Criminal law - Sentencing - Simple drug offence - Refusal to grant spent conviction order - Whether material error of fact or law by the magistrate

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

Spent Convictions Act 1988 (WA)

1 BLAXELL J: This is an appeal from the decision of a magistrate refusing to make a spent conviction order. On 23 May 2008 the appellant appeared in the Kalgoorlie Magistrates Court and pleaded guilty to an offence of simple possession of a prohibited drug, namely MDMA. He was fined $800 with costs, and the Magistrate declined to make a spent conviction order under s 39(2) and s 45 of the Sentencing Act 1995 (WA).

2 On 25 August 2008 McKechnie J granted the appellant leave to appeal from the refusal of the spent conviction order on two grounds. However, the first of those grounds was subsequently abandoned, and the appeal has proceeded on only the following ground:

The penalty imposed by the presiding Magistrate was harsh in all the circumstances. The accused was convicted in relation to a single tablet. He did not consume the tablet. He explained to the Court and it was accepted by the Court there was no premeditated decision to buy the tablet but the accused simply accepted a sudden unexpected opportunity to purchase the tablet when he was affected by alcohol and he otherwise would not have done so.

3 At the time of committing the offence the appellant was 23 years of age, and living with his parents. He had a good work history of four years' continuous employment in various positions in the mining industry.

4 On late Saturday evening 29 March and early Sunday morning 30 March 2008 the appellant was at the Palace Hotel in Kalgoorlie drinking alcohol. While there, he misplaced his wallet but he was not aware of this at the time. The wallet was later found by a witness who handed it in to the local Police Station. A police officer then searched through the wallet in the presence of the witness and discovered a small clip-seal bag containing a single pink tablet which appeared to be ecstasy.

5 The appellant was contacted by the police and he attended at the Police Station to collect his wallet. While there he participated in a video record of interview and admitted possessing the tablet which he confirmed to be ecstasy. The circumstances in which the appellant had come into possession of the tablet were later explained by his counsel to the Magistrate as follows:

He'd been drinking quite a fair bit and later in the night was quite drunk. He'd gone out there with some of his friends. He says he can hardly remember, but he does have a vague memory, a very vague memory of purchasing a pill, this pill, from a person in the toilets who offered it to him when he went there, and he has some sort of memory of something along those lines happening at a time when he was there, and he was very drunk.

6 In the course of submissions, counsel also tendered character references from the appellant's current and former employers and from the local member of the Legislative Assembly. These references showed that the appellant enjoyed a good reputation in the community, and that throughout his employment in the mining industry he had been regarded as a hard working and conscientious employee. The appellant's conditions of employment had also required that he undergo regular random drug and alcohol tests and he had always passed these tests without any problem. The reference from the appellant's current employer went on to state that:

A conviction of this nature will affect Scott's employment as it will limit his access to mine sites.

7 There was also a record before the Magistrate showing that the appellant had been convicted in February 2006 of an offence of giving false particulars to the police. However, the court that sentenced the appellant on that occasion had made a spent conviction order.

8 In response to a specific question from the Magistrate, counsel acknowledged that consumption of alcohol had contributed to the appellant's previous offence and in that regard:

[W]hat seems to be a bit of a Kalgoorlie issue is the young people and binge drinking on particular nights, and drinking so much alcohol they get themselves into a bit of trouble.

9 However, counsel submitted that the appellant had now learnt a lesson, and that his appearance in court for a second offence was 'very much a wake up call'. Furthermore:

I have spoken to him at length about what it means and he has told me man to man and eye to eye that, yes, it's the alcohol thing that he's had to address, and he says that this has stopped him dead in his tracks and that he certainly had not done anything like this in the time since of going out and drinking and getting himself to that sort of level, and intends to change his life on a permanent basis.

10 The Magistrate then enquired what the appellant had specifically done since 30 March 2008 to address 'this issue he has with alcohol'. Counsel's response was that 'he ceased going out' and 'hasn't been out since that time'. When his Honour asked the further question, 'has he done anything else?', counsel stated:

Well, I don't think he's done anything else, your Honour, but people don't consider themselves regular drinkers. It's the binge aspect that seems to be the problem, your Honour. This is a developing area, is my understanding of it, and that's a decision - but certainly he can say without regard that he has not gone out since then.

11 Counsel went on to submit that the appellant should be given the opportunity of a further spent conviction order because of the likely impact on his employment if this did not occur. In that regard it was 'important for his future that he have a clean record because he is someone who may have every chance of progressing well through that industry and perhaps into management and other roles as the years move on'. The prosecutor did not oppose this submission but noted that the appellant was 'from a prominent well-respected family in town' and that it was 'at the discretion of the court whether you agree this man should have a spent conviction'.

12 When passing sentence the Magistrate noted that the appellant had pleaded guilty at an early opportunity, had no prior drug convictions, and had produced character references showing that he was hard working, conscientious, honest and reliable. Nevertheless, the offence he had committed was serious because:

[N]ot only are you committing an illegal act by purchasing and possessing this drug; the drug is well known to have serious risks to health and life for those taking the drug, but not only that, by purchasing this drug you are contributing to an industry of drug selling and drug taking that causes untold suffering and problems in this community. By purchasing this drug from somebody you are contributing to that industry and being a part of it, and allowing it to continue, effectively.

13 In refusing to grant a spent conviction order, his Honour observed that 'this is not a trivial offence by any means', and that the appellant's previous good character was 'not assisted' by the fact that he had come before the court without a clean record. His Honour also expressed particular concerns about the appellant's consumption of alcohol:

[T]his issue you have with alcohol, and I see it as a problem, because when you go out you drink to such excess without knowing your proper limits; that you end up engaging in criminal offending. I regard that as a problem. It's led you to be charged and convicted [previously] and it's been a major contributor to your being charged and convicted of this offence today. Now, I asked your lawyer what you'd done in response to that problem, given this happened back on 30 March, and I'm told, well, you've stopped going out. Well, that's not in my view a realistic way of addressing this problem.

14 The appellant then interjected and said directly to the Magistrate: 'do [you] want me to go to counselling or something like that?'. The appellant also said: 'I would be more than happy to start doing that'. His Honour responded:

Well, the fact is you haven't done that, and that says to me that you haven't properly addressed this issue, and having not addressed the issue, I'm simply not satisfied that you're not going to be back before this court in respect to further offending of this nature. Therefore, I am not persuaded that the criteria have been met for me to apply a second spent conviction on this occasion pursuant to s 45 of the Sentencing Act.

15 Pursuant to s 39(2)(c) of the Sentencing Act 1995, a court imposing a fine on an offender has a discretion to do so 'with or without making a spent conviction order'. The exercise of that discretion is governed by s 45(1) which provides that the court 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.

16 In Brewer v Bayens [2002] WASCA 271 the Full Court (per Burchett AUJ) observed that the terms of s 45 make it clear 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 [11].

17 Section 45(2) of the Sentencing Act 1995 provides that a spent conviction order under s 39(2) is an order for the purposes of the Spent Convictions Act 1988 (WA). That latter Act enables convictions to be declared or certified as 'spent' only when there is a considerable lapse of time without re-offending. Accordingly, it is consistent with the scheme of the Spent Convictions Act 1988, that s 45(1) of the Sentencing Act 1995 requires an advance determination by the court that the offender is 'unlikely to commit such an offence again'.

18 It was in light of these considerations that the Full Court held that the power to make a spent conviction order under s 39 of the Sentencing Act 1995 should be exercised sparingly and only in exceptional circumstances. The leading authority in this regard is the guideline judgment in R v Tognini [2000] WASCA 31; [2000] 22 WAR 291, where Murray J (with whom Malcolm CJ and Wallwork J agreed) held that:

Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable (296 - 297).

19 However, in the single judge decision in AR v Wood [2008] WASC 119, E M Heenan J expressed the view that Tognini should only be applied in the particular circumstances of the offence then under consideration. His Honour did not consider that the making of a spent conviction order was an exceptional course in every case because this would involve a 'gloss' being placed on s 45(1) of the Act.

20 Notwithstanding the very carefully reasoned conclusions of his Honour, I, like Jenkins J in Robertson v Lawrence [2008] WASC 111 and Johnson J in Scanlon v Bove [2000] WASC 213, consider myself bound by the authority of Tognini. This is particularly so given that Tognini has been applied and followed in the subsequent decisions of the Full Court in Brewer v Bayens [14] and Wood v Marsh [2003] WASCA 95 [43] - [44], and of the Court of Appeal in Riggall v The State of Western Australia [2008] WASCA 69 [72].

21 In the event that the pre-conditions required by s 45 are satisfied, this does not result in the automatic grant of a spent conviction order. The special nature of the discretion that remains was described in Brewer v Bayens [16] as 'a very significant hurdle'. In this regard, Murray J in Tognini held that:

If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community [27] - [28].

22 Various aspects of the wider public interest that may be relevant to the exercise of the discretion under s 45 were referred to in Brewer v Bayens [17] - [19]. These include the likely impact on general deterrence of the loss of publicity resulting from a spent conviction order, and the rights of particular members of the public who may have a legitimate interest in knowing of the fact of the conviction.

23 The discretionary judgment exercised by a judge or magistrate at the time of sentence is of fundamental importance in the operation of the criminal justice system. This discretion is not to be lightly interfered with, and an appeal court cannot substitute its own opinion, simply because it would have exercised the discretion in a different way. What must be shown is that there was a material error of fact or law by the sentencing Magistrate which justifies the appeal court in setting aside the exercise of the discretionary judgment and substituting its own (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15], [35] and [40]).

24 In the present instance, the sentencing Magistrate's primary reason for refusing a spent conviction order was that he was not satisfied that the appellant was 'unlikely to commit such an offence again'. His Honour also observed that the offence was not trivial, and that the appellant's previous good character was not assisted by his prior offence (implicitly in the context of whether he should be immediately relieved of the adverse effect of the conviction).

25 The sole ground of appeal does not directly challenge any of these findings by the Magistrate, but contends that the penalty imposed was 'harsh in all the circumstances'. This ground of appeal would seem to assume that it was open to the Magistrate to grant a spent conviction order, when the reality is that that point in the exercise of the discretion was never reached.

26 In this regard, it was an essential precondition for the making of a spent conviction order that the Magistrate be satisfied that the appellant was unlikely to commit a similar offence again. The Magistrate concluded that he could not be so satisfied, and it follows that the appeal cannot possibly succeed unless it is shown that there was some error in that assessment.

27 In my opinion, the information before the Magistrate supported his Honour's view that the appellant had a continuing problem with alcohol which had not been addressed. His Honour was also informed that the appellant's consumption of alcohol had been a major contributing factor to each of the offences he had committed. Accordingly, I am not persuaded that his Honour fell into error in failing to conclude that the appellant was 'unlikely to commit such an offence again'.

28 However, even if there had been an error in this respect, the appellant would still face the hurdle of the remaining requirements of s 45 of the Sentencing Act. The Magistrate was clearly correct in determining that the offence was not trivial. Although the appellant was of previous good character, that good character was to some extent marred by his prior offence. It was also necessary to point to some particular circumstance which made it desirable (from the points of view of both the appellant and the community) that the adverse effect of the conviction should be immediately set aside.

29 As to this last requirement for the exercise of the discretion, the materials before the Magistrate purporting to show that the conviction would have an adverse impact were relatively scant. Nevertheless, as I read the transcript, there appears to have been a common assumption by the Magistrate, prosecutor and defence counsel that a drug conviction would have particular adverse consequences for the appellant. In this regard, I understand it to be common ground on appeal that for occupational health and safety reasons, employees in the mining industry are regularly subjected to random drug and alcohol tests to ensure that they remain free of these substances while working. Consistent with this policy, mining employees who are convicted of drug offences usually lose that employment.

30 In my view it necessarily follows that to the extent that the conviction would impact on the appellant's employment, there was a corresponding public interest in the fact of the conviction becoming known for the purposes of the policy measures taken by the mining industry to combat the use of drugs and alcohol by mine site employees. This being so, the appellant faced considerable difficulty in persuading the Magistrate to exercise the discretion, even if that point had been reached.

31 The appellant has failed to establish that there was any material error of law or fact by the Magistrate in refusing to make a spent conviction order. Accordingly the appeal must be dismissed.