Criminal law and procedure - Appeal from refusal of spent conviction order - Court declined to exercise jurisdiction - Principles governing exercise of discretion - Trivial offence - Likelihood of offender again committing such an offence - When appeal may succeed - Whether appeal court should exercise discretion

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

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

Harper v Page [2004] WASCA 267

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

1 In the evening of 31 January 2010, the appellant attended a popular music concert called the Big Day Out, held at Claremont Showgrounds. He was checked for illicit substances by security staff. It was discovered that he had four cannabis cigarettes in his possession. The cigarettes were cannabis mixed with tobacco. It was accepted that there would have been less than 2 1/2 grams of cannabis in the cigarettes.

2 The possession of cannabis, in any amount, is an offence against s 6(2) of the Misuse of Drugs Act 1981 (WA). Cannabis remains a prohibited drug, but, of course, not of the order of seriousness of many other illicit drugs.

3 Indeed, in 2003 the Cannabis Control Act 2003 (WA) was enacted. It was proclaimed to come into operation on 22 March 2004 (Government Gazette 9 March 2004, p 733). By s 6, a police officer who has reason to believe that an offence under s 6(2) of the Misuse of Drugs Act may have been committed by an adult, may give that person a cannabis infringement notice. That may only be done if the amount of cannabis involved is not more than 30 grams.

4 The appellant asked to be given such a notice when he was apprehended. The police officer involved apparently thought that the amount of cannabis involved had to be not more than 3 grams. Being uncertain that that was the case, he declined to give the appellant a cannabis infringement notice.

5 Had he done so, the modified penalty which could have been paid, pursuant to the Cannabis Control Regulations 2004 (WA), was $100. Alternatively. the appellant could have attended a cannabis education session which, under s 17 of the Cannabis Control Act, would be directed to educate him about the laws relating to the use, possession and cultivation of cannabis, and the adverse health and social consequences of cannabis use, together with treatment available to prevent a person suffering harm as a result of continuing cannabis use. If either option is adopted by an offender such as the appellant, no conviction is recorded and there can be no prosecution for the offence of possession.

6 As I say, the appellant was not offered that option and he was charged with the offence of possession. He pleaded guilty at an early opportunity on 27 May 2010, and on 8 July 2010 he came again before the magistrate and was sentenced to pay a fine of $400.

7 In the meantime, it appears that, having pleaded guilty, the appellant was referred for assessment by the Community Drug Service, who conduct a program known as the Pre-Sentence Opportunity Program. A report was provided to the court and placed before his Honour the magistrate.

8 It was reported that the appellant was a 25-year-old single man who lived at home with his mother. He was enrolled at the University of WA, studying for a Bachelor of Arts/Commerce. The court was told that he hoped, as part of that course, to go to Canada as an exchange student. Not only would he there have the opportunity to pursue his studies, but he was a lacrosse player and could therefore, in Canada, pursue his sporting interest.

9 It was reported that the appellant had a problem with cannabis use which dated back to the death of his father, about 11 months earlier. Prior to that his cannabis use had been merely occasional and experimental. Upon the death of his father, the appellant became afflicted with clinical depression, and for that condition, as well as for the cannabis use, he was receiving psychological treatment.

10 By the time he came before the court to be sentenced, the appellant had had three treatment sessions under the Pre-Sentence Opportunity Program. It was reported that, since treatment commenced, his cannabis use had been considerably reduced. Although the appellant had 'dropped out' of his university course, he planned to resume his studies in the second semester of 2010, and he hoped by that time to have made sufficient progress with his treatment that he would be cannabis free, and his use would have ceased. The counsellor thought it was a valuable incentive to pursue the treatment successfully, that the appellant had a long-term goal to resume and complete his tertiary education. He understood that his depressive illness needed to be dealt with, and that self-medication by the use of cannabis was not an answer.

The application for a spent conviction order

11 During the sentencing proceedings in the Magistrates Court, the appellant's criminal and traffic history was tendered. He had first appeared in the Magistrates Court and was convicted of the offence of unlawful damage on 19 April 2005, when he was 20 years of age. He was fined $200 and a spent conviction order was made.

12 He next appeared before the Magistrates Court on 29 June 2007, when he pleaded guilty to, and was convicted of, an offence of trespass committed on 5 April 2007, about 2 years after his first conviction was recorded. On this occasion he was fined $300, and a spent conviction order was made.

13 The other two offences on his record were traffic offences. The first was contravening a red traffic control signal. The offence was committed on 4 September 2007, and it took a considerable period before it came to court. He was convicted on 2 February 2009. Finally, there was an offence of driving without authority as a result of what is described in the record as a fines suspension, for which he was dealt with on 8 July 2009.

14 The appellant, who was represented by counsel on 8 July 2010, applied for a spent conviction order. Counsel referred generally to the factual matters to which I have referred above. When she touched upon the record and the previous orders of the character now sought, his Honour the magistrate said:

How many spent convictions do you reckon [the appellant] may like in the end? How many does he want, you know, before he wakes up to himself that he shouldn't be reoffending (ts 2)?

15 As counsel pursued the application, his Honour observed (ts 3) that had the appellant had no previous spent convictions, 'he would get one without any trouble, but you don't get a third spent conviction order'. His Honour later observed again that the 'compelling' part of the case was the fact that the appellant was seeking his third spent conviction order, and that is what would stop him from getting a further such order (ts 4).

16 Counsel nonetheless sought to tender what she described as 'very positive character references', including what she referred to as a psychiatric report. I was told that no such documents are on the Legal Aid file, and the inquiries by this court for the documents from the Magistrates Court produced the information that the only document available was the Pre-Sentence Opportunity Program report to which I have already referred, which does, however, contain information in much the same terms as counsel provided to the court in her address in mitigation.

17 It is not clear whether his Honour the magistrate read any such documents. When he was invited to do so he said:

I will read them, but it's not going to make any difference. It's not going to make any difference because he's got two spent convictions. I'm not going to go down the path and say, 'Well, you can get three spent convictions.' If the Supreme Court wants to do that they can: I'm not going to. A third spent conviction! I mean, it makes a mockery of the whole system if you can come along to court and ask and expect to get a third spent conviction (ts 5).

18 Counsel urged his Honour the magistrate to give further consideration to the matter, saying that if no such order was made it could have the detrimental effect that the appellant would be precluded from travel overseas, and prevented from obtaining a visa to authorise his entry into Canada as an exchange student. His Honour declined to make the order and imposed the fine to which I have referred.

The principles applicable to making a spent conviction order

19 Section 39(2)(a) - (d) of the Sentencing Act 1995 (WA) provide that a sentencing court may impose no sentence and order the release of the offender, impose a conditional release order, a fine and a community based order, with or without making a spent conviction order. More serious punishments provided under the remainder of s 39(2), the imposition of an intensive supervision order, suspended imprisonment, conditional suspended imprisonment, or a term of imprisonment to be immediately served, may not be accompanied by a spent conviction order.

20 Of course, a punishment which may be accompanied by a spent conviction order might be imposed for an offence which, of itself, would be regarded as quite serious. But it is evident that a spent conviction order may be made in cases which are not, in the circumstances of the commission of the offence and having regard to the circumstances personal to the offender, of such an order of seriousness that it would be inappropriate to impose one of the less serious sentences, for which the Sentencing Act provides.

21 When made, a spent conviction order is part of the sentence, and whether or not to make it is a discretionary judgment in the course of sentencing, if the threshold considerations which are set out in s 45(1) of the Sentencing Act are satisfied. 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.

22 The principles governing the question whether or not to make a spent conviction order were laid down in what was effectively a guideline judgment in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291. In that case it was pointed out that the capacity to make a spent conviction order under the Sentencing Act was an exception to the ordinary operation of the Spent Convictions Act 1988 (WA). Under that Act, in the case of a 'lesser conviction', within the meaning of s 10 of that Act, an application may be made to the Commissioner of Police after the expiry of the prescribed period of 10 years (s 11), during which there has been no further offending, for a certificate that the conviction is spent. The certificate must be issued.

23 In the case of a 'serious conviction', within the meaning of s 9 of that Act, ie, a conviction in respect of which the sentence imposed is imprisonment for more than a year or a fine of $15,000 or more, the application is to be made to the District Court for an order declaring that the conviction is spent. The court has a discretion whether or not to grant that order, although it will necessarily be the case that, for a period of 10 years there has been no further offending.

24 In Tognini, at [27] and [28], I endeavoured to set out what I conceived to be the general principles to be applied in relation to the question whether or not to make a spent conviction order (Malcolm CJ and Wallwork J agreeing):

1. 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.
2. 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.

25 Tognini was a case where the prosecution appealed against the making of spent conviction orders. But the statement of principles is generally applicable, and was not in terms affected by the nature of the appeals in that case. The decision was applied by the Full Court, Burchett AUJ, Wallwork and Wheeler JJ agreeing, in Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, a case in which the appeal was against the refusal of a spent conviction order. The applicable principles may be regarded as clear, and indeed they have been applied regularly by single judges of the court since those cases were decided.

26 The appeal against the refusal of a spent conviction order is brought by leave on one ground, that:

The learned sentencing magistrate erred in refusing to grant the appellant a spent conviction order in that:

(a) He misdirected himself in that he considered that a third spent conviction could not be granted at law.

(b) He failed to consider or adequately consider the trivial nature of the offence.

(c) He failed to consider or adequately consider the individual circumstances of the offending behaviour before the court.

27 I may say immediately that, in my opinion, the first error identified by the ground is not made out. I am not persuaded that the magistrate held that it was not open to him to make a third spent conviction order. He simply considered that no such order should be made because it would be the third occasion when such an order had been made in favour of this appellant. In my opinion, the matter turns on the particularisation of the ground in pars (b) and (c), and the question is whether the magistrate turned his mind to the preconditions set out in s 45(1) of the Sentencing Act, and whether he turned his mind, if those preconditions were established, to the exercise of his discretionary power to make a spent conviction order in the case of this appellant.

28 It seems to me that this is an appeal under s 8(1)(b) of the Criminal Appeals Act 2004 (WA). The contention is that the ground relied upon establishes that in this case there has been a miscarriage of justice by the failure of the magistrate to properly consider whether this was a case in which his discretionary judgment upon the issue whether or not to make a spent conviction order was fairly raised.

29 In my opinion, if it was established that the case miscarried in that way, the matter would have to be returned to the magistrate to exercise his discretion according to law, unless the conclusion to which this court came was that, upon the facts, not only had there been an error of a kind which caused the exercise of discretion to miscarry, but had the discretion been properly exercised, the result would have been the making of the spent conviction order which was sought.

30 I came to the conclusion, in this case, that not only had his Honour the magistrate erred in his approach to the case, causing him to fail to properly consider the preconditions for the making of a spent conviction order and to properly exercise his discretion in that regard, but also, had he approached the matter correctly, this was a case where that order should have been made in the proper exercise of his Honour's discretionary judgment. In those circumstances, I allowed the appeal and made the order sought. These are my reasons for so doing.

31 I understand that I should not be readily persuaded of error in a case of this kind, not only because of the rather exceptional nature of the order sought against the background of the ordinary operation of the Spent Convictions Act, but also because his Honour the magistrate no doubt dealt with this case as one case in a busy list at just after 3.00 pm on the day in question, and therefore I look to see what conclusion I am compelled to reach, having regard to what his Honour said, rather than by reference to what his Honour may have omitted to refer to, but should be taken to have had regard to in any event.

32 Referring to s 45(1) of the Sentencing Act and the preconditions set out there, it seems to me that his Honour could have had no difficulty with the fact that the offence was trivial. As I have said, it would ordinarily be dealt with by way of an infringement notice and would never have come to the court at all, because it was perfectly plain that the appellant would have accepted the infringement notice procedure. He asked the arresting police officer to issue a cannabis infringement notice.

33 Further, the offence of possession of cannabis in the form of four cigarettes in which the cannabis was mixed with tobacco could hardly be regarded as an act of possession which was other than a trivial example of that offence. Indeed, as I have mentioned, the magistrate said that if the appellant had had no previous spent convictions, his Honour would have made the order.

34 Although in those circumstances it would be unnecessary to consider the matter, it seems that his Honour was also prepared to conclude (rightly, I would have thought, with respect) that the appellant was, and indeed remained, a person of good character, within the meaning of the section. As to that, reference may be made to the interesting discussion of the concept by Le Miere J in Harper v Page [2004] WASCA 267.

35 The appellant had four previous convictions for minor criminal and traffic offences, in relation to two of which matters spent conviction orders had been made. There was no other evidence to show that the appellant was other than an ordinary, decent young man who had resumed his university studies after a period when he was evidently seeking to deal with the premature death of his father and with his depressive illness.

36 The most charitable view of the approach taken by his Honour was that the application foundered on the question whether it was established that the appellant was unlikely to commit the offence of possession of cannabis again. But in fact, I think, his Honour simply could not get past the fact that this would be the third occasion upon which, if the application succeeded, the court would make a spent conviction order in the appellant's favour. His Honour expressed the view that that would make a mockery of the operation of the legislation.

37 While his Honour did not, I think, consider that he was unable to make the order sought, in my view he was simply unprepared to consider the application in any way. He was not prepared to ask himself the questions posed by s 45(1), and he was not prepared to consider the exercise of his discretion if he had concluded that the proper answer to those questions was in the affirmative.

38 As to the unlikelihood of the appellant offending in the same manner again, it seems to me, with respect, that all the evidence was one way. The fact that spent conviction orders had been made in the appellant's favour twice previously, when he was much younger, in 2005 and 2007, did not, in my opinion, say anything adverse about the question whether the appellant was unlikely to commit a further offence of the possession of cannabis after his conviction in 2010.

39 On the other hand, the evidence placed before the magistrate was that the appellant had engaged properly with the Pre-Sentence Opportunity Program. The report which came out of that program was favourable. It appeared that the appellant understood that he could not, by the use of cannabis, deal with his grief over the death of his father. He realised that he had to seek proper treatment for his psychological problems, including depression. He was determined to give up the use of cannabis entirely and to resume his studies. The report made about him said that it was an important indicator of the likelihood that he would succeed that he was highly motivated to pursue those long-term goals.

40 In my opinion, his Honour erred by failing to consider and find that the pre-conditions for the exercise of his discretion to make the order were established. The question then becomes, should the matter be returned to the Magistrates Court for further consideration, or is this a case where I should embark upon this aspect of the sentencing process? I would only do so if the result of so doing would be that I would exercise my power under s 14(1)(c) and (d) of the Criminal Appeals Act to vary the sentence imposed by his Honour the magistrate by adding a spent conviction order as part of that sentencing process. As has been seen, I was persuaded, in this case, to take that course.

41 An important factor in the exercise of the discretion in this case was the likelihood that, if the order was refused, the appellant might be unable to obtain a visa permitting his entry into Canada to pursue his tertiary studies there. But there were broader considerations in this case which, in my opinion, dictated that the order should be made.

42 The refusal of the order could not be said to be necessary in this case if proper effect was to be given to the application of ordinary sentencing principles to punish the appellant for the commission of the offence, to deter him from doing so again, and by the example of what was done to the appellant, to deter others from the casual recreational use of the drug cannabis.

43 Rather, it seems to me, the public interest was best served in this case by allowing the appellant full rein to pursue his rehabilitation without possible adverse consequences flowing from the commission of the offence. Neither any member of the public, nor any prospective employer, could have any legitimate interest in the future in knowing that, in January 2010, at a popular music concert, at the age of 25, the appellant was apprehended in possession of a very small quantity of the drug cannabis.

44 It was for those reasons that I allowed the appeal and made the spent conviction order which had been sought.