Efto Steven Sokmas v Mitchell Wayne Howard

[2015] HCASL 174

EFTO STEVEN SOKMAS

v

MITCHELL WAYNE HOWARD

[2015] HCASL 174
P49/2014

1. The applicant was convicted in the Magistrates Court of Western Australia of one count of cultivating a prohibited plant with intent to sell or supply. The applicant admitted to having cultivated 13 live cannabis plants. Pursuant to s 11(b) and Sched IV of the Misuse of Drugs Act 1981 (WA), that quantity was deemed to establish that the applicant had cultivated prohibited plants with intent to sell or supply to another unless the contrary was proved on the balance of probabilities. The applicant claimed that the plants were for personal use. The applicant was also in possession of six cannabis "clones" which had not yet struck roots.

2. On 5 November 2013, the Supreme Court of Western Australia (Allanson J) refused the applicant an extension of time to appeal and refused leave to appeal.  Allanson J held that the magistrate did not err in considering evidence of the quantity and value of the 13 plants and the six clones, had those clones struck roots and matured.  His Honour held that the magistrate was entitled to have regard to that evidence on the issues to which it was relevant, including the intent of the applicant and, in particular, whether the quantity of cannabis he was growing was intended for his personal use.

3. On 8 October 2014, the Court of Appeal (McLure P, Mazza JA and Hall J) dismissed the appeal from the refusal of the extension of time and refused leave to appeal from the substantive decision of Allanson J.  Mazza JA held that the magistrate was clearly aware that the relevance of the evidence was as to the potential value of the cannabis, and that the magistrate did not find as a fact that the applicant had cultivated a total of 19 plants with a certain value.  The evidence of potential total value was relevant insofar as it could rationally affect the probability of the existence of a fact in issue, namely, the appellant's intention to sell or supply the cannabis plants in respect of which he had been charged.

4. The applicant applies for special leave to this Court.  He requires an extension of time to do so.  There is no reason to doubt the correctness of the decision of the Court of Appeal.  An appeal to this Court would have no prospect of success.  That being so, the grant of an extension of time would be futile.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
15 October 2015 P.A. Keane