MAJEWSKI -v- INGRAM [2020] WASC 286 (7 August 2020)

(b) a reference addressed to whom it may concern, signed by the appellant's employer, dated 23 July 2020; and

(c) a letter addressed to the court, dated 23 July 2020, signed by the appellant's partner and father of her child.

1. The respondent objected to the reception by the court of the additional evidence on grounds the documents were insufficient to demonstrate that a substantial miscarriage of justice would arise if the appellant was not granted a spent conviction. The respondent also objected to the admission of the statement made by the appellant on grounds that the appellant had not made the statement on oath.
2. Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), an appeal court may admit any other evidence. Further, pursuant to s 15 of the Sentencing Act 1995 (WA), to decide on the proper sentence to be imposed, a court sentencing an offender may inform itself in any way it thinks fit.
3. 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 new information gathered for the appeal which shows the appellant's good character and the likely consequences of the conviction upon his or her future career.[2]
4. At the hearing of the appeal, the appellant took an oath and swore that the statement made by her on 15 July 2020 was true to the best of her knowledge and belief. The statement was then provisionally admitted in the appeal[3] on the basis that the matters stated by her in the statement which were not within her own knowledge were not to be received as evidence of the truth of those matters but on the basis that the evidence established her state of mind at the time she committed the offence.
5. The reference from the appellant's employer and the letter to the court from her partner, were marked for identification and the parties were informed that the court would, when giving reasons for decision, determine whether each of those documents should be admitted into the appeal as additional evidence.
6. The principles the court is required to apply when considering whether to admit new evidence in a criminal appeal against sentence pursuant to s 30(1)(e) of the Criminal Appeals Act were recently considered by the Court of Appeal in Wellstead v The State of Western Australia;[4]

The decision in Wheeler

The exercise of the power in s 40(1)(e) to admit any other evidence in an appeal against sentence was considered by this court in Wheeler v The Queen [No 2]. In that case, the offender had been sentenced for Commonwealth tax offences. Following sentence, he was diagnosed as having suffered from a 'generalised anxiety disorder'. He sought to appeal against his sentence, and applied to have the evidence of his diagnosis admitted as additional evidence in the appeal.

McLure P and Newnes JA both agreed with Owen JA as to the test to be applied in determining whether additional evidence should be admitted in an appeal against sentence. Owen JA described the power to admit additional evidence in a sentence appeal in the following terms:

'The well known distinction between "fresh" and "new" evidence is of importance in deciding whether additional material should be admitted in an appeal against conviction. The distinction is of lesser significance in an appeal against sentence, although a court may be guided by similar considerations. An appeal against the sentence can only succeed where an appellate court concludes that a different sentence ought to have been imposed: s 31(4) Criminal Appeals Act. The test to be applied in determining whether additional evidence should be admitted, be it fresh or new evidence, is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. But the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its own facts. The circumstances in which the additional material came to light and its probative value will be significant considerations in deciding whether an appellant should have leave to adduce it.' (emphasis added)

The court in Wheeler resolved the appeal and the application to adduce additional evidence, in essence, by reference to whether the additional evidence led the court to conclude that a different sentence should have been imposed. The evidence did not so convince the court, so the appeal and application were dismissed.

Wheeler has been cited in numerous cases for the proposition that the test, for when the power in s 40(1)(e) to admit additional evidence should be exercised, in the context of an appeal against sentence, is whether, had the additional evidence been before the sentencing judge, a different sentence should have been imposed.

Expressed in that manner, the question of whether additional evidence should be admitted coalesces with the question of whether the appeal should succeed on the basis that a different sentence should have been imposed. However, on that approach, it remains necessary to identify the circumstances in which additional evidence may justify allowing an appeal against sentence on the basis that a different sentence should have been imposed. That requires identification of the nature of the power, conferred by s 31(4)(a) of the Criminal Appeals Act, to allow an appeal on the basis that this court is of the opinion that a different sentence should have been imposed.

As will be seen, a conclusion that a different sentence should have been imposed is not, on its own, sufficient to justify appellate interference. Before the question of whether a different sentence should have been imposed arises, there is an additional critical element that is a precondition for appellate intervention ‑ namely, that (1) the judge made an error or (2) a miscarriage of justice has occurred.

...

The High Court in Betts recognised, in a similar statutory context to the present, that the New South Wales Court of Criminal Appeal has the flexibility to receive new evidence when it is necessary to do so in order to avoid a miscarriage of justice. The High Court referred to a number of authorities, including the observation of Gleeson CJ in Araya v The Queen that:

'As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.

However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred.'

In our view, these observations, which are consistent with those of Owen JA in Wheeler, are equally applicable to the Criminal Appeals Act.

1. For reasons that follow, the appellant's new evidence should not be admitted in the appeal as I am not satisfied that the new evidence establishes that a miscarriage of justice has arisen. Put another way, I am not satisfied that had the new evidence been before the sentencing magistrate a spent conviction order would have been made.

1. Section 39(2)(c) of the Sentencing Act 1995 (WA) empowers a court sentencing an offender to impose a fine and order the release of the offender with or without making a spent conviction order.
2. As McKechnie J remarked in M v O'Neill:[5]

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.

1. 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.

1. 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.[6]
2. 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.[7]

The facts of the offence and the submissions put to the sentencing magistrate

1. On 6 October 2019, at about 2:00 pm, the appellant attended Acacia Prison to visit her partner who was at that time a sentenced prisoner. As she proceeded through security, a blue balloon containing an unknown powder was located under the appellant's armpit. Security staff seized the balloon.
2. At the hearing before the sentencing magistrate, the appellant was represented by counsel who, after the appellant's plea of guilty was entered, informed his Honour that:

(a) the balloon contained a film of a drug, Suboxone, that is ingested through the mouth;[8]

(b) the appellant's partner suffers from a heroin addiction and had put pressure upon her to bring the drug into the prison because he was suffering from withdrawal symptoms; and

(c) the appellant was trying to help her partner and support him, and she did not put her mind to whether or not (by bringing the drug into the prison) it would affect the good order of the prison.

1. The appellant's counsel put a submission to the sentencing magistrate that the appellant should be fined for the offence and made an application for a spent conviction order on grounds that:

(a) the appellant was aged 35 and had no criminal history of offences;

(b) the appellant was unlikely to reoffend because her partner was no longer in custody, and she had told him that if he, 'got locked up again', she would not go back there (to visit him), and that she would not take their child (to visit him);

(c) she 'didn't feel (consider) that Suboxone was particularly dangerous'; and

(d) she is a hairdresser and also a gym instructor. She would like to apply for work in a community centre where there are children, but to do so she needs a police clearance (certificate).

1. His Honour refused to make a spent conviction order on grounds that he was not satisfied that she was unlikely to commit such an offence again. In making this finding, his Honour observed that:

(b) although this was the appellant's first conviction for an offence, the offence was serious, and she knew that to be the case, otherwise she would not have snuck it (the Suboxone) into a balloon and put it under her armpit;

(c) if she had not have been caught it could have 'ruined the good government of the jail' (as it is a dangerous substance in prison because prisoners will assault others to obtain it);

(d) her partner must not think much of her if he was getting her to sneak in his drugs; and

(e) although the appellant was saying it will not happen again, he could not be satisfied that it was unlikely that she would not do so, as he was not convinced that she would not do it again next time she was put under pressure.

1. The appellant's notice of appeal simply states that her grounds of appeal are that she has no criminal record.
2. Although the appellant has not stated her ground of appeal with precision, it is clear that she claims a miscarriage of justice has occurred because she was denied a spent conviction order. Consequently, pursuant to s 8(1)(b) of the Criminal Appeals Act 2004 (WA), the appellant has raised a permissible ground of appeal.
3. In an appropriate case, leave to appeal may be granted by this court if the failure to make a spent conviction order amounts to a miscarriage of justice.
4. An appellant court can only intervene if error is established in one of two ways.
5. The first is if an express error is made out which involves acting on the wrong principle, by mistaking a law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration.[9] The second is if an implied or inferred error is found which arises where it is not possible to discover the exact nature of the error, but the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[10]

The appellant's new evidence and submissions in the appeal

1. In the appeal (and before the magistrate) the appellant's submissions were directed as to the reasons why she committed the offence, and made submissions in mitigation going to the seriousness of the offence.
2. The appellant made submissions in the appeal and in the statement made by her on 15 July 2020, as to why she committed the offence. These were:

(a) she felt that she had to help her partner of 18 years, the father of her eight year old child as he was struggling and in pain (in prison after being in custody for about 9 or 10 months);

(b) her partner had misused heroin in the past and had since 2015 received treatment for his heroin addiction under the medical supervision of Dr George O'Neil in Subiaco;[11]

(c) she was told that her partner had not received proper medication whilst incarcerated, and he begged her to help him;

(d) her partner had been prescribed Suboxone as a treatment for drug abuse;

(e) she felt it was her obligation to help her partner;[12]

(f) she was not sure of the consequences (of the offence at the time of the commission of the offence) but now she does and 'take[s] full responsibility';[13] and

1. As to the reasons why she claims that a spent conviction order should be made in her favour, the appellant stated when she made her submissions in the appeal that:

(a) she is hard working and has two jobs. One as a hairdresser and the other as a gym instructor;

(b) she volunteers at her daughter's school in the canteen, reading with students and supervising small groups of children on school excursions;

(c) if a spent conviction order is not made, it will inhibit her in her future employment. In particular, she had recently considered applying for a position as a personal trainer at a gym, which to apply required the production of a police clearance certificate, without such a certificate she was unable to apply.

1. When it was put to the appellant in the appeal that the main issue is that the sentencing magistrate made a finding that he was not satisfied that she was unlikely to commit such an offence again, that is, if her partner was to return to prison and was in a similar situation, that his Honour was not satisfied that she would not attempt to take a similar substance into the prison to give to her partner, the appellant stated in response:

I understand that, your Honour. The thing is I was not happy even going in to visit my partner when he was there. We have an eight year old daughter and I basically was taking her in there every single week to see her father. So I actually do not like to even attend a prison, and I've told [M] that I would not support him if he went back to prison again.

Has the appellant established a miscarriage of justice?

1. Section 45(1)(a) of the Sentencing Act, 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.[14]
2. Unless this precondition is satisfied, the court has no power to exercise its discretion to make, or not to make a spent conviction order. If the preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) are satisfied, the sentencing judicial officer has a discretion, not a duty, to make a spent conviction order.[15]
3. Consequently, unless the appellant is able to satisfy the court that the precondition in s 45(1)(a) is met, the court cannot then go on and consider whether the further preconditions in s 45(1)(b)(i) or (ii) are satisfied, so as to enliven the discretion to make a spent conviction order.
4. There must convincing evidence before a sentencing judicial officer, to satisfy the first precondition, that is, the only reasonable inference open on the evidence is that the offender is unlikely to commit such an offence again.
5. Consequently, the court who is sentencing an offender must form the view on the evidence and material before the court (including the matters stated in submissions made in mitigation) that the offender is unlikely to commit such an offence again.
6. Unless satisfied of the first precondition, it is immaterial whether the appellant is able to satisfy the second precondition in s 45(1)(b)(i), that she is a person of previous good character (which on the evidence before the sentencing magistrate was clearly satisfied), before the discretion could be enlivened for the sentencing magistrate to determine whether the appellant should be immediately relieved of the adverse effect of the conviction.
7. Although counsel for the appellant at first instance made a submission that the appellant was unlikely to commit the offence again on grounds that the appellant would not visit her partner in prison if he was to be incarcerated again, no submission was put to the sentencing magistrate at first instance, or in the appeal, by or on behalf of the appellant that she would not succumb to such pressure (put on her by her partner) in the future.
8. The additional evidence that the appellant seeks to adduce in the appeal does not assist in the appellant's argument that there has been a miscarriage of justice. The reference from the appellant's employer in her work as a hairdresser contains information that goes to her character and that she is a very skilled hard worker, punctual, and has a very good attitude to her work. The letter from her partner corroborates her evidence as to why she committed the offence and also contains information from which it could be inferred that she is a person of previous good character. However, there is nothing in this material which provides convincing and cogent evidence that the appellant is unlikely to commit such an offence again.
9. In short, there was insufficient convincing evidence or material before the sentencing magistrate (and there is insufficient evidence or material in the new evidence sought to be adduced in the appeal) that the appellant is unlikely to commit such an offence again. Thus, the additional evidence sought to be adduced in the appeal by the appellant should not be admitted in the appeal as the additional evidence does not give rise to any reasonable possibility that if this evidence was before the sentencing magistrate a spent conviction order should have been made.
10. For the appellant to simply state that she would not attend prison again in the future (if her partner was incarcerated again) on its own, without more, is not enough to establish that the sentencing magistrate erred in failing to form the view that the appellant is unlikely to commit such an offence again.
11. For these reasons, the appellant's application to adduce additional evidence in the appeal should be dismissed, leave to appeal refused and the appeal dismissed.
12. I will hear the parties further as to the orders that should be made to reflect these reasons, and as to costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Caseley v Zampogna [2006] WASC 259 [19] (Blaxell J) and A v Staples [2007] WASC 36 [17] (Hasluck J).

[3] Exhibit 1; statement made by Nadia Majewski 15 July 2020.

[4] Wellstead v The State of Western Australia [2019] WASCA 130 [81] ‑ [86] and [90]. (footnotes omitted)

[5] M v O'Neill [2013] WASC 187 [23].

[6] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24] (Murray J, Malcolm CJ & Wallwork J agreeing).

[7] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [14] (Burchett AUJ, Wallwork & Wheeler JJ agreeing).

[8] Suboxone contains buprenorphine, which under Sch 8 of the Medicines and Poisons Act 2014 (WA) is a poison. Section 3 of the Medicines and Poisons Act defines Sch 8 poison as a 'substance that is classified by regulations made under section 4(1) as a poison included in schedule 8'. Regulation 6 of the Medicines and Poisons Regulations 2016 (WA) describes a Sch 8 poison as 'a substance listed in the SUSMP [Standard for the Uniform Scheduling of Medicines and Poisons] Schedule 8'. SUSMP Sch 8 includes buprenorphine.

[9] House v The King [1936] HCA 48; (1936) 55 CLR 499, 505.

[10] Wilson v The State of Western Australia [2010] WASCA 82 [2].

[11] Exhibit 1; statement made by Nadia Majewski 15 July 2020 [16].

[12] Exhibit 1; statement made by Nadia Majewski 15 July 2020 [23].

[13] Exhibit 1; statement made by Nadia Majewski 15 July 2020 [24] - [25].

[14] Lee Suarez v Cutler [2012] WASC 171 [25] (Beech J).

[15] GNR v The State of Western Australia [2015] WASCA 5 [44]; applied in Sharpe v Vinning [2020] WASCA 79 [96].