R v Southwell

COURT OF APPEAL

[1997] QCA 165

DAVIES JA
McPHERSON JA

MOYNIHAN J

CA No 156 of 1997
THE QUEEN
v.

DAVID PETER SOUTHWELL	Applicant
BRISBANE ..DATE 26/05/97 260597 T8/DR7 M/T COA108/97

DAVIES JA: This is an application for an extension of time which, it is agreed by the parties, if granted, should be treated as an application for leave to appeal against sentence.

The applicant was convicted in the Magistrates Court at Nambour on 12 March this year of three offences: one of producing cannabis; one of possessing cannabis and one of possessing utensils; all on 24 November 1996. It is accepted by the parties that although the notice of appeal purports to appeal against the third of those that is not a matter which can properly come before this Court.

The time sought for extension was only very short, 13 days and a satisfactory explanation has been given for that delay. In fact a defective notice of appeal was forwarded to the Court within time and that was shortly thereafter corrected.

In those circumstances, in my view, an extension should be granted.

So far as the application for leave to appeal against conviction is concerned, that relates only to the recording of the conviction with respect to the first two offences to which I have referred, the ones properly before this Court. The applicant was in fact fined $600 and convictions were recorded in each case.

260597 T8/DR7 M/T COA108/97
The applicant is only 24 years of age, having been born on
28 November 1972 and he has no prior criminal history. The
cannabis which was found in his possession was only a small
amount and it is accepted that it was for his own personal use.

In those circumstances, in my view, the learned Stipendiary Magistrate was in error in recording a conviction and the view which His Worship formed in that respect is contrary to the view which, on numerous occasions, has been taken in this Court with respect to young first offenders with respect to possession of cannabis and production of cannabis where it is only a small amount for his or her own private use. In addition, if it be relevant, the applicant explained also that he had a medical condition which caused him some pain and the cannabis relieved the pain which that condition caused.

In those circumstances, I would grant the extension of time and I would grant the application for leave to appeal against sentence and allow the appeal only to the extent of setting aside in each case the recording of a conviction.

McPHERSON JA: I agree.

MOYNIHAN J: So do I.

DAVIES JA: The orders are as I have indicated.

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CaseChat Overview and Summary

The matter of R v Southwell involved the applicant, David Peter Southwell, who sought an extension of time to appeal against his sentence and conviction. The applicant had been convicted in the Magistrates Court at Nambour of producing, possessing cannabis, and possessing utensils, all on 24 November 1996. The appeal against the third offence was deemed improper and was not considered by the Court of Appeal. The parties agreed that the extension of time, if granted, should be treated as an application for leave to appeal against the sentence.

The legal issues before the court were twofold: whether the extension of time should be granted and whether leave to appeal against the sentence should be granted. The applicant had submitted a defective notice of appeal within the time limit, which was subsequently corrected. The court needed to determine if the delay was justified and whether the appeal against the sentence had merit. The court also needed to consider the applicant's age, lack of criminal history, and the small amount of cannabis found in his possession for personal use.

The Court of Appeal found that the extension of time should be granted as a satisfactory explanation for the delay was provided, and a defective notice of appeal had been submitted within the time limit. Regarding the appeal against the sentence, the court found that the learned Stipendiary Magistrate had erred in recording a conviction for the applicant, who was a young first offender with no prior criminal history. The court considered the small amount of cannabis for personal use and the applicant's medical condition, which was alleviated by the cannabis. Consequently, the court granted the extension of time and allowed the appeal against the sentence by setting aside the recording of a conviction in each case.

The final orders of the court were that the extension of time was granted, and the application for leave to appeal against the sentence was allowed only to the extent of setting aside the recording of a conviction in each case. All three judges, Davies JA, McPherson JA, and Moynihan J, agreed with the outcome of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established