HJT -v- REICHELT [2017] WASC 301 (29 September 2017)

3 The appellant did not appear before the Magistrates Court on 17 October 2016. The learned magistrate was informed the appellant did not have a criminal record. The facts read to the court were that on 17 September 2016, the appellant was driving a vehicle on a road in South Hedland. She was stopped by police who noticed a clipseal bag containing a green leafy substance on the floor in the backseat of the vehicle. As a result, the appellant handed police another clipseal bag that was located in the righthand pocket of her robe. The bags contained 3.4 g of cannabis.

4 The learned magistrate did not have before her an application for a spent conviction, nor did she consider whether such an order should be made.

5 The appellant's application for leave to appeal is approximately four months out of time.

6 The appellant, in an affidavit sworn by her on 16 March 2017, states that:

(1) She was charged with an offence on 17 September 2016 and was issued with a summons to appear in court at Port Hedland on 12 October 2016.

(2) On 28 September 2016, she sent an endorsed plea of guilty to the South Hedland Magistrates Court as she was unable to attend court on 12 October 2016.

(3) On 4 October 2016, she moved to Queensland where she now resides.

(4) She was informed by a justice of the peace that she could apply for a spent conviction. She thought that such an application had to be made to the Western Australian Police.

(5) On 18 October 2016, she submitted an 'application for certificate that lesser conviction is spent' to the Western Australian Police.

(6) On 27 October 2016, she received written advice that her application could not be accepted until 17 October 2026, as an application for a certificate could not be made until after a period of 10 years had expired.

(7) She sought legal advice and assistance from Legal Aid. Legal Aid assisted the appellant to apply for a correction of sentence application which was heard on 9 January 2017. The application was unsuccessful.

7 On 13 March 2017, Legal Aid approved the appellant's request for assistance with an appeal. On 17 March 2017, the application for leave to appeal was filed.

8 This court has power under s 10(3) of the Criminal Appeals Act 2004 (WA) to order that the appeal may be commenced later than 28 days after the date of sentence. The application to extend time is not opposed by the respondent.

9 Whilst the length of delay is considerable, in all the circumstances, I consider that the interests of justice necessitate a grant of extension of time within which to file the application for leave to appeal.

10 Pursuant to s 40(1)(e) of the Criminal Appeals Act, an appeal court may admit any other evidence. When an appeal is against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard (s 14(5) of the Criminal Appeals Act).

11 The appellant seeks to admit two affidavits into evidence in the appeal.

12 The first is the appellant's affidavit sworn on 16 March 2017 which sets out matters not only in support of her application to extend time, but also contains information in support of her application for leave to appeal. The appellant's affidavit contains information which goes to the question whether she is likely to commit such an offence again, her character and whether she should be immediately relieved of the adverse effects of the conviction.

13 The second affidavit is an affidavit sworn by Ms Natalie Rae Sinton, a solicitor employed by Legal Aid, sworn on 5 September 2017. Ms Sinton's affidavit annexes a document titled 'Confirmation of Enrolment', TAFE, Queensland, dated 22 June 2017 which contains information that the appellant is enrolled in 11 study units in a diploma of nursing commencing on 10 July 2017. Ms Sinton's affidavit is relevant to the question whether the appellant's enrolment in the study of nursing supports her submission that she should be relieved of the adverse effects of the conviction.

14 The respondent does not object to the affidavits being admitted into evidence in the appeal. The respondent points out that it is established in determining whether a failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may, in its discretion, consider further information gathered for the appeal, such as information that is set out in the affidavits of the appellant and Ms Sinton: Caseley v Zampogna [2006] WASC 259 [19] (Blaxell J) and A v Staples [2007] WASC 36 [17] (Hasluck J).

15 Section 39(2)(c) of the Sentencing Act 1995 (WA) empowers a court sentencing an offender to impose a fine with or without making a spent conviction order. As McKechnie J remarked in M v O'Neill [2013] WASC 187 [23]:

The term 'spent conviction' is a misnomer. The conviction is not spent at all. It remains on the record for subsequent court proceedings. The Spent Convictions Act 1988 (WA) prevents discrimination against a person for employment and other purposes and allows them to answer 'No' to questions about convictions. But there are many exceptions listed in the Spent Convictions Act sch 3, including for persons applying to be police officers or security guards when the benefits of a spent conviction do not apply.

16 The preconditions for the exercise of the power to make a spent conviction are set out in s 45(1) of the Sentencing Act. Section 45(1) provides:

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.

17 It is well established that once the preconditions for the exercise of the power in s 45(1) are met, the court has a discretion, not a duty, to make a spent conviction order: R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291, 296 297 [24].

18 It is to be expected that, generally, those who contend they come within the conditions laid down in s 45(1) will demonstrate that fact by convincing evidence: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 513 [14] (Burchett AUJ, Wallwork & Wheeler JJ agreeing).

19 The ground of appeal, prior to amendment, stated that the learned magistrate failed to consider whether to grant the appellant's spent conviction, which refusal resulted in a miscarriage of justice.

20 The learned magistrate was not, however, asked to make a spent conviction order. Yet, the failure to do so does not mean that it was not considered: Mohamed v Wellinger [2012] WASC 470 [36] (Edelman J).

21 As the respondent points out, the difficulty with the way in which the ground of appeal was drafted is that there was insufficient material before the learned magistrate to establish the preconditions for a grant of a spent conviction order. Therefore, there was no cogent evidence before the Magistrates Court upon which an order could be made. However, the appellant's appeal has been put on the basis that the evidence before this court enlivens the discretion to make a spent conviction.

22 In light of the respondent's submission, the appellant sought and obtained leave to amend the ground of appeal to state that there was a miscarriage of justice in the failure to grant a spent conviction to the appellant in relation to charge PH 1882 of 2016.

23 Having considered all of the submissions made on behalf of the parties, and the evidence that is now before the court in this appeal, I am of the opinion that a miscarriage of justice would occur if a spent conviction order were not made.

Should a spent conviction order be made? (a) Is the appellant unlikely to commit such an offence again?

24 In considering this question, s 45(1) requires a conclusion that the offender is unlikely to commit such an offence again, not that it is certain: Lee Suarez v Cutler [2012] WASC 171 [25] (Beech J).

25 The appellant in her affidavit relevantly attests that:

(1) At the time of the offence she was 18 years old.

(2) She had been living in Port Hedland with her parents since she was eight years old.

(3) In early 2016, her family moved back to Queensland and she decided to stay in Port Hedland and support herself.

(4) In August 2016, her longstanding boyfriend left for Victoria to join the navy, she was heartbroken and did not want to live any more.

(5) She began to smoke cannabis to numb the pain, but the pain did not go away. With her family gone from Port Hedland she had no one to stop her.

(6) Her drug use stopped on the day of the offence.

(7) She moved to Queensland on 4 October 2016 to be with her family.

(8) She was extremely remorseful after the night of the offence. She knew she had to change something or 'I was going to rot my brain and go absolutely nowhere in life'.

(9) As soon as she arrived in Brisbane she saw a doctor and a youth counsellor regarding the underlying issue with her drug use.

(10) At the time of making her affidavit she was employed as a parttime pharmacy assistant, a gymnastics coach and as a casual at a City Beach warehouse.

26 Having regard to these circumstances, I am of the opinion that the appellant is unlikely to commit such an offence again. This was the appellant's first offence. The evidence establishes that she has now ceased smoking cannabis and has sought counselling and assistance from a medical practitioner to assist her in resolving issues which led to the use of cannabis.

(b) Is the offence trivial or is the appellant previously of good character?

27 As the appellant was convicted of an offence of possession of 3.4 g of cannabis, she had no prior convictions and had never previously been issued with a cannabis intervention requirement, the offence could have been dealt with without proceeding to prosecution by a police officer issuing a cannabis intervention requirement under s 8E(1) of the Misuse of Drugs Act. When a minor cannabis offence can be dealt with without proceeding to a prosecution the effect of the offence is that it must be considered trivial for the purposes of a spent conviction order: Harper v Page [2004] WASCA 267 [42] [46] (Le Miere J).

28 In these circumstances, the respondent concedes that it is open to find that the offence was trivial and I do so find. The respondent also concedes that in light of the absence of prior convictions, the appellant's employment in Queensland subsequent to the offence and her enrolment to study a diploma of nursing, is open to find the appellant to be of previous good character. Both of these concessions are properly made. Consequently, I am satisfied the answer to both of these questions is 'Yes'.

(c) Should the appellant immediately be relieved of the adverse affects of the conviction?

29 In this matter it is argued that a spent conviction order ought to be made because otherwise the appellant's future employment prospects could be impeded by the conviction.

30 In determining whether to exercise the discretion to make a spent conviction the court should have regard not only to the interests of the offender but also the public interest: Tognini [27] - [28], Brewer v Bayens [16] - [18] and Wright v McMurchy [2012] WASCA 257 [59] (Pullin JA, Buss & Mazza JJA agreeing).

31 As Le Miere J observed in Harper v Page, however, the provisions of the Cannabis Control Act 2003 (WA) (which enacted cannabis infringement notice and cannabis intervention requirement provisions in the Misuse of Drugs Act) and its underlying policy negates any pressing public interest in prospective employers and others being able to access the fact of the appellant's conviction [58].

32 I would add to the observations made by Le Miere J in Harper v Page that, whilst it is a general principle that one aspect of the public interest is the effect of an order on general deterrence as there is a public interest in convictions being recorded and exposed to public scrutiny, in a matter such as this where the offence could have been dealt with by a cannabis intervention requirement, the public interest in a conviction being recorded must necessarily carry much lesser weight than in other matters where an offence cannot be dealt with other than proceeding to a conviction.

33 It is also relevant in this matter that if the appellant pursues to choose a career in nursing she will not be released from the obligation to disclose the existence of her conviction to the National Nursing Board of Australia. In A v Price [2011] WASC 121 Sleight C set out the requirements of disclosure of spent convictions where the Health Practitioner Regulation National Law (WA) Act 2010 (WA) applies. In that matter, a registered nurse appealed against a magistrate's refusal to grant a spent conviction order. At [15] [18] his Honour observed:

Part 3 div 3 of the Spent Convictions Act 1988 (WA) provides that it is unlawful for employers (s 18), principals (s 19, s 20), organisations of employees and employers (s 21), authorities that confer qualifications (s 22) and employment agencies (s 23) to discriminate against a person on the ground of a spent conviction. Section 26 in div 4 provides that where a written law of this State permits or allows a person to consider, take into account or determine good character, fitness, propriety or other like attributes, the person shall not have regard to spent convictions of the individual, the subject of the character assessment (however, sch 3 to the Act sets out numerous exceptions to pt 3 of the Act). (For a discussion of these provisions, see Riggall v The State of Western Australia [2008] WASCA 89; (2008) 37 WAR 211 per Wheeler JA.) Included in these exceptions are persons employed or seconded or who are being considered for employment or secondment by the Director General of the Department of Health under the Health Act 1911 (WA) and Hospitals and Health Services Act 1927 (WA). However, no exception applies for employees of private health operators.

However, an exemption exists under the provisions of the Health Practitioner Regulation National Law (WA) Act 2010 (WA). Section 77 of the Act provides that an individual may apply to the National Board for registration in the health profession for which the board is established. The application must include a declaration to disclose the applicant's criminal history. Section 77(4) provides that the requirement to provide a declaration concerning the applicant's criminal history applies, notwithstanding any criminal history law which prevents or does not require the disclosure of convictions (s 5 of the Act).

Similarly, there are provisions in the Act which entitle the National Board to check an applicant's criminal history and to obtain a copy of the criminal history of the applicant from a police commissioner notwithstanding a spent conviction order (s 79 and s 135 of the Act).

Accordingly, even if a spent conviction had been made by the magistrate, the National Board for registration of a health profession (which includes a registered nurse) would still be able to inquire as to the criminal history of the person before granting registration. However, this disclosure of the criminal history would not apply to a potential employer.

34 Counsel for the appellant points out the appellant is a very young adult who may or may not choose to pursue a career in nursing.

35 Counsel also put a submission on behalf of the appellant, if the appellant does pursue such a career in nursing that the National Nursing Board may regard a spent conviction as a matter in her favour as opposed to a conviction that is not spent. Whether that is so would be a matter for the National Nursing Board.

36 Given that the appellant was 18 at the time of the commission of the offence and was under considerable stress without family support and has taken positive steps to address the issues which led to use of cannabis, together with the fact that she is at the beginning of her working life when it can be difficult to establish a career path, I am of the opinion that the refusal to grant a spent conviction by this court would produce a miscarriage of justice.

37 I consider the appeal should be allowed and that a spent conviction order should be made in respect of the offence.