Menelaws v Ohlson

[1994] QCA 409

[1994] QCA 409

COURT OF APPEAL
MACROSSAN CJ
PINCUS JA

MACKENZIE J

CA No 255 of 1994

N N MENELAWS	Respondent
and
GLEN MATTHEW OHLSON	Appellant

BRISBANE
..DATE 26/08/94
THE CHIEF JUSTICE: Ohlson applies for leave to appeal against
a sentence imposed which involved the recording of a
conviction. That is the aspect against which he seeks leave.

The offence was one committed in June of this year and was possession of cannabis sativa, a dangerous drug. Ohlson was a 31 year old. He was fined $300 for the offence and, as I have said, the conviction was recorded. There was, much earlier, an unrelated criminal history. In 1982 he had been convicted and fined for driving a motor vehicle with a blood alcohol content of .08 per cent.

The facts in this case were that the applicant on the evening of a particular Sunday, namely 5 June, was with two other persons sitting at the side of the road in the grounds of the Queensland University of Technology. Police on patrol approached the group. One of the males threw an object under the car, the police looked there and found a brass pipe with a small quantity of green leafy material. Some police questioning followed and the applicant was discovered to have his foot on a bag containing green leafy material which he acknowledged was his. He added some claim that he'd found the bag of material and the pipe early that afternoon in a certain location.

The matter proceeded before the Magistrate with the result I have indicated. Amongst the matters mentioned were that he had no relevant previous convictions and also that his hopes for a career in the hospitality industry would be impeded by the recording of a conviction. In addition, it was suggested that his membership of a water polo team and his prospects of representation abroad would be impaired by the recording of a conviction. He had, in fact, represented Australia in water polo.

I am not persuaded that he demonstrated such significant hardship or disadvantages beyond the average case as would compel the Magistrate to refrain from recording a conviction but I can put that matter to one side. We referred to a number of cases including Fullalove in which, in the majority judgment of this Court, it was pointed out that there would be some general advantage in the administration of justice if some degree of consistency can be established in the treatment of drug offenders and that it should be possible to achieve this without too much difficulty in cases simply of possession of marijuana where the quantities are not great and the offender has no previous drug convictions and indeed has a generally good, even if not impeccable, character. The Court, by majority, thought it would often be desirable to record no conviction in such cases.

I think that principle is applicable in the present circumstances and indeed the Crown does not argue at all forcibly against the application of that principle here. No doubt, that is because it is thought that there are advantages in the consistency benefits referred to and that this case is not really to be distinguished from the category discussed in Fullalove.

I would accordingly allow the application and the appeal and order that in lieu of the order for a conviction imposed below that it be ordered that no conviction be recorded.

PINCUS JA: I agree.

MACKENZIE J: I agree.

THE CHIEF JUSTICE: That will be the order of the Court.

...

THE CHIEF JUSTICE: The notice of appeal, it can be recorded in this case, referred to possession of a pipe as well as to possession of a dangerous drug. It was conceded on the hearing of the appeal that this Court had jurisdiction to deal with the matter of possession of the drug alone and for that reason the reasons given by me are restricted to that offence.

Any other question that arises in respect of the recording of

a conviction for possession of a pipe will have to be pursued

elsewhere if that is desired.

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