Jennings v Carrigan - [1994] QCA 371

THE COURT OF APPEAL	[1994] QCA 371
SUPREME COURT OF QUEENSLAND

C.A. No. 266 of 1994

Brisbane

[Jennings v. Carrigan]

BeforeMacrossan C.J.
Pincus J.A.

Mackenzie J.

BETWEEN:

H.M. JENNINGS Respondent

AND:

CHRISTOPHER JOHN CARRIGAN

Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 21/09/1994

I have read the reasons prepared by Pincus J.A. and Mackenzie J. where the principal issues which have to be weighed in this case are set out. In the end, very relevant features are that the amount of the drug in possession was not large and that it was for the personal use of the applicant and his companions.

Even though more than five years had passed since the applicant's previous drug conviction, it being for a minor offence, I am persuaded that it is not possible in accordance with the policy of this Court as presently expressed to declare that the recording of a conviction in this case involved an excessive penalty justifying the Court's interference. The Court is not, of course, called upon to affirm that the recording of a conviction should necessarily have been made in this case. The matter remained in the discretion of the magistrate.

Consistency of approach, if it can be achieved, is generally desirable and it is a relevant consideration that a recent pronouncement has been made by the Court in the area which we are presently considering: R v. Qualischefski C.A. No. 139 of 1994, unreported judgment delivered 12/8/94. It is noted that in that case the subsequent drug conviction was only a little over 2½ years after the first. As a separate matter, it has been recognised that some prior criminal history not involving drugs will not necessarily result in a subsequent minor drug conviction being recorded: Fullalove (1993) A.Crim R 486, and Condoleon (1993) 69 A Crim R, 573.

I agree that the application should be dismissed.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND MACKENZIE J.

Judgment delivered 21/9/1994

This is an application for leave to appeal against sentence. The applicant, who was 31 years of age, pleaded guilty in the Magistrates Court to possession of cannabis sativa, a dangerous drug. A conviction was recorded and he was fined $300.00. The application relates only to the recording of a conviction.

On Sunday 5 June 1994 the applicant had a pipe in his possession, containing marijuana, and it was that possession which was the subject of the charge. He told the police that he had, prior to their arrival, intended to use the pipe.

Eight years ago the applicant was convicted of driving a motor vehicle whilst his blood alcohol content was 0.8 percent, and 5 years ago he committed an offence of possession of a dangerous drug. As to the latter, the applicant was dealt with under a provision which has been repealed, s. 657A of the Criminal Code; that is, no conviction was recorded and the applicant was discharged conditionally upon his entering into a recognisance to be of good behaviour.

It…

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 Jennings v Carrigan

Details

AGLC: Jennings v Carrigan [1994] QCA 371
Case: [1994] QCA 371
Decision Date: 21/09/1994

CaseChat Overview and Summary

Jennings v Carrigan is a case in which the appellant, Christopher John Carrigan, sought leave to appeal against the recording of his conviction for possession of cannabis sativa. The case was heard in the Supreme Court of Queensland by Macrossan C.J., Pincus J.A., and Mackenzie J. The appeal was dismissed by the Court, affirming the magistrate's decision to record the conviction. The appellant argued that the recording of his conviction would have significant adverse consequences for his future career prospects, particularly in the hotel and gaming industries, as well as his potential to represent Australia in international water polo contests. Despite these arguments, the Court found that the magistrate's decision to record the conviction was within the appropriate exercise of discretion and did not warrant interference from the appellate court.

The principal legal issues before the court were whether the magistrate's decision to record the conviction was excessive and whether the appellant's prior criminal history, which included a previous drug offence, justified the imposition of a conviction. The court examined the nature and quantity of the drug in the appellant's possession, which was relatively small and intended for personal use. The court also considered the appellant's intentions to pursue a career in the hotel and gaming industries and his aspirations to continue representing Australia in water polo. The court concluded that while these factors were relevant, they did not warrant the Court's interference with the magistrate's decision. The court emphasized the importance of maintaining consistency in the treatment of drug offenders, particularly in cases involving minor drug offences.

The court's reasoning hinged on the principle that the appellate court should not ordinarily interfere with the exercise of a magistrate's discretion in sentencing matters, unless the decision was manifestly excessive. The court referred to previous cases, such as Qualischefski and Fullalove, which highlighted the need for consistency in dealing with drug offenders. The court noted that the appellant's previous drug offence, although resulting in no conviction being recorded, was a relevant consideration. Given the minor nature of the current offence and the passage of time since the previous conviction, the court found that the magistrate's decision to record the conviction was within the acceptable range of discretion. The court further observed that the appellant's assertions regarding his future career prospects were not sufficiently substantiated to warrant overturning the magistrate's decision.

In conclusion, the Supreme Court of Queensland dismissed the appellant's application for leave to appeal against the recording of his conviction. The Court upheld the magistrate's decision, emphasizing the importance of maintaining consistency in the treatment of drug offenders and the limited scope for appellate interference in sentencing matters. The Court's judgment highlights the need for a balanced approach in considering the impact of a conviction on an individual's future prospects while also recognizing the magistrate's discretion in imposing appropriate sentences.

Orders