T v Murphy
[2017] WASC 59
•10 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: T -v- MURPHY [2017] WASC 59
CORAM: BANKS-SMITH J
HEARD: 9 MARCH 2017
DELIVERED : 10 MARCH 2017
FILE NO/S: SJA 1066 of 2016
BETWEEN: T
Appellant
AND
LUKE JAMES MURPHY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :CHIEF MAGISTRATE S A HEATH
File No :FR 11902 of 2015, FR 11904 of 2015, FR 11906 of 2015
Catchwords:
Criminal law and sentencing - Application for spent conviction order - Whether magistrate erred in refusing to make order - Possession and cultivation of cannabis - Whether magistrate erred as to quantity - Whether miscarriage of justice - Whether spent conviction order should be made - turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 45
Result:
Appeal allowed
Spent conviction order made
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms R N Paljetak
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Naik v Morgan [2013] WASC 336
Papas v Goodwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Suleiman v The State of Western Australia [2017] WASCA 26
BANKS-SMITH J:
Background
On 15 July 2016 the appellant pleaded guilty to three offences:
(1)cultivating a prohibited plant, namely cannabis, contrary to s 7(2) of the Misuse of Drugs Act 1981 (WA);
(2)possessing drug paraphernalia, namely two metal smoking implements and a grinder, on which there was a prohibited drug, namely cannabis, contrary to s 7B(6) of the Misuse of Drugs Act; and
(3)possessing a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act.
The learned chief magistrate imposed fines of $1,000 for the possession offence, $750 for the cultivation offence and $500 for the drug paraphernalia offence.
The appellant sought a spent conviction order but that application was refused.
At the same hearing, his co‑accused, P, was sentenced following a plea of guilty to the same possession offence and fined $1,000, and an application for a spent conviction order was refused.
P was also charged with the same cultivation and drug paraphernalia offences but those matters were dealt with by a different magistrate sitting in Fremantle. P also faced an additional charge for assault. The magistrate fined P $1,500 for those offences and made a spent conviction order.
The appellant seeks leave to appeal against the magistrate's refusal to grant a spent conviction order. The fines are not the subject of appeal.
Facts as outlined by the prosecution
Relevantly, the prosecution outlined that on 16 October 2016, the appellant and P were at their home. Police attended as a result of a separate incident. The prosecutor said:[1]
Police subsequently observed a box containing cannabis on the patio outside. Police observed a metal smoking implement on the table of the rear patio, observed there was [a] rear shed at the premises which was locked using a padlock. Looking through the louvers of the shed, police observed a white box containing substantial quantities of loose cannabis.
…The warrant was executed. There was a hydroponic set up. Police seized two cannabis plants, a total of 1.576 kilograms of loose cannabis, two metal smoking implements, one cannabis grinder, one quantity of empty clip seal bags and a set of kitchen scales with a bit of visible cannabis residue.
They were both interviewed and the items seized, both persons admitting growing the cannabis plants, possession of the loose cannabis material and also possession of the paraphernalia. The accused Pullen states that she only smokes it once a week - personal use. And [I] request [an] order for destruction of those and I think that covers all the facts, your Honour.
[1] ts 4 ‑ 5.
The appellant's submissions at the sentencing hearing
Counsel for the appellant made the following submissions:[2]
Well, when police arrived at the house, they found, as your Honour has heard, some implements. There were two very small plants growing in the garden bed and, effectively, the remnants of two plants were found in the shed which is the loose cannabis material because the plants had been taken - harvested a day or two before. Both parties made immediate and full admissions as to the growing of the plants and the possession of the cannabis.
The history of the matter then is because the weight of that loose material having recently harvested, they were originally charged with one of sell/supply, so the State became involved and following, I think, some reference to an expert and submissions from defence counsel, the State accepted that the vast majority of that loose cannabis was, effectively, waste material.
The two plants were without buds really and most of that material was destined for the bin and, I think, perhaps a few of the leaves were going to be used to boil tea. So the State accepted that it was simple possession (indistinct) sell/supply and really that weight is misleading because so much of it was simply to be thrown away.
[2] ts 5 ‑ 6.
Defence counsel then referred to the fact that the appellant was 52 years old and has no relevant prior convictions.[3]
[3] ts 6.
Counsel also raised matters relevant to the likelihood of reoffending:[4]
He, since being charged with these offences, has ceased the use of cannabis. Your Honour has two urinalysis results from March and June this year, both of which show that he's clean from any substances and I can also say, he's regularly tested on his work site, in fact, he was tested twice in the last couple of weeks. So he has ceased the use of cannabis after a number of years.
[4] ts 6.
There were various character references before the magistrate attesting to his generosity, community involvement and expressions of regret:[5]
The references that are before your Honour do attest to a person who is someone who is generous, someone who gives to his community, is involved in the sailing community and volunteers there - teaches others. He helps out with his friends. The reference, I think, that's from [M], talks about him giving his time to help her as a single mother with things around the house.
…
As I said in my submission, he is a person of prior good character… Those references do attest to a person of good character. The people, essentially, express surprise and say that it's out of character and they talk about … his regret for being charged with these offences.
[5] ts 6.
As to potential detriment from a conviction, defence counsel said that the appellant is a boilermaker who works for a variety of different companies on short-term contract work. It was submitted that:[6]
As respect to detriment, he does work in a fly in/fly out capacity. He's also the holder of an MCI - sorry, an NSIC card which gives him access to Australian wharfs. I'm instructed that card is overseen by ASIO and other authorities, so a conviction of this nature may well impact on his ability to hold that card which then impacts on his ability to gain contract work involving visiting wharf sites and similar. So it would be my submission, there is clear detriment to him. In all the circumstances, it would be appropriate for a spent conviction to be made in the situation.
[6] ts 6 ‑ 7.
The magistrate's decision
The magistrate stated his reasons as follows:[7]
[The appellant], you actually have the three charges, whereas, [P], I'm only sentencing you in relation to the possession charge, but the comments are clearly equally applicable to both of you - essentially both come before the court without any criminal record. You, it appears, engaged in the cultivation of some cannabis and when police attended, there were the remnants of the cultivation of some two plants and a large quantity of cannabis material still available, although I'm told that most of that was not viable. I'm not given any particular break down of how much of the one and a half kilos was cannabis of a useable nature.
Clearly, there were a substantial number of plants to produce the quantity of material. You have, it would appear, pleaded guilty at the earliest opportunity once the indictable - or once the charge was amended, so that it was indictable, you're entitled to the maximum discount for that plea. The matters can certainly adequately be dealt with by way of fine, given your lack of record. The fine will be substantial to reflect the quantity involved.
You will be fined $1000 for the possession charges, $750 for the cultivation charge, [the appellant], and $500 for the possession of the paraphernalia. … There [are] the applications for the spent conviction orders. I accept that you're each of prior good character and that you would each suffer a detriment by the imposition of a conviction. However, given the nature of the cultivation and the quantity that was cultivated, I'm not prepared to exercise the discretion to grant a spent conviction order in either case.
[7] ts 8.
The proposed grounds of appeal
The appellant acts for himself in this appeal. He has two proposed grounds of appeal:
1.The magistrate erred in refusing a spent conviction application on the irrelevant consideration as to the amount of cannabis in my possession.
2.The magistrate made an error of fact in determining the amount of cannabis in my possession came from a large number of plant[s] when there were only two.
The appellant filed short written submissions, but they dealt with only two points. First, the appellant said he sought a spent conviction order because of his concern about a conviction on his work prospects. Second, he said that his co‑accused, P, was granted a spent conviction order by the Fremantle magistrate with respect to the charges she faced.[8]
[8] Court records confirm that to be so. A fine was also imposed.
For reasons set out below, at the hearing I granted the appellant leave to amend his proposed grounds by adding a third ground of appeal as follows:
3.The learned magistrate's sentencing involved a miscarriage of justice in that the appellant was not given the opportunity to address the contention that there were a substantial number of plants in his possession.
Power to make spent conviction order
The power to make a spent conviction order is found in s 39(2)(a) ‑ (d) of the Sentencing Act 1995 (WA). No criteria, however, are given in that section for the making of the order.
Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order and other provisions relating to a spent conviction order. Section 45 relevantly provides:
(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.
(2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4)A spent conviction order is to be taken as part of the sentence imposed.
If the conditions for making a spent conviction order are satisfied, the court may have regard to any relevant consideration in exercising its discretion to make an order. In R v Tognini,[9] the court 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.
That is not an exhaustive list of relevant considerations.[10]
[9] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] ‑ [28].
[10] Naik v Morgan [2013] WASC 336 [13].
Why the magistrate declined to make a spent conviction order
The magistrate's reasons were brief but factors relevant to the grant of a spent conviction order were taken into account. The magistrate noted that there was no relevant criminal record. His Honour found that:
(a)the appellant was of good character;
(b)the appellant would suffer a detriment by the imposition of a conviction; but
(c)the nature of the cultivation and the quantity that was cultivated dissuaded him from exercising his discretion to grant a spent conviction order.
It is therefore apparent that the magistrate had regard to the threshold requirements of s 45 and also considered matters relevant to the exercise of his discretion.
The respondent submits that although the magistrate did not make an express finding as to whether or not the appellant was unlikely to commit such offences again, it is arguable that the magistrate considered that was the case, because his Honour then went on to consider the adverse impact of a conviction upon the appellant as well as the seriousness of the offence. I accept that submission.
Principles on appeal
The question for the appeal court is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing magistrate or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order or whether there has been a miscarriage of justice. The question is not whether the magistrate had a sufficient reason not to make a spent conviction order. A court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a different manner.[11]
[11] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672
Consideration
As to the first proposed ground of appeal, the magistrate was entitled to take into account the amount of cannabis in the appellant's possession. The seriousness of an offence is relevant to the exercise of discretion. It may be taken into account when considering whether an offence is trivial, within the meaning of s 45 (1)(b) of the Sentencing Act. The magistrate noted there was a 'large' quantity of cannabis material available.
Ground 1 does not have any reasonable prospect of success and I would decline to grant leave on that ground.
However the position with respect to ground 2 is different. As set out above, defence counsel said that the loose cannabis comprised the recent harvest of two plants. Nothing in the prosecution's statement contradicted that submission.
The magistrate found that there were the remnants of two plants and a large quantity of cannabis material still available. His Honour refers to the appellant having engaged in cultivation of some cannabis. He refers to the 1½ kg of loose cannabis that was found. He then finds that 'clearly, there were a substantial number of plants to produce the quantity of material'.
As is clear from his second proposed ground of appeal, the appellant does not accept that the cannabis comprised the harvest of more than two plants and says that the magistrate made an error of fact by his finding as to there being a 'substantial number of plants'.
The respondent accepts that the loose cannabis was the harvest of two plants.[12]
[12] Respondent's outline of submissions [28] ‑ [30]; appeal ts 8.
The respondent says that, 'it is clear that the magistrate was aware that the cannabis cultivated came from the two plants', and that the magistrate's reference to the 'substantial number of plants' should properly be read as a reference to two cannabis plants. Whilst I accept that a beneficial construction is to be given to a magistrate's ex tempore reasons,[13] I do not think the language of 'substantial number' reasonably accommodates a reference to only two plants, as invited by the respondent. I read the reasons as being to the effect that the magistrate considered that a substantial number of plants (not two) were cultivated in order to produce the 1½ kg of cannabis located in the appellant's possession.
[13] Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189 [31].
It follows that I consider the magistrate made an error of fact and accordingly I would grant leave to appeal and allow the appeal on ground 2.
Further, as there was no evidence as to cultivation by the appellant of a 'substantial number' of plants, the magistrate's reasons indicated a lack of acceptance of the basis upon which the appellant's submissions proceeded, a basis from which the prosecution did not dissent, and without the appellant having the opportunity to respond.[14] The magistrate did not warn the appellant that he was going to make a finding that there were a substantial number of plants cultivated.
[14] Suleiman v The State of Western Australia [2017] WASCA 26 [40] ‑ [49].
It was against that backdrop that I raised the question of the potential third ground of appeal with the appellant. The appellant sought to amend his proposed grounds and the respondent did not oppose that course.
In my view, there was a lack of procedural fairness. That failure of procedural fairness is relevant to the decision to decline to grant a spent conviction order because the magistrate expressly relies upon the quantity that was cultivated in making his determination.
With respect to grounds 2 and 3, the respondent's position was that regardless of any error as to the number of plants and regardless of any lack of procedural fairness, there was no substantial miscarriage of justice and so the appeal ought to be dismissed in any event, in accordance with s 14(2) of the Criminal Appeals Act 2004 (WA).
The respondent submitted that regardless of the number of plants, the quantity of loose cannabis was large and so there was no miscarriage of justice.
The appellant ought to have had the opportunity to respond to a contention that the loose cannabis was the product of the harvest of a substantial number of plants. Such contention suggests that the conduct the subject of the offences might be considered more serious than it was. I do not consider the magistrate would have necessarily reached the same decision on the spent conviction application had he been disabused of the incorrect assumption that there were a substantial number of plants cultivated and comprising the loose cannabis. Accordingly, I do not consider the appeal should be dismissed under s 14(2) of the Criminal Appeals Act.
I grant leave with respect to ground 3 and allow the appeal.
As a result, the question of whether to grant a spent conviction order can be determined by this court.[15]
[15] Criminal Appeals Act 2004 (WA) s 14(1)(d).
Determination as to spent conviction
Based on the submissions before the magistrate, I consider that the appellant is unlikely to commit such an offence again. He is of mature age with no relevant record. He seeks to continue working. He is most concerned about the effect of these convictions on his ability to work. It would appear that urinalysis tests are carried out within his field of work. He says he no longer uses cannabis.
I do not consider the offences to be trivial. I acknowledge that the offences carry maximum punishments of imprisonment of up to two and three years.[16] I take into account that there was a hydroponic system on the premises, and I take into account that there was approximately 1½ kg of loose cannabis in the appellant's possession. On its face, that is not a small quantity.
[16] Misuse of Drugs Act 1981 (WA) s 34(1)(e) and s 7B(6).
However, it was not in issue that some of the harvest was waste and not viable. According to defence counsel, the weight of 1½ kg is misleading because, 'the vast majority of it was, effectively, waste material'; 'so much of it was simply to be thrown away'.[17] Whilst I acknowledge that it is unclear precisely how much was waste, I proceed on the basis that the loose cannabis was the harvest of only two plants. That is an important fact. Consideration of that fact mitigates the seriousness of the offending. Further, the cannabis was for personal use by the appellant and P.
[17] ts 5 ‑ 6.
I take into account the magistrate's finding that the appellant was of previous good character. The magistrate clearly accepted matters raised in the various character references provided to him and, as already noted, the appellant has no prior convictions. The respondent does not contest the finding by the magistrate that the appellant is of good character.[18] I am satisfied that the appellant is of previous good character within the meaning of s 45(1)(b)(ii) of the Sentencing Act and should be relieved of the adverse effect that the convictions might have on him.
[18] Respondent's outline of submissions [21].
Therefore, the threshold limbs of s 45(1)(a) and s 45(1)(b)(ii) are met and it is open to me to make a spent conviction order. Whilst the power to do so is to be exercised sparingly, I consider that I should exercise that discretion in the appellant's favour in this case.
I take into account the small number of plants involved and the appellant's plea of guilty at the earliest opportunity once the charges were amended. He is of mature age (52 at the time of the offence) and has reached that age with no relevant criminal record.
I take into account the magistrate's finding as to detriment. Although the matters relied upon as to detriment were not challenged before the magistrate, the respondent submits that the magistrate ought not to have speculated as to them and that potential adverse effects should have been identified.[19] During the appeal hearing, the appellant said that having a conviction has restricted his work ability on the wharves in terms of police clearances and a certain security card, but he did not provide evidence to that effect. However, having regard to the magistrate's finding as to detriment and the matters relied upon before the magistrate, I am satisfied that, taking into account the nature of the appellant's work, there is real potential that convictions may affect his ability to work in his particular industry. The relevance of drug use in that industry is apparent from the urinalysis tests that it seems he must undergo from time to time. It is not always possible to predict precisely what effect a conviction may have on work prospects: such difficulty does not deny an application for a spent conviction order.[20]
[19] Respondent's outline of submissions [15], relying on Papas v Goodwin [2010] WASC 226 [26].
[20] B v Murphy [2016] WASC 78 [29].
It is in the appellant's interests that he continue to work while he is able to do so. I also consider the interests of the community are best served by someone of his years and experience being in a position to work. The respondent submitted that the public interest would be served by deterrence and by ensuring a conviction could be uncovered by prospective employers, and I take those matters into account. However, in circumstances where I consider that the appellant is unlikely to commit such offences again and where it seems he participates in drug testing as required by his industry, I do not consider public interest issues outweigh the matters that support the exercise of my discretion in the appellant's particular circumstances.
In light of my conclusion, I do not need to consider the parity submission made by the appellant with respect to P's spent conviction order. In any event, the reasons as to why the magistrate made a spent conviction order in P's favour are not before me.
Outcome
For these reasons, I grant leave to appeal with respect to grounds 2 and 3, uphold the appeal and make a spent conviction order in respect of the appellant's offences.
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