TJH v Osborne
[2018] WASC 87
•29 MARCH 2018
[2018] WASC 87
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| CITATION | : | TJH -v- OSBORNE [2018] WASC 87 |
| CORAM | : SMITH AJ | ||
| HEARD | : 1 MARCH 2018 | ||
| DELIVERED | : 29 MARCH 2018 | ||
| FILE NO/S |
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| MATTER |
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| BETWEEN | : TJH |
Appellant
AND
TONY ALLAN OSBORNE
Respondent
ON APPEAL FROM:
| Jurisdiction | : | MAGISTRATES COURT OF WESTERN AUSTRALIA |
| Coram | : | MAGISTRATE B P MAHON |
| File Number | : | BS 483 of 2017, BS 484 of 2017, BS 485 of 2017, BS 486 of 2017, BS 487 of 2017 |
| Catchwords: |
Criminal law - Appeal against sentence - Whether failure to make spent conviction orders on some offences when made on others a miscarriage of
[2018] WASC 87
justice - Public interest in deterrence to be balanced against public interest in
aiding rehabilitation of an offender considered - Young person - Detrimental and
long-lasting effect on career prospects considered
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2), s 40(1), s 40(1)(e)
Sentencing Act 1995 (WA), s 15, s 39(2), s 45, s 45(1), s 45(1)(b)
Spent Convictions Act 1988 (WA), s 18, s 27
Result:
Leave to appeal granted
Appeal allowed on ground 1
Spent conviction orders made
Category: B
Representation:
Counsel:
| Appellant | : | Ms H E Prince |
Respondent : Mr B M Murray
Solicitors:
| Appellant | : | Friedman Lurie Singh & D'Angelo |
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in decision(s):
Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Brewer v Bayens [2002] WASCA 271
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
R v Riggall [2008] WASCA 69; (2008) 37 WAR 211; (2008) 182 A Crim R 517
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
[2018] WASC 87
Sakhie v The State of Western Australia [2017] WASCA 103
Willenberg v Downey [2015] WASC 282
Wilson v The State of Western Australia [2010] WASCA 82
[2018] WASC 87
SMITH AJ
SMITH AJ:
The appeal
The appellant seeks leave to appeal against sentence.
On 24 July 2017 the appellant was convicted on pleas of guilty of:
(a) one count of possession of a prohibited drug namely,
3,4-Methylenedioxy-N, A-Dimethylphenylethylamine (MDMA) with intent to sell or supply and fined $2,000;
(b) two counts of supply of MDMA to another and fined $500 on each charge; (c) one count of possession of cannabis and fined $200; and (d) one count of possession of drug paraphernalia (cannabis smoking implement) and fined $200.
Whilst the conviction on the first charge was possession with an intent to sell or supply MDMA, the magistrate accepted that the plea to the charge was to supply only with no commerciality.
An application was made to the magistrate to make spent conviction orders in respect of each of the convictions. The magistrate made such an order on both of the charges relating to cannabis but refused to make spent conviction orders for the three MDMA offences.
For the reasons set out below, I am of the opinion that leave to appeal on ground 1 of the appeal should be granted. I am also of the opinion that leave to admit [14] of an affidavit sworn by the appellant on 22 February 2018 and Clinipath Pathology reports annexed to the affidavit be granted, the appeal allowed on ground 1 and spent conviction orders should be made in respect of each of the MDMA convictions.
The facts before the magistrate
The appellant was 18 years and 4 months old when the offences occurred. The offences occurred in November 2016 at Dunsborough after the appellant had just finished year 12 and was attending 'schoolies week' with school friends.
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On 21 November 2016, at about 4.00 pm, during a drug detection operation conducted by the police at the Dunsborough Lakes Caravan Park, a drug detection dog located 0.5 g of cannabis in a bowl in a tent and a cone piece smoking implement which had traces of cannabis in it. The appellant was spoken to and admitted to the possession of the cannabis and the smoking implement.
On 23 November 2016, during a second drug detection operation at the same caravan park, a drug detection dog led police to a vehicle. The appellant opened the vehicle and the police located 13 MDMA tablets, totalling 3.53 g of MDMA. The appellant admitted to the police that the tablets were his and that he had supplied two MDMA tablets. At the same time, the drug detection dog located drugs on another person who was under the age of 18 years old and was subsequently dealt with by the Children's Court.
The appellant was charged with the cannabis offences after being apprehended for the MDMA offences on 23 November 2016.
The appellant was using MDMA and cannabis heavily in the days before and during the first and second drug detection operations. During this period he was taking five MDMA tablets a day and was still affected by MDMA when formally interviewed by the police.
The appellant entered pleas of guilty to the MDMA offences on
grounds that:
(a) he had supplied one tablet each to two of his friends; (b) in respect of the charge of being in possession with intent to sell or supply MDMA he had intended to use the majority of the tablets for his own use, but he might have supplied a friend if a friend had asked him for one of the tablets.
The prosecution did not oppose, or consent to, the granting of spent convictions for all of the offences.
In mitigation, counsel for the appellant made the following submissions to the magistrate:
(a)
At the time of the offences, the appellant was using drugs heavily. He was not thinking clearly. He saw it as 'partying' and whilst he understood that using the drugs was illegal, he did not see that there was anything particularly wrong with it.
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(b) Following the offences the appellant realised he was going down a 'bad path'. He has ceased taking drugs and seeing the group of friends he had taken drugs with. (c) The appellant had been undertaking voluntary urine analysis for drug detection and had obtained Clinipath reports in May and June 2017 which show he no longer takes drugs. (d) The appellant has no prior convictions. (e) The appellant is able to pay fines. He has worked in retail and completed managerial courses while still at secondary school. He is well thought of by his supervisors at his part time retail weekend employment and by members of the community who found his offending out of character. (f) The appellant's life plans require him to have a clean record. The appellant had recently commenced an apprenticeship as an electrician with an electrical contractor who carries out work in the defence and mining sectors. (g) The appellant's contract of employment as an apprentice requires him to disclose criminal convictions. (h) The appellant now understands that if he fails a drug analysis test at work he would lose his apprenticeship, and the ability to fly in and fly out to work on sites. (i) The appellant's employer has no knowledge of the charges. With any conviction for drugs in the electrical contracting industry '[T]hey will find someone else. As a result, his life will be in chaos and he will lose his job'.
Relevant documentary material before the magistrate
The appellant's counsel provided to the magistrate:
(a) the Clinipath pathology reports; (b)
a copy of the appellant's terms and conditions of employment for his position as apprentice electrician;
(c)
character references written by his father, JH and his mother, WH;
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(d) character references from AA the store manager of a liquor and grocery supermarket; and (e) character references from a neighbour and another person, both of whom were aware of the charges that the appellant was facing.
The appellant's contract of employment as an apprentice electrician expressly provides that:
(a) he is not to be adversely affected by alcohol, drugs or fatigue during working hours; and (b) he may be required to undertake pre-employment, deployment, post-incident, random, blanket or 'for cause' drug and alcohol testing either by his employer or his employer's client when accessing client's sites.
Attached to the appellant's contract of employment is a motor vehicle fleet - driver declaration. When completing the form on 6 May 2017 the appellant was required to answer questions as to whether he had any convictions or fines in the last five years for, among other matters, alcohol, drugs or any criminal offences. If the answer was yes to any of those questions full details were to be provided. As the appellant completed the form prior to being convicted for the offences he answered no to each of those questions on the form.
Both the appellant's parents, in letters addressed to the magistrate, put forward of an account of a kind, generous and upstanding young man who wrongly and immaturely strayed into drugs and had since his arrest taken steps to turn his life around. His father is a construction foreman. In his letter dated 26 May 2017, he stated that a conviction for a drug charge would affect the appellant's job prospects and 'ruin his bright future'.
The appellant's mother stated, in her letter dated 2 June 2017, to the magistrate, that:
(a)
after the appellant finished year 12 he was accepted to Trades North TAFE on an electrical pre-apprenticeship course and on his first work opportunity was offered a four year apprenticeship with his current employer;
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(b) the appellant would breach his contract with the company if he cannot obtain a police clearance check for working in the mines and defence forces and would result in immediate dismissal; (c) convictions will result in immediate termination of his contract with his two current jobs that is, duty manager at the liquor and grocery supermarket, and his apprenticeship; and (d) the appellant has aged relatives in England and that they were planning to visit his 80-year-old grandparents next year and that his passport was essential for work requirements and visiting UK relatives.
AA in an undated reference, addressed to 'whom it may concern', spoke glowingly of the appellant's work ethic over a period of three years.
RT, a neighbour of the appellant has known the appellant for two and a half years. She stated in an undated letter, addressed to 'whom it may concern', that the appellant has always been a courteous and helpful neighbour and has always gone out of his way to offer his assistance and say hello. JR in a letter, dated 26 May 2017, addressed to the magistrate, made similar observations about the character of the appellant.
The magistrate's reasons for decision
The magistrate made the following material findings of fact:
(a)
the amount of MDMA was in excess of the amount of drugs that gives rise to the presumption of sell or supply;
(b)
the pleas were entered strictly on the basis of supply only, without commerciality;
(c)
the appellant had been candid with the police officers and accepted ownership of the tablets;
(d)
whilst the majority of tablets were for the consumption of the appellant he may have supplied some of those to others;
(e) pleas were entered by the appellant at an early stage; (f)
the appellant is a young man with a good future in front of him in paid employment as an apprentice electrician;
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(g) counsel's submissions that the appellant no longer has anything to do with controlled drugs is accepted; (h) the appellant had learnt from this experience; (i) the appellant was drug affected and not thinking clearly when committing the offences so as to affect his behaviour, and his decision making process was adversely affected; and
(j) the school leavers 'set up' is a problematic situation for the authorities to handle. Regrettably, in this setting, young people lose their lives on occasions as a result of 'pills', as no one knows what is in, or the purity of these controlled substances;
The magistrate then turned to the principles set out in the decision of the Court of Appeal in R v Tognini1 and observed:
(a) the discretion and power to make a spent conviction order conferred by s 45 of the Sentencing Act 1995 (WA) should be regarded as being of an exceptional character; (b) if the necessary preconditions 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; (c) the court 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.
The magistrate also had regard to the decision in Willenberg v Downey2 where it was observed that the discretionary power to make a spent conviction order should be regarded as being of exceptional character to be sparingly exercised in a clear case.3 The magistrate found this was a principle that goes beyond Tognini.4 If this was an
1 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
2 Willenberg v Downey [2015] WASC 282.
3 Willenberg v Downey [2015] WASC 282 [12].
4 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
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observation that the 'bar' to meet before a spent conviction order should be made is, since Tognini, was decided much higher, this is not correct. Tognini5 is authority for the point made in Willenberg v Downey. This error is not however material, as this observation did not in my opinion lead the magistrate directly into error.
The magistrate applied the preconditions in s 45(1)(b) of the Sentencing Act and found that he was satisfied that it was unlikely that the appellant would commit such an offence again and that whilst the offences were not trivial he was satisfied that the appellant was of previous good character.
The magistrate then turned his mind to whether the appellant should be relieved immediately of the adverse effects that the convictions might have on the appellant and found that:
(a)
the appellant's personal circumstances are entirely supportive of a spent conviction. In particular, his age, the fact that he had provided clear urine analysis, the careful letters of reference, the attendance by his mother in court and the lessons that he had learnt which were 'there in spades' were entirely supportive of making a spent conviction;
(b)
whilst he had regard to the fact that the appellant was drug affected during the event, he also had regard to the fact that the appellant was excited about the event, that he was an intelligent person who on the first occasion that the police drug detection dog had found cannabis and a smoking implement in his possession had been given 'the heads-up, loud and clear that it was a time to pull his head in';
(c) the appellant had a not an inconsiderable amount of MDMA; (d)
whilst the appellant was planning to use five 'pills' or so a day and whilst he stepped forward and accepted responsibility for the MDMA after he had a 'warning shot' on 21 November 2016 when at that time he had possession of the MDMA, he did not disclose or dispose of the tablets. Because of this circumstance, the magistrate took the view that it was 'a step too far for him' to grant the appellant spent convictions in relation to the MDMA offences.
5 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24], [27] (Murray J).
[2018] WASC 87
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The magistrate informed the appellant that if he had 'come clean' on 21 November 2016 and 'coughed the lot' he would have made spent convictions for the MDMA offences.
The magistrate said it was not appropriate to make spent conviction orders in the circumstances of supply and distribution of controlled drugs to young people who are vulnerable.
After imposing fines in respect of each of the offences and granting spent convictions in relation to the cannabis and drug paraphernalia offences, the magistrate went on to say that he had requested a copy of the transcript of the sentencing so that any employer (including the appellant's current employer) would see that he (the magistrate) was clearly satisfied that the appellant had learnt from this incident and was confident that there would never be an error in judgment of this nature again.
The magistrate also stated that he:
(a)
did not want there to be a 'blemish' on the appellant's 'copybook' going forward that he (the appellant) simply could not step past; and
(b)
that it would be made plain to the appellant's current employer (or future employer) that had he (the magistrate) been able to grant the appellant's spent convictions on the MDMA offences he would have done so.
The grounds of appeal
In ground 1 of the appeal, it is contended that there was a miscarriage of justice by the failure of the magistrate to grant a spent conviction order for the three MDMA offences, when he granted a spent conviction on the two cannabis offences, having regard to:
(a) the appellant's age at the date of the offences; (b) the appellant's lack of previous convictions; (c) the significant mitigating circumstances; (d) the unlikelihood of the appellant re-offending; (e)
the significant inroads the appellant had made in his rehabilitation from drug use;
[2018] WASC 87
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(f) the adverse effect that the recording of the conviction will have on the appellant's ability to obtain employment and to travel abroad; and (g) the fact that there is no public interest in the conviction being recorded.
In ground 2 of the grounds of appeal, the appellant puts a similar point by alleging that the magistrate erred in failing to grant a spent conviction for the three MDMA offences, having found that the appellant was young, in an excitable state and drug affected at the time of the commission of the offences, and took a view contrary to those factors in determining not to impose a spent conviction, where spent convictions were imposed in relation to the two other offences.
Application to adduce further evidence
Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), an appeal court may admit any evidence not otherwise specifically allowed under s 40(1).
The relevant principles of admission of evidence were discussed in
Colwell v The State of Western Australia [No 2]:6
The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: Criminal Appeals Act 2004 (WA), s 39(1). However, the court has broad powers to admit other evidence: s 40(1)(e). In determining whether additional evidence should be admitted the general test to be applied is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: s 31(4)(a); Wheeler v The Queen [No 2] [2010] WASCA 105 [3], [53]; The State of Western Australia v Hyder [2011] WASCA 256 [25].
It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177,178; R v Vachalec [1981] 1 NSWLR 351, 353 - 354; R v Babic [1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an
6 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] - [30]; applied in Anderson v
The State of Western Australia [No 3] [2014] WASCA 190 [106]; Sakhie v The State of Western Australia
[2017] WASCA 103 [19].
[2018] WASC 87
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individual: Vachalec (353 - 354); Anderson v The Queen [2010]
NSWCCA 130; (2010) 202 A Crim R 68 [45].Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] - [69]. The additional evidence was sought to be adduced on that basis.
The appellant applies for leave to file an affidavit sworn by him on 22 February 2018 and to rely upon new sentencing material which has come into existence since the appellant's convictions. The new material:
(a) relates to the circumstances of a young offender who is said to be a co-offender of the appellant who was apprehended by the police on 23 November 2016 at the same time as the appellant and who was convicted of offences relating to 24 MDMA tablets and a quantity of marijuana in the Children's Court and received a spent conviction order; (b) is monthly supervised urine drug and alcohol testing results by Clinipath Pathology dated 11 July 2017, 21 August 2017, 20 September 2017, 16 October 2017, 8 November 2017, 8 December 2017, 22 January 2018 and 19 February 2018; and (c) is set out in [14] of the appellant's affidavit as follows: Having a conviction (which is not spent) is causing me great difficulty in my apprenticeship because I have been told by my employer [ … ] that I will be required to provide a clear National Police clearance on 4 May 2018 to access jobs performed by my employer on mine sites and if I am unable to do that then my apprenticeship, and my employment, will be terminated.
I am not satisfied that the evidence which relates to the circumstances of the young offender who is said to be a co-offender is relevant. Firstly, the charges against the person who is said to be a co-offender are not stated. Secondly, whilst the court can have regard to matters of hearsay (pursuant to s 15 of the Sentencing Act), the information is of little weight as it is not clear what the young offender was charged with and it is not clear whether the young offender had
[2018] WASC 87
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been charged with offences arising out of one or two drug detection
operations during the November 2016 school leavers celebrations.
The monthly supervised urine drug and alcohol test results in the Clinipath Pathology reports is new evidence. This is not evidence that could have been before the magistrate. Consequently, this evidence should not be admitted by this court in this matter unless it is established that there was a miscarriage of justice by the sentencing magistrate and the discretion whether to make spent conviction orders on the MDMA offences is to be considered afresh.
The test to be applied in determining whether the information contained in [14] of the appellant's affidavit should be admitted, is whether, had this evidence been before the magistrate a different sentence should have been imposed. However, it is not necessary in this appeal to determine this issue. For reasons that follow, I am of the opinion that a miscarriage of justice is established and therefore it is open to the court to re-exercise the discretion whether to grant spent conviction orders in respect of the MDMA offences.
Whilst it is argued on behalf of the respondent that the matters stated in [14] of the affidavit should not be given a great deal of weight as it was essentially hearsay, I do not agree. It is evidence which is direct evidence of a statement made by the appellant's employer to him about whether his employment as an apprentice could be terminated.
This is information that was not fully before the magistrate but it directly challenges the assumption by the magistrate that the appellant's employer could be persuaded not to terminate the appellant's employment (and his apprenticeship) if shown the transcript of his Honour's sentencing remarks. Clearly, his Honour acted on an assumption that without spent conviction orders for all offences, the appellant's employment as an apprentice may not be affected. An assumption now shown to be incorrect.
On this basis, I am of the opinion that this evidence should be
admitted.
In my opinion, it would be unreasonable in this matter to expect the appellant to call his employer to give this evidence, as the MDMA convictions have not been disclosed by the appellant to the employer. Section 18 of the Spent Convictions Act 1988 (WA) provides that it is unlawful for an employer to discriminate against a person on the ground of a spent conviction on a number of grounds which include
[2018] WASC 87
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termination of employment. Section 27 of the Spent Convictions Act expressly provides that the requirement to disclose matters relating to a conviction do not require a convicted person to disclose or acknowledge a spent conviction, or the charge to which the conviction relates. In light of the operative effect of s 18 and s 27, in the circumstances of this matter, it would be unreasonable to require an employer of a person to whom a spent conviction is sought to attend court to give evidence about the effect a conviction may have on that person's employment.
For reasons that follow, I am satisfied that when the matters set out in [14] of the appellant's affidavit are considered with the evidence that was before the magistrate, spent conviction orders should have been made in respect of all of the offences for which the appellant was convicted.
The power to make spent conviction orders - legal principles
The power to make a spent conviction order is provided for in s 39(2) of the Sentencing Act 1995 (WA) which empowers a court sentencing an offender to impose a fine with or without making a spent conviction order. The preconditions for making a spent conviction order are set out in s 45(1) of the Sentencing Act. Section 45(1) 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.
As the magistrate correctly found, if the preconditions in s 45(1) are met, the court has a discretion, not a duty, to make, or not make, a spent conviction order: R v Tognini.7
7 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] - [28] (Murray J, Malcolm CJ & Wallwork J
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Miscarriage of justice - principles
In an appropriate case, leave to appeal may be granted by this court if the failure to make a spent conviction order amounts to a miscarriage of justice.
The principles to be applied in considering whether a miscarriage of justice is established were set out as follows by Pritchard J in Willenberg v Downey:8
It is well established that an appeal court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently. The discretion given to the sentencing judge or magistrate is of vital importance to the system of criminal justice. A sentence will involve an appellable error if the magistrate failed to exercise his discretion by acting upon a wrong principle, mistaking facts, or allowing irrelevant matters to affect the decision. The question in an appeal of the present kind is not whether the magistrate had a sufficient reason to make a spent conviction order, but rather whether the magistrate's decision involved a material error of fact or law, revealed either by the reasons given, or by implication from the failure to make a spent conviction order.
If, on the facts, the exercise of discretion is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court at first instance.
Consequently, an appellant court can only intervene if error is established in exercising the discretion in one of two ways. The first is if an express error is made out which involves acting on the wrong principle, by mistaking a law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is if an implied or inferred error is found which arises where it is not possible to discover the exact nature of the error, but the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.9
Whilst an appeal ground may be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.10
agreeing).
8 Willenberg v Downey [2015] WASC 282 [66] - [67].
9 Wilson v The State of Western Australia [2010] WASCA 82.
10 Criminal Appeals Act s 14(2).
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The only issue that arises in this matter in considering the exercise of discretion to make a spent conviction order is whether within the meaning of s 45(1) of the Sentencing Act, the offender should be relieved immediately of the adverse effects that the conviction might have on him.
Is an implied or express error in the decision of the magistrate not to make a spent conviction order in respect of the MDMA offences established?
The magistrate properly took into account the ordinary rule of the fact that the conviction will be a matter of record with all the consequences that may entail into the future. His Honour also stated that in assessing whether there was some circumstance to show that it would be desirable for the adverse effect of the conviction to be set aside, it is necessary to look at whether there was a particular circumstance to show that, not only from the point of view of the offender, but also from the point of view of the community, regard should be had for the offender's rehabilitation.
Having set these principles out prior to considering the circumstances arising in this matter, in my respectful opinion, the magistrate did not in fact make an assessment of whether having regard to the appellant's rehabilitation, from the point of view of the community, it was in the public interest to set aside the convictions for the MDMA offences.
In my opinion, two aspects to the public interest arise in this matter that should be considered when determining whether to make a spent conviction order. The first is the effect of an order on general deterrence include the protection of the community. In Brewer v Bayens11 Burchett AUJ observed:12
One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from responses to enquiries, and placing a legal impediment in the way of some enquiries. The Court should be careful not to expand this exceptional provision beyond Parliament's intention, both because
11 Brewer v Bayens [2002] WASCA 271.
12 Brewer v Bayens [2002] WASCA 271 [18].
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deterrence requires publicity and because, too, 'the preservation of confidence in the judicial system' requires publicity: R v Tait and Bartley (1979) 24 ALR 473 at 487, per Brennan, Deane and Gallop JJ. As their Honours also said (ibid):
'To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction.'
Clearly the public interest in the effect of an order on general deterrence was at the forefront of the magistrate's mind when sentencing the appellant.
| 54 | The second aspect of the public interest relates to the interest of the community in aiding a person's rehabilitation in an appropriate case. |
In R v Tognini13 Murray J observed that if a conviction is not declared to be spent it might result in a particular impediment to a person's career, ability to practice a particular profession or undertake particular employment. In such a case, it may 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.14
In R v Riggall,15 it was found that the mere fact of a conviction of indecency offences would likely have a detrimental and long-lasting impact on a young person at the beginning of their working life was a circumstance that made it appropriate to grant a spent conviction order.16
In my opinion the public interest can arise, in an appropriate case, where a spent conviction order can be said to aid the rehabilitation of a young person who is in a circumstance where the mere fact of a conviction will likely have a detrimental and long-lasting impact upon the young person.
In this matter, the circumstances were that the terms of the appellant's contract for employment required him to disclose convictions for criminal offences, including drug offences, and that it had been put to the magistrate that without spent conviction orders in respect of all of the offences his employment and his apprenticeship
13 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
14 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [28].
15 R v Riggall [2008] WASCA 69; (2008) 37 WAR 211; (2008) 182 A Crim R 517.
16 R v Riggall [2008] WASCA 69; (2008) 37 WAR 211; (2008) 182 A Crim R 517 [74] (Wheeler JA).
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would be terminated and his future prospects to engage in a career as an
electrician would be damaged. I am satisfied the magistrate erred:
(a) in failing to consider whether this circumstance together with the steps the appellant had taken since being charged with the offences to rehabilitate himself should have had the effect of raising the public interest in aiding the continued rehabilitation of the appellant by relieving him of the adverse effects of the convictions; and (b) whether that aspect of the public interest outweighed the public interest in the deterrent effect of the convictions.
For these reasons, I am satisfied that an express error is made out.
I am also of the opinion that it is arguable that the magistrate erred by mistaking the facts, in that his Honour did not have regard to the matters stated (without objection from the prosecution) in the letter written by the appellant's mother and the submission made by counsel, that without spent conviction orders the appellant would lose his job, and his apprenticeship as an apprentice electrician. The magistrate's view was that the appellant may not lose his employment or have his future employment prospects affected if a copy of the transcript of the sentencing proceedings was provided to the appellant's employer (or to any future employer). Given that the transcript would reveal the appellant was convicted of five charges in total (in relation to which spent conviction orders were made in respect of two of the charges) the provision of the transcript to an employer could be construed as inconsistent with the operative effect of the statutory scheme provided for the Spent Convictions Act 1988 (WA). However, these are not matters raised by the appellant in the grounds of appeal. Consequently, it is not necessary to make any binding observations, or finding, about these issues.
For these reasons, I would grant leave on ground 1 of the appeal and uphold that ground. In these circumstances, I do not find it necessary to consider ground 2 of the appeal.
It follows, therefore, that it is for this court to re-exercise a discretion under s 45 of the Sentencing Act.
[2018] WASC 87
SMITH AJ
Should a spent conviction order be made?
Whilst the appellant's drug taking was detected by police on two occasions during school leavers celebrations in November 2016, when regard is had to the appellant's previous good character, his insight since the offending and the steps he has taken subsequent to the offences to turn his life around, it is apparent that the offences can be regarded as an isolated incident that occurred within a short period. There is no doubt that the appellant is unlikely to commit a similar offence in the future. The appellant has made significant inroads into his own rehabilitation from drug use.
Recording the convictions for the MDMA offences is likely to have serious adverse consequences for the appellant's future career. The MDMA offences are not trivial, yet s 45 of the Sentencing Act recognises that a court sentencing an offender has a discretion to make a spent conviction order in respect of an offence that can be regarded as serious provided the person is of good character and it considers that the offender is unlikely to commit such an offence again.
Clearly, there is a public interest in recording a conviction against a young person for possession of MDMA with intent to sell or supply to other young persons at school leavers events. As the magistrate properly found, young people at these events are vulnerable. This circumstance however, is to be balanced against the fact that, but for the MDMA convictions, the appellant has real prospects of completing his apprenticeship as an electrician and continuing with that career. If the MDMA convictions are to stand as recorded, those prospects will be severely diminished which may result in him being unable to obtain a job as an apprentice electrician and pursue a subsequent career as an electrician.
Whilst the grant of a spent conviction order is exceptional and to be sparingly exercised, I am satisfied that in all the circumstances, that relieving the appellant of the adverse effect of the convictions would benefit the community by contributing to the appellant continuing his rehabilitation, which is matter that outweighs the public interest in having the MDMA convictions publicly recorded against him.
I am satisfied that the public interest is best served, in the circumstances of this case, by allowing the appellant to pursue his rehabilitation and his future career as an electrician without possible adverse consequences flowing from the commission of the MDMA offences which occurred at the age of 18, at a school leavers event. In
[2018] WASC 87
SMITH AJ
particular, I am satisfied that the appellant is more likely to be able to continue to keep his life 'on track' if he is given the opportunity to put the convictions behind him.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO SMITH AJ
29 MARCH 2018
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