The State of Western Australia v A S A - [2014] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- A S A [2014] WADC 78

CORAM: MCCANN DCJ

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 6 JUNE 2014

FILE NO/S: IND 1401 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
A S A

Catchwords:

Sentencing- Possession of cocaine - Application for a spent conviction pursuant to Sentencing Act 1995, s 39 and s 45 - Turns on own facts

Legislation:

Misuse of Drugs Act 1981, s 6(1)(a), s 6(2) and s 7(1)(a)
Sentencing Act 1995, s 39 and s 45

Result:

Application dismissed

Representation:

Counsel:

The State of Western Australia : Ms H O Milligan
Accused: Ms G C Clarke

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Gabrielle Clarke Legal

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

R v Tognini & McGuire [2000] WASCA 31

MCCANN DCJ: On 16 April 2014 the offender (ASA) pleaded guilty and was convicted of three offences under the Misuse of Drugs Act 1981 (the MDA).
The offences were that on 5 August 2013 she possessed a prohibited drug (cocaine) contrary to s 6(2) of the MDA, cultivated a prohibited plant (cannabis) with intent to sell or supply contrary to MDA s 7(1)(a) and possessed a prohibited drug (cannabis) with intent to sell or supply contrary to MDA s 6(1)(a).
For the cocaine offence she was fined $1,000 and for the cannabis offences she was placed on an intensive supervision order for 1 year with program and supervision requirements, and ordered to perform 70 hours of community service.
Ms Clarke raised the matter of spent conviction orders after I had passed sentence and whilst I was in the process of stating that I had considered it. There was insufficient evidence to support an application, but I gave ASA liberty to apply and stated that I would decide the application on the papers.
In due course she applied for spent conviction orders supported by an affidavit sworn on 30 April 2014. The affidavit reiterated personal details which were canvassed during the sentencing hearing, including the fact that she is 33 years of age, is a qualified dental health nurse and has worked in that occupation for many years. At the moment she works in a dental practice for 1 day per week and for two days in a business operated by her partner (and co‑offender in respect of the cannabis charges).
Ms ASA deposed that it is her intention to resume full‑time employment as a dental health nurse when her young daughter is a little older. She is concerned that she may need to provide police clearances and/or Working with Children checks in order to secure employment. I accept that evidence.
Ms Anderson deposed to her belief that the seriousness of her convictions 'will significantly impact' on her employment prospects in the future. I also accept that such is her belief.
The State submitted that ASA is not entitled to a spent conviction order in respect of the cannabis offences. Pursuant to s 39(2) of the Sentencing Act 1995, a spent conviction may only be granted by a sentencing court in the circumstances set out within that subsection. There is no provision for the making of a spent conviction order in respect of an offence for which an intensive supervision order was imposed. Ms Clarke later conceded this objection.
In all the circumstances I am not satisfied that a spent conviction is warranted for the cocaine offence. My reasons are as follows.
Section 45(1) of the Sentencing Act 1995 provides that:
Under s 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 character of the offender
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on an offender.
I am not satisfied that the cocaine offence was trivial. The amount found in ASA's possession (2 g) was the balance of a slightly larger quantity which was purchased for $1,100. Its purity was very high (82%).
Further, the offence cannot be viewed in isolation. It was part of a course of drug-related offending involving the cannabis offences. So far as the cultivation was concerned she was only culpable in respect of one of the plants, but she helped to cultivate the two mature (and drying) plants the subject of the possession charge.
The amount of cannabis involved in the possession offence was not insignificant and would have been available for distribution by her partner and co‑offender in the confined (ie peer-related) ad hoc way which I outlined in my reasons in the trial of issues (ts 118, 121 ‑ 122). Ms ASA actually believed (mistakenly as it turns out) that the co-offender intended to sell the cannabis and that the proceeds would he used to supplement the family's income.
In all the circumstances, she willingly committed a serious offence by possessing a significant quantity of cocaine, a hard drug of addiction.
However, for reasons given during sentencing (ts 148 ‑ 149) I am satisfied that ASA's offending was an out of character error of judgment and she is unlikely to offend again. I am satisfied that she was of previous good character. I am therefore satisfied that the discretion to make a spent conviction order conferred by s 45(1)(a) and 45(1)(b)(ii) is enlivened.
It is necessary to consider every case on its merits, but the discretionary power to make a spent conviction order is of an exceptional character (R v Tognini & McGuire [2000] WASCA 31 [24], [27] Murray J, Malcolm CJ and Wallwork J agreeing).
From ASA's point‑of‑view, there is something to be said for mitigating the future occupational complications that could arise from her having the cocaine conviction.
But, as I have said, it was a serious offence. In my opinion, the community is entitled to be apprised of the conviction and to use it for relevant purposes, including the assessment of her suitability for her quasi‑professional occupation. I appreciate that the impact of a conviction can sometimes be heavier on such a person than others, but that is not unusual and reflects the importance to the public of such persons maintaining proper standards and being accountable.
It is for others to assess whether she is a fit and proper person for employment, but they should be allowed to judge for themselves based on all relevant information.
Ms ASA cannot have been ignorant of the potential occupational consequences of her offending and, in fact, deposed that on occasions she has been obliged in the past to provide police clearances and Working with Children checks in order to secure employment.
In other words, the public interest in the recording of a conviction for the cocaine offence significantly outweighs ASA's personal circumstances and the consequences which she willingly

entertained. I am not satisfied that a spent conviction order is appropriate in respect of that offence.

For the record, I was of the same view and for the same reasons in respect of the cannabis convictions.
There has been no application for a suppression order in respect of this particular decision, but I am satisfied that ASA's full name should not be used in it so as to mitigate the additional public exposure inherent in the publication of the decision in this form.