Krijnen v Conti [2003] WASCA 114

Misuse of Drugs Act 1981 (WA), s 5(1)(d)(i), s 6(2)

Sentencing Act 1995 (WA), s 6, s 39(2), s 45

Remitted to the Court of Petty Sessions at Albany for determination by a Stipendiary Magistrate

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Furtak v Timmers [2001] WASCA 65

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997

The Queen v Tait (1979) 46 FLR 386

1 This is an appeal under the Justices Act 1902 by the appellant against the sentences imposed on her in the Court of Petty Sessions at Mount Barker on 2 October 2002.

2 On 2 October 2002, the appellant appeared before a single Justice of the Peace on the hearing of two complaints. The appellant pleaded guilty to each complaint which respectively alleged that, on 25 September 2002 at Mount Barker, the appellant:

(1) had in her possession a specified drug, namely tetrahydrocannbinol, otherwise known as cannabis, contrary to s 6(2) of the Misuse of Drugs Act;

(2) had in her possession a pipe, namely a bong for use in connection with the smoking of a prohibited drug, namely cannabis such pipe having detectable traces of a prohibited drug namely tetrahydrocannbinol, contrary to s 5(1)(d)(i) of the Misuse of Drugs Act.

3 On the first complaint, the Justice sentenced the appellant with a fine of $200. On the second complaint, the Justice sentenced the appellant with a fine of $100. The Justice further ordered that the appellant pay the sum of $57.50 costs in respect of each complaint and made an order for destruction.

4 By order for leave to appeal made by Heenan J on 13 November 2002, the appellant seeks to set aside the sentences imposed on three grounds:

(1) In breach of s 65 of the Justices Act 1902 and of the requirements of the rules of procedural fairness, the Justice of the Peace erred in law by excluding the applicant from the courtroom in circumstances where the Justice and the prosecutor remained in the courtroom during the deliberations of the Justice.

(2) The Justice acted without, or in excess of, jurisdiction in that, in breach of s 29 of the Justices Act she alone heard and dealt with the subject complaints. The particulars of this ground are provided and they are referred to below.

(3) The Justice erred in law in failing to grant a spent conviction in respect of each conviction. Particulars of this ground are also provided and are dealt with further below.

5 The factual circumstances in which these grounds of appeal are pressed by the appellant are set out in an affidavit of the appellant sworn 18 October 2002, as well as in an affidavit of Peter Joseph Taylor, the police prosecutor who appeared at the hearing of the complaints before the Justice of the Peace sworn 14 May 2003. The accounts of the proceedings before the Justice provided in these affidavits must be considered because no written record of the proceedings before the Justice was made.

6 The appellant is a registered nurse, who resides in Mount Barker in the great southern area of the State. On 25 September 2002, two police officers attended at her home at about 6 pm. They advised her they had a search warrant to search her premises. They said they had received information that there might be cannabis on the premises. At the invitation of the police officers to produce any such materials, the appellant produced to them some cannabis and a "bong". The cannabis was in a small plastic bag. The amount of cannabis was approximately half an ounce. Once she had produced these materials to the two policemen, the appellant explained to them the circumstances in which she found herself professionally, in business terms and also personally, as well as how she had recently smoked some cannabis in order to reduce stress she was experiencing.

7 A few days following this visit, the police officers returned to the appellant's home and served her with the summons in respect of each complaint. The summons provided that she was to appear in the Mount Barker Court of Petty Sessions on 2 October 2002.

8 The appellant then sought legal advice by speaking to a legal officer at the Albany Community Legal Centre Inc. She was advised to explain the circumstances to the Court and to ask for a spent conviction order. She was advised by the legal officer that the Albany Community Legal Centre Inc does not provide representation in the court.

9 On 2 October 2002, the appellant attended at the Mount Barker Court of Petty Sessions, which was conducted in the Mount Barker Courthouse. Prior to the matter being called on, she was approached by Sergeant Taylor of the Mount Barker police, who was to act as the police prosecutor in the court that day. From this point on, the accounts of the appellant and Sergeant Taylor as to what was said by each of them to each other, and in the presence of each other, to the Justice of the Peace who heard the complaints in the court are very much consistent, but slightly divergent at some points, as will be illustrated.

10 The appellant says that when Sergeant Taylor approached her, he advised her that there was only one Justice of the Peace available and that she had the option to have the matter adjourned to another date when there would be two Justices of the Peace available. The Justices Act empowers both "justices" and a "magistrate" as defined in the Act to exercise summary powers referred to under the Act. The expression "justices" is defined to mean Justices of the Peace having jurisdiction where the Act in question is or is to be performed; a magistrate acting under s 33; and one Justice where one Justice may exercise the jurisdiction of Justices referred to in par (a). Justices are empowered to hear complaints under the Justices Act. However, s 29 provides that, subject to the Act, and notwithstanding the provisions of any other Act, every complaint for an indictable offence, or a simple offence, or other matter, may be heard by and before two or more Justices; provided that, with the consent of all parties concerned, any such complaint may be heard by and before one Justice, but a memorandum of such consent shall be forthwith made and signed by the Justice.

11 The appellant says she was so nervous and wanted to get the matter over and done with that she informed Sergeant Taylor that she would agree to the matter being dealt with by one Justice of the Peace.

12 The appellant says the matter was called on and the Justice of the Peace read each of the charges out to her and asked if she wished to plead guilty or not guilty. She said she wished to plead guilty to each of the charges.

13 In his affidavit, Sergeant Taylor more or less confirms what the appellant says, but adds that, when the matter was called on before the Justice, the Justice asked if the appellant had any objection to her hearing the complaints alone, and the appellant indicated that she did not. The appellant does not address this matter in her affidavit, and it may be taken from what she has said in her affidavit that she does not recall the question of the Justice sitting alone being raised by the Justice in the court. However, it may be noted that the copies of the complaints produced at the hearing of this appeal are indorsed with the handwritten words "No objections to one Justice" and apparently signed by the Justice, with the date and further marking "JP 8312". I would take the latter marking to be a reference to the identification of the Justice of the Peace. The indorsement rather suggests that Sergeant Taylor is correct in his recollection that the Justice of the Peace did ask the appellant whether she objected to the Justice of the Peace hearing the complaints alone, and that the appellant stated that she had no such objection.

14 Following her plea of guilty on each complaint, Sergeant Taylor then read out a statement of facts. In the course of reading out those facts, he said words to the effect that the appellant "intended to use the bong again". At that point, she says that she said, "I beg your pardon", but Sergeant Taylor ignored her and proceeded with the recitation of the facts relating to the complaints.

15 The statement of material facts produced for the purposes of the hearing of this appeal sets out a summary of the offence in typewritten form. In material part, in the second paragraph, the following words are typed:

"In the upstairs main bedroom, the defendant showed Police a bag containing approximately 20 grams of cannabis leaf/head material that was kept in the top drawer of a bedside table. Police were also given a smoking utensil by the defendant that was located sitting on top of the opposite bedside table. The utensil had detectable traces of cannabis in the cone."

After that, but still as part of the second paragraph of the summary of offence, the additional handwritten or printed words appear:

"The defendant admitted ownership of the utensil and stated that she used it to smoke cannabis and would use it again."

The summary of offence, so far as is relevant, concluded in the third paragraph as follows:

"The defendant was questioned regarding the matter and admitted to Police that it was her cannabis and for her own use."

16 The appellant says that, by her interjection in the court when the material facts were being read out by Sergeant Taylor to the effect "I beg your pardon", she intended to question the accuracy of the attribution of the statement to her that she would "use it again".

17 After Sergeant Taylor had completed reading the statement of facts, the Justice of the Peace asked if the appellant wanted to say anything about the matter. She said that she did and she then set out what, in effect, was a plea in mitigation of the offences to which she had pleaded guilty and grounds as to why spent conviction orders should be made. By and large, the accounts of the appellant and Sergeant Taylor as to what was said, are consistent. The appellant says that she explained to the Justice of the Peace that she had been a nurse for 18 years. She said she had a responsible job doing night-shift at the local hospital. She said that she could not afford to use cannabis because of her job. She explained that, besides her job as a nurse, she also ran the backpacker accommodation in Mount Barker. She explained to the Justice of the Peace that, in her capacity as the proprietor of the backpackers' accommodation, people who wanted accommodation attended at all times of the day and with her job and her night-shift work as a nurse, she was pretty busy and could not afford to be under the influence of cannabis.

18 She further explained to the Justice of the Peace that three weeks prior to the police attendance at her home, her then boyfriend had threatened her with a knife at her throat because she had asked him to leave her house that morning. She also told the Justice that, in the previous days, she had dealt with quite a number of customers at the backpackers. She informed the Justice that, two days before the police had arrived at her home, she had no customers at the backpackers and that, on Monday and Tuesday evening prior to the police attending at her home, she had smoked some cannabis to try and relieve the stress that she was under. The appellant also explained to the Justice of the Peace that her former boyfriend was likely to be released on bail on the Friday following the police attendance at her home.

19 The appellant said she was worried and stressed because the backpackers was fully booked that Friday and on the Friday evening she had to work night-shift as a nurse. The appellant told the Justice of the Peace that she had previously been informed by the police that her former boyfriend had threatened to burn down her premises. She explained that she was really concerned that he may carry out that threat, particularly when he knew that the premises were going to be completely booked and full with people.

20 The appellant also told the Justice that she was from Holland, where cannabis is all around and can be purchased at every corner. She said that, as far as she was concerned, that did not mean that she smokes all the time. She tried to explain to the Justice of the Peace that, although she has lived around cannabis all of her life, she is not a regular smoker of cannabis. She also explained that her former boyfriend was a heavy user of cannabis and that she disapproved of that. She also informed the Justice that her previous husband was a heavy user of cannabis and one of the main reasons that the marriage had broken down was because of this. She was trying to impress on the Justice, despite the fact that she had been surrounded by people using cannabis all of her life, "I am not a regular smoker of cannabis and that this occasion was a 'one-off'".

21 The appellant further told the Justice of the Peace that she worked hard and that she now had the responsibility of running the backpackers, which previously had been her former husband's responsibility.

22 In those circumstances, the appellant asked the Justice of the Peace to give her a spent conviction and told her she did not want to lose everything because of this one mistake.

23 The appellant says that, at this point, the Justice of the Peace asked her to leave the courtroom. She says Sergeant Taylor asked her to step outside and said they would call her back in five minutes, or thereabouts. She says that, when she left the courtroom, the door was closed behind her. As far as she was aware, Sergeant Taylor remained in the courtroom. He did not come out of the courtroom with her.

24 The appellant says that, about five to seven minutes later, Sergeant Taylor opened the doors of the courtroom and came out and asked her to come back into the courtroom. The Justice of the Peace, she says, told her that she had thought about everything and said: "Maybe in your country it is all right but in this country it isn't, and sometimes you have to take the consequences of your own actions, therefore, I am not willing to give you a Spent Conviction Order." The Justice then imposed the fines by way of sentence in respect of each complaint.

25 The appellant says that, at the time of these convictions, she did not have any criminal record and these were the first recorded. It appears that the police prosecutor accepted that to be the case on the hearing of the complaints before the Justice of the Peace. Counsel for the respondent on the hearing of this appeal, also accepts that to be the case.

26 Sergeant Taylor largely confirms what the appellant says about what happened before the Justice of the Peace. He also explains why the appellant was asked to leave the courtroom when she was, as well as what then happened within the courtroom, as far as he is aware, following the departure of the appellant. He states that:

"After the Justice of the Peace heard the applicant's submissions, the Justice of the Peace indicated that she wished to deliberate on the matter. The court room in Mount Barker consists of a single room attached to the Police Station. There are no chambers to which a Magistrate or Justice of the Peace may retire. Nor is there any waiting room. There are two doors out of the court room - one at the front which leads to a veranda and is used by the public and another at the rear of the court room which opens to a corridor leading to the offices of the police station, including my office.

I showed the applicant out of the front door of the court room so that she could wait on the veranda while the Justice of the Peace deliberated. I went back into the court room and proceeded through the rear door of the court room to my office. While in my office, I printed off from my computer the relevant sections of the Sentencing Act dealing with the power to make a spent conviction order for the Justice of the Peace. I then returned to the court room and gave the legislation to the Justice of the Peace. I did not discuss the decision to make a spent conviction order with the Justice of the Peace. I attended to other files in the court room while the Justice of the Peace examined the legislation. The Justice of the Peace said words to me to the effect of 'I don't think she hits the criteria'. I did not give any response to the Justice of the Peace. Then the Justice of the Peace said that she was ready to go and I went outside to call the appellant. I estimate the total time that the applicant was outside the court room was between five to 10 minutes. For most of that time, I was in my office retrieving the legislation from my computer.

The Justice of the Peace then handed down her decision refusing to grant a spent conviction order to the applicant. I recall that the Justice of the Peace made some comments about cannabis being legal in Holland but that it was not legal here and indicating that the applicant did not meet the criteria for a spent conviction order."

First ground of appeal: Exclusion of appellant from courtroom

27 The first ground of appeal is that, in breach of s 65 of the Justices Act and the requirements of the rules of procedure and fairness, the Justice of the Peace erred in law by excluding the appellant from the courtroom in circumstances where the Justice and the prosecutor remained in the courtroom during the deliberations of the Justice.

28 Prior to the filing of the affidavit of Sergeant Taylor, there was no evidence to fully explain the circumstances in which the appellant was apparently excluded from the courtroom at a certain point in the course of the hearing. However, in the light of Sergeant Taylor's testimony, it is now clear that following the plea in mitigation made by the appellant and her submission that the Justice should make spent conviction orders, the Justice indicated that she wished to retire to consider her decision. It was in those circumstances that the appellant was ushered to the veranda outside the courtroom. I accept the evidence of Sergeant Taylor that this is what occurred.

29 I also accept the evidence of Sergeant Taylor as to what then occurred during the five to 10-minute break before the appellant was called back into the courtroom and the Justice of the Peace delivered her sentence. It appears that, for much of that time, Sergeant Taylor printed off from his computer the relevant sections of the Sentencing Act dealing with the power to make a spent conviction order and then provided it to the Justice of the Peace. I also accept his evidence that the Justice of the Peace made a comment to the effect that "I don't think she fits the criteria", to which he did not respond. In other words, it appears, as a matter of substance, that there was no "hearing" in relation to either of the complaints conducted by the Justice of the Peace from which the appellant was excluded. If there had been, in my view, the appellant would have been entitled, without more, to succeed on this ground of appeal.

30 However, the question remains whether the simple fact that the police prosecutor was in the same room as the Justice of the Peace for a short period while the Justice of the Peace considered her decision on sentence is sufficient to disclose a breach of s 65 of the Justices Act, or the requirements of the rules of natural justice or procedural fairness. In that regard, s 65 provides for courts to be open with all due publicity, in the following terms:

"(1) Unless expressly provided otherwise, the court-room or place of hearing where justices sit to hear and determine any complaint is an open and public court to which all persons may have access so far as is practicable."

31 It may also be accepted as a matter of general principle that, to accord a fair hearing, a defendant or accused person in a criminal trial, save in exceptional circumstances, should be entitled to be present throughout the hearing. It is well established that the right of an accused person to receive a fair trial according to law is a fundamental element of our criminal justice system: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 297 per Mason CJ and McHugh J. As Walsh J observed in Allen v Gittos (1995) 13 WAR 560 at 563, it is important, so far as is practical, to ensure that a trial is not only fair, but also appears to be fair.

32 The factual circumstances, as set out above, do not appear to me to breach either the terms of s 65(1) of the Justices Act or the rules of natural justice to which I have referred. It appears that, in the particular circumstances that prevail in the Mount Barker courthouse, the physical area of the courtroom was used by the Justice of the Peace as an office for a short period of five to 10 minutes after she adjourned the hearing of the complaints in order to consider her decision on sentence. During that period, the police prosecutor provided a copy of the relevant provisions of the Sentencing Act to assist the Justice of the Peace. He should not be criticised for doing that. Otherwise, it appears that he attended to some other office work, using another part of the courthouse area in doing so. It cannot be said in any substantive way that the physical proximity of the police prosecutor to the Justice of the Peace, in all of these circumstances, gives rise to an appearance of unfairness. At the same time, one can appreciate that a defendant waiting outside on the veranda of the courthouse, knowing that the Justice of the Peace and the police prosecutor were somewhere on the other side of the courtroom door, might give rise to some concern. I think it would have been preferable for the Justice of the Peace and/or the police prosecutor to have made some statement that, upon the adjournment of the court, certain arrangements would be made. I think it would also have been preferable for the police prosecutor to have retired entirely from the courtroom area to his office at the rear. Nonetheless, in the special circumstances of this case, I am not satisfied that the first ground of appeal is made out.

33 In so finding, I note that, by s 199(1)(b) of the Justices Act, the Court has the power to dismiss an appeal, notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred. If it has been necessary to do so, I would have exercised this power on this particular occasion.

34 In summary, I do not consider that this first ground of appeal can succeed.

Second ground of appeal: Hearing conducted before one Justice of the Peace only

35 The second ground of appeal is that the Justice of the Peace acted without or in excess of jurisdiction in that, in breach of s 29 of the Justices Act, she alone heard and dealt with the two complaints.

36 The terms of s 29 were referred to above. In this case, it is quite clear from the evidence before me, particularly that of Sergeant Taylor, but also from the terms of the handwritten indorsement on each of the complaints made by the Justice of the Peace, that she ascertained from the appellant that the appellant did not object to her sitting alone in hearing the complaints.

37 Notwithstanding this evidence, which counsel for the appellant accepts is before the Court, it is submitted on behalf of the appellant that an indorsement on the two complaints that the appellant made no objection to the Justice of the Peace sitting alone, in place of two Justices, does not satisfy the proviso to s 29 that one Justice may sit alone "with the consent of all parties concerned" and that there must be "a memorandum of such consent" forthwith made and signed by the one Justice.

38 It is said that a "consent" for the purposes of the proviso of s 29 is required to be an informed consent and that this requires the Justice to explain to a defendant the possible disadvantage to her from being dealt with by one Justice alone, which the Justice here failed to do.

39 I have some difficulty in accepting, as a general proposition, that, in every circumstance where the question of a Justice sitting alone arises, the consent to which the proviso refers will only be valid if the Justice has explained to a defendant the possible disadvantage to her from being dealt with by one Justice alone. No doubt, there should be an "informed consent", but this does not necessarily mean that a Justice should be required, in effect, to explore with a defendant why it might be disadvantageous for the defendant to have the hearing conducted before one Justice of the Peace. In theory, there could be all sorts of reasons why there might be such a disadvantage. Primarily, it might require some conceptual analysis of why s 29 requires, as the basic rule, that two Justices of the Peace should normally sit to hear a complaint. I have little doubt that, if a defendant appeared by a legal practitioner and the issue of consent arose, it would be sufficient for the defendant to indicate through the legal practitioner that the consent was given. Nothing further would be required. It would be assumed, in such circumstances, that the qualified legal practitioner had given advice to the defendant as to whether or not the defendant should consent in the circumstances. The consent thus communicated by the legal practitioner would be treated as an informed consent and there would be no further question about it.

40 Thus, it appears to me the question arises in this case because the appellant, appearing as a defendant on the two complaints before the Court of Petty Sessions, was unrepresented. Undoubtedly, the fact that a defendant in a court is unrepresented causes special duties and obligations to be imposed on a Court. For example, the Full Court of this Court recently in Wood v Marsh [2003] WASCA 95 emphasised aspects of such duties and obligations when an unrepresented person attends at court and pleads guilty to an offence. Malcolm CJ, with whom Murray and Anderson JJ agreed at [35], made reference to and adopted what the Full Court of the Supreme Court of South Australia had said on this topic in Cooling v Steel (1971) 2 SASR 249 at 250 as follows:

" ... the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.

If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath and that he may call witnesses or produce other relevant material for the consideration of the Court.

Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor, (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed (1970) SASR 374 and R v Maitland (1963) SASR 332, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.

In general, the court should ensure that the defendant is appraised [sic] of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding."

41 Adjudged in that light, there is little in the evidence before me to suggest that, before dealing with the matters before her, the Justice of the Peace said anything to assist the appellant in appreciating these various things. However, it can be seen from the evidence referred to above that the appellant had her own appreciation of a number of those things before she appeared in the court on 2 October 2002. For example, she obtained legal advice from a person at the Albany Community Legal Centre and she determined to enter a plea of guilty, appear on her own behalf, make a plea in mitigation and, in particular, submit that a spent conviction order should be made in her favour upon a conviction being recorded on each of the complaints. She had also previously been advised, before attending the court, by a police officer that there would only be one Justice sitting and normally there should be two. The same question was then explicitly raised at the commencement of the hearing by the Justice of the Peace. The appellant, in that sense, was not taken by surprise when the question was raised. That seems to me, in the particular circumstances of this appeal, to be an important factor. After the event, in light of the Justice's refusal to grant spent conviction orders, the appellant has wondered about the wisdom of her decision not to object to the Justice hearing the complaints alone.

42 In all of the circumstances, and while the Justice of the Peace may have been well advised to deal with the general issues suggested in Cooling v Steel, and to reiterate to the unrepresented defendant that she was fully entitled to insist on a court comprising two Justices of the Peace rather than consent to the complaints being heard by the one Justice alone, I am not satisfied that there was any relevant breach of s 29 of the Justices Act and, in particular, the terms of the proviso requiring that "consent" be given. In my view, the appellant did consent to the Justice sitting alone, albeit that she indicated this by agreeing or stating that she had "no objection" to the Justice sitting alone. I do not consider she was denied natural justice.

43 Further, and in any event, I am not satisfied that any substantial miscarriage of justice has occurred, even if it could be said that the Justice of the Peace could have gone further in apprising the appellant of her rights before her consenting to the Justice sitting alone.

44 In all of the circumstances, I do not consider the second ground of appeal can succeed.

Third ground of appeal: Failure of the Justice of the Peace to make spent conviction orders

45 The third ground of appeal is that the Justice erred in law in failing to grant a spent conviction order in respect of each conviction. The particulars supplied in support of this ground are that:

(1) The Justice imposed a penalty which was manifestly excessive by reason of the failure to make a spent conviction order under s 45 of the Sentencing Act;

(2) the Justice failed to take into account the appellant's previous good character;

(3) the Justice failed to give sufficient consideration to the hardship suffered by the applicant if spent conviction orders were not made;

(4) she failed to have regard to the statutory requirement in s 45(1)(a) to make a prognosis under that section that the applicant was unlikely to commit the offence again;

(5) she failed to give sufficient consideration to the applicant's circumstances leading to the commission of the offences;

(6) the Justice gave excessive weight to the fact that the applicant was from the Netherlands where the use of cannabis is legal.

46 The circumstances in which the Justice of the Peace declined to make a spent conviction order are not, on the materials before me, entirely clear. That she was invited to do so is undoubted. As noted above, the appellant had obtained legal advice from the Albany Community Legal Centre Inc that she should, if she pleaded guilty, ask the Court to make spent conviction orders. The appellant's plea in mitigation was, on the face to it, all designed to satisfy the Justice that a spent conviction order was appropriate in each case. She says in her affidavit, as noted above, that she was "trying to impress" on the Justice "that despite the fact that I have been surrounded by people using cannabis all my life, I am not a regular smoker of cannabis and that this occasion was a 'one-off'".

47 The Sentencing Act lays down a number of principles and procedures in respect of sentencing, many of which reflect the general law. By s 6(1), a sentence imposed on a defendant must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of any victim of the offence, any aggravating factors and any mitigating factors. Section 6(4) provides that a Court must not impose a sentence of imprisonment on an offender except in particular circumstances specified. Section 39(2) sets out a number of sentencing options available to a Court sentencing an offender who is a natural person. It includes the option of making a spent conviction order.

48 Section 45 of the Sentencing Act specifies the circumstances in which a spent conviction order may be made. Section 45(1) provides that:

"(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."

49 It is now well established that if the criteria specified in s 45(1)(a) and (b)(i) or (b)(ii) are met, then the Court has a broad discretion whether or not the spent conviction order should be granted.

50 In Brewer v Bayens [2002] WASCA 271 at [11], Burchett AUJ said:

"It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied."

51 As to the discretion to be exercised where the prerequisites are satisfied, in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, it was held that, having regard to the nature of the power and extent to which it interfered with the ordinary operation of the Spent Convictions Act, power should only be exercised in a clear case where for cogent reasons it was seen to be desirable. If the necessary preconditions are met, the Court should go on to have regard to the seriousness of the offence, the circumstances of its commission and the personal circumstances of the offender. In order to make a spent conviction order, Murray J said, at 296 - 297 that there should be 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 immediately be set aside.

52 The case before me is not one where it appears the Court failed completely to consider the making of a spent conviction order as a sentencing option: cf Wood v Marsh (supra). Here, the appellant expressly submitted that spent conviction orders should be made in respect of the complaints of possession of cannabis and possession of a utensil. The Justice rejected the option.

53 However, what is not clear is on what basis the option of making spent conviction orders was rejected by the Justice. Her reasons appear to have been very summary in nature. Following the plea in mitigation by the appellant, the Justice retired for no more than 10 minutes. According to the affidavit of the police prosecutor, Sergeant Taylor, most of that period was taken up with him making copies of the relevant provisions of the Sentencing Act governing the making of spent conviction orders. He handed those to the Justice. It appears that the Justice immediately consulted them and within a short time thereafter resumed the court and imposed the sentence, but did not grant the spent conviction orders.

54 As noted above, the appellant recalls that what the Justice of the Peace said in imposing sentence was:

"Maybe in your country it is all right but in this country it isn't, and sometimes you have to take the consequences of your actions, therefore, I am not willing to give you a spent conviction order."

Sergeant Taylor in his affidavit recalls that something similar was said by way of sentencing remarks by the Justice, to this effect:

"I recall that the Justice of the Peace made some comments about cannabis being legal in Holland but that it was not legal here and indicating that the applicant did not meet the criteria for a spent conviction."

55 Whether or not the Justice of the Peace made reference to the applicant not meeting the "criteria" for a spent conviction order (which he also recalls her uttering in the courtroom before he was asked to recall the appellant for sentencing) or whether the Justice simply said she was not willing to make a spent conviction order, as the appellant says, is perhaps not important.

56 What is clear, however, is that the Justice gave consideration to the making of a spent conviction order on each complaint, but did so within a very short period of time. She did not have the relevant legislation before her until the police prosecutor provided it. As the above analysis shows, it is not immediately apparent from the terms of s 45 that there is, following the satisfaction of the prerequisites, a general discretion to be exercised, having regard to the factors mentioned, particularly in R v Tognini (supra).

57 On both the recollection of the appellant and the recollection of Sergeant Taylor, the Justice drew particular attention to the seriousness of the offences in Australia as compared with the manner in which such offences are apparently treated in Holland. That factor seems to have been important in the decision-making of the Justice. It is unclear, on the basis of what the Justice decided, whether she properly considered each of the preconditions or criteria specified in s 45(1). For example, it is unclear whether the Justice considered whether the appellant is unlikely to commit such an offence again; or whether she was satisfied about that criterion, but did not regard the offences as "trivial". There is some reason to think, having regard to her references to the apparent seriousness of each of these offences in Australia, compared with Holland, that the Justice, in fact, considered that each offence was not trivial. If the Justice did so determine, and that was the purport of her sentencing comments, then there is no evidence to show that she went on to consider whether the previous good character of the offender was established. On the face of it, if the Justice did consider that the offender is unlikely to commit such offences again, but that the offences were not trivial, she would need to have further considered the previous good character of the offender. Given the evidence that the appellant was of previous good character, s 45(1)(b)(ii) would appear to have been satisfied in this case. That would then mean that the discretion as to whether or not the offender should be relieved immediately of the adverse effect that the conviction might have on the offender, should then have been addressed. There is, though, no evidence before me from the sentencing remarks of the Justice to suggest that she addressed these discretionary factors in the manner suggested by R v Tognini, or at all.

58 On the hearing of the appeal before me, counsel for the respondent submitted that, in light of the evidence put forward in the statement of material facts by the police prosecutor and in light of the submissions made by the appellant to the Justice, it would, in effect, not be open to conclude on any view that the criterion specified in s 45(1)(a) could be satisfied, that is to say, that the offender is unlikely to commit such an offence again. I am not sure that I can accept that submission.

59 The evidence that most strongly supports that submission, if it can be called evidence, is the statement made by the police prosecutor when presenting the statement of material facts that, "The defendant admitted ownership of the utensil and stated that she used it to smoke cannabis and would use it again." This was the handwritten portion of the statement of material facts to which, when it was read out, the appellant said, "I beg your pardon". This is confirmed by the police prosecutor, Sergeant Taylor. Plainly, the appellant, in a reasonably polite fashion, disputed the latter statement added in handwriting to the statement of material facts. She gave her own account of the circumstances in which she had recently smoked cannabis and used the bong. Otherwise, she strongly indicated in her submissions to the Justice that she did not intend to use it again.

60 The question is whether a Court could possibly conclude, in all the circumstances, that the offender is unlikely to commit such offences again. On my view, a Court would not necessarily be obliged to conclude that the criterion in s 45(1)(a) was not satisfied. The question of satisfaction of the criterion needs to be addressed by the Court which hears the complaint at the time, which hears and considers the demeanour of the offender, and which has the opportunity, if necessary, of ascertaining further relevant facts concerning the matter.

61 I am not satisfied that the exercise of the sentencing discretion in respect of the option of making a spent conviction order in respect of each complaint was conducted according to law in this case. I consider the exercise of that discretion miscarried.

62 Counsel for the respondent further submits that the discretion to make a spent conviction order in respect of each offence was not available because there was no express evidence led on behalf of the appellant to the effect that her position as a registered nurse would be, in fact, compromised by convictions in each case. It is true that ordinarily an appellant should provide some evidence that this might well be the case, in order to satisfy the Court that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. In other words, there needs to be some evidence of the "adverse effect" that the conviction might have. In my view, the Justice of the Peace would have been entitled to act on the assessment made by the appellant, if not expressly, then by inference, that the convictions could affect her employment as a registered nurse. When taken as a whole, her submissions to the Justice made it clear that her conduct of the backpacker business was made possible by the maintenance of her employment as a registered nurse in Mount Barker.

63 In these circumstances, I am not satisfied that, for this particular reason, it would not have been open, in any event, to the Justice to make a spent conviction order.

64 The respondent further argues that the occupation of a registered nurse which the appellant pursues involves considerable responsibility for safety. It is said that there is 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 her reliability and suitability for the type of work which she pursues. The respondent makes reference to Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997. In this 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, a leading hand at a mine site in the Pilbara. Parker J found, at page 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".

65 It may be argued in this case that the same result should obtain. However, it does not necessarily follow that, every time a person is convicted of possession of cannabis and possession of a smoking implement, a spent conviction order is out of the question. Each case needs to be considered on its own merits. As I have found above, I do not consider that the criteria to be considered and the discretion available where the precondition is satisfied under s 45, were properly considered in this case.

66 In all of these circumstances, I consider the appeal should succeed on this last ground, for the reasons I have given.

67 For the reasons given above, I consider the appeal should succeed on the third ground, essentially for the reason that the criteria referred to in s 45 of the Sentencing Act were not, or not properly, considered and that the exercise of the power to make a spent conviction order thereunder otherwise miscarried.

68 I would, in these circumstances, accept the submission of the appellant that the matter of sentence on each complaint be remitted to the Court of Petty Sessions at Albany for determination by a Stipendiary Magistrate, according to law. It is accepted all round that the Court of Petty Sessions at Albany is the nearest Court of Petty Sessions to Mount Barker at which a Stipendiary Magistrate regularly sits. In the circumstances of this particular case, and without any intended criticism of the Justice of the Peace who heard these complaints in the first instance, it seems appropriate that the question of sentence be reheard by a judicial officer who did not impose the original sentences.

69 I will hear from counsel as to the formal terms of the order which I should now make.