Twfe v Greenlees
[2019] WASC 330
•20 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TWFE -v- GREENLEES [2019] WASC 330
CORAM: HILL J
HEARD: 2 SEPTEMBER 2019
DELIVERED : 20 SEPTEMBER 2019
FILE NO/S: SJA 1060 of 2019
BETWEEN: TWFE
Appellant
AND
JOHN FREDERICK GREENLEES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE N LEMON
File Number : FR 13582 of 2018, FR 13583 of 2018
Catchwords:
Criminal law - Appeal against sentence - Application for spent conviction order - Whether magistrate erred in refusing to make order - Sale and supply of cannabis - Possession of cash reasonably suspected to be unlawfully obtained - Whether spent conviction order should be made - Young person - Detrimental effect on career prospects - Public interest in deterrence to be balance against public interest in aiding rehabilitation of an offender - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 39, s 40, s 41
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 45
Result:
Appeal allowed
Spent conviction order made
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
A v Staples [2007] WASC 36
B v Murphy [2016] WASC 78
Caseley v Zampogna [2006] WASC 259
Greenfield v The State of Western Australia [2019] WASCA 29
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
KMT v The State of Western Australia [No 2] [2018] WASCA 49
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273
Naik v Morgan [2013] WASC 336
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TJH v Osborne [2018] WASC 87
Wright v McMurchy [2012] WASCA 257
HILL J:
On 19 February 2019, the appellant pleaded guilty to two offences, namely:
(a)possession of prohibited drugs, namely cannabis, with an intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA); and
(b)possession of $4,410.00 in cash that was reasonably suspected to be unlawfully obtained contrary to s 417(1) of the Criminal Code (WA).
The learned magistrate referred the appellant to the Pre‑sentence Opportunity Program and adjourned the matter until 16 April 2019 for sentencing. On 16 April 2019, the learned magistrate imposed a nine month community based order and made orders for the forfeiture of the cash. The appellant sought a spent conviction order but the application was refused.
The appellant seeks leave to appeal against the magistrate's refusal to grant a spent conviction order. The other orders made by his Honour are not the subject of the appeal.
Notice of Appeal and Leave to Appeal
The appellant filed his notice of appeal on 3 May 2019. The appeal was filed within time.
There is one ground of appeal, namely that the magistrate erred in failing to make an immediate spent conviction order. The respondent proceeded on the basis that this ground of appeal was to the effect that the learned magistrate had erred in law in failing to make an immediate spent conviction order, alternatively the failure to make a spent conviction order was a miscarriage of justice.
The appellant requires leave to appeal.[1] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.'[2] This means that the ground must have a rational and logical prospect of succeeding.[3]
[1] Criminal Appeals Act 2004 (WA), s 9(1).
[2] Criminal Appeals Act, s 9(2).
[3] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
On 15 July 2019, Principal Registrar Strk ordered that the application for leave to appeal be heard together with the appeal.
Proceedings before the magistrate
The appellant appeared in person before the learned magistrate on 19 February 2019 and pleaded guilty to each of the charges. The appellant was 18 years and 1 month when the offences occurred.
The statement of facts outlined by the prosecution were that on 6 December 2018, a search warrant was executed at the appellant's residence. During the search, five small plastic clipseal bags were located which contained a total of 11 grams of cannabis and two medium clipseal bags, the first containing $3,700 cash and the second containing $710 cash.[4]
[4] ts 3 (19 February 2019).
The prosecutor stated:[5]
Police also located [the appellant's] mobile phone, which was found to contain numerous text messages relating to his active involvement in selling and supplying cannabis.
[5] ts 3(19 February 2019).
No further information was provided by the prosecutor as to the nature or number of the text messages.
The appellant admitted the facts that were presented to the court. The following exchange then took place between the appellant and the learned magistrate:[6]
HIS HONOUR: Well, what you've admitted by pleading guilty is that you were selling cannabis and you more or less admitted also – may not be quite as simple as this but you're admitting that the cash they found were proceeds of that activity.
ACCUSED: Yes, your Honour.
[6] ts 4 (19 February 2019).
The learned magistrate then asked the appellant about his circumstances. The appellant stated that he was currently studying a Bachelor of Business and that he had moved to Australia when he was 17 by himself, leaving his family in Germany. He said that he was 'in a bit of a hard spot and I made some wrong decisions'.[7]
[7] ts 4 - 5 (19 February 2019).
The learned magistrate suggested that prior to being sentenced, the appellant do a Pre‑sentence Opportunity Program. Specifically, his Honour stated that:[8]
One of the things that – because you've got no record, Mr [E], one of the things I need to consider is whether I make what's called a spent conviction order.
If I make that order it's very much in your favour because you don't have to declare these convictions. Now, what you've pleaded guilty to are some pretty serious charges and it would be fairly unusual for the court to make spent conviction orders for these sorts of charges but if you do well on the Pre-sentence Opportunity Program, that might change things. Well, to put it a different way, you probably have very little chance of having that sort of order made for you at the moment. You give yourself perhaps some chance if you do this program properly.
[8] ts 5 (19 February 2019).
The learned magistrate concluded by suggesting that the appellant have a duty lawyer represent him to make submissions about sentencing and stated 'Do the right thing because if you get a good report, it will make a difference'.[9]
[9] ts 6 (19 February 2019).
When the matter returned before the learned magistrate, the prosecution repeated the statement of facts. In answer to a question from his Honour, no further information was provided by the prosecutor as to the level of distribution.[10] The prosecutor confirmed that the evidence of the sale and supply of cannabis was from the messages on the phone.[11] There was no indication as to during what time period these messages occurred.
[10] ts 3 (16 April 2019).
[11] ts 2 (16 April 2019).
The appellant's counsel stated that:[12]
The facts are accepted. He's an 18 year old man. He is currently studying full-time at university. I hand up a copy of his university's transcript, albeit it is quite short because he has only just commenced uni, and also a character reference.
[12] ts 3 (16 April 2019).
He submitted that the learned magistrate dispose of the matters by way of a fine and that a spent conviction order be granted.
The learned magistrate then asked the prosecutor again whether the messages revealed the level of distribution. The prosecutor responded that:[13]
There's no indication to me in the statement of material facts if they revealed what level. They just say numerous. That's really the only thing I can point to.
[13] ts 3 (16 April 2019).
In relation to the cash that was located during the search warrant, the learned magistrate had the following exchange with the appellant's counsel:[14]
[14] ts 3 (16 April 2019).
HIS HONOUR: Yes. Yes. So what are you – what instructions do you have about the facts? I mean, I'm trying to work out the level of criminality here. It's a lot of cash - - -
STOPS, MR: It is a lot of cash.
HIS HONOUR: - - - for cannabis.
STOPS, MR: I do accept that. Unfortunately, your Honour, my instructions are quite limited as to why there was that amount of cash and the level of his involvement with that operation.
HIS HONOUR: Do you accept that by his plea of guilty to the unlawful possession charge that he accepts that that is money which was obtained as a consequence of the sale of cannabis?
STOPS, MR: I accept that.
HIS HONOUR: I don't think there's any other conclusion, is there?
STOPS, MR: No, your Honour. I don't think any other conclusion could be drawn.
HIS HONOUR: Which is at a fairly high level. Anyway, yes.
Pre-sentence Opportunity Program Report
When the matter came back before the learned magistrate on 16 April 2019, the learned magistrate had before him a copy of the Pre‑sentence Opportunity Program (POP).
The POP report noted that the appellant had first smoked cannabis at 13 and that his usage had increased over time to approximately 30 cones a day at age 17 and at the time that he was charged. When he was 16, his family returned to live in Germany. A year later, the appellant decided to move back to Australia and completed Year 12 while residing with a friend's family. He has subsequently moved in with his girlfriend and her family. The POP noted that the appellant had informed the diversion officer that since being charged, he had ceased using cannabis.
The POP report noted that the appellant attended four counselling session and 'engaged with openness and courage during this time'. It noted the appellant's report that he had ceased using cannabis following his charge and did not identify any risk factors or obstacles to this. The report noted that the appellant was focussed on his future, including his studies, his martial arts training regime and long-term goals.
The report recommendation was in the following terms:
[The appellant] reported he did not feel a need to continue with AOD [alcohol and other drug] counselling at this time citing he has met his goal of abstinence from cannabis use. [The appellant] and the writer of this report made a plan for a check-in post sentencing via a phone call on 17 April 2019. The writer of this report believes that [the appellant's] meaningful participation in counselling and the POP program, and reported positive changes facilitated through self‑reflection including reported cannabis cessation indicates that ongoing AOD counselling is not necessary at this time.
Submissions on Sentencing
The appellant's counsel addressed the learned magistrate on the appellant's personal circumstances. He handed up a copy of the appellant's university transcript (which showed that the appellant had achieved good marks in his first two units) and a character reference.[15]
[15] ts 3 (16 April 2019).
The character reference stated that, since his arrest, the appellant had made significant changes in his life including that he had ceased to use cannabis, alcohol and cigarettes and had ceased contact with the friendship group he had found himself in. It noted that the appellant was focused on further education, healthy pursuits and better lifestyle choices.
Specifically, the appellant's counsel submitted that:[16]
In terms of what brought him about to doing this, your Honour, his family were living in Europe. He has had a falling out with his family and has returned to Australia on his own when he was 17. I think what has really been the motivator to get involved in this is not having any money and not having anyone to support him. So he has really fell into the wrong crowd. One of the references before you, your Honour, does I think canvas that briefly, that he was with the wrong group of people and he has now [sic] no longer with that group.
He's currently now – he's now living with his girlfriend and her family. They're present in the back of court. I would say that circumstances that he found himself in when he was found with the cannabis have changed now. The fact that he's now in a supportive environment, I would say, acts as protective factor which I would go into as unlikely to commit a similar offence again in support of the spent conviction order. Your Honour, he has no records so he does come before you as someone of prior good character.
Because of his age, coupled with his voluntary work as a karate instructor, couple with the fact that he has just started a business degree, I would say he has got extremely strong prospects of rehabilitation – extremely strong. There's early pleas of guilty. He has also successfully completed the Pre-sentence Opportunity Program. That also, I can say, would support the submission that he's unlikely to commit similar offences. He's also got treatment for his drug use, your Honour.
[16] ts 4 - 5 (16 April 2019).
The learned magistrate then asked the appellant's counsel about the impact of the conviction. The appellant's counsel could not draw his Honour's attention to any specific matter but noted that given the appellant's age and that he had just started a business degree, it was likely to have an ongoing impact on his job prospects.[17] Counsel for the appellant submitted that it was unlikely that the appellant would commit a similar offence. In response, the learned magistrate stated:[18]
Well, that probably assumes that he is truly on top of his very heavy addiction, because if he's not he might resort to this sort of activity again. Anyway, I understand the submission. … I don't think there's much more you can say.
[17] ts 6 (16 April 2019).
[18] ts 6 - 7 (16 April 2019).
The prosecution opposed spent conviction orders being made on the basis of the seriousness of the charges, particularly given the amount of cash that was found on the appellant.[19]
[19] ts 7 (16 April 2019).
The magistrate's decision
After hearing from the parties, the learned magistrate gave the following reasons:[20]
Now, your lawyer has made an application for a spent conviction on your behalf. I accept that you're a person of good character. If I put to one side these offences, you are a person of good character. You're young, you've never been in trouble before. I do have some misgivings however about concluding that you're unlikely to commit this type of offence again. I'm not convinced that you're entirely on top of your habit – your addiction to cannabis.
I think there's every chance – or there's a realistic possibility that you could go back to using cannabis on a regular basis and it may well be that in your financial position, the only way that you can service that habit is to again start selling cannabis. I'm not saying that will definitely happen. It is a real possibility though. So I have some misgivings about whether you even qualify for a spent conviction order.
Even assuming that you do however, what I'm dealing with here is some very serious offending. It's a drug supply charge where you're found with almost four and a half thousand dollars in cash. So this is a serious example of a drug supply charge. In my view, if I was to make spent conviction orders, I would be sending a message that does mark – does not properly mark the seriousness of this offending. I'm not – I don't have any convincing evidence before me that if I fail to make a spent conviction order that that will have a very obvious impact on you in terms of your – mainly in terms of your employment.
I acknowledge that you're very young and you haven't really started to develop a career yet. It may well be that having to declare convictions of this kind does have an adverse impact on your employment but there are other considerations which are more important here, which lead me to conclude that I should not make spent conviction orders. So I'm not prepared to make those orders. …
[20] ts 9 - 10 (16 April 2019).
Application to adduce fresh evidence
On 26 July 2019, the appellant filed an affidavit in support of his application for leave to appeal. By the affidavit, the appellant sought to adduce evidence of his background and personal circumstances, the reason for the commission of the offence, his academic results and the reference that was before the learned magistrate. He also gave evidence about the cash that was found during the search warrant and denied that all of this was from selling cannabis. His evidence was that approximately $1,000 was cash that had been given to him by his parents.[21] He also deposed to the attempts he had made to find casual employment which have been unsuccessful. His evidence is that this is due to his criminal record.[22]
[21] Affidavit of TWFE filed 26 July 2019 par 9.
[22] Affidavit of TWFE filed 26 July 2019 par 21 - 24.
For the purposes of this appeal, given that the appellant appeared in person, I have treated this affidavit as an application to adduce additional evidence on the appeal pursuant to the Criminal Appeals Act s 40(1)(e) and s 41(4)(a). The respondent's submissions proceeded on this basis.
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. Pursuant to s 39(3) of the Criminal Appeals Act, this does not affect the power of the court to admit evidence pursuant to s 40.
Section 40(1)(e) of the Criminal Appeals Act confers on the court the power to admit 'any other evidence' for the purpose of dealing with the appeal. This power is not expressly limited or confined.
In KMT v The State of Western Australia [No 2],[23] the court summarised the principles that govern the determination of the appellant's application in the following terms:
While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of the exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.
[23] KMT v The State of Western Australia [No 2] [2018] WASCA 49 [46].
At common law, a distinction is drawn between fresh evidence – that is, evidence which did not exist at the time of the trial or could not then, with reasonable diligence, have been discovered – and new evidence – that is, evidence which was available at the time of the trial or, with reasonable diligence, could have been discovered.[24]
[24] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [96] ‑ [101]. See also Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 301 ‑ 302; Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517.
I find that the evidence sought to be adduced by the appellant in respect of the cash found at the premises was 'new' evidence as it was evidence which was available or could have been obtained at the time he pleaded guilty. As 'new evidence', as noted above, the test I am to apply in considering whether to set aside the appellant's conviction is whether the new evidence establishes that the appellant should not have been convicted and there would be a miscarriage of justice to allow the conviction to stand.[25]
[25] Rodi v The State of Western Australia [100].
This same test has been applied (with appropriate modification) to an appeal against a failure to make a spent conviction order. That is, the evidence will be admitted if the new evidence would have meant the spent conviction order was made.
I am not satisfied that the appellant's evidence about the origin of the cash should be admitted. In my view, even if the appellant's evidence were accepted, the evidence would be that approximately $3,500 had been derived from the sale of cannabis. This evidence, had it been before the learned magistrate, is unlikely to have persuaded the learned magistrate that it was a less serious offence or to grant a spent conviction order.
In respect of the evidence sought to be adduced by the appellant on the impact of the conviction on his employment prospects, for the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction.[26]
[26] M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 [28] citing Caseley v Zampogna [2006] WASC 259 [19]; A v Staples [2007] WASC 36 [17].
This evidence provides support for the appellant's submission that the convictions have had an impact on the appellant gaining casual employment while he is studying. On this basis, I am of the opinion that this evidence should be admitted.
Legal Principles: Power to make a 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). Section 45 of the Sentencing Act sets out conditions for the making of a spent conviction order. Relevantly, s 45 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 is not obliged to make a spent conviction order. The decision is at the discretion of the sentencing court and should be exercised sparingly. Consideration must be given to all of the circumstances of the case and the offender as well as the public interest.[27]
[27] Wright v McMurchy [2012] WASCA 257 [59].
The relevant principles to be considered in making a spent conviction order were summarised in R v Tognini.[28] In this case, the court said:[29]
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.
[28] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
[29] R v Tognini [27] ‑ [28].
This is not an exhaustive list of relevant considerations.[30]
[30] Naik v Morgan [2013] WASC 336 [13].
The appellant submitted that there is nothing in the statutory language to support Murray J's statement at [24] of the judgment in Tognini that the power in s 45 of the Sentencing Act should only be 'sparingly' exercised and that this stipulation unduly fetters the discretion to be exercised under the Act.
A primary judge must follow decisions of the Court of Appeal and, accordingly, I am bound to apply the test set out by the Court of Appeal in Tognini.
The fact that an offence is serious does not, of itself, preclude the making of a spent conviction order. As was noted by Hall J in Hussaini v Szolnoski:[31]
In appropriate circumstances comparatively serious conduct may be offset by good character and the unlikelihood of committing a further offence. It is not the case that a spent conviction order cannot be given for an offence of a serious nature. The seriousness of the offence is a relevant factor in the exercise of any discretion and may in appropriate circumstances be a very weighty factor. However, it is not a disqualifying factor. (citations omitted)
[31] Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [47].
Reasons the magistrate declined to make a spent conviction order
The learned magistrate's reasons set out the factors relevant to the grant of a spent conviction order.
His Honour found that:
(a)the appellant was of good character;
(b)the appellant was young and had never been in trouble before;
(c)there was no convincing evidence before him that the appellant would suffer an obvious impact in terms of his employment by the imposition of a conviction; but
(d)he was not convinced the appellant was on top of his addiction to cannabis and there was a realistic possibility the appellant could revert to using cannabis on a regular basis and as a consequence selling cannabis;
(e)the drug supply charge was very serious given that the appellant was found with almost $4,500 cash.
On this basis, the learned magistrate concluded that he should not make spent conviction orders.
It is clear that the learned magistrate had regard to the threshold requirements of s 45 of the Sentencing Act and considered each of the matters that were relevant to the exercise of his discretion.
Legal principles: Appeal against sentence
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. An express error is acting on a wrong principle, for example by mistaking the law or facts, or taking into account an irrelevant matter or failing to take into account a relevant consideration. An implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. The question for this court is not whether the magistrate had a sufficient reason not to make a spent conviction order. Finally, an appellate court cannot substitute its own opinion for that of the sentencing court simply because the appellate court would have exercised the discretion in a different manner.[32]
[32] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672.
Even if an appeal ground is decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[33]
[33] Criminal Appeals Act s 14(2).
Disposition of Appeal
The primary reason given by the learned magistrate in declining to make a spent conviction order was the seriousness of the offence. In his view, the making of a spent conviction order did not properly mark the seriousness of the offence.
However, having made this observation, the magistrate did not consider, as he was required to, whether, having regard to the appellant's rehabilitation from the point of view of the community, it was in the public interest to make a spent conviction order.
As was noted by Smith AJ in TJH v Osborne:[34]
[34] TJH v Osborne [2018] WASC 87 [52] - [57].
[T]wo 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 Bayens Burchett AUJ observed:
'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 deterrence requires publicity and because, too, “the preservation of confidence in the judicial system” requires publicity. As their Honours also said:
"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.
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 Tognini 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.
In R v Riggall, 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.
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. (citations omitted)
I respectfully agree with her Honour's observations.
In this matter, the appellant had only just turned 18. It is not clear from the statement of material facts whether all of the evidence of sale and supply of the cannabis occurred after he turned 18 or whether any of the conduct occurred while he was still a juvenile. Prior to the offences, the appellant had returned to Australia at 17 without family support and fell into the wrong crowd. Since being charged with the offence, the appellant has taken steps to cease his use of cannabis and to turn his life around, as evidenced by both the POP and the reference before the Court. There was no evidence before the learned magistrate contrary to these matters. The appellant is studying a Bachelor of Business and is at the beginning of his working life. The convictions have had an impact on the appellant obtaining casual employment to support him during his studies and it is likely that his future prospects will be impacted by the convictions.
I am satisfied that the magistrate erred in failing to consider:
(a)whether these matters 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.
In my view, it is also arguable that the magistrate erred in mistaking the facts in that his Honour did not have regard to the recommendations in the POP report or the reference which stated that the appellant, since being charged, had ceased cannabis use and had made changes to his personal life to turn his life around. However, this was not the subject of a separate ground of appeal and, accordingly, it is not necessary that I make any concluded findings on these matters.
On the basis of the matters set out above, I would uphold the appeal. As a result, the question of whether to make a spent conviction order can be determined by this court.[35] In determining this question, it is appropriate that I have regard to those portions of the appellant's affidavit dated 26 July 2019 which do not deal with the origin of the cash seized by the police.
[35] Criminal Appeals Act, s 14(1)(d).
The offences of which the appellant was convicted are not trivial and are, in my view, serious offences. However, I consider that the appellant is of previous good character. I have regard to the fact that these offences occurred only five weeks after the appellant turned 18 and that since being charged, he has taken steps to turn his life around and to undertake rehabilitation from drug use. I note that he has now moved in with his girlfriend and her family who provide a stable and supportive environment for the appellant. The POP report did not identify any risks or obstacles to the appellant continuing to abstain from cannabis. In my view, given the contents of the POP and the reference that were before the magistrate, it is my view that the appellant is unlikely to commit a similar offence in the future.
The appellant pleaded guilty at the first opportunity, cooperated with the police, and is of previous good character.
I accept that there is significant force in the argument that general deterrence calls for the refusal of the spent conviction order. It is clear that there is a public interest in recording a conviction against the appellant for the possession of cannabis with intent to sell or supply. Cannabis is not a harmless drug; it has detrimental effects on those who use it and is associated with or is a gateway to more harmful drugs.[36] However, this must be balanced against the fact that the appellant is undertaking a Bachelor of Business degree and is at the beginning of his working career. The convictions have had an immediate impact on him obtaining employment while he studies. In addition, his prospects of future employment in his chosen career are likely to be diminished if the convictions stand as recorded. Given the appellant is at the start of his career, I accept that it is difficult to identify the future effects of the recording of the convictions. From the evidence before me, there is evidence that the recording of the convictions has had an impact on the appellant obtaining casual employment to support him during his studies.
[36] Greenfield v The State of Western Australia [2019] WASCA 29 [27], [32].
The fact that the appellant can not point to specific long term adverse consequences is not in itself necessarily fatal to the application. It has been previously acknowledged by this court that there can be difficulties in determining whether an appellant's conviction was likely to impact adversely on future employment prospects.[37] Nevertheless, the presence or absence of information showing a specific adverse consequence is a factor that must be weighed in the court's analysis.
[37] M v Seidner [66]; B v Murphy [2016] WASC 78.
Whilst the making of a spent conviction order is exceptional and should be sparingly exercised, I am satisfied in all the circumstances that relieving the appellant of the adverse effect of the convictions will benefit the community by contributing to the appellant's ongoing rehabilitation. I consider the appellant is more likely to be able to maintain the changes he has made since being charged with the offences if he is given the opportunity to put the convictions behind him. In my view, these matters outweigh the public interest in having the convictions publicly recorded against him. Contrary to the respondent's submission, in the circumstances of this case, I do not think there is a public interest in a future potential employer being aware of these offences in assessing his suitability for work.
Conclusion
For the reasons that I have given, I would grant leave to appeal, allow the appeal and make a spent conviction order in relation to the appellant's offences.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill11 OCTOBER 2019
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