3 McMaster v The Queen

Criminal law and procedure - Sentencing - Spent conviction - Admissibility of material not before the trial court - What constitutes 'good character'

Criminal Appeals Act 2004 (WA), s 8(1)(b)

1 McKECHNIE J: This appeal concerning a spent conviction order is unusual in two respects. First, there was no error on the part of the magistrate who was never asked to make a spent conviction order because the appellant simply posted in an endorsed plea of guilty. The ground of appeal therefore is that there has been a miscarriage of justice.

2 The second unusual factor is most of the material which justifies consideration of a spent conviction arose after the magistrate disposed of the matter.

3 McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428 sets out a series of principles for the introduction of new or fresh evidence on an appeal against sentence. These probably no longer apply.

4 However, the statutory provision in the Criminal Code (WA) s 689(3) (now repealed) was different from the Criminal Appeals Act 2004 (WA) s 8(1)(b) in that under s 8(1)(b) error is not required to be shown. The court can have regard to any relevant matter that has occurred following conviction: s 14(5).

5 When considering whether an order should be made or a different sentence passed, there is a discretion to admit further evidence if it bears on the question whether, in all the circumstances, there has been a miscarriage of justice exemplified by the result in a particular case. Many things will bear on the discretion to admit further evidence, including whether there was a reasonable opportunity to admit the material before the magistrate. For example, a conscious decision to decline to put material before a magistrate for sentencing purposes may well not result in a subsequent miscarriage of justice. In the circumstances, I consider the affidavit material filed on behalf of the appellant is admissible even though it largely post-dates the conviction.

6 The appellant is 21 years old and for some time has had a significant drug addiction to methamphetamines and cannabis.

7 On 28 August 2007 he was found in possession of an implement to smoke cannabis, an implement to smoke amphetamines, a small amount of amphetamine, a small amount of cannabis and an ecstasy tablet. Without telling anyone about the charges, when he received the prosecution notice, he endorsed a plea of guilty and sent it back to the Magistrates Court. He was using amphetamines at the time he sent the notice back.

8 On his 21st birthday, on 8 October 2007, he decided to seek professional help and his parents made immediate arrangements for him to attend the Summit Rehabilitation Centre in Malibu, California. He left on 16 October, arriving on 17 October 2007.

9 On 23 October 2007 the matter came before the magistrate. His Honour was advised that there was no record and fined the appellant a total of $1,300 plus costs, and made an order for destruction.

10 From this short chronology it can be seen that the appellant had taken his first steps to address his drug addiction prior to sentence.

11 Subsequently, he completed the first stage of drug treatment and has moved on to a second stage of drug treatment, asserting that he has been drug free since 17 October 2007. The appellant's father, in an affidavit sworn 11 April 2008, says that he expects the appellant will undergo rehabilitation in the United States for the whole of the year and has rented accommodation for him until February 2009. He says:

1. Jordon has made very good progress since he commenced rehabilitation in September last year. I have visited him regularly over this time approximately once every other month. I have noticed a considerable and positive change in him. When he first arrived he was angry and unpredictable. He now seems to be relaxed and he is very good company. In Perth at the time of the offences he was living alone and I found it difficult to communicate with him at all. He was sullen, angry and very unpredictable and we did not get on at all.

12 One of the appellant's concerns is the ability to re-enter the United States following a drug conviction.

13 However, he has subsequently re-entered the States. His father's affidavit continues:

1. Jordan is in the United States on what is called a green card waiver visa. It is only for a period of 3 months. Jordan flew out of the United States to Canada in December 2007 shortly before his Visa expired. He re entered the United States and was given a further three months visa which expired in March 2008.
2. In March 2008 Jordan flew to Canada to meet me and we then entered the United States through Vancouver, there is a United States Customs post there for direct flights into the United States. On this occasion Jordan used his British passport to enter the United States. Jordan must now apply for a Visitors Visa to be able to complete his rehabilitation as he will have to leave the United States again in June 2009. He is obliged to return to Australia to obtain this visa and will be obliged to disclose any criminal record which he has when making the application. I refer to the letter from United States Attorney Bobby C Chung which is Annexure 'JJA 4' to Jordan's affidavit sworn the 3 January 2008. In the event that this Honourable Court were to make a spent conviction order it would assist with Jordan's application for a Visitors Visa.

14 Bobby C Chung, a United States attorney specialising in immigration law, has been retained to assist the appellant in applying for a visitors visa to the United States. In an unsigned letter dated 10 December 2007 he says:

Under U.S. immigration law, a controlled substance (drug) conviction generally disqualifies an individual from being admitted to the United States under any visa. However, a person found ineligible for a visa due to a criminal conviction may apply for a waiver of inadmissibility in which the American Consulate Officer determines whether to exempt the person from the ineligibility. In adjudicating a waiver application, the officer will consider several factors, including the seriousness of the offense, any other criminal record, the person's character, likelihood of repeating the offense, any rehabilitation, among others.

Obtaining a Spent Conviction Order will significantly improve Mr Ashley's chances of obtaining the waiver of inadmissibility and hence, the visitor's visa. Such an order would show the American consulate that an Australian Court has found that Mr Ashley merits the benefits of a Spent Conviction Order. The consulate would likely accord significant weight to the Australian Court's decision to grant the Spent Conviction as a positive factor in evaluating Mr Ashley's waiver and visa applications.

15 However, it is significant, as the respondent points out, that the appellant has been able to re-enter the United States without the benefit of a spent conviction order. The appellant has expressed a desire to work in the mineral industry and to that effect has obtained a letter from Apex Minerals NL, a company that is also associated with the appellant's father. The Exploration Director, Dr Mark Bennett, says in a letter dated 6 December 2007:

I have a team of geologists and field assistants that report through to me and I have a budget of $20 million per year. When considering skilled and unskilled applicants for geological positions within the company it is normal practice to seek police clearance as well as having the applicant undergo stringent medical checks which will include drug testing. It would be a significant deterrent to a potential applicant in considering employment if that individual had a criminal record no matter how minor.

This scenario is not unique to Apex but is a normal practice within the resource industry.

16 The Sentencing Act 1995 (WA) s 45(1) sets out the criteria for enlivening the discretion to grant a spent conviction.

17 It is unnecessary to refer in any detail to the authorities on this section. The principal authority is R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 per Murray J:

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. [27] - [28]

18 This principle is well-established and has been referred to many times, most recently in Riggall v The State of Western Australia [2008] WASCA 69.

19 As to s 45(1)(a), having regard to the positive reports of the appellant's progress in his continuing drug rehabilitation, while nothing can ever be certain in respect of a person with an addiction, on the whole, I consider it unlikely that he will commit such an offence again. The first pre-condition is therefore met.

20 Turning to s 45(1)(b)(i) I say immediately that the offences are not trivial.

21 It is therefore necessary to be satisfied as to the previous good character of the offender.

22 The appellant has references indicating that as an employee for nearly a year from December 2005 to October 2006 he was a hard worker, helpful and polite, honest and trustworthy.

23 In the proceedings before the magistrate, the police indicated that the appellant had no record. In the appeal, the respondent has referred to the appellant's record. I consider it appropriate to take into account the record in assessing a miscarriage of justice. After all, I am taking into account other matters on the part of the appellant that were not before the magistrate.

24 Prior to 23 October 2007, the appellant had no criminal convictions. He did, however, have a series of traffic convictions. On 28 March 2007 he was convicted of three offences occurring on 4 March 2007: reckless driving; driving with an excess of 0.08 (second offence); no motor driver's licence (under fines suspension).

25 These offences occurred shortly after an offence on 17 February 2007, and were dealt with on 27 March 2007, for driving an unlicensed vehicle. Finally, there was a conviction for an offence occurring on 4 March 2005, dealt with on 20 May 2005, for driving with an excess of 0.02 blood alcohol.

26 The appellant's counsel points out that the latter offences especially can be explained as part of the addiction. In a sense they are the addiction made manifest. That is no doubt an explanation, although it should be noted that the offence of reckless driving has an element of wilfulness within it.

27 The references submitted on behalf of the appellant, including that from Ricky Grace M Ed, BA PSc, CEO, Role Models WA, Ms Neuling, who was previously Group Accountant at LionOre Mining International in Australia, said that the appellant's drug issue was inconsistent with his general behaviour while at LionOre.

28 Although the present convictions are not relevant to the assessment of the previous good character, it is undeniable that the fact of the appellant's longstanding drug addiction is a factor to be taken into account in the assessment of his character.

29 In Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 the High Court considered the question of good character in the context of a jury trial and whether a judge was required to give a character direction. McHugh J said:

In the criminal field, the common law has also tended to treat people as one-dimensional personalities who have either good or bad characters or dispositions. ... But the tendency continues to prevail in the criminal law, where a person is regarded as having either a good character or a bad character. [34] [footnotes omitted]

30 Gummow J, in the course of agreeing generally with Hayne J said:

'A defendant's character, then, as indicating the probability of his doing or not doing the act charged, is essentially relevant. In point of human nature in daily experience, this is not to be doubted. The character or disposition - ie, a fixed trait or the sum of traits - of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct. In point of legal theory and practice, the case is no different.'

Nevertheless, to those not versed in the ways of the common law, it may appear curious that legal consequences follow from the attachment to a designated individual, and without further analysis, of the description 'good character' or 'bad character'. First, this appears to assume polarities with no space for occupation by those whose frailties place them somewhere towards the centre of a continuum [62], [63] [footnotes omitted]

The argument that an accused is of previous good character seeks to attribute a single qualitative description ('good') to an indivisible character. But people are not divisible into two classes: those who are good and those who are not. [152]

To possess a predictive quality, as the law assumes in the case of good character, both in relation to propensity to crime and credibility, it must be hypothesised that the 'character' of individual human beings demonstrates qualities which are sufficiently enduring and unvarying to be useful to a court. The law deals with myriad circumstances in which individuals are exposed both to similar and dissimilar situations. But where a person does not have a stable personality or is exposed to new, special or extraordinary circumstances, the assumption that the person's conduct may be predicated on a previous absence of convictions, or even on a general reputation for, or existence of, good character, is doubtful. [106] [footnotes omitted]

33 In Hull v Castledine [2005] WASC 252 Le Miere J said:

Traditionally, for evidence to be probative of good character, evidence of good works or positive, demonstrable character traits, are required. However, for the purposes of sentencing, the absence of discreditable acts or convictions will usually suffice.

Difficulty arises in respect of 'blemished offenders', that is offenders whose record is not wholly free of discredit. For the purposes of s 45(1)(b)(ii) of the Sentencing Act a person may have past convictions and still be of good character. Whether a defendant with previous convictions is of previous good character is a complex problem. It is an area in which generalisations are hazardous. Whether such a person is to be treated as of good character is for the Judge to determine.

Some past offences may be such as to lead to the offender losing the mantle of good character entirely. Similarity between the offences past and the current offence tend to diminish the chances of the offender being of good character as will repeated offences and more recent criminal activity.

As a general rule a conviction for possessing a quantity of cannabis (or possessing a smoking implement) or for driving under the influence of alcohol may not preclude an offender being treated as of previous good character, particularly where those offences occurred some eight years previously.

However, it was for the Magistrate to determine in the particular circumstances whether she was satisfied the appellant was a person of previous good character. In making that determination her Honour was obliged to disregard the conduct of the appellant that constituted the offences for which she was sentencing him. [23] - [27]

34 I respectfully entirely agree with Le Miere J's formulation, and also with the last paragraph; namely, that the magistrate was obliged to disregard the conduct of the appellant that constituted the offences. That is clear from the meaning of the word 'previous' in s 45(1)(b)(ii).

35 In Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18 Le Miere J said:

There are two aspects to 'good character'. If the Court is told that nothing is known against a man, it assumes that he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. Secondly, there may be positive evidence as to a man's character and reputation that adds considerably to the weight that the Court attaches to the defendant's favourable record. [28]

36 People are not one-dimensional and the Sentencing Act speaks of good character not of perfect character. On the whole of the material, taking into account both beneficial and adverse factors, I conclude that the appellant satisfies the criteria of previous good character notwithstanding his drug addiction.

37 The fact that the appellant satisfies the criteria under s 45 merely enlivens the discretion. However, in this case I conclude that a miscarriage of justice arose because a spent conviction order ought to have been made. The appellant is young, and, on the available material, seems highly motivated to overcome his drug addiction and live as a worthwhile member of the community. I am inclined to that view partly for the reasons expressed by Wheeler JA in Riggall:

Particularly in relation to a young person who is, in practical terms, at the beginning of his working life and who, although currently working as a barista, may well at some stage seek alternative employment in other fields, the mere fact of conviction of these offences would be likely to have a detrimental and long-lasting impact upon the appellant. In those circumstances, in my view, it is appropriate that he be relieved immediately of the effects of the conviction and I would make a spent conviction order. [74]

38 I should add that in reaching this decision I do not place any weight on any difficulties the appellant might face in gaining entrance into the United States of America. Those difficulties have not come to pass as evidenced by the fact that he has re-entered the USA since the conviction. I leave for another day the question whether it would be ever appropriate to grant a spent conviction order simply to allow a person to make easier application for a visa to enter another country. This is a significant issue which does not arise on these facts. In any event, the consequences of a spent conviction order under the Spent Convictions Act are limited to Western Australia: cf Cunningham v Khan [2006] WASC 28.

39 The appeal is allowed and a spent conviction order made.