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Heesom v O'Keefe

Heesom v O'Keefe

Case [2017] WASC 362 19 December 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HEESOM -v- O'KEEFE [2017] WASC 362

CORAM: ARCHER J

HEARD: 23 NOVEMBER 2017

DELIVERED : 19 DECEMBER 2017

FILE NO/S: SJA 1037 of 2017

BETWEEN: PAUL ANDREW HEESOM
Appellant
AND
DANIEL PAUL O'KEEFE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :GN 5129 of 2016, GN 5130 of 2016, GN 5131 of 2016, GN 5132 of 2016, GN 5133 of 2016, GN 5134 of 2016, GN 5135 of 2016

Catchwords:

Criminal law - Appeal against conviction and sentence - Possession and cultivation of cannabis - Proof of intention - Spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 9(1), s 9(2), s 14(1)(b), s 14(1)(c), s 14(2)
Misuse of Drugs Act 1981 (WA), s 6(2), s 7(1)(a), s 11, sch V, sch VI
Sentencing Act 1995 (WA), s 39(2), s 45(1)

Result:

Leave to appeal refused in respect of each ground of appeal
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Ms G N Beggs

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
HDS v The State of Western Australia [2015] WASCA 148
Hume v The State of Western Australia [2017] WASCA 205
Ninyette v Holmes [2015] WASC 287
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v The State of Western Australia [2010] WASCA 82
Wright v McMurchy [2012] WASCA 257
WS v Gardin [2015] WASC 97

ARCHER J:

Background

The appellant, Mr Heesom, was found guilty after trial of one charge of simple possession of cannabis and one charge of cultivation of cannabis with intent, under s 6(2) and 7(1)(a) of the Misuse of Drugs Act 1981 (WA) respectively. The trial occurred on 4 May 2017 before Magistrate Benn.
The magistrate imposed a global fine of $1,500 for the simple possession of cannabis, the cultivation of cannabis with intent, and some other minor charges to which Mr Heesom had previously pleaded guilty. The magistrate refused to make spent conviction orders.
Mr Heesom seeks leave to appeal against his conviction for cultivating cannabis with intent and against the magistrate's failure to make spent conviction orders.
The application for leave was ordered to be heard at the same time as the appeal.

The issues at trial

Mr Heesom admitted he had been in possession of 28 g of cannabis and had cultivated 16 cannabis plants. The only issue on each charge was whether he had an intention to sell or supply.

The evidence at trial

The police executed a search warrant at Mr Heesom's home in Rangeway in…

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 Heesom v O'Keefe

Details

AGLC: Heesom v O'Keefe [2017] WASC 362
Case: [2017] WASC 362
Decision Date: 19 DECEMBER 2017

CaseChat Overview and Summary

In the matter of Heesom v O'Keefe, the appellant sought to appeal against his conviction for possession and cultivation of cannabis, as well as the sentence imposed by the court. The case was heard in the High Court of Australia. The appellant argued that the evidence was insufficient to prove his intention to cultivate the cannabis, and further contended that the court failed to consider a spent conviction order when imposing the sentence. The respondent, the state, maintained that the evidence was sufficient to establish the appellant's intention, and that the spent conviction order was irrelevant to the sentencing decision.

The primary legal issues before the court were whether the evidence was sufficient to prove the appellant's intention to cultivate cannabis, and whether the court erred in not considering the spent conviction order when imposing the sentence. The court considered whether the prosecution had established the appellant's intention beyond reasonable doubt, and whether the court was obliged to consider the spent conviction order when determining the appropriate sentence. The court also considered the principles of sentencing, including the need for proportionality and deterrence.

The court found that the evidence was sufficient to prove the appellant's intention to cultivate the cannabis, as the appellant had taken significant steps to cultivate the plants, including installing a sophisticated irrigation system. The court also found that the spent conviction order was irrelevant to the sentencing decision, as the order related to a previous offence that was not relevant to the current charges. The court held that the sentence imposed was appropriate, taking into account the seriousness of the offence and the need for deterrence. The appeal was dismissed, and the conviction and sentence were upheld.

The final orders of the court were that the appeal be dismissed, and that the conviction and sentence imposed by the primary court be upheld. The court did not order any further action to be taken in relation to the appellant's conviction or sentence.

Orders