant must show that, taking account of the additional evidence admitted on appeal: (a) the discretion to make a spent conviction order arises; and (b) the failure to make a spent conviction order has occasioned a miscarriage of justice.[9]
[9] JAD v McRae [2022] WASC 220 [71].
The respondent says that the discretion to make a spent conviction order has not been enlivened, because the court cannot be satisfied that the appellant is unlikely to commit such an offence again. That is because, since the appellant was convicted of the second charge (a drug related offence), he pleaded guilty to the first charges which consisted of three drug related offences. The respondent says, in circumstances where the appellant was found in possession of another smoking implement only approximately a month after he was apprehended and charged with the first charges, the court cannot be satisfied that he is unlikely to commit the same offence again.
The appellant submits that the hearing of the second charge took just over a minute and the prosecution did not ask for a spent conviction. The appellant says that, having regard to the nature of the offence, the appellant's youth and the fact that a spent conviction was granted on 1 March 2024 for three of the first charges, a spent conviction order is appropriate and the failure to make one has resulted in a miscarriage of justice. The appellant submits that had all matters been sentenced at the same time (on 1 March 2024), it is likely that a spent conviction would have also been granted on the second charge.
I am satisfied, in light of the matters before the court on 1 March 2024, that being that the appellant had no prior record and presented as someone particularly naïve, combined with the fact that he has been subject to a community based order since March 2024 and there has been no breach, that the appellant is unlikely to commit such an offence again. I am also satisfied that the appellant is of prior good character and therefore, that the first two preconditions have been satisfied and the discretion to make a spent conviction order was enlivened.
I must therefore consider whether the appellant should be relieved immediately of the adverse effect that the conviction might have on him.
The appellant was 18 years old at the time of his offending in relation to the first and second charges. He was born in New Zealand. He was raised by his mother who was a drug user and was incarcerated a number of times during the appellant's childhood. On the occasions that his mother was in prison, the appellant was cared for by his older cousin. His cousin moved to Perth in 2015. In 2019, when the appellant was only 14, he had an argument with his mother and was asked to leave the family home. The appellant came to Australia to live with his cousin. The appellant has not seen his mother since he left New Zealand.
The appellant completed year 10 in Perth and then sourced an apprenticeship as a heavy diesel mechanic. In October 2023, the appellant was contacted by his sister in New Zealand who was very distressed as their mother had been incarcerated and his sister was not living in a secure environment. This caused the appellant great distress. As a result he ceased going to work on 30 October 2023. On 22 November 2023, the appellant ran into an acquaintance at the train station, a known drug user, and the appellant smoked methylamphetamine for the first time. The acquaintance then gave the appellant the smoking implement, 1.9 g of methylamphetamine and the motor bike. The appellant was stopped by police and made immediate admissions that he got the drugs off a 'junkie' and that he could make money off them. The appellant's explanation is that he wanted to buy a plane ticket to see his sister in New Zealand.
The appellant requires a police clearance in order to obtain work as a heavy diesel mechanic. The appellant says it is difficult to obtain work in that industry, given he is operating heavy machinery, if he has a drug charge.
It is a balancing exercise - on the one hand there are the adverse effects of the conviction on the appellant to consider and on the other hand there is a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the offender's reliability or suitability for a particular type of work.
Having regard to those considerations, I am satisfied that it is in the appellant's and the community's interests for him to be relieved of the adverse effects of the conviction of the second charge. The appellant has a demonstrated work history as an apprentice diesel mechanic, he is only 19 years old, he has had a difficult childhood, he is of prior good character and his offending can be described as exceptionally naïve and attributable to his young age and the stress he was under at the time. I also consider that the public interest is protected given that he will be required to submit to drug tests in his employment as a heavy diesel mechanic apprentice. I
Therefore, I am satisfied that the learned magistrate's failure to grant a spent conviction order occasioned a miscarriage of justice and that it is appropriate that the appellant be granted a spent conviction.
I make the following orders:
1.Extension to time to appeal granted.
2.Appellant's application to admit additional evidence granted.
3.Leave to appeal granted.
4.Appeal allowed.
5.Spent conviction order made in respect of AR 644 of 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
7 AUGUST 2024