Efto Steven Sokmas v Mitchell Wayne Howard - [2015] HCASL 174

EFTO STEVEN SOKMAS
v
MITCHELL WAYNE HOWARD
[2015] HCASL 174
P49/2014

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.
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.
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.
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.
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

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.

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Details

Case: [2015] HCASL 174
Decision Date

CaseChat Overview and Summary

Efto Steven Sokmas sought leave to appeal to the High Court against his conviction in the Magistrates Court of Western Australia for cultivating a prohibited plant with intent to sell or supply. The conviction was based on Sokmas' admission to cultivating 13 live cannabis plants and possession of six clones. The case was first heard in the Supreme Court of Western Australia, where Allanson J dismissed the application for an extension of time to appeal and leave to appeal, holding that the magistrate's consideration of the evidence was not erroneous. This decision was upheld by the Court of Appeal, which also dismissed the application for an extension of time and leave to appeal, concluding that the magistrate had properly considered the evidence relevant to Sokmas' intent.

The legal issues before the court were whether the magistrate erred in considering the evidence of the quantity and value of the plants and clones, and whether the evidence was relevant to determining Sokmas' intent to sell or supply the cannabis. The Supreme Court and Court of Appeal both held that the magistrate did not err and that the evidence was properly considered on the issue of Sokmas' intent. The High Court was asked to review these decisions and determine if an extension of time and leave to appeal should be granted. Given the findings of the lower courts and the lack of prospect of success for the appeal, the High Court found that granting an extension of time would be futile.

In its decision, the High Court upheld the dismissal of Sokmas' application for leave to appeal and an extension of time. The court found no reason to doubt the correctness of the Court of Appeal's decision and confirmed that an appeal to the High Court would have no prospect of success. Consequently, the application for special leave was dismissed, and the Registrar was directed to prepare an order formalising this decision. This ruling effectively ends Sokmas' legal avenues to challenge his conviction.

Orders