Nugent v Johnson

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.

-----

CaseChat Overview and Summary

The appeal in Nugent v Johnson was brought by the applicant, Jeffrey Stuart Johnson, against the sentence imposed by the Magistrates Court. Johnson was convicted for the possession of a dangerous drug, specifically cannabis sativa, and was fined $350, with an alternative sentence of 12 days imprisonment if the fine was not paid. The appeal sought leave to challenge the recording of the conviction, despite the relatively small amount of the drug involved and Johnson's lack of prior criminal history. The case was heard by Pincus JA, Moynihan J, and Ambrose J in the Court of Appeal, Brisbane.

The primary legal issue addressed by the court was whether the Magistrates Court had erred in recording a conviction for a minor drug offence when there was a discernible practice of not recording such convictions for first-time offenders. The court referenced the recent case of Dickson and Jones v. Irvine to support the argument that a conviction should not have been recorded in this instance. The court considered the nature of the offence, the amount of the drug involved, and the applicant's criminal history, which were factors that typically would not result in a conviction being recorded.

The Court of Appeal found that the Magistrate had indeed erred in recording the conviction. Pincus JA highlighted that the court had previously indicated a practice of not recording convictions for minor drug offences, particularly when the offender had no significant prior convictions. The judges unanimously agreed that the recording of the conviction was inappropriate and granted the appeal to the extent of deleting the recording of the conviction. The final order of the court was to remove the conviction from Johnson's record, affirming the practice of not recording such minor offences for first-time offenders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established