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

1. 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. 

2. 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.

3. 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.

4. 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.

5. 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 down to Next Step and do something about that, then that's fine.  It's a bit difficult to make an order like that when, on an ongoing basis, he is committing a criminal offence on his own admission.

6. Counsel then received permission to take instructions from the appellant and reported:

   He instructs me he wishes to proceed to sentence today.  He does note that he hasn't had any convictions for a number of years and it is my respectful submission that while his character was tainted in an earlier stage it has somewhat been rehabilitated in the intervening period.

7. The magistrate proceeded to fine the appellant as outlined and said:

   At some point, if you are wanting to do a medical detox in relation to the cannabis, it is probably about a 10 day process and it is available through Next Step.  You can make those inquiries yourself.

8. While it was open for the magistrate to have made a pre‑sentence order of some sort, in the light of instructions that the appellant wished to proceed, I detect no error of approach in the magistrate then proceeding without further consideration of reference to the STIR Programme.  The other points made by the magistrate are also valid. 

9. The appellant is a 50‑year‑old who has had a longstanding addiction to cannabis which sooner or later he will probably have to address.  The purpose of pre‑sentence orders is not primarily medicinal but rehabilitative in effect.

10. Nor do I detect an error in failing to grant a spent conviction order in the circumstances.  The offence was certainly minor but having regard to the circumstances, the appellant's antecedents, the provisions of the Sentencing Act 1995 (WA) s 45 and authorities such as Brewer v Bayens (2002) 26 WAR 510, I am not persuaded that there is an arguable case for error on this ground.

11. Under the Criminal Appeals Act 2004 (WA) s 9, leave is required for each ground of appeal and the court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. I cannot be so satisfied. In fact, I detect no error of approach by the magistrate. Leave to appeal on each ground is therefore refused.