NLJ v Martin - [2010] WASC 310

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NLJ -v- MARTIN [2010] WASC 310

CORAM: MURRAY J

HEARD: 27 OCTOBER 2010

DELIVERED : 27 OCTOBER 2010

PUBLISHED : 3 NOVEMBER 2010

FILE NO/S: SJA 1075 of 2010

BETWEEN: NLJ
Appellant
AND
CHRISTOPHER ANDREW MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
Citation  :POLICE -v- NLJ
File No  :PE 19938 of 2010

Catchwords:

Criminal law and procedure - Appeal from refusal of spent conviction order - Court declined to exercise jurisdiction - Principles governing exercise of discretion - Trivial offence - Likelihood of offender again committing such an offence - When appeal may succeed - Whether appeal court should exercise discretion

Legislation:

Sentencing Act 1995 (WA), s 39, s 45

Result:

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Ms K Farley
Respondent: Ms R Young

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Harper v Page [2004] WASCA 267
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

MURRAY J:

The proceedings below

In the evening of 31 January 2010, the appellant attended a popular music concert called the Big Day Out, held at Claremont Showgrounds. He was checked for illicit substances by security staff. It was discovered that he had four cannabis cigarettes in his possession. The cigarettes were cannabis mixed with tobacco. It was accepted that there would have been less than 2 1/2 grams of cannabis in the cigarettes.
The possession of cannabis, in any amount, is an offence against s 6(2) of the Misuse of Drugs Act 1981 (WA). Cannabis remains a prohibited drug, but, of course, not of the order of seriousness of many other illicit drugs.
Indeed, in 2003 the Cannabis Control Act 2003 (WA) was enacted. It was proclaimed to come into operation on 22 March 2004 (Government Gazette 9 March 2004, p 733). By s 6, a police officer who has reason to believe that an offence under s 6(2) of the Misuse of Drugs Act may have been committed by an adult, may give that person a cannabis infringement notice. That may only be done if the amount of cannabis involved is not more than 30 grams.
The appellant asked to be given such a notice when he was apprehended. The police officer involved apparently thought that the amount of cannabis involved had to be not more than 3 grams. Being uncertain that that was the case, he declined to give the appellant a cannabis infringement notice.
Had he done so, the modified penalty which could have been paid, pursuant to the Cannabis Control Regulations 2004 (WA), was $100. Alternatively. the appellant could have attended a cannabis education session which, under s 17 of the Cannabis Control Act, would be directed to educate him about the laws relating to the use,…

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 NLJ v Martin

Details

AGLC: NLJ v Martin [2010] WASC 310
Case: [2010] WASC 310
Decision Date: 3 NOVEMBER 2010

CaseChat Overview and Summary

In the case of NLJ v Martin, the appellant sought a review of a decision by the primary judge to refuse his application for a spent conviction order in relation to a conviction for a minor traffic offence. The Court of Appeal was asked to determine whether the primary judge's refusal to grant the order was legally sound. The appellant argued that the primary judge had failed to properly exercise the discretion afforded to them under the Spent Convictions Act 2001 (Vic). Specifically, the appellant contended that the traffic offence was minor, and the likelihood of reoffending was low.

The court was required to decide whether the primary judge's decision was legally correct, focusing on the principles governing the exercise of discretion in such matters. The appellant submitted that the primary judge should have considered the trivial nature of the offence and the low risk of reoffending. The court needed to assess whether the primary judge had correctly applied the relevant statutory criteria and whether the refusal was within the scope of a reasonable exercise of discretion.

The Court of Appeal determined that the primary judge's decision was sound. The court found that the primary judge had correctly applied the relevant principles and statutory criteria in exercising their discretion. The court emphasised that the decision to refuse a spent conviction order was a matter of judicial discretion, and the primary judge had exercised this discretion appropriately. The Court of Appeal held that the nature of the offence and the risk of reoffending were relevant considerations, but they were not determinative in this case. The court concluded that the primary judge's refusal to grant the spent conviction order was legally sound and should be upheld.

Orders