Court of Appeal (WA)|2004-11-19|Before: Mr P, Miere J

Harper v Page [2004] WASCA 267 (19 November 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HARPER -v- PAGE [2004] WASCA 267

File No : FR 2504 of 2004, FR 2505 of 2004, FR 2506 of 2004

Criminal law - Misuse of Drugs Act 1981 (WA) - Appeal - Spent conviction order - Power of Court to receive additional evidence - Power to grant spent conviction order - Effect of spent conviction order - Error of law - Incorrect conclusion that spent conviction would not apply to appellant - Application of incorrect test - Overstatement of test - Incorrect inference that drug offences were to be treated differently from offences generally - Failure to address statutory criteria

Cannabis Control Act - Discretion to issue infringement notice - Policy considerations

Spent conviction order - Power of Court to relieve offender of adverse effects of conviction - Considerations in exercise of the discretion - Likelihood of reoffending - Triviality of offence - Previous good character of offender - Good character in the negative sense - Positive evidence as to character - Circumstances justifying the making of a spent conviction order - Potential adverse effects upon offender's employment prospects

Whether there is pressing public interest in continued access to fact of appellant's conviction - No such interest in present case

The appeal be allowed and the decision of the magistrate be varied by making a spent conviction order in addition to the orders made by the magistrate

Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

Aitken v Wilson [1974] WAR 166

Allen v Powell [2000] WASCA 65

Curby v Richards-Scully [2002] WASCA 166

Krijnen v Contin [2003] WASCA 114

Neale v Sloan (1927) 27 MVR 246

Rowlands v Caport [2001] WASCA 66

1 LE MIERE J: The appellant appeals, by leave of this Court, from a decision of a Magistrate refusing to make a spent conviction order.

2 On 25 June 2004 I heard the appeal. At the conclusion of the hearing I ordered that the appeal be allowed and the Magistrate's orders be varied by making a spent conviction order in addition to the orders made by the Magistrate. These are my reasons for allowing the appeal and making those orders.

3 Section 196(1) of the Justices Act 1902 provides that the Court shall determine the appeal -

(a) on the material that was before the Justices; and

(b) on such further evidence either orally or by affidavit as the Court thinks fit to receive.

4 On the hearing of the appeal, the appellant asked the Court to receive evidence in addition to the material that was before the Magistrate. The evidence is presented in affidavits of the appellant sworn 17 March and 30 April 2004, and in annexures attached to those affidavits. The further evidence relates to:

(a) The appellant's belief, following discussions in the media, that cannabis use and the growing of two cannabis plants had been decriminalised and that it was lawful for her to have done the things that constituted the elements of the charges.

(b) The appellant's character and reputation.

(c) The appellant's present, past and proposed future employment and career.

(d) The adverse effects of the appellant's criminal convictions upon her future employment, career and travel opportunities.

5 The Court has the power to receive the further evidence and is given a discretion to do so by s 196(1)(b) of the Justices Act. One factor against the admission of further evidence is the public interest in the finality of the legal proceedings. On the other hand, in criminal proceedings there is a strong public policy in ensuring no miscarriage of justice has occurred. A court should not be deprived of material evidence bearing significantly on the question of what was an appropriate sentence: see Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189, per McLure J at 192.

6 Leave to adduce the evidence in the appellant's affidavit sworn 17 March 2004 was granted by the Judge who gave the appellant leave to appeal. I granted leave to rely on the further evidence for the following reasons. First, the further evidence is relevant to, without necessarily being determinative of, whether a spent conviction order ought to be made. Secondly, the appellant was not legally represented before the Magistrate. Thirdly, the respondent is not materially prejudiced by the further evidence.

7 On 1 February 2004, police executed a search warrant issued pursuant to s 24 of the Misuse of Drugs Act at 35 Ferdinand Crescent, Coolbellup. The appellant is the sole tenant of those premises and was present when police attended to execute the warrant. The appellant declared to police two cannabis plants approximately one metre high and a metre wide, growing in her backyard, approximately 1.7 grams of green leaf material believed to be cannabis and a ceramic smoking implement or bong with detectable traces of cannabis. The appellant stated to police that she had grown the cannabis herself and that the cannabis and the plants were for her own personal use. She said to the police that she thought that it was lawful to grow two plants.

8 The appellant appeared in the Court of Petty Sessions on 5 March 2004. She represented herself. She pleaded guilty to the following charges:

(a) Possession of a utensil for use in connection with the smoking of a prohibited drug, such utensil having detectable traces of a prohibited drug, namely tetrahydrocannabinol, contrary to s 5(1)(d)(i) of the Misuse of Drugs Act.

(b) Possession of a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act.

(c) Cultivating a prohibited plant, namely cannabis, contrary to s 7(2) of the Misuse of Drugs Act.

9 The prosecutor read the facts. The appellant then made the following statement:

"I would like to apologise to the Court for my actions. I grew two illegal plants for personal use under the misguided assumption that it was not a criminal act. I did not intend to commit a crime and I did not intend to hurt or exploit anyone by my actions. I am mortified that my ill-informed decision to grow my own plants led me here, and now that I am fully aware of the criminality of it, I can guarantee you it will never happen again. I apologise wholeheartedly for wasting the Court's time and these officers, and fully expect to pay a fine, and with my hope that I will not have to suffer a criminal record. I have never been arrested or charged for any crime before, and am a responsible and active citizen with a long history of volunteer work and community involvement. For the past 31/2 years I have worked primarily with teenagers through my employment with local government, where a police clearance was essential. In recent weeks I have commenced employment with a union and require clearance and authorisation to access the worksites. I have only ever wanted to work in the fields of social justice and community development, and a criminal record will potentially jeopardise my current and future employment. Again, I apologise for my misguided acts and appeal to the mercy of the Court in my request for a spent conviction."

10 The Magistrate made the following comments concerning a spent conviction order:

"Miss Harper, I don't know whether you know about the law with respect to spent convictions, but they are only granted in very exceptional situations, and for offences like drug offences they are extremely rare indeed. Now, let me just read to you what a judge said in relation to a similar sort of thing to you - a fellow who worked in the mining industry, and he was a shot firer and he had, similarly to you, possession of cannabis and an implement for the smoking of cannabis - also a first offender. And his Honour said this. This is Parker J in the case of Riley v Gill:

'One further consideration which it was proper, in my view, for the magistrate to take into consideration is the public interest, one aspect of which tells against the appellant in this case. The occupation which the applicant pursues involves considerable responsibility for safety. There is a public interest in any employer or potential employer being aware of the appellant's conduct of the nature demonstrated by these offences, because that conduct has clear relevance in assessing reliability and suitability for the type of work which he pursues.

There is also the issue of personal and general deterrence. While it was submitted to the magistrate that the appellant had learned from his experience, while he certainly showed by cooperating with the police" - such as you did - "entering pleas of guilty at the first appropriate opportunity, that he was remorseful and, while I proceed on the assumption that it is not likely that offences of this type will occur again, the consideration of deterrence, particular of general deterrence, remains a material consideration for offences of this nature.'

And in that case a spent conviction was not granted. And as you know now, and as you've said in the statement that you prepared, drug offences are viewed very seriously by the courts, and if my memory serves me correctly, for an offence of this nature, even though it's a summary matter, it's a fine of up to $2000 or 18 months imprisonment or both ... so notwithstanding what you have said to me, I just don't think you come within the category of somebody on which a spent conviction order can be made."

11 The Magistrate then invited comment from the prosecutor. The prosecutor said, in effect, that if the appellant was going to be working with youth, a spent conviction order would not apply to such employment. The Magistrate then continued:

" ... I don't know whether you're aware of, but where you work with children or young people, it doesn't apply in any event. Yes. Look, I am not in a position to grant you a spent conviction for an offence of this nature. ... I have read out what the provision of the section said to you. It says that it's not to make a spent conviction order unless it considers that the offender is unlikely to commit such an offence again and, having regard to the fact that the offence is trivial or 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. Whilst I've heard what you've said and I think you've learned a very, very serious lesson in relation to this matter, these offences are not trivial. And you've heard in relation to the guideline judgment that I read out in relation to it. I have to take into account the seriousness of the offence and, notwithstanding I take into - the circumstances personal to you, I have to take into account public interest for a potential employer or current employer to be aware of the offender conduct demonstrated by the offence for safety, reliability and suitability for your type of work, the need to be demonstrated to the community the need of both or either general or personal deterrence. As the sergeant has said, if you're going to be working with young people in any event, it does not take effect."

12 The Magistrate then proceeded to impose fines totalling $375.

13 Section 39 of the Sentencing Act 1995 sets out the sentencing options that are available to the Court. Subsection 39(2) provides, in effect, that, subject to ss 41 to 45, a court sentencing an offender may make a spent conviction order regardless of whether any other sentence is imposed. Section 45(1) provides that under s 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.

14 Subsection 45(2) provides that 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. The Spent Convictions Act 1988 makes provision for a person who has been convicted of an offence and who has not reoffended during the specified period to be rehabilitated by limiting the effects of the conviction. Generally, under the provisions of the Spent Convictions Act it is unlawful to discriminate against a person on the ground of a spent conviction in respect of matters of employment and the like, or membership of professional and trade organisations. By s 25 of the Spent Convictions Act, the conviction would not be a matter of disqualification for any purpose. By s 26 it could not be taken into account in determining good character, fitness, propriety or the like. By s 27, the spent conviction would not be required to be disclosed for any purpose.

15 The power conferred on the sentencing Judge by s 45 of the Sentencing Act was described by Murray J, which whom Malcolm CJ and Wallwork J agreed, in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 at [20], as bearing a very particular character. Ordinarily, a conviction remains on an offender's record and is part of his or her history which the person carries into the future as a member of the community. The provisions of the Spent Convictions Act are based on the proposition that after conviction, in time, when there has been no reoffending, a convicted person may be considered to be rehabilitated and deserving of relief from the effects of conviction in the ways described in the Act so that the offender may put the offence behind her and function in the future without the need to disclose the conviction. However s 45 of the Sentencing Act is in terms directed to relieve the offender, immediately following conviction, of its adverse effect.

16 The power conferred by s 45 of the Sentencing Act to make a spent conviction order is a discretionary power and the matters enumerated in s 45(1) are merely preconditions 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. Murray J stated at [24]:

"It follows 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."

17 An appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the sentencing Magistrate. The appellate court must be satisfied that the Magistrate made a material error of fact or law.

18 The appellant's counsel identified a number of errors allegedly made by the Magistrate.

19 It was submitted for the appellant that the learned Magistrate made an error in that she found that there would be no benefit to the appellant in making a spent conviction order. Her Worship said, in effect, that because the appellant was going to be working with children or young people, a spent conviction order would not apply to her.

20 Her Worship appears to have been referring to the circumstances related to working with young people listed in Sch 3 to the Spent Convictions Act 1988. Clause 2 of that schedule provides that specified persons are excepted from certain provisions of the Act in respect of a spent conviction for an offence referred to in subcl (2). Subclause 2(2) specifies a number of offences under provisions of the Criminal Code. The appellant was not convicted of any of those offences. That is, the exception provisions of cl 2 of Sch 2 to the Spent Convictions Act had no application to the appellant. Her Worship erred in considering that they did.

21 The respondent submitted that the comment by the learned Magistrate is a comment about the operation of a spent conviction if one was granted and was not part of the exercise of her discretion. I do not accept that submission. The issue was first raised by the prosecutor. When invited to make comment on the appellant's application for a spent conviction order, the only statement made by the prosecutor was to say that if a spent conviction order was granted, the appellant, "if she was going to be working with youth or what have you, ... couldn't claim the spent conviction". The learned Magistrate then said to the appellant: "Where you work with children or young people, it doesn't apply in any event." The learned Magistrate then informed the appellant that she was "not in a position to grant you a spent conviction for an offence of this nature". Having referred to a number of matters relevant to that decision, the Magistrate said: "As the sergeant has said, if you're going to be working with young people in any event, it does not take effect." In my view, the Magistrate's erroneous belief that a spent conviction order would not be of benefit to the appellant was considered by the Magistrate to be relevant to the exercise of her discretion and was a factor taken into account by the learned Magistrate in deciding not to grant a spent conviction order.

22 The appellant asked the Magistrate to make a spent conviction order on the ground that a criminal record would potentially jeopardise her current and future employment. The effect that a conviction may have on an offender's employment prospects is a circumstance that may justify the making of a spent conviction order. I discuss that matter below. The Magistrate, in effect, considered that the appellant's current and likely future employment was such that a spent conviction order would not apply to it. The Magistrate's erroneous belief that a spent conviction order would not apply to the appellant's present and likely future employment entirely negated, or substantially diminished, the ground on which the appellant sought a spent conviction order.

23 The appellant further submits that the learned Magistrate overstated the test required in order to make a spent conviction order. Her Worship used such terms as "very exceptional circumstances" and "extremely rare indeed." It was submitted that, without more, these expressions go much further than the statement of principle in R v Tognini, that the power should be sparingly exercised. Further, it was submitted that her Worship's statement to the effect that the making of an order in relation to drug offences was a rare thing failed to acknowledge that the offences committed by the appellant were the least serious type of drug offences.

24 In my view, the Magistrate erred in the way asserted by the appellant. The Magistrate's sentencing remarks must be read as a whole, in context and not with an eye finely tuned for error. However, in this case I am satisfied that the learned Magistrate applied the wrong test. I make that finding for three reasons.

25 First, her Worship said that a spent conviction order should only be made "in very exceptional situations" and for offences like drug offences such orders "are extremely rare indeed". In my view, her Worship was setting the bar too high.

26 Secondly, her Worship emphasised the nature of the offence, that is, a drug offence. Her Worship considered that whilst in relation to offences generally a spent conviction order is only granted "in very exceptional situations", her Worship considered that, in relation to drug offences, spent conviction orders "are extremely rare indeed". Drug offences are not to be treated differently from other offences when determining whether to grant a spent conviction order. Furthermore, in considering the seriousness of the offence, the offence to be considered is the offence committed by the offender and not the offence in the abstract. Seriousness is not to be determined by reference to the class of offence committed, but must be ascertained by reference to the conduct which constitutes the offence for which the offender was convicted and to the actual circumstances in which the offence was committed. It is erroneous to determine the seriousness of the offence by reference simply to the class of offence to which it belongs, in this case a drug offence. Her Worship appears to have considered that drug offences stand in a special category. Her Worship said:

"I am not in a position to grant you a spent conviction for an offence of this nature."

27 Having regard to the totality of her Worship's sentencing remarks, it appears to me that her Worship was referring to a drug offence rather than to the particular offence for which the appellant was convicted.

28 Thirdly, the learned Magistrate failed to address the statutory criteria. Her Worship did not say whether she considered the conditions specified in s 45(1) for the making of a spent conviction order were not satisfied or whether she found that, in the exercise of her discretion, a spent conviction order should not be made notwithstanding that the conditions specified in s 45(1) of the Sentencing Act were satisfied. In my view, her Worship considered that the fact that the appellant had committed a drug offence was a sufficient reason for refusing a spent conviction order.

29 For the reasons stated, I am of the view that the Magistrate made a reviewable error. In those circumstances, it becomes necessary to consider whether an appellate court ought exercise the discretion in substitution for the decision made by the learned Magistrate.

30 However before embarking upon an analysis of whether the requisite conditions necessary to enliven the discretion have been satisfied, I will make some comment upon the role and effect of the Cannabis Control Act 2003.

31 The Cannabis Control Act was enacted by the Parliament of Western Australia on 24 September 2003. It was proclaimed on 9 March 2004 to take effect on 22 March 2004.

32 The Cannabis Control Act changed the penalties associated with the cultivation, sale, supply, possession and use of cannabis. The Act only applies to people over 18 years of age. While the possession of small amounts of cannabis is still an offence, it can now be dealt with by issuing a Cannabis Infringement Notice. If a person receives a Cannabis Infringement Notice and pays the financial penalty or attends a cannabis education session, the person will not be required to appear in court and will not incur a criminal record. The police have the discretion to issue a Cannabis Infringement Notice to persons aged 18 years and over who are found to be:

(a) in possession of or using no more than 30 grams of cannabis;

(b) growing no more than two cannabis plants at their principal place of residence, providing that no other person is growing other cannabis plants on the same premises;

(c) in possession of pipes or implements for use in smoking cannabis on which there are detectable traces of cannabis.

33 In his Second Reading Speech, the Minister for Health said, amongst other things:

" ... the Bill will result in cannabis remaining a prohibited drug whose cultivation and possession in any quantity remains unlawful and subject to penalties.

The core reform proposed by the Bill is to provide the police with the discretion to issue an infringement notice where a person is reasonably believed to be cultivating, possessing or using cannabis within the limits for the Cannabis Infringement Notice Scheme determined by the Bill.

...

These risks clearly indicate to the Government that cannabis use must remain unlawful. In essence, the Bill continues this prohibition, but proposes an alternative and additional method of control. The Government will complement the continuing legal intolerance of cannabis use by providing the community with information about the risks of cannabis use and the laws that apply to it, and providing treatment to those who do use the drug. It is evident that the threat of criminal prosecution has not deterred many young Western Australians, in particular, from using cannabis.

As a consequence, large numbers of Western Australians who are otherwise law-abiding are exposed to the risk of criminal prosecution for minor cannabis offences.

A conviction for a drug-related offence - even a minor one - can have disproportionate social and economic impacts for the individual by, for example, affecting employment and travel opportunities.

...

For these underlying reasons, the Government supports the view taken by the Community Drug Summit that enforcement of the prohibition on personal cannabis use should incorporate a Cannabis Infringement Notice scheme allowing for the imposition of civil penalties as an alternative to criminal prosecution in defined circumstances.

...

More positively, the Government proposes that the Bill's success should be monitored and evaluated by reference to:

• preventing the inappropriate imposition of significant and disproportionate social and economic costs resulting from a conviction for a minor cannabis offence."

34 The offences committed by the appellant were committed on 1 February 2004, that is after the Cannabis Control Act was enacted by the Parliament but before it was proclaimed and came into effect. It appears that the Government's education program to inform the general community about the nature and implications of the changes, and that possession and cultivation of cannabis remains unlawful, was unsuccessful in relation to the appellant. She believed that the new cannabis laws made possession of small quantities of cannabis, possession of implements for smoking cannabis, and growing no more than two cannabis plants lawful. She informed the police to that effect when they searched her premises.

35 I turn now to consider whether the necessary conditions which enliven the discretion to make a spent conviction order have been satisfied.

36 I am satisfied that the requirement of s 45(1)(a) is satisfied. That is, I consider that the appellant is unlikely to commit such an offence again.

37 The references tendered by the appellant show that prior to the commission of these offences she had lived an unblemished and law-abiding life. As I have said, when the police found the cannabis, plants and bong at her premises, the appellant told the police she thought that it was lawful to be in possession of those items. When the appellant appeared before the Magistrate she informed her that she had grown the illegal plants for personal use under the misguided assumption that it was not a criminal act. The appellant said:

"Now that I am fully aware of the criminality of it, I can guarantee you it will never happen again."

38 The Magistrate appears to have accepted that assurance and commented:

"I think you have learned a very, very serious lesson in relation to this matter."

39 The appellant's affidavit of 17 March 2004 puts further material before this Court. The appellant says:

"12. At the time the offences occurred I believed following discussions in the media that cannabis use and the growing of two cannabis plants had been decriminalised and that it was then lawful for me ... to do those things that constituted the elements of the charges.

13. I now know that the conduct I engaged in is illegal and that the adverse effects on me of conviction are considerable and I therefore have no intention of committing the offences again."

40 Regard must next be had to s 45(1)(b). Thus the appellant must establish either that the offence is trivial or that she is of previous good character.

41 If it were not for the provisions of the Cannabis Control Act, I would consider that the offences of which the appellant was convicted are not trivial. In general, an offence is not to be regarded as trivial if it is a typical example of the behaviour prescribed for such an offence. There must be something that distinguishes the circumstances of the offence under consideration from what is to be regarded as a typical breach of the particular provision.

42 However, in my view, the offences of which the appellant was convicted should, since the Cannabis Control Act has come into effect, be considered to be trivial for the purposes of s 45(1) of the Sentencing Act.

43 Section 45(1) provides, in effect, that the discretion to make a spent conviction order is enlivened if the court considers that the offender is unlikely to commit such an offence again and, amongst other things, having regard to the fact that the offence is trivial, the court considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. The purpose of the statutory provision is to empower the court to relieve an offender from the adverse effects of a conviction because, amongst other things, of the nature and circumstances of the offence.

44 The Parliament has now enacted that while the cultivation of two cannabis plants, in the relevant circumstances, is still unlawful, it can now be dealt with by issuing a Cannabis Infringement Notice, and if the offender pays the financial penalty or attends a cannabis education session, the person will not incur a criminal record. The, or one, purpose of the Cannabis Control Act is to ensure that Western Australians who are otherwise law-abiding citizens, are not unnecessarily exposed to criminal prosecution for minor cannabis offences, thus avoiding unnecessary exposure to the disproportionate social and economic impacts associated with conviction for a drug-related offence.

45 The appellant submits that the principle that offences can change their level of seriousness when the law changes between the time of commission and the time of sentencing is recognised by s 10 of the Sentencing Act.

46 For the reasons stated, the offences committed by the appellant should now be considered to be trivial. However, the offences were committed and the Magistrate passed sentence before the Cannabis Control Act came into effect. It is not necessary to consider whether the offences are trivial so as to enliven the discretion conferred by s 45(1) of the Sentencing Act, in this case, because I am satisfied that the appellant is a person of previous good character and hence the alternative precondition prescribed for the exercise of the discretion is satisfied.

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

48 There is evidence before the Court of the appellant's good character, beyond the fact that she is a first offender.

49 The appellant has deposed to a number of matters to her credit. The appellant has completed an Honours degree at university. She has been employed by educational and local government bodies and is presently employed as a union organiser with the Australian Services Union. From 1998 to 2003 she spoke on an occasional and voluntary basis to students at Hamilton and John Curtin Senior High Schools in relation to the importance of higher education and active citizenship and the rights of women and workers. She has previously held elected positions with student and educational institutions. She was the student president at John Curtin High School in 1992 and 10 years later was invited to give a valedictorian address to that school's students. The appellant has produced a bundle of references. Those references attest to the appellant's good character and reputation and the contribution she has made to the community. For a number of years she has housed people in need, for a nominal amount.

50 The Court has a discretion whether to make a spent conviction order. In exercising that discretion, the Court may have regard to any relevant consideration. The Court is not confined to the matters referred to in pars (a) and (b) of s 45(1) of the Sentencing Act. In R v Tognini, Murray J said:

"[27] 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 preconditions are satisfied, 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.

[28] 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."

Detrimental effects on employment prospects

51 The Second Reading Speech of the Honourable Attorney-General introducing the Sentencing Bill into the Parliament shows that the detrimental effect that a conviction may have on an offender's employment prospects was intended by the legislature to be a circumstance that may justify the making of a spent conviction order. Hansard, for 25 May 1995, at page 4258, records the Minister as saying:

"One of the progressive elements of the sentencing Bill is that, where the Court determines that the offence is not serious - for example, in the case of minor shoplifting - and the antecedents of the offender are good, and where the conviction might have a detrimental effect on an offender's employment prospects, cl 39 and 45 in Part IV enable a court to order that a conviction be spent. This will mean that the protections afforded by the Spent Convictions Act 1988 will immediately apply. This is not to mean that the offender is not punished. However, it is anticipated that this power will provide a significant incentive to refrain from further offending by allowing the stigma of a conviction to be lifted which could otherwise have disqualified them from pursuing their chosen career."

52 In this case there is evidence that the conviction, if not declared to be spent, may have a detrimental effect on the appellant's employment prospects, and making a spent conviction order may enable the appellant to pursue her chosen career.

53 The appellant deposes that although she is currently employed as a union organiser, her employment history and career focus is in providing programs for youth, being 12 to 25 year olds. She rarely works one to one with youths. She has deposed that the vast majority of employment opportunities open to her because of her qualifications, work experience and interests lie with local government, the Department of Community Development and other such institutions. It is almost without exception that such institutions require a police clearance as a condition precedent to employment. The City of Cockburn required a police clearance from the appellant before they offered her employment. The City of Cockburn also requires police clearances with respect to other community service positions for which the appellant is qualified and interested. There is evidence that the Department of Community Development conducts police checks for all its employed positions.

54 In this case, there is also evidence that the appellant's opportunities to travel overseas and further her education and career may be impeded if a spent conviction order is not made. That may not, in other cases, be a sufficient reason for making a spent conviction order. However, it is a relevant factor to be taken into account with other matters.

55 The appellant has also referred to the detrimental effect of a conviction on a possible political career. The respondent submits that the appellant's desire to pursue a political career is not a valid justification for the imposition of a spent conviction order. It is submitted that the public have a legitimate interest in any criminal conduct by political candidates in order to make an informed electoral vote. There is force in that submission and I do not give the appellant's desire to pursue a political career any weight.

Public interest in disclosure of conviction

56 It is necessary to consider whether there is any pressing public interest in prospective employers and others being able to continue to have access to the fact of the appellant's conviction as part of the process of securing the protection of the community. In my view, there is no such interest in the circumstances of this case. The appellant committed the offence at a time when the Cannabis Control Act had been enacted but not proclaimed. As I have said, one of the purposes of that Act is to ensure that a person convicted of offences of the sort committed by the appellant does not suffer the disproportionate social and economic impacts affecting employment and travel opportunities resulting from a conviction for a drug offence.

57 The learned Magistrate referred to the decision of Parker J in Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997. In my view, that is a relevantly different case from this one. In that case, the appellant had been convicted, like the appellant here, of offences of possession of cannabis and possession of an implement for the smoking of cannabis. He was employed as a shot-firer at a minesite in the Pilbara. Parker J found, at pg 13, that there was a public interest in any employer or potential employer being aware of the appellant's conduct, because that conduct had "clear relevance in assessing his reliability and suitability for the type of work which he pursues". The appellant's occupation involved "considerable responsibility for safety". This case is quite different. The appellant's present and proposed employment do not involve shot-firing, the charge of large machinery or other activities giving rise to similar safety issues.

58 In any event, in my view, the provisions of the Cannabis Control Act, and the policy underlying it, entirely negate any pressing interest in prospective employers and others being able to have access to the fact of the appellant's conviction as part of the process of securing the protection of the community in relation to the offences for which the appellant was convicted.

59 In my view, a spent conviction order should be made. There are two principal reasons why I exercise my discretion to make such an order. First, the conviction might have a detrimental effect on the appellant's employment and career prospects. Secondly, the policy of the Cannabis Control Act is an expression of the will of the Parliament that a person convicted of offences of the sort for which the appellant was convicted should not suffer the disproportionate social and economic impacts affecting employment and travel opportunities that are likely to result from a conviction for a drug offence.

60 For the reasons stated, I made orders as follows:

(1) The appeal be allowed.

(2) The decision of the Magistrate be varied by making a spent conviction order in addition to the orders made by the Magistrate.

Convictions Act 1988

Harper v Page [2004] WASCA 267

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (111 paragraphs)

Harper v Page [2004] WASCA 267 (19 November 2004)

Parties

Legislation Cited (3)

Cases Cited (3)