CBL v Pritchard - [2023] WASC 345

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CBL -v- PRITCHARD [2023] WASC 345
CORAM:   HOWARD J
HEARD:   6 SEPTEMBER 2023
DELIVERED          :   11 SEPTEMBER 2023
FILE NO/S:   SJA 1065 of 2023
BETWEEN:   CBL
Appellant
AND
MARLON PRITCHARD
Respondent

ON APPEAL FROM:
For File No:   SJA 1065 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V EDWARDS
File Number            :   AR 6357 OF 2023

Catchwords:

Criminal law - Appeal against sentencing - Possessing a prohibited drug - Magistrate imposed community-based order with supervision - Whether Magistrate in not granting appellant spent conviction resulted in a miscarriage of justice - Whether Magistrate imposed a sentence that was manifestly excessive - Re-sentence Appellant to spend conviction and a fine

Legislation:

Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr Z R Clifford

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Brewer v Bayens (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Goodchild v State of Western Australia [2023] WASC 60
JAD v McRae [2022] WASC 220
Redding v Robinson [2009] WASC 403
Samuels v State of Western Australia (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79

HOWARD J:

The appellant's conviction

On 24 May 2023, following her plea of guilty, the appellant was convicted in the Magistrates Court at Armadale of possessing a prohibited drug (cannabis) in contravention of s 6(2) of the Misuse of Drugs Act 1981 (WA).
Following that conviction, the learned magistrate placed the appellant on a community-based order for nine months with supervision and programme requirements and ordered her to pay court costs of $264.30.
From the transcript, the hearing appears to have lasted about two minutes.

Grounds of Appeal

The appellant now seeks to appeal against the sentence imposed.
Her three grounds of appeal were:
1.The learned sentencing Magistrate erred in failing to consider whether to grant the appellant a spent conviction.
2.In the alternative, the appellant not being granted the spent conviction resulted in a miscarriage of justice.
3.The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive.
By her outline of written submissions, the appellant did not press Ground 1 and I have not considered it further.

Relevant provisions for this Appeal

The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(iii) and s 8(1)(a)(b) of the Criminal Appeals Act (2004) (WA).
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of her remaining appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The appellant filed her Appeal Notice on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CBL v Pritchard

Details

AGLC: CBL v Pritchard [2023] WASC 345
Case: [2023] WASC 345
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appellant, CBL, appealed against her sentence for possessing a prohibited drug (cannabis) imposed by the Magistrates Court at Armadale. The appellant, who was 19 at the time of the offence, pleaded guilty to possessing 22 grams of cannabis on 24 May 2023. The learned magistrate placed the appellant on a community-based order for nine months with supervision and programme requirements and ordered her to pay court costs of $264.30. The appellant appealed the sentence on the grounds that the magistrate erred in not considering whether to grant her a spent conviction and that the sentence was manifestly excessive.

The court first considered whether the appellant's failure to be granted a spent conviction resulted in a miscarriage of justice. The court found that the appellant's personal circumstances, including her challenging upbringing and drug use as a form of escape, were relevant factors. The court noted that the appellant had made efforts to change her life, including completing some of the community-based order and attending drug counselling. The court concluded that the appellant was unlikely to commit a similar offence again and that she was of previous good character within the meaning of the Sentencing Act. The court also found that the appellant should be relieved immediately of the adverse effect that the conviction might have on her, particularly in relation to her aspirations to work with children.

The court then considered whether the sentence imposed by the magistrate was manifestly excessive. The court noted that the maximum penalty for the offence was a fine of $2,000 or imprisonment of two years or both. The court found that the sentence imposed was manifestly excessive because it was unreasonable or unjust, given the appellant's personal circumstances and the comparatively small amount of cannabis involved. The court also noted that the appellant had already served some of the more onerous sentence, which had ironically improved her prospects of rehabilitation.

The court allowed the appeal and re-sentenced the appellant to a fine of $100 and a spent conviction order. The court considered that a fine was the appropriate sentencing disposition, given the appellant's limited means and the burden of a fine on her. The court also noted that the appellant would be in a significantly different position in seeking to enter the child care industry with a spent conviction order rather than if one were not made. The court concluded that the making of a spent conviction order would relieve the appellant of some of the formal adverse effects that the conviction might otherwise have upon her.

Orders