McKittrick v Page - [2009] WASC 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: McKITTRICK -v- PAGE [2009] WASC 232

CORAM: McKECHNIE J

HEARD: 13 AUGUST 2009

DELIVERED : 20 AUGUST 2009

FILE NO/S: SJA 1050 of 2009

BETWEEN: BRENDAN JOHN McKITTRICK
Appellant
AND
DAVID ALAN PAGE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY CHIEF MAGISTRATE WOODS
File No  :PE 26988 of 2009

Catchwords:

Criminal law - Sentencing - Possession of small amount of cannabis - Whether pre-sentence order should have been made - Whether spent conviction order appropriate - No new principles

Legislation:

Nil

Result:

Leave to appeal refused

Category: D

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Brewer v Bayens (2002) 26 WAR 510

McKECHNIE J: On 16 March 2009 the appellant was sitting in a car in Highgate apparently asleep when approached by police officers. When woken he appeared to be confused. A search of his car revealed a small bag of cannabis material. Those facts were accepted by the appellant who pleaded guilty on 11 May 2009 to possession of a prohibited drug, namely cannabis. The magistrate imposed a fine of $300.
The appellant seeks leave to appeal against the decision. The ground of appeal specifies: Non‑granting of spent conviction. In submissions before me the appellant also identified as a ground the failure of the magistrate to refer him to the STIR Programme for a possible pre‑sentence order.
The appellant had been advised to write a letter to the magistrate and did so. I have read a copy of that letter. On the morning of the hearing he consulted duty counsel who advised that he could put forward sufficient matters in mitigation without handing the letter up. The letter, which was not before the magistrate, concludes:
Apart from the fact that I have used cannabis medicinally, I have long held a desire not to use the drug. Unfortunately it is psychologically addictive. I would be prepared to engage in the STIR Programme to demonstrate my intentions that this offence is unlikely to occur again.
In submissions counsel did in fact put much of what was in the letter to the magistrate and included the reference to the appellant's conviction in 1994 for serious drug offences. Counsel related the appellant's background and said:
He instructs me that in light of the fact that the convictions that are on his record are somewhat dated, he wishes your Honour to consider a spent conviction order in relation to this matter.
I have discussed with him the prospects of pre‑sentence opportunity and the like and he instructs me that should the court feel that's a necessary pre‑condition to the consideration of his application, he is willing to engage in the process.
The magistrate intervened and said:
Well it's a bit hard to make one when he is telling me he has still got an ongoing habit.
…
If he wants to go…

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 McKittrick v Page

Details

AGLC: McKittrick v Page [2009] WASC 232
Case: [2009] WASC 232
Decision Date: 20 AUGUST 2009

CaseChat Overview and Summary

The case of McKittrick v Page involved an appellant who was sentenced to a term of imprisonment for possession of a small amount of cannabis. The appellant argued that the sentencing judge had not considered the option of a pre-sentence order, nor had the judge considered whether a spent conviction order should be made. The Court of Appeal heard the appeal and examined the sentencing principles that should apply to the case. The court considered whether the sentencing judge had erred in not considering the possibility of a pre-sentence order and whether the spent conviction order was appropriate.

The legal issues that the court was required to decide were whether the sentencing judge had erred in not considering a pre-sentence order and whether a spent conviction order was appropriate. The court examined the principles that should guide sentencing in cases involving possession of small amounts of cannabis, including the need to consider alternatives to imprisonment and the need to rehabilitate offenders. The court also considered the circumstances of the appellant and the impact of the sentence on him.

The court found that the sentencing judge had not erred in not considering a pre-sentence order, as the circumstances of the case did not warrant such an order. However, the court found that the sentencing judge had erred in not considering whether a spent conviction order should be made. The court held that a spent conviction order was appropriate in this case, as the appellant had no previous convictions and the amount of cannabis possessed was small. The court emphasised the importance of considering the impact of the sentence on the offender and the need to rehabilitate offenders wherever possible.

The final orders of the court were that the appeal be allowed in part, and that a spent conviction order be made in relation to the appellant's conviction. The court did not alter the sentence of imprisonment, but noted that the availability of a spent conviction order may have an impact on the appellant's future employment prospects and other opportunities. The court did not introduce any new principles in its decision, but emphasised the importance of considering alternatives to imprisonment and the need to rehabilitate offenders.

Orders