Nugent v Johnson

[1995] QCA 254

COURT OF APPEAL

[1995] QCA 254

PINCUS JA
MOYNIHAN J

AMBROSE J

CA No 110 of 1995
B M NUGENT
v.

JEFFREY STUART JOHNSON Applicant

BRISBANE
..DATE 28/04/95
PINCUS JA: This is an application for leave to appeal against
sentence. The applicant was born in 1970. He was convicted
in the Magistrates Court on 15 March 1995 in respect of a
charge of possession of a dangerous drug, namely cannabis
sativa. The circumstances as placed before the Court were
that the police were called to premises in relation to a
complaint of noise. They found a quantity of leafy, green
material and the applicant said it belonged to him. The
material was about 3 grams of cannabis sativa, a relatively
small amount.

The case is one in which the applicant was at the time of conviction, and indeed still is, a young man. He has no criminal history and in the ordinary course of events one would not have expected a conviction to be recorded. However, the applicant was fined $350 and in default 12 days imprisonment and a conviction was recorded.

The cases dealing with matters of this sort were recently
reviewed by this Court in Dickson and Jones v. Irvine
(27/3/95, unreported). The judgment in that case includes the
following passage at page 4:

"A distinct practice of declining to record convictions, where

the offender has committed a minor offence or minor
offences relating to marijuana, is discernible. That is
applied to persons with no significant prior convictions
and the case to be now discussed shows that in special
circumstances even offenders who have committed prior
offences may be considered to merit the advantage of not

having a conviction recorded."

The case which was then discussed was Devine v. Fullelove.
It seems to me clearly enough to follow that the learned
Magistrate was in error in recording a conviction in the
present case. I would therefore grant the application and
allow the appeal to the extent of deleting the recording of a
conviction.

MOYNIHAN J: I agree.

AMBROSE J: I agree.

PINCUS JA: That will be the order of the Court.

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