Dixon & Jones v Irvine - [1995] QCA 71

IN THE COURT OF APPEAL	[1995] QCA 071
SUPREME COURT OF QUEENSLAND

C.A. No. 535 of 1994.

Brisbane

[Dixon & Jones v. Irvine]

R DIXON and D P JONES

SAMUEL ANDREW IRVINE

(Applicant)

___________________________________________________________________

Macrossan C.J.
Pincus J.A.
Byrne J.

___________________________________________________________________

Judgment delivered 27/03/1995

Judgment of the Court

___________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED.
THE ORDERS MADE BELOW TO BE VARIED BY ORDERING THAT NO
CONVICTION BE RECORDED IN RESPECT OF THE CHARGES OF UNLAWFULLY
PRODUCING A DANGEROUS DRUG AND UNLAWFULLY HAVING IN
POSSESSION A DANGEROUS DRUG.

____________________________________________________________________

CATCHWORDS:

CRIMINAL LAW - Sentence - production and possession of cannabis - whether conviction should have been recorded - mature-aged man - first offence other than minor traffic offences.

Counsel:The applicant appeared on his own behalf.

Mr P F Rutledge for the respondent.

Solicitors:The applicant appeared on his own behalf.
Director of Prosecutions for the respondent.
Hearing date:24 March 1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/03/1995

The applicant was convicted in a Magistrates Court on 26 November 1994 of three drug offences: that on 26 November 1994 at Brisbane he unlawfully produced cannabis sativa, that on the same date he unlawfully had possession of that drug and, lastly, that he unlawfully had possession of a pipe used in connection with smoking a dangerous drug. The applicant was fined $900, $250 and $150 respectively for these offences. The application for leave to appeal against sentence relates only to the first two of them; the other is the subject of an appeal to the District Court.

The information we have concerning the circumstances of the offences as placed before the magistrate is not extensive. Pursuant to a warrant police raided the applicant's home at Jamboree Heights. When they arrived he told them that he had about 20 marijuana plants. The police found what they said were about 23 such plants of varying heights up to about 2 ft. There were also found a container with some seeds in it and another container in which was found some green leafy material. The pipe was used to smoke marijuana and, according to the applicant's statement to the police, the plants were for growing marijuana for his own use.

The prosecutor, who has supplied information to this Court, was unable to tell us what the applicant said to the magistrate. The applicant's account placed before this Court is, however, much the same as that which was before the magistrate; the applicant adds that the container with leaf in it had about 2 grams of that substance, that the area in which the plants were grown was about 2 ft by 1 ft. and that the raid took place at midnight. The applicant says that the police were polite and friendly and expressed some surprise "that they were not apprehending a major drugs ring"; presumably, it was an expectation of finding a more serious state of affairs than they in fact discovered which prompted a raid by a number of police…

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 Dixon & Jones v Irvine

Details

AGLC: Dixon and Jones v Irvine [1995] QCA 71
Case: [1995] QCA 71
Decision Date: 27/03/1995

CaseChat Overview and Summary

In the case of Dixon & Jones v Irvine, the appellant, Samuel Andrew Irvine, appealed against his conviction and sentence for the unlawful production and possession of a dangerous drug, specifically cannabis sativa, and possession of a pipe used in connection with smoking a dangerous drug. The appeal was heard in the Supreme Court of Queensland, specifically before Macrossan C.J., Pincus J.A., and Byrne J. The primary issue before the court was whether a conviction should have been recorded for the appellant's first offence, which was a minor drug-related crime, given his age and lack of prior convictions.

The court considered the principles established in previous cases where the recording of a conviction for relatively minor drug offences had been reviewed, particularly those involving marijuana. These cases suggested a distinct practice of declining to record convictions where the offence was minor, the offender had no significant prior convictions, and other factors indicated the offence was not serious. The court also noted that the fines imposed on the appellant were substantial, and the experience of a police raid at midnight had already been distressing enough.

The court concluded that the appellant, who had reached the age of 53 years without any significant criminal record, should not have the convictions recorded for the relatively minor cannabis offences. The court found that recording the convictions would unnecessarily add to the adverse effects of the appellant's breaches of the law and potentially harm his future employment prospects. Therefore, the application for leave to appeal was granted, the appeal was allowed, and it was ordered that no conviction be recorded in respect of the charges of unlawfully producing a dangerous drug and unlawfully having in possession a dangerous drug.

Orders