For the reasons I have stated, I would make orders as follows:
Leave to appeal on grounds 1 and 2 is granted;
Leave to appeal on ground 3 is refused;
The appeal is allowed;
The decision of the magistrate is varied by granting a spent conviction order in respect of the offence.
[2]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
Legislation Cited (3)
Sentencing Act 1995(WA)
Criminal Appeals Act 2004(WA)
Misuse of Drugs Act 1981(WA)
Cases Cited (5)
The appellant applies for leave to appeal on a number of grounds against the decision of a magistrate refusing to make a spent conviction order in respect of his conviction for an offence (the offence) of possessing cannabis contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (MDA).
On 9 January 2018 Martino J made an order that the application for leave to appeal be heard with the appeal.
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success: Criminal Appeals Act 2004 (WA) (CAA), s 9(2). A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193 [56]. If leave to appeal is refused on each ground the appeal is taken to be dismissed: CAA, s 9(3).
Thus the section operates so as to direct the court not to make a spent conviction order unless the court considers that the offender is unlikely to commit such an offence again and, having regard to one or other of the factors in par (b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
It is wellestablished that once the preconditions for the exercise of the power to make a spent conviction order are met, the court has a discretion, not an obligation, to make (or not make) a spent conviction order: R v Tognini & Mcguire [2000] WASCA 31; (2000) 22 WAR 291 [24]; Wright v McMurchy [2012] WASCA 257 [59]. The discretion is to be exercised having regard to the following propositions:
The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;
In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;
The court 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;
The court should 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 set aside; and
The exercise of the discretion involves consideration of the interests of the offender and the public interest: R v Tognini [27] [28]; Wright v McMurchy [59]; Frewen v Dalgreen [2014] WASC 407 [18], [20] [21]; Wong v Barker [2017] WASC 311 [39].
Although ground 2 as expressed is that the magistrate made an error in finding that he could not conclude that the appellant was unlikely to reoffend, the complaint made by the appellant, stated more precisely, is that the magistrate erred in finding that he could not conclude that the appellant was 'unlikely to commit such an offence again' (emphasis added): Sentencing Act, s 45(1)(a). I take the reference to 'such an offence' to mean an offence of a similar kind to that for which the offender has been convicted which, in the circumstances of the present case, means a drugrelated offence: Hull v Castledine [2005] WASC 252 [17].
Section 45(1)(a) requires a conclusion that the offender is unlikely to commit such an offence again, not that the offender will definitely not commit such an offence again: Lee Suarez v Cutler [2012] WASC 171 [25].
The appellant's submission is that in light of the reports of Mr Snell and Dr Watts it was not open to the magistrate to find that it was not unlikely that the appellant would commit a drugrelated offence again. The respondent submits that it was open on the evidence before the magistrate for his Honour to find that he was not satisfied that the appellant was unlikely to commit a drug related offence again and that his Honour did not therefore err in arriving at such a finding. In order to deal with the appellant's submission it is necessary to make some more detailed reference to the reports of Mr Snell and Dr Watts.
In his report Mr Snell confirmed that the appellant was currently engaging in nonresidential counselling at Cyrenian House, and that he was attending in regard to his ketamine and cannabis use and other related issues. Mr Snell stated that the appellant had attended three sessions on 17 August 2017, 31 August 2017 and 14 September 2017, and that his next appointment was scheduled for 5 October 2017.
Mr Snell stated that the appellant had engaged well in the counselling process, and 'appeared to be reflecting on his past choices and decisions and how he can now best support himself to make helpful choices'. He stated that the appellant had reported that he had ceased ketamine and cannabis use since attending counselling and that the appellant's presentation at counselling was consistent with his assertions in this regard.
Mr Snell pointed out in his report that the issues covered in the counselling sessions with the appellant were harm minimisation (which included mindfulness with intention to commitment to change, learning to manage cravings by delaying use, healthy distractions, consequential thinking and managing selftalk around drug use), identifying and managing high risk situations, and changes in lifestyle so as to avoid high risk social situations.
The appellant's contention that the magistrate erred in finding that the offence was not trivial is founded on the amount of cannabis involved, namely 4 grams. In support of this contention the appellant points to the fact that given the amount of cannabis involved in the commission of the offence, the offence was a 'minor cannabis related offence' as defined in s 8B of the MDA.
It is clear that when a minor cannabis related offence can be dealt with without proceeding to a prosecution by a police officer issuing a cannabis intervention requirement under s 8E(1) of the MDA, the offence should be considered as trivial for the purposes of s 45(2)(b)(i): Harper v Page [2004] WASCA 267 [42] [46]; HJT v Reichelt [2017] WASC 301 [27]. However, this is not a case in which the appellant's 'minor cannabis related offence' could have been dealt with by way of a cannabis intervention requirement. The offence could not have been dealt with by way of a cannabis intervention requirement because the appellant had, at the time of committing the offence, been convicted of the drug paraphernalia offence: MDA, s 8E(4)(a). Thus the reasoning in Harper v Page and HJT v Reichelt is not directly applicable to the circumstances of the appellant's case.
In addition, it is worth noting in this context that in Harper v Page [41] Le Miere J expressed the view that 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. His Honour's view was that 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' [41]. In that case the circumstances of the offence which in his Honour's opinion distinguished it from a typical breach of s 6(2) of the MDA was that the offence, given the amount of cannabis involved (1.7 grams), was under the then applicable legislation able to be dealt with without proceeding to prosecution. As I have already said, the appellant's case does not fall into this category.
In Riley v Gill (unreported; SCt of WA; Parker J; Library No 970731; 8 December 1997), the offender was convicted of an offence of being in possession of approximately 1 gram of cannabis. In dismissing the offender's appeal Parker J held that the circumstances of the offence, which involved the offender making a conscious decision to have the cannabis in his personal living quarters at the mine site at which he worked, could not be regarded as trivial for the purposes of s 45(1)(b)(i): [49].
(2000) 22 WAR 291
Dr Watts in his report confirmed that he had seen the appellant for three appointments and that an additional appointment had been scheduled for shortly after the appellant's sentencing. He noted that the frequency of the appellant's appointments had been dictated more by his availability than the availability of the appellant.
Dr Watts stated that the appellant was motivated to participate in the therapy sessions, had a keen mind and appeared to benefit from the sessions. He stated that while the treatment period had been relatively short he and the appellant had covered 'some quite significant ground'.
Dr Watts noted that the appellant had grown up in a 'relatively normal' family, that he had attended a private high school, that he had attended university and studied engineering, that he was in the early stages of his career, and that he was employed as a structural engineer and enjoyed his job.
Dr Watts stated that the appellant had reported that he had stopped all drug use. He stated that the appellant was 'highly remorseful of his offending and significantly aware of the consequences of his drug use'. He stated that the therapy had involved a 'variety of techniques including insight therapy'.
Dr Watts concluded his report by stating that in his opinion the appellant did not have a major substance abuse issue 'to start with', that 'this experience' had been a tremendous 'wake up call' for the appellant, and that he considered that there is 'every likelihood that [the appellant] will actively avoid substance abuse in the future'.
It is, in my view, fair to say that the above referred to uncontradicted content of the reports of Mr Snell and Dr Watts provided a basis for concluding that the appellant was unlikely to commit a further drugrelated offence. The reports revealed that the appellant had ceased using cannabis and ketamine, had on his own volition embarked upon a course of counselling and therapy directed at ensuring that he did not relapse into drug use, had insight into the adverse consequences of his prior drug use, and was gainfully employed. In addition, the report of Dr Watts contained the expressed expert opinions that the appellant did not, prior to engaging in counselling and therapy, have an entrenched substance abuse problem, and that there 'was every likelihood' that the appellant would actively avoid substance abuse in the future.
Against the content of the reports the magistrate took into account that the appellant had committed the offence within approximately nine months of committing the drug paraphernalia offence and the ketamine offence, within approximately three months of being convicted of the drug paraphernalia offence in respect of which he had been granted a spent conviction order, and while he was on bail for the ketamine offence. Indeed, it is clear from a reading of the magistrate's sentencing remarks that it was this sequence of events that led his Honour to find that he could not conclude that the appellant was 'unlikely to commit such an offence again' within the meaning of s 45(1)(a). As his Honour said (ts 8):
In Tilbrook v Cole [2001] WASCA 94 [55] Hasluck J held, in reliance on the decision in Riley v Gill, that it was open to a magistrate to hold that the circumstances of an offence of possessing cannabis were not trivial notwithstanding that the amount of cannabis in question was less than one gram. In Tillbrook v Cole the cannabis the subject of the offence was found in the lounge room of the offender's house.
In NLJ v Martin [2010] WASC 310 [33] Murray J held that the possession of a small quantity of cannabis (2.5 grams mixed with tobacco in four cigarettes) was a trivial offence for the purposes of s 45(1)(b)(i).
In the above referred to decision in HJT v Reichelt the amount of cannabis the subject of the offence was 3.4 grams.
In summary, and unsurprisingly, the authorities do not provide any definitive guidance as to when a possession of cannabis offence involving a small amount of cannabis which cannot be dealt with by way of a cannabis intervention requirement will qualify as a trivial offence for the purposes of s 45(1)(b)(i). What is revealed by the cases, however, is that the fact that a person is found in possession of a small amount of cannabis does not necessitate the conclusion that an offence is trivial for the purposes of the section.
The present case is not one in which the appellant was found in possession of the cannabis at a location outside of his own private residence, for example, at his workplace. Moreover, even though the offence could not be dealt with by way of a cannabis intervention requirement, it must be said that the quantity of cannabis in question was on any measure small. It was well below the amount of cannabis that is prescribed as being the maximum amount before which an offence of possessing cannabis will not qualify as a 'minor cannabis related offence', namely not more than 10 grams. In these circumstances, and while accepting, as the magistrate noted, that cannabis is a drug which does cause damage to members of the community, I am persuaded that the magistrate did make an error in concluding that the offence was not a trivial offence within the meaning of s 45(1)(b)(i). In my view it was a trivial offence within the meaning of the section. To the extent that it is necessary, in order to arrive at this conclusion, to find that the offence was something other than a typical example of the behaviour prescribed for such an offence (an issue in respect of which I express no concluded view), in my opinion the fact that the offence was a 'minor cannabis related offence' as defined in s 8B of the MDA, and involved an amount of cannabis that was significantly less that the maximum amount before which an offence will not qualify as a 'minor cannabis related offence', satisfies this requirement.