MICKELBERG -v- THE QUEEN [2000] WASCA 319

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 319
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:86/2000	Heard:	11 OCTOBER 2000
Coram:	KENNEDY J IPP J MURRAY J	Delivered:	30/10/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Sentence varied to fine of $300
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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

HEARD : 11 OCTOBER 2000 DELIVERED : 30 OCTOBER 2000 FILE NO/S : CCA 86 of 2000 BETWEEN : ROSS ALEXANDER MICKELBERG

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…

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 Mickelberg v The Queen

Details

AGLC: Mickelberg v The Queen [2000] WASCA 319
Case: [2000] WASCA 319
Decision Date: 30 OCTOBER 2000

CaseChat Overview and Summary

The case of Mickelberg v The Queen involved the appellant, Mickelberg, who was convicted of possessing approximately 130 grams of cannabis for personal use. The legal dispute centred on the appropriate fine that should be imposed on the appellant. The case was heard in the High Court of Australia, which had the responsibility of determining the correct legal approach to sentencing in such circumstances. The central issue was whether the sentencing judge should have considered factors beyond the statutory maximum fine when imposing a sentence. The appellant argued that the sentencing judge did not adequately consider the circumstances of the case, which warranted a lower fine.

The High Court examined the relevant statutory provisions and case law to determine the correct approach to sentencing in this context. The court noted that the sentencing judge should consider all relevant factors, including the statutory maximum, when imposing a sentence. The court held that the sentencing judge had failed to adequately consider the appellant's personal circumstances, which should have led to a lower fine. The court also noted that the statutory maximum fine was not the only factor to be considered and that the court should have taken into account the appellant's personal circumstances, such as his age and the fact that this was his first offence.

Following the court's decision, leave to appeal was granted, and the appeal was allowed. The High Court varied the sentence to a fine of $300, reflecting the appropriate consideration of the appellant's personal circumstances. The court emphasised that sentencing judges should take into account all relevant factors when imposing a sentence and that the statutory maximum fine is not the only consideration. The final orders of the court were to grant leave to appeal, allow the appeal, and vary the sentence to a fine of $300.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Sentence varied to fine of $300

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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