Mickelberg v The Queen
[2000] WASCA 319
•30 OCTOBER 2000
MICKELBERG -v- THE QUEEN [2000] WASCA 319
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 319 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:86/2000 | 11 OCTOBER 2000 | |
| Coram: | KENNEDY J IPP J MURRAY J | 30/10/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentence varied to fine of $300 | ||
| PDF Version |
| Parties: | ROSS ALEXANDER MICKELBERG THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Possession of about 130 grams of cannabis for applicant's own use Appropriate fine to be imposed Turns on own facts |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(2), s 34(1)(e) Sentencing Act 1995 (WA), s 45 |
Case References: | R v Tognini & McGuire [2000] WASCA 31 Berkley v Hart, unreported; SCt of WA (Steytler J); Library No 950642; 20 November 1995 Bidwee v Robinson, unreported; CCA SCt of WA; Library No 990197; 4 March 1999 Keohane v Fox, unreported; CCA SCt of WA; Library No 930550; 8 October 1993 Lowndes v R (1999) 195 CLR 665 Miles v R (1997) 17 WAR 518 O'Toole v The Queen, unreported; CCA SCt of WA; Library No 930579; 29 October 1993 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MICKELBERG -v- THE QUEEN [2000] WASCA 319 CORAM : KENNEDY J
- IPP J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Possession of about 130 grams of cannabis for applicant's own use - Appropriate fine to be imposed - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(2), s 34(1)(e)
Sentencing Act 1995 (WA), s 45
Result:
Leave to appeal granted
(Page 2)
Appeal allowed
Sentence varied to fine of $300
Representation:
Counsel:
Applicant : In person
Respondent : Mr M Mischin
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Tognini & McGuire [2000] WASCA 31
Case(s) also cited:
Berkley v Hart, unreported; SCt of WA (Steytler J); Library No 950642; 20 November 1995
Bidwee v Robinson, unreported; CCA SCt of WA; Library No 990197; 4 March 1999
Keohane v Fox, unreported; CCA SCt of WA; Library No 930550; 8 October 1993
Lowndes v R (1999) 195 CLR 665
Miles v R (1997) 17 WAR 518
O'Toole v The Queen, unreported; CCA SCt of WA; Library No 930579; 29 October 1993
(Page 3)
1 JUDGMENT OF THE COURT: The applicant was tried on indictment in the District Court on a charge that between 15 April and 15 May 1997 he and his father conspired together to possess cannabis with intent to sell or supply it to another. The two accused were further charged with two offences of possession of cannabis with intent to sell or supply it to another, both offences being allegedly committed on 14 May 1997. The applicant was acquitted of all three offences for which he was indicted, but after trial on 14 April 2000 he was convicted of one offence of simple possession of cannabis.
2 The police had had the home of the applicant and his father under surveillance. On 14 May 1997, they executed a search warrant. In the applicant's bedroom they found a compressed disk of cannabis weighing 82.7 grams and a bag of cannabis leaf material and seed weighing 49 grams, a total of 131.7 grams of cannabis. It was this quantity of drug which was the subject of the conviction.
3 It was open to the jury to convict of this offence upon the indictment before the Court. The offence is a simple offence defined in the Misuse of Drugs Act 1981(WA) s 6(2). By s 34(1)(e) of the Act, it is punishable by a fine of $2,000 or imprisonment for 2 years. The quantity involved was not trivial. The possession of 100 grams of cannabis may give rise to a presumption of intention to sell or supply the drug to another, but it is clear that the jury accepted that the applicant had no such intention with respect to this drug and found that it was for his own use. As the trial Judge commented, the applicant had given evidence at the trial that he had been "a user of cannabis over a period of time." Prior to the trial, the applicant had sought to have the Crown accept his plea of guilty to the offence of which he was convicted in full satisfaction of the indictment. This approach was rejected.
4 It is evident that, the applicant having been arrested and charged following the execution of a search warrant at his home on 14 May 1997, he had been awaiting trial, albeit on bail, for some three years. He had found this a stressful experience, as the trial Judge accepted. When he came to be sentenced, the applicant was aged 22 years. He had no prior criminal history. The trial Judge accepted him to have been "a good young fellow". His trade is that of a tiler, but he is employed with his father in the production of furniture. It was said of him that his work is of a high quality. The Crown accepted that a fine would be an appropriate penalty. His Honour imposed a fine of $900, just under half the maximum prescribed.
(Page 4)
5 In our opinion, given the circumstances described above, this punishment was manifestly too severe. The trial Judge thought, rightly in our view, that the process which had resulted in the applicant's conviction was "a salutary lesson" to him. We would agree that there was no indication of any likelihood that the applicant would offend in that way again. As we have mentioned, the quantity of drug involved was not insignificant and what was required, we think, was a punishment which would have an appropriate deterrent value, but one which was a proportionate response, having regard to the maximum fine available. In our opinion, a fine of $300 would suffice to give effect to the purposes of punishment in this case.
6 In a supplementary document before the Court, the applicant adds a submission that it would have been appropriate to make a spent conviction order in this case under the Sentencing Act1995 (WA) s 45. He grounds that submission upon the proposition that to have the conviction upon his record may make it impossible for him to join the Australian Defence Force, which he says is his long-term goal. This was not a matter raised in the sentencing proceedings in the District Court, by the ground of the application for leave to appeal, or in the applicant's original submissions.
7 Under s 45, a court sentencing an offender may not make a spent conviction order unless -
"(a) it considers that the offender is unlikely to commit such an offence again; and
(b) having regard to -
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."
8 Those criteria for the making of such an order and the circumstances in which the order should be made generally were discussed by this Court in R v Tognini & McGuire [2000] WASCA 31; 22 February 2000. There is no need for present purposes to repeat what was said there. It is sufficient to deal with this submission, in our view, that although the applicant is unlikely to commit a similar offence again, the offence of which he was convicted could hardly be described as a trivial offence of
(Page 5)
- its kind and, in our opinion, the previous good character of the applicant is not sufficient of itself in this case to warrant taking the exceptional course of making an order under the section, the effect of which is to immediately confer upon the conviction the status of a spent conviction under the Spent Convictions Act 1988 (WA) so that it need not be disclosed by the offender. Nothing of pressing moment was advanced by the applicant to justify the making of the order and, in our opinion, it would be inappropriate to do so: cfR v Tognini & McGuire per Murray J, with whom Malcolm CJ and Wallwork J agreed, at par [27] and par [28].
9 In our view, therefore, for the above reasons the application for leave to appeal should be granted and the appeal allowed to the extent necessary to vary the fine imposed from one of $900 to one of $300.
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