Misuse of Drugs Act, s 6(2)

Garrett v Nicholson [1999] WASCA 32

Gould v Read (1990) 4 WAR 249

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Hunter v The Queen [1988] HCA 35; (1998) 62 ALJR 432

Llyone v Faroane [1989] WAR 154

Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 23 July 1998

Nevermann (1989) 43 A Crim R 347

Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995

Papadopolous v Hunter (1995) 85 A Crim R 572

R v Jones [1980] Crim L R 58

R v Tait (1979) 46 FLR 386

Teede v Wright [1999] WASCA 121

1 SCOTT J : This is an appeal against a decision of the Chief Stipendiary Magistrate to impose a fine and to refuse to grant a spent conviction order in relation to a number of complaints which the appellant faced.

2 The first of those complaints alleges that the appellant had in his possession a quantity of a prohibited drug, namely, cannabis, contrary to s 6(2) of the Misuse of Drugs Act. The second was that he had in his possession a quantity of a prohibited drug, namely, 3, 4-Methylenedioxy-N, A-Dimethylphenylethylamine ("MDMA"), (ecstasy), and the third was that he had in his possession a quantity of a prohibited drug, namely, amphetamine. All of those offences were alleged to be contrary to s 6(2) of the Misuse of Drugs Act.

3 The facts, insofar as they relate to those complaints, were set out by the prosecutor at 19 of the appeal book in the following terms:

At 11.45 pm, Saturday, the 4 September last, the defendant was located in an alleyway running up James Street, Northbridge. A strong smell of cannabis was detected on the defendant and as a consequence he was searched. Located in a cigarette paper the defendant was carrying was a cannabis cigarette, approximately .4 of a gram, in his rear pocket, one 3, 4-MDMA ecstasy tablet, sir, in his rear pocket, a small plastic bag holding three plastic bags, each containing .1 gram of amphetamine.

4 The prosecutor sought a formal order for destruction and for costs. Once those facts were read to the court, counsel for the appellant sought to make his plea in mitigation. He did so by explaining a number of matters to the learned Magistrate, at the end of which he addressed the learned Magistrate about the prospects of his employment. It is clear that his Worship appreciated that what counsel for the appellant was seeking to do was to obtain a spent conviction order. His Worship, interrupting counsel for the appellant, said:

He's going to get a record. He is not going to get a spent conviction. He's 34. He should be responsible for his action. If it's going to cost him his job, he takes the risk. He's going to wear it".

5 Having read the totality of the transcript, I am of the view that his Worship was minded of the fact that the offences themselves were of such a serious nature that the Spent Convictions Act was inappropriate. I say that because to my mind, and I think in his Worship's reasons, the important factor bearing on that issue was the fact that there was not one drug, but three which the appellant had in his possession, three different drugs. Although the quantity of each was very low and I accept that, it is indicative of the fact that this was not a momentary matter or a matter of inadvertence on behalf of the appellant, but rather that he had three separate lots of drugs in his possession.

6 Bearing in mind what had been said about him, that is, that he had employment in the casino industry, I think his Worship readily appreciated that the appellant must have known the risk that he was running by being involved in any way at all in connection with drugs. He put his job at risk and that is the risk that he took and indeed, as his Worship expressed it at 19 of the appeal book, "If it is going to cost him his job, he takes the risk. He is going to wear it". In my view that was a matter that was properly open to his Worship to conclude, and I am of the view that his Worship was quite justified in reaching the conclusion that the Spent Convictions Act should have no application to the appellant's circumstances.

7 The appellant has in these proceedings sought to put before the Court other material, namely, references, which I have read. I would add that they are good references as to his past, his future, his employment prospects and his home life. However, in my view, none of those matters would have made any difference to his Worship because his Worship took the view that the offences themselves were so serious that the Spent Convictions Act was inappropriate to the circumstances of the case.

8 I accept what counsel says, that his Worship did interrupt counsel for the appellant at the hearing in the passage that I have already dealt with where his Worship interrupted to say to counsel, "He is going to get a record," and that may well have curtailed counsel in saying what he wanted to say to the court. The real question is whether or not the appellant's background and circumstances were such that it would have made any difference to his Worship's outcome. I am of the view that it would not have made any difference at all.

9 His Worship, I think, appreciated that the appellant was a person of good character and a person who was in employment. However, those factors were not sufficient to enable his Worship to come to the conclusion that the Spent Convictions Act should apply. There is accordingly, in my view, no merit in the second ground of appeal.

10 The third ground of appeal relates to the reasons provided by the learned Magistrate, or what was said to be the lack of them, and it seems to me that his Worship has dealt with the matter sufficiently at 20 of the appeal book in his comments under "sentence" where his Worship said:

"And in any event, under the general principles for a spent conviction set out in the case of Parker J" -

which I take to be a reference to Parker J's decision in the case of Riley v Gill, unreported; SCt of WA; Library 970731; 8 December 1997.

"You have got to take into account the circumstances and the line of industry. If he's in that industry he is in, then I feel there is a public interest in knowing that he has been convicted of cannabis. He is going to get a conviction for those reasons".

11 That seems to be a reference to Parker J's decision in Riley, particularly at 8 and 13 of his Honour's reasons. In the first passage at 8 his Honour said:

"The first matter of which the court must be satisfied is that the offender is unlikely to commit such an offence again; s 45(1)(a). The second of the distinct matters of which the court must be satisfied is that the court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on the offender, and in deciding whether that is the position the court is required by s 45(1)(b) to have regard to two matters, either one of which may support the conclusion that the offender should be relieved of the effects of conviction. The first of those is that the offence is trivial and the second is the previous good character of the offender."

12 In my view, his Worship's reasons indicate quite clearly that he did not consider these offences to be trivial. That being the case, he did not need to get to the second criteria set out by Parker J in Riley. That was sufficient for his Worship to come to the conclusion that the Act and the provisions of the Act should have no application to the circumstances of the case. I would add that Wheeler J, in Neale v Sloan, unreported; SCt of WA; Library 970729; 6 August 1997, has echoed the same sentiments at 4 of that decision where her Honour said:

"Section 45 of the Sentencing Act provides that a court sentencing an offender is not to make a spent conviction unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied and consideration must be given to all of the circumstances of the case and of the offender and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in section 45 are not thereby rendered irrelevant".

13 In my view, his Worship, in his sentencing reasons, has adequately dealt with that criteria and I would hasten to add that in my opinion, in selecting a fine of $700, his Worship made it quite plain that he did not regard these offences as being trivial. This is not like a case of a small quantity of cannabis being found in the pocket of a person. In this case, three discrete drugs were found in the appellant's possession and in my view that justified the penalty of $700 that his Worship imposed. In my opinion his Worship's reasons were quite adequate for a Court of Petty Sessions and quite different to the cases cited by counsel for the appellant where inadequate reasons were given. I am of the view his Worship quite adequately dealt with the circumstances of this particular case.

14 It follows, in my view, that none of the grounds of appeal have been made out and I would dismiss this appeal.