Appeal against declaration that appellant a 'drug trafficker' under s 32A Misuse of Drugs Act - Whether conviction in Magistrates Court a 'serious drug offence' under s 32A - Whether convictions arising from one search warrant are separate 'convictions' under s 32A - Whether spent conviction order precludes conviction from being treated as 'conviction' under s 32A

Criminal Property Confiscation Act 2000 (WA), s 8, s 157

Interpretation Act 1984 (WA), s 3(5), s 67(1)(a)

Magistrates Court Act 2004 (WA)

Misuse of Drugs Act 1981 (WA), s 6(1), s 32A

Road Traffic Act 1974 (WA)

Sentencing Act 1995 (WA), s 45

Spent Convictions Act 1988 (WA), s 14(3), s 25(1), s 45(5)

Carter v Denham [1984] WAR 123

Heyes v State of Western Australia [2008] WASCA 124; (2008) 185 A Crim R 390

Palfrey v MacPhail [2004] WASCA 257; (2004) A Crim R 542

Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549

Smith v C [2001] WASCA 262; (2001) 34 MVR 258

(This judgment was delivered extemporaneously on 21 December 2009 and has been edited from the transcript.)

1 The appellant challenges a declaration to the effect that he is a drug trafficker. His appeal raises some interesting questions in relation to the proper construction and effect of the legislation under which such declarations are made.

2 On 10 February 2009 the appellant, who I will call T for reasons that I will explain, was convicted in the Magistrates Court at Esperance of one charge of possessing a prohibited drug, namely 2.18 grams of MDMA, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).

3 The offence resulted from the apprehension of the appellant in a motor vehicle in which nine ecstasy tablets were found. T was tried summarily by a summary court. This is defined by s 3 of the Act as being a court of summary jurisdiction constituted by a magistrate sitting alone. This course was open as a result of the combinations of sch III and s 9 of the Act. Section 9(1) and s 9(2) of the Act provide:

(1) If a person is charged before a court of summary jurisdiction with -

(a) an offence under section 6(1) in respect of a quantity of a prohibited drug referred to in Schedule III that is less than the quantity specified in that Schedule in relation to the prohibited drug;

(b) an offence under section 7(1) in respect of a number of prohibited plants of a particular species or genus referred to in Schedule IV that is less than the number specified in that Schedule in relation to that species or genus; or

(c) an offence under section 7A(1);

then, except in a case where the person is charged with conspiring to commit the offence, the summary conviction penalty for the offence is that set out in section 34(2)(b).

(2) A court of summary jurisdiction that tries a person summarily for a charge of an offence referred to in subsection (1) must be constituted by a magistrate sitting alone.

4 In relation to MDMA, the relevant amount specified in sch III is 4.0 grams. The amount found in the appellant's vehicle was less than that and so the appellant was able to be dealt with by the Magistrates Court. The amount of MDMA specified by sch V of the Act and which, under s 11 of the Act, gives rise to a presumption of possession with intent to sell or supply is 2.0 grams. The amount with which the appellant was found was more than that and would have triggered that presumption.

5 Nevertheless, when the matter came on before the magistrate it was initially contended on his behalf that he was not guilty of the charge of possession with intent to sell or supply. The prosecution, however, indicated that they would also rely upon an admission said to have been made by T at the time of his apprehension to the effect that he had given away three tablets to his friends. If established, those gifts would then constitute acts of supply, irrespective of any statutory presumption.

6 When these competing contentions emerged, the magistrate adjourned the matter so that T could give consideration to whether or not he would enter a plea of guilty. Following that adjournment, the matter was called on again and a plea of guilty was entered to the charge of possession with intent to sell or supply. T was fined $2,500 plus costs of $114.20.

7 T has a significant record of offending contrary to the Act. That record commenced on 6 September 2006 when he was convicted of possessing a smoking utensil contrary to s 5(1) of the Act, possessing a prohibited drug in the form of cannabis contrary to s 6(2) of the Act and another similar offence. In respect of those three offences, T was fined $300 in the Esperance Magistrates Court and spent conviction orders were imposed.

8 My reference to those offences imposes upon me the obligation, created by s 14(3) of the Spent Convictions Act 1988 (WA), to take steps that are reasonably available to avoid or minimise publication of that evidence. Accordingly, these reasons will be published on terms that do not identify the appellant.

9 Returning then to the appellant's criminal history, on 1 October 2006, again in the Esperance Magistrates Court, he was convicted of one offence, contrary to s 6(1)(a) of the Act, in that he possessed prohibited drugs with intent to sell or supply, and another offence, contrary to s 7(1)(a) of the Act, in that he cultivated a prohibited plant with intent to sell or supply.

10 In relation to the first of those offences, he was fined $600, in relation to the second, he was fined $400 and in each case a spent conviction order was made. Those are the two offences that have given rise to the interesting arguments that have been raised on this appeal.

11 On 19 November 2008 in the Southern Cross Magistrates Court the appellant was convicted of possessing a smoking utensil, contrary to s 5(1) of the Act, of possessing the prohibited drug MDMA, contrary to s 6(2) of the Act, possessing the prohibited drug cannabis, contrary to s 6(2) of the Act and possessing the prohibited drug amphetamine, contrary to s 6(2) of the Act. Fines totalling some $2,100 were imposed for those offences.

12 On 10 February 2009 T was convicted of the offence to which I have already referred.

13 On 11 June 2009, within the six-month period specified by s 32A(2) of the Act, a police prosecutor applied to the magistrate in the Esperance Magistrates Court for a declaration that T was a drug trafficker. The application was made pursuant to s 32A of the Act. That section provides:

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -

(i) serious drug offences

...

the court convicting the person of the serious drug offence first referred to in paragraph (a) ... shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

14 Subsection (3) defines 'serious drug offence' to mean a crime under s 6(1), s 7(1), s 33(1)(a) or s 33(2)(a) of the Act.

15 When the matter came on before the magistrate there were essentially three arguments raised in opposition to the application for a declaration that T was a drug trafficker. The first argument was that the two convictions in 2006 which were the subject of spent conviction orders were not convictions of 'serious drug offences', within the meaning of s 32A of the Act, because the appellant had been convicted in the Magistrates Court and not on indictment.

16 The magistrate reviewed the authorities dealing with that issue and, in particular, compared the decision of the Full Court in Palfrey v MacPhail [2004] WASCA 257; (2004) A Crim R 542 with the more recent decision of the Court of Appeal in Heyes v State of Western Australia [2008] WASCA 124; (2008) 185 A Crim R 390. She considered that she should follow the more recent decision which is to the effect that the mere fact that a conviction of an offence contrary to either s 6(1) or s 7(1) of the Act took place in a Magistrates Court does not deprive it of its character of being a 'serious drug offence' within the meaning of s 32A of the Act.

17 The second issue raised for the magistrate's determination was whether the prior convictions in October 2006 were 'convictions' for the purpose of s 32A of the Act, given that a spent conviction order was made in respect of them. In that regard, the magistrate concluded that they were convictions, despite a spent conviction order having been made because of her reliance upon s 45(5) of the Sentencing Act 1995 (WA), and in particular on s 45(5)(a)(ii). I will explain that section in more detail when I come to deal with that issue as it arises in this appeal.

18 The third issue raised before the magistrate was the proposition that the two convictions that occurred on 1 October 2006 should only be regarded as one because they occurred on the same date and because they arose out of the same search warrant. In dealing with that issue, the magistrate made findings which I will set out and, in particular, rejected the proposition that the charges that were laid on that date were bad for duplicity. The magistrate said:

With respect, there is nothing duplicitous about these charges. The charges and the facts supporting the elements of each charge are separate and distinct. Following a search warrant on 16 August 2006 at the accused's home, the police found firstly several bags of cannabis leaf material with a weight of approximately 133 grams in the freezer. The subject of the conviction sustained pursuant to section 6 subsection (1) of the Misuse of Drugs Act. In the backyard police located a secure room manipulated to assist in the cultivation of cannabis plants. In other words, a set-up with lights specifically to cultivate the plants.

There were 15 plants of approximately 1.2 metres tall that were located there. These were the subject of the conviction pursuant to section 7 subsection (1) of the Misuse of Drugs Act. By explanation on the statement of material facts the offender said, and it seems to be something that is also put forward by his counsel, that he had been growing the cannabis for several weeks and had previously grown or harvested the leaf material found in the freezer. (ts 10 - 11, 11 June 2009)

The charges under section 6(1) and 7(1) are substantially different in nature. The first is merely possessing a prohibited drug with the intent to sell and supply and the second, cultivating prohibited plants with the intent to sell and supply. For the reasons outlined, I simply can't accept counsel's proposition [that the two convictions should be counted as one conviction because they arose out of the same transaction or set of facts.]

There is no authority put forward by counsel that substantiates this proposition. Further, the reasoning is the same. As I said, the two convictions are separate and distinct offences pursuant to section 6(1) and 7(1) of the Misuse of Drugs Act respectively. They are clearly two separate offences occurring in the place of the offender. The fact that he held the cannabis in the freezer, admitting that he had previously grown it, is not part of the one transaction. (ts 11, 11 June 2009)

19 The magistrate also considered the decision in _Carter v Denha_m [1984] WAR 123 but concluded that it was distinguishable. She therefore rejected the argument advanced on the basis of that case and made the declaration sought. The appellant now appeals from that declaration.

20 There are four grounds of appeal. Grounds 1 and 4 can be conveniently considered together and go essentially to the question of whether the fact that the previous convictions in 2006 occurred in the Magistrates Court precludes them from being considered to be 'serious drug offences' for the purposes of s 32A of the Act.

21 Ground 2 asserts that the two convictions in October 2006 should be treated as one.

22 Ground 3 advances the proposition that because of the spent conviction order that was made in respect of the convictions entered in 2006, those convictions should not be regarded as prior 'convictions' for the purposes of s 32A of the Act.

23 I will deal firstly with ground 2 because it seems to me that that ground is easily disposed of for the reasons given by the magistrate. The facts giving rise to the separate convictions in October 2006 were distinct. They were separate offences and they were separate convictions. The magistrate explained why the facts were different and why the appellant was properly charged and convicted separately of those offences without any issue arising under the principles against duplicity of charge or, more correctly I think, the principles relating to conviction estoppel.

24 Carter v Denham is plainly distinguishable. That was a case in which provisions of the Road Traffic Act 1974 (WA) fell to be construed. Specifically, those provisions related to a hierarchy of penalties available depending upon the number of times a person had been convicted of a particular offence under the Act. The relevant offence in that case was driving under the influence of alcohol. For the purposes of that regime, it was concluded that a person was not liable for the higher penalty unless they had already been convicted of the prior offence at the time of committing the subsequent offence. That is a principle that one can easily understand in the context of that legislation. However, in this case and in particular in the context of s 32A of the Act, all that is required is two prior convictions.

25 In the present case, the facts giving rise to the third offence occurred long after T had suffered his conviction of the two prior offences and therefore there is no prospect that it could be said that he was unaware of the liability to which he was exposed. Carter v Denham is properly distinguishable and the magistrate was correct to distinguish it as she did.

26 There is no substance in ground 2 and it should be dismissed.

27 Grounds 1 and 4 raise the interesting question, which has been considered a number of times in this court, of whether the fact that offences contrary to s 6(1) or s 7(1) of the Act have been dealt with in the Magistrates Court precludes them from being considered to be 'serious drug offences' for the purposes of s 32A of the Act.

28 In Palfrey, to which I have already referred, that issue came before the Full Court comprising Miller, EM Heenan and Le Miere JJ. The question arose in the context of an application for a freezing order whilst the applicant was awaiting trial on a number of charges. The proposition advanced on behalf of the appellant was that she could not be declared to be a drug trafficker under s 32A of the Act, even if convicted of the offence, because her prior convictions were not convictions for 'serious drug offences' for the purposes of s 32A of the Act. This was said to be because they were convictions that had occurred in the Court of Petty Sessions (the relevant convictions occurring prior to the commencement of the Magistrates Court Act 2004 (WA)).

29 Reference was made in argument to s 673 of the Criminal Code (WA) which, as it then was, provided that when a person has been summarily convicted of an indictable offence, the conviction is deemed to be a conviction of a simple offence only and not an indictable offence.

30 The court gave consideration to that provision in the context of s 32A and also considered the prior decision of Roberts-Smith J in the case of Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549. The Full Court concluded that Perejmibida was erroneous and should not be followed because his Honour had placed undue reliance upon the stipulation in s 32A that an application for a declaration may be made by a police prosecutor. That stipulation was thought by Roberts-Smith J to be sufficient to impliedly exclude the operation of s 673 of the Criminal Code.

31 The Full Court concluded that there was a circumstance in which a prosecutor could be making a relevant application other than upon conviction in the Magistrates Court, and therefore that s 32A should not be construed as impliedly excluding the operation of s 673 of the Criminal Code. The court concluded that the effect of s 673 was to prevent the convictions that had occurred in the Court of Petty Sessions from being construed as 'serious drug offences' within the meaning of s 32A as it then was. Therefore the freezing order was set aside.

32 The legislation was amended in ways that have been described fully in the subsequent decision of the Court of Appeal in Heyes v State of Western Australia [2008] WASCA 124; (2008) 185 A Crim R 390. That case came before the Court of Appeal comprising Steytler P, Buss and Miller JJA. The question was whether or not the appellant was liable to be declared a drug trafficker in circumstances in which he had been convicted on indictment of an offence of possessing a prohibited drug with intent to sell or supply and had two prior convictions. The first conviction of conspiring to possess drugs with intent to sell or supply was tried on indictment, and the second offence of selling or supplying cannabis was tried summarily by a summary court. That offence was an offence that could be dealt with by a Court of Petty Sessions pursuant to s 9, s 2 and s 3 of the Act, as they then read. Section 9 was in somewhat different terms to the current s 9. It is also pertinent to note that at the time of the convictions in Heyes, the structure of offences in Western Australia was rather different to the present, in that crimes were divided into three categories: crimes, misdemeanours and simple offences. Those categories have now been simplified and altered in ways that it is not necessary to set out in detail in these reasons.

33 There were a number of issues raised in Heyes relating to timing issues regarding the relevant convictions and concerning the retrospectivity of amendments subsequent to those convictions which are not relevant to this case. However, the critical issue in the case was identical to the issue that confronts me. That issue is whether the fact that an offence contrary to s 6(1) of the Act was dealt with summarily by a magistrate in the Magistrates Court precludes it from being held to be a serious drug offence for the purposes of s 32A of the Act.

34 Steytler P and Buss JA commenced the relevant portion of their joint reasons by emphasising that s 67(1)(a) of the Interpretation Act 1984 (WA) provides that an offence designated as a 'crime' is an indictable offence. Their Honours drew a distinction between an indictable offence on the one hand, and an indictable offence that resulted in a conviction on indictment on the other, concluding that s 67 of the Interpretation Act refers to the former, not the latter. Their Honours pointed out that since Palfrey, s 673 had been replaced by s 3(5) of the Criminal Code which provides relevantly that if a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless another written law provides otherwise.

35 Their Honours reviewed authority, including Palfrey and Perejmibida, and expressed the view that there was an insuperable difficulty with the line of argument advanced on behalf of the appellant in reliance upon Palfrey. That difficulty was that the argument relied upon legislative provisions which appeared to their Honours to be unambiguous, even if that was not the case before the 2004 amendments.

The current legislation requires a court, convicting a person of a serious drug offence, on the application of the DPP or a police prosecutor, to declare the person to be a drug trafficker if that person has, during the specified period, been convicted of two or more serious drug offences

A crime under s 6(1) is a serious drug offence and, in 1996, an indictable offence under s 6(1) was a 'serious drug offence'. The offences of which the appellant was convicted in 1996, including the relevant offence, are now expressly categorised as crimes under s 6(1) and were in 1996 expressly said to be indictable offences under s 6(1). Notwithstanding what was said in Palfrey, it seems to us to be untenable to suggest that this categorisation has been altered by the fact that 'crimes' (which are indictable by virtue of s 67(1)(a) of the Interpretation Act), or (as the position stood in 1996) 'indictable offences' might, when s 9(2)(a) of the MDA applies, be tried summarily by a magistrate.

37 Their Honours concluded that the plain language of s 32A referred to the conviction of an offence which had the character of a crime and that such a character was not altered by the identity of the court in which the conviction occurred. They concluded that s 32A was a provision which provided 'otherwise' for the purposes of s 3(5) of the Criminal Code.

38 Their Honours drew support for that conclusion from two other provisions of the Act. Firstly, s 34(2) of the Act, which provides that:

A person who is convicted of a crime referred to in subsection (1)(a) [of that section] -

...

is liable, if sentenced by a summary Court, to a fine not exceeding $5000 or to imprisonment for a term not exceeding four years or both.

39 The significance of that provision is of course, as their Honours pointed out, that the legislature refers to a person convicted of a crime being sentenced by a summary court.

40 Their Honours also drew attention to and relied upon s 10 of the Act, which provides that:

A Court trying a person charged with having committed a crime under section 6(1) may, if the evidence does not establish the person is guilty of that crime but does establish that he is guilty of a simple offence under section 6(2) ... convict him of having committed that simple offence and, whether that court is a summary court, the District Court or the Supreme Court, impose on him the penalty referred to in section 34(1)(e).

41 As their Honours point out, the language of that provision is only consistent with the legislative view that a court trying a person for an offence contrary to s 6(1) is trying that person for a crime, irrespective of whether or not that court is a summary court, the District Court or the Supreme Court. Therefore, their Honours concluded that these two other provisions reinforced the natural and ordinary meaning of s 32A of the Act, which was to the effect that contraventions of s 6(1) or s 7(1) of the Act had the character or quality of being serious drug offences, irrespective of the court in which the conviction occurred. Their Honours expressed that view at [38]:

In the case of any of the offences contemplated by s 9(2) (other than one of conspiracy to commit an offence of the kind there described), the summary conviction penalty is that set out in s 34(2)(b) of the MDA (referred to earlier in these reasons). However, the offences maintain their categorisation as 'crimes', in the case of offences under s 6(1) or s 7(1), or as 'indictable' offences, in the case of offences under s 7A(1). As we have said, only those categorised as 'crimes' (because of their intrinsically more serious character) will be 'serious drug offences' for the purposes of enabling a declaration under s 32A(1) of the MDA. They are categorised as 'crimes' (and hence as 'serious drug offences') regardless of where they might be tried (this last issue depending upon the degree of seriousness of those offences that are intrinsically serious enough to be categorised as 'crimes'). Conversely, an offence under s 7A(1) is not a 'crime', and hence a 'serious drug offence', even though it is indictable.

42 Miller JA joined with the other two members of the Court and, having had an opportunity to reconsider the matter, expressed reservations about his concurrence with the reasons given by Le Miere J in Palfrey v MacPhail. He expressed the view that:

... [A]s at 2007, at least, the relevant provisions of the Act are unambiguous and;

(1) a crime under s 6(1) is a serious drug offence;

(2) the offences of which the appellant was convicted ... are crimes within the meaning of s 6(1); and

(3) a conviction by a Court of Summary Jurisdiction of an indictable offence may, by reason of s 3(5) of the Criminal Code, mean that the conviction is to be regarded as a conviction of a simple offence only, but [for the purposes of the Act] remains ... a conviction for the commission of a crime.

43 With respect to the arguments advanced on behalf of the appellant, it seems to me that the reasoning in Heyes is compelling. In particular, the plain and ordinary language used in s 32A of the Act, construed in the context of s 34 and s 10 of the Act, compels the conclusion that the legislature intended that a conviction by a summary court, pursuant to s 9 of the Act, of an offence of contravening either s 6(1) or s 7(1) of the Act retains its character and quality as a conviction of a crime, notwithstanding that the conviction is entered in a summary court. Section 32A of the Act is an express legislative exception to the general position provided for by s 3(5) of the Criminal Code. Therefore, convictions in summary courts are nevertheless convictions of 'serious drug offences' for the purposes of making a declaration under s 32A.

44 For those reasons, grounds 1 and 4 must be dismissed.

45 I turn then to ground 3 which focuses upon the making of the spent conviction orders in October 2006. I have to say that, given the criteria that have to be met before a spent conviction order could be made under s 45 of the Sentencing Act and having regard to the facts outlined by the magistrate and the prior conviction of the appellant the previous month for other offences contrary to the Act, the making of the spent conviction orders seems unusual, to say the very least. Nevertheless, those orders were made. There was a right of appeal from the making of those orders. That right was not exercised by the prosecution and so the orders stand and counsel for the respondent properly accepted that I must proceed to apply the law to those orders, irrespective of the merit or otherwise of their making.

46 There are some arguments that I can immediately exclude from further consideration. The first is the argument that was in fact adopted by the magistrate, which counsel for the respondent properly concedes is erroneous. In order to explain that error, it is necessary to refer in some detail to s 45 of the Sentencing Act, which provides that:

(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers 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.

(2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.

(3) The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

(4) A spent conviction order is to be taken as part of the sentence imposed.

(5) A spent conviction order in respect of a conviction does not affect -

(i) disqualify the offender from holding or obtaining a driver's licence under the Road Traffic Act 1974;

(ii) make any order under this Act or any other written law on convicting the offender;

(b) the operation of any provision of the Road Traffic Act 1974, or Part 15, relating to the cancellation of, or disqualification from holding or obtaining, a driver's licence under that Act;

(c) the duty of the offender to comply with the sentence imposed or with any order of the Court in addition to the sentence;

(d) the revesting or restitution of any property as a result of the conviction;

(e) any cancellation or disqualification that occurs by operation of any written law; or

(f) any right of appeal against the conviction or the sentence imposed.

(6) A spent conviction order in respect of a conviction does not prevent -

(a) proceedings to enforce, or for a variation or contravention of, the sentence;

(b) subsequent proceedings against the offender for the same offence.

47 The magistrate concluded that s 45 rendered the situation before her analogous to a situation in which a licence suspension arose as a consequence of a conviction, notwithstanding the making of a spent conviction order. That analogy was plainly apt if applied to the conviction with which she was dealing, that is, the conviction that was entered on 10 February 2009. However, the spent conviction orders were not made in respect of the offence which gave rise to the application before her, but rather were made in respect of the convictions in 2006.

48 There is a unifying characteristic of all the paragraphs of s 45(5); that is, they all make provision limiting the consequences of a spent conviction order with respect to the conviction to which it applies. The effect of s 45(5)(b), as the magistrate pointed out, is that notwithstanding the making of a spent conviction order, the operation of provisions of the Road Traffic Act relating to the cancellation or disqualification of a licence still apply, and the effect of s 45(5)(c) is that the duty of the offender to comply with the sentence imposed still applies, notwithstanding the making of the spent conviction order. So by s 45(5)(c), in 2006 when the fines were imposed upon the appellant, it was his duty to pay those fines, notwithstanding the fact that spent conviction orders were entered. In s 45(5)(a)(ii), the reference to making an order 'on convicting the offender' is a reference to the making of an order on convicting the offender of the offence to which the spent conviction order applies. In s 45(a)(ii), the reference to making an order 'on convicting the offender' is a reference to the making of an order on convicting the offender of the offence to which the spent conviction order applies. No order was or could have been made to the effect that T was a drug trafficker upon his conviction of the two offences in respect of which spent conviction orders were made in 2006. He was, however, said to be liable to be declared a drug trafficker following his conviction on 10 February 2009 in respect of which no spent conviction order was made. Therefore, the magistrate was, with respect, in error in applying s 45(5)(a)(ii) to the circumstances which were before her because she did not make a spent conviction order when convicting the appellant on 10 February 2009.

49 Counsel for the respondent properly accepts that s 45(5)(a)(ii) would apply if there had been a spent conviction order imposed in respect of the conviction in February 2009, but has no application to the spent conviction orders that were imposed in 2006. This is because the order that was sought under s 32A of the Act arises on the appellant having been convicted of the offence in 2009, not upon his having been convicted of the offences in 2006.

50 Although neither party referred to s 14 of the Spent Convictions Act 1988 (WA), I should refer to it briefly for completeness. That section provides, in particular by s 14(2)(b), that:

[S]ection 25(1) [of the Spent Convictions Act] does not apply in a court or tribunal for the purpose of -

(i) the determination of the guilt or innocence of a person charged with an offence where a conviction is relevant to that determination; or

(ii) a determination of the appropriate punishment to be imposed by that court or tribunal for an offence.

51 In Smith v C [2001] WASCA 262; (2001) 34 MVR 258, Hasluck J concluded that s 14(2)(b) had the consequence that prior convictions under the Road Traffic Act were nevertheless relevant to the imposition of penalty, notwithstanding that they may have been the subject of a spent conviction order. However, the application for a declaration under s 32A does not come within the scope of s 14(2)(b) because it is not concerned with either a determination of guilt or innocence or a determination of the appropriate punishment to be imposed for an offence.

52 Section 25(1) of the Spent Convictions Act provides:

A reference in a written law of this State (other than this Act) to a conviction of a person for an offence does not include a reference to a spent conviction.

53 Section 32A of the Act is a written law of this State that refers, relevantly, to convictions. Section 32A will only be invoked if a person is convicted of a 'serious drug offence' and has, during the period of 10 years ending on the day on which the offence was committed, been convicted of two or more 'serious drug offences'. In other words, liability to a declaration and the consequences that flow from a declaration only arise if there have been three convictions in total within the relevant 10-year period.

54 It is difficult to think of a clearer example of a written law of the State which refers to convictions and which, by the operation of s 25, must be taken to be not referring to spent convictions.

55 Counsel for the respondent advances the proposition that the fact of conviction remains, that on 1 October 2006 convictions were entered and that therefore, for the purpose of s 32A, they must be taken to be convictions for serious drug offences, notwithstanding the making of a spent conviction order and notwithstanding s 25 of the Spent Convictions Act.

56 The difficulty I have with that submission is that it appears to me to fly in the face of the clear and unequivocal language of s 25 of the Act and would leave that section with no work to do. It would not have any application because in every case in which there was in fact a conviction referred to in another written law of the State, if the argument advanced on behalf of the respondent was to apply, then s 25 would have no application. This would make the section entirely otiose.

57 I tested counsel for the respondent with a query as to just how s 25 would apply in any circumstance if the construction for which he contended was correct. Counsel was unable, in the course of argument, to come up with any example of a case in which s 25 would apply if the construction for which he contended was correct. Reference was made to s 400(3) of the Criminal Code which defines circumstances of aggravation for the purposes of certain offences. However, as counsel properly conceded, if the argument for which he contends is correct, then a spent conviction order would be of no effect under that subsection and the conviction the subject of the order would be taken to be a conviction for the purposes of that section, depriving s 25 of any effect.

58 My attention has also been drawn to s 157 of the Criminal Property Confiscation Act 2000 (WA) which expressly provides that, for the purposes of that Act, a person is taken to have been convicted of a confiscation offence if the person has been convicted of the confiscation offence, whether or not a spent conviction order is made under s 39 of the Sentencing Act.

59 Under s 8 of the Criminal Property Confiscation Act, the result of a person such as the appellant being declared to be a trafficker is that all the confiscable property of that person is forfeited. However, this result does not flow from conviction of a confiscation offence for the purpose of s 157. Rather it flows from the consequences under the Criminal Property Confiscation Act of a declaration being made under the Act.

60 Because of the two limitations on s 157 - firstly, that it only applies for the purposes of the Criminal Property Confiscation Act and secondly, that it only applies to the confiscation offences under that Act, it does not preclude the conclusion that a spent conviction order prevents a prior conviction being treated as such for the purposes of s 32A of the Act. To the contrary, it seems to me that the scheme created under the Criminal Property Confiscation Act provides an example of the type of express legislative provision that might have been expected in the Act if it had been the intention of the legislature that prior convictions for serious drug offences count as prior convictions for the purposes of s 32A of the Act, notwithstanding the making of a spent conviction order. The legislature has not included any such provision in the Act, nor has any such provision been included in s 45 of the Sentencing Act, even though that section lists a number of circumstances in which, notwithstanding the making of a spent conviction order, consequences are said to flow. So, the omission of any express provision in the face of a number of legislative examples in which express provision has been made for legal consequences flowing from a conviction, notwithstanding the making of a spent conviction order, reinforces the conclusion to which I have come by reference to the plain and ordinary meaning of s 25 of the Spent Convictions Act.

61 Nor would it be unreasonable to attribute the intention to produce this result to the legislature. As already noted in these reasons, under s 45(1) of the Sentencing Act a spent conviction order can only be made if the court considers that the offender is unlikely to commit such an offence again and, having regard to either the triviality of the offence or the previous good character of the offender, the court considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

62 It would not be unreasonable to infer that the legislature intended that if a conviction was of that character, it should not be regarded as a 'serious drug offence' for the purposes of the regime relating to the forfeiture of all the confiscable property of those declared to be drug traffickers.

63 For those various reasons, I conclude that s 25 of the Spent Convictions Act should be given its natural and ordinary meaning and that, as a consequence, the two convictions which T suffered in 2006, and in respect of which spent conviction orders were made, are not convictions properly taken into account for the purposes of s 32A of the Act. Therefore the magistrate was in error in declaring the appellant to be a drug trafficker.