Criminal law - Sentencing - Application for spent conviction order - Whether any ground to interfere with sentencing magistrate's exercise of discretion - Turns on own facts

Sentencing Act 1995 (WA) s 39(2), s 45

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Harper v Page [2004] WASCA 267

Hull v Castledine [2005] WASC 252

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McKenzie v Daly [2008] WASC 284

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

Robertson v Lawrence [2008] WASC 111

SA v McKinnon [2009] WASC 7

Tambyrajah v Gablonski [2004] WASCA 105

The State of Western Australia v BLM [2009] WASCA 88

The State of Western Australia v Gibbs [2009] WASCA 7

1 The appellant was convicted, on his plea of guilty, of use of a prohibited drug, namely amphetamine. He sought a spent conviction order. The prosecution did not oppose the making of a spent conviction order. Nonetheless, the learned magistrate declined to make a spent conviction order.

2 The appellant appeals against the learned magistrate's refusal to grant a spent conviction order. In my opinion, for the reasons that follow, the appellant has not established a ground to interfere with the magistrate's discretionary decision not to make a spent conviction order.

3 The appellant was charged that on 4 October 2008 he used a prohibited drug, namely amphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for the offence at that time was 2 years' imprisonment or a $2,000 fine.

4 The facts, as set out in the statement of material facts, were as follows:

At about 4.50 am on Saturday the 4th of October 2008 the accused and another charged were observed and recorded via the City of Perth closed circuit television footage in Russell Square, Parker Street, Northbridge.

Both were observed to be sniffing a substance of a cigarette packet.

Beat officers attended and spoke to both who admitted they were sniffing amphetamine powder.

Police located a clipseal bag with traces of a white powder which both stated contained amphetamine.

Both made full admissions to the offence outlined above.

5 On 19 December 2008 the appellant pleaded guilty. On that day he was referred to the Pre-sentence Opportunity Program (POP) and 27 February 2009 was set as the date for sentencing.

6 When the matter came before the learned magistrate for sentencing on 27 February 2009, the following material was before the magistrate:

(a) stated that the appellant had been working for a local government as a library customer services officer for some time;

(b) spoke highly of his work and expressed the opinion that it was out of character for the appellant to be in possession of narcotics;

(c) stated that the appellant has great potential in the public library industry; and

(d) expressed the belief that if the appellant has a criminal conviction it will inhibit him from furthering his career in the public library industry.

8 The POP report stated that the appellant had attended eight treatment sessions prior to sentencing and had fully participated in the counselling processes. It was reported that the appellant had found the counselling to be very helpful, it had highlighted the importance of ensuring his capacity to make safe and healthy decisions, and the appellant intended to continue with counselling. The appellant had said that it was following excessive consumption of alcohol that he had made the decision, on the night of the offence, to experiment with amphetamine. He was reported as having expressed strong regret about that decision and that he saw his arrest and his appearance in court as a 'wake up call'.

9 The urinalysis test was performed on 10 December 2008 at the appellant's expense. It recorded that no drugs were detected.

10 Then counsel for the appellant sought a spent conviction order. In support of that, she made the following points:

(c) the appellant pleaded guilty at an early opportunity;

(d) the appellant had participated in eight counselling sessions which he intended to continue with;

(e) the appellant had provided the reference from his employer and the urinalysis test;

(f) the appellant said that he is unlikely to reoffend as he has learned a lot from the experience;

(g) the appellant was at university doing the second year of an Arts degree in sustainable development; and

(h) the appellant is at the beginning of his career and believes he will need a police clearance in the industry he is going to be entering into.

11 After counsel for the appellant made submissions, the prosecutor stated that the prosecution did not object to a spent conviction order. In response, the learned magistrate said, 'I do' (ts 3). The appellant invited my attention to that observation.

12 Her Honour then proceeded to sentence the appellant.

13 The learned magistrate gave the following reasons for declining to make a spent conviction order.

HER HONOUR: In relation to spent conviction orders, there are the recent decisions - please be seated, Mr Taylor - relating to spent conviction orders, where it shows that - it states by Judge Jenkins that:

The exercise of discretion to make spent conviction orders requires a relevant judicial officer to consider the seriousness of the offences in the circumstances of their commission and to consider the matters personal to the offender. It is also necessary for the judicial officer to decide whether there is anything special or exceptional about the particular case that would warrant the granting of a spent conviction order. In my view I am bound by the cases - - -

- this is what her Honour is saying - - -

to find there is something special or exceptional in a matter before making a spent conviction order. I reinforce this view by the approach of the Court of Appeal in Regale's case, in which it was implicitly assumed that the case had to be exceptional in order to justify the making of a spent conviction order.

If I accept her Honour as being correct - and I do - I am bound by the statements made by the Supreme Court. In this case, the offences and the circumstances of the commission - the possession of amphetamines - it's a very serious matter; it carries a prison term.

There is no allegation that the accused was using it through any other means other than personal. The matters personal to the offender - I have a reference from the City of Nedlands where the accused is working part-time as a customer service officer, since May 2008. It states:

He has great potential as a library customer service officer and in his studies. I believe that if he has a criminal conviction it will inhibit him from furthering his career in the public library industry.

It doesn't say that his career will not be able to continue. Inhibit means to stop or to slow down in some way his further advancement. He is still a student and still studying - no longer has the blush of youth. 26 is not that old, but it is still - you know - not that young.

So it is a situation where I consider that a spent conviction order is not appropriate for a drug offence. It's a serious offence; it carries a lengthy prison term. It is not an exceptional case. There's nothing put before me that will allow it to be seen as an exceptional case.

However, I consider that a fine is appropriate and that's what I am going to do, Mr Taylor, I am going to fine. But because you have gone through the POP program I am going to reduce the penalty that I would have imposed. I usually start at $800 and I am going to reduce that to $400 because you have really learned a lot from the program.

They said that you were very good, successful, understood what you were doing now and had some insight and also a great benefit by being able to talk to somebody, and I think that is very important. $114.20 costs and there's an order for destruction. Thank you.

14 There was no dispute about the legal principles governing the making of a spent conviction order. Section 45(1) of the Sentencing Act 1995 (WA) provides as follows:

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.

15 It is evident from the language of the section that the power to make a spent conviction order arises only if three conditions are satisfied. Firstly, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. See Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11].

16 It is well established that once these preconditions to the exercise of the power are satisfied the court has a discretion, not a duty, to make (or not make) a spent conviction order: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [11], [16].

17 The proper exercise of the discretionary power to grant a spent conviction order has been authoritatively explained in decisions of the Court of Criminal Appeal and Full Court in this State.

18 In R v Tognini [24], [27] - [28] Murray J (Malcolm CJ & Wallwork J agreeing), said as follows:

Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.

...

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.

These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State: see, for example, Brewer v Bayens [14] - [16]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [72].

19 Among others, the following propositions emerge from these cases:

(a) the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;

(b) the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case; and

(c) in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstance of its commission and the circumstances personal to the offender.

20 In the magistrate's sentencing remarks she referred to the following passages of the decision of Jenkins J in Robertson v Lawrence [2008] WASC 111 [48], [50]:

The exercise of the discretion to make spent conviction orders requires the relevant judicial officer to consider the seriousness of the offences in the circumstances of their commission, and to consider the matters personal to the offender. It is also necessary for the judicial officer to decide whether there is anything special or exceptional about the particular case that would warrant the grant of spent conviction orders.

...

In my view I am bound by cases such as Brewer v Bayens and Tognini to find that there is something special or exceptional in a matter before making a spent conviction order. I am reinforced in this view by the approach of the Court of Appeal in Riggall [51], [63] and [79] in which it was implicitly assumed that the case had to be exceptional in order to justify the making of a spent conviction order.

The appellant does not contend that there is any error in what was said by Jenkins J in these passages. As will be apparent, I agree with Jenkins J about the effect of the decisions of the appeal courts in this State.

21 In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender but also to the public interest: Tognini [27] - [28]; Brewer v Bayens [16] - [18].

22 One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect: Brewer v Bayens [18].

23 Because the decision whether to make a spent conviction order is discretionary, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; [1999] HCA 29; (1999) 195 CLR 665 [15]. The question on an appeal is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law revealed either by the reasons of the sentencing court, or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order: Hull v Castledine [2005] WASC 252 [10]; McKenzie v Daly [2008] WASC 284 [23].

What was the reason for declining to make the spent conviction order?

24 It is, with respect, not entirely clear from a reading of the learned magistrate's reasons what the ground for her refusal to make a spent conviction order was. In particular, whether her Honour was not satisfied in respect of the essential preconditions to the exercise of discretion, or whether she was so satisfied but declined, in the exercise of her discretion, to make the order, is not clear from the reasons. In my respectful opinion, it would have been preferable if her Honour's reasons had made this clear.

25 The learned magistrate did not make specific reference to the conditions set out in s 45 of the Sentencing Act. Her Honour quoted the passages from the decision of Jenkins J to which I have already referred. These relate to the way in which the discretion is to be exercised. She then referred to various matters within the framework of the principles summarised by Jenkins J.

26 Reading her Honour's reasons as a whole it seems to me that the ground for declining to make the order was a matter of discretion, rather than a failure to be satisfied in respect of the preconditions.

27 Counsel for the appellant points to her Honour's comment on the terms of the reference from the appellant's employer. Her Honour commented that the statement in the reference that a criminal conviction would 'inhibit' him did not amount to a statement that the appellant's career would not continue; rather, it would be slowed down or disadvantaged.

28 Counsel for the appellant submits that that comment indicates that her Honour was not, or may not have been, satisfied that the appellant should be relieved immediately of the adverse effects of the conviction. Counsel submits that inhibiting the appellant's career is an adverse effect, so the magistrate erred in not being satisfied of one of the essential preconditions to the exercise of power.

29 I note that this complaint is not the subject of the ground of appeal. In any event, I do not accept this submission. In determining how she would exercise her discretion, her Honour was entitled to have regard to the extent of any likely adverse effect on the appellant's career of the recording of a conviction. In my opinion, that is what her Honour was doing in making this observation.

30 When the matter was before the magistrate, the prosecution did not oppose the making of a spent conviction order. On appeal, the prosecution maintains that position in that, if the discretion falls to be re-exercised, the prosecution would not oppose the making of a spent conviction order. However, the prosecution submitted on appeal that:

(a) the decision whether to make a spent conviction order is discretionary;

(b) the magistrate declined, as a matter of discretion, to make a spent conviction order; and

(c) there was no ground to interfere with the magistrate's exercise of discretion.

The sentence imposed was manifestly excessive in that the learned sentencing Magistrate refused to grant a spent conviction order. In refusing to grant such order, Her Honour erred in that she

(a) failed to adequately consider the individual circumstances of the case, and

(b) failed to adequately consider the applicant's particular circumstances, and

(c) failed to adequately consider the applicant's remorse, and

(d) erred in finding that 'it is a situation where I consider that a spent conviction order is not appropriate for a drug offence'.

32 The ground of appeal is not happily drafted. It begins with the assertion that the sentence was manifestly excessive. In this context that means the appellant contends the magistrate reached a conclusion that was not open. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error, not a specific error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6]; The State of Western Australia v BLM [2009] WASCA 88 [106]. However, the appellant's ground of appeal then goes on to identify four specific errors, being those set out in subparagraphs (a), (b), (c) and (d).

33 Paragraphs (a) to (c) of the ground of appeal assert that the learned magistrate failed to adequately consider certain matters. It is very difficult to make out a ground of appeal that contends that a sentencing judge failed to adequately take into account one or more individual considerations relevant to the sentencing discretion. Failure to give sufficient weight to a relevant sentencing consideration only gives rise to an express error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen [26]; The State of Western Australia v Gibbs [2009] WASCA 7 [52].

34 The substance of the appellant's ground of appeal emerged clearly in the course of oral argument. The manifestly excessive ground, in its proper sense, was not pursued, and nor, in my opinion, could it have been. The nub of the appellant's complaint is reflected in par (d) of the ground of appeal. The appellant contends that the sentencing magistrate's discretion miscarried in that she erroneously considered that because the offence was a drug offence that, of itself, made a spent conviction order inappropriate. The alleged failure to adequately consider the matters referred to in pars (a) - (c) was, on the appellant's case, a consequence of that error. In other words, pars (a) - (c) do not allege errors distinct from the errors the subject of par (d).

35 The question on appeal is whether her Honour rejected the application on the basis that spent convictions are inappropriate for drug offences generally. If she did so, that was, as the prosecution accepted, an error. The discretion in s 45 of the Sentencing Act is not excluded for drug offences: Tambyrajah v Gablonski [2004] WASCA 105 [16] - [17]; Harper v Page [2004] WASCA 267 [26]; SA v McKinnon [2009] WASC 7 [29]. The offence to be considered is the offence committed by the offender, in the circumstances of its commission, not the offence in the abstract: Tognini [27].

36 However, for reasons to be developed, reading the magistrate's reasons as a whole, I am not satisfied that is how her Honour approached the matter.

37 The appellant relies on three aspects of the magistrate's reasons. These aspects, the appellant submits, support his contention that the magistrate rejected the application because she considered that spent conviction orders are inappropriate for drug offences generally.

38 First, the appellant points to the concluding paragraph of her Honour's reasons relating to the application for a spent conviction order (being the third-last paragraph of the reasons on sentencing). The appellant emphasises the following words:

So it is a situation where I consider that a spent conviction order is not appropriate for a drug offence. It's a serious offence; it carries a lengthy prison term.

39 The appellant submits that this passage demonstrates that her Honour's attention was directed to whether spent conviction orders are appropriate for drug offences generally. He submits that that is supported by the language of the first sentence ('a spent conviction order is not appropriate for a drug offence), and by the subject matter of the second sentence. The second sentence is directed to the offence of possession of a prohibited drug; it is not directed to the circumstances of the particular offence committed by the appellant.

40 Moreover, the appellant submits that that reading of the reasons is reinforced by the reference, in the paragraph immediately following the quote from the decision of Jenkins J, to possession of amphetamines being 'a very serious matter; it carries a prison term'.

41 Thirdly, the appellant points to her Honour's response to the statement by the prosecutor that the prosecution did not have any objection to a spent conviction order. Her Honour responded, 'I do'. That response, the appellant submits, indicates a predilection on the part of the magistrate against the making of a spent conviction order. The appellant submits that this in turn supports a conclusion that her Honour considered that the nature of the offence of itself made a spent conviction order inappropriate.

42 I do not accept the third point made by the appellant. By the time the prosecution indicated that it did not object to a spent conviction order, submissions for the appellant had been completed. By then, her Honour was entitled to have formed a view as to whether a spent conviction order was appropriate, and to state that view. It might be thought to have been preferable for her Honour to have expressed herself differently. It is not a question of whether her Honour had an objection to a spent conviction order, it is whether her Honour was persuaded that such an order was appropriate. But in substance, that is what I think her Honour was saying. I do not consider that her statement in that regard favours any particular reading of the reasons why she considered a spent conviction order was not appropriate.

43 As both parties accepted, the reasons of the magistrate must, of course, be read as a whole. I would summarise the structure and content of her Honour's reasons as follows.

44 Her Honour began by quoting principles relevant to the exercise of the discretion to make a spent conviction order. The principles quoted by her Honour require the sentencing court to consider the seriousness of the offence in the circumstances of its commission and to consider the matters personal to the offender. Those principles also require the sentencing court to decide whether there was anything special or exceptional about the particular case that would warrant the granting of a spent conviction order.

45 It seems to me that after quoting principles relevant to the exercise of the court's discretion, the learned sentencing magistrate then referred to various matters in the framework of those statements of principle. Her Honour turned first to 'the offences and the circumstances of the commission'. She addressed the offence in general terms, namely that possession of amphetamines is a serious matter carrying a prison term. Her Honour then observed that 'There is no allegation that the accused was using it through any other means other than personal'. Although the meaning of this observation is not entirely clear to me, it is directed to the circumstances of the offence as it was committed by the appellant, rather than to the offence of possession of amphetamines generally.

46 Next, her Honour dealt with matters personal to the offender, including the reference from the City of Nedlands, the appellant's age and the fact that he was still studying.

47 It is in that context that her Honour said that 'it is a situation where I consider that a spent conviction order is not appropriate for a drug offence'. The words 'it is a situation where' should be noticed. In context, I take her Honour to be saying that in all the circumstances of this case she considered that a spent conviction order was not appropriate for the drug offence committed by the appellant. If her Honour's reason to decline to make a spent conviction order was that spent conviction orders are inappropriate for drug offences generally, there was no reason for her Honour to refer, as she did, to the matters personal to the appellant, including his age and the fact that he was studying.

48 Moreover, her Honour's reasons for declining to make a spent conviction order concluded with the following:

It is not an exceptional case. There's nothing put before me that will allow it to be seen as an exceptional case.

49 Again, if conviction for a drug offence meant that a spent conviction order was inappropriate, the question of whether this was an exceptional case would not have arisen. Her Honour's reference to what was 'put before [her]' indicates her Honour's consideration of the various matters in this case in determining whether the circumstances called for the exercise of the power to make a spent conviction order. There would have been no occasion to consider those matters if the magistrate had made the error alleged by the appellant.

50 For these reasons, I am not persuaded that her Honour rejected the application on the basis that spent convictions are inappropriate for drug offences generally. Consequently, the appeal must be dismissed.

51 The question on this appeal is not whether I would have granted a spent conviction order. The question is whether there is any ground to interfere with the exercise of discretion by the learned sentencing magistrate. For the reasons I have given, I am not persuaded that the magistrate made the error alleged in the ground of appeal.