Sherlock v Cordiner - [2023] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SHERLOCK -v- CORDINER [2023] WASC 308
CORAM:   FORRESTER J
HEARD:   18 APRIL 2023 & 2 AUGUST 2023
DELIVERED          :   17 AUGUST 2023
FILE NO/S:   SJA 1088 of 2022
BETWEEN:   JOSEPHINE SHERLOCK
Appellant
AND
ALEX CORDINER
Respondent

ON APPEAL FROM:
For File No:   SJA 1088 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number            :   NG 938 of 2022

Catchwords:

Criminal law - Single judge appeal - Being an occupier of premises, knowingly permitting those premises to be used for the purpose of the use or preparation of a prohibited plant - Section 5(1)(a)(ii) of the Misuse of Drugs Act 1981 (WA) - Appeal against failure to make a spent conviction order - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)
Veterinary Practice Act 2021 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T M Petherick
Respondent	:	C L Arnold

Solicitors:

Appellant	:	Petherick Cottrell Lawyers
Respondent	:	State Solicitor's Office

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Hull v Castledine [2005] WASC 252
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
JJF v Tattersall [2018] WASC 170
M v Seidner [2013] WASC 395
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79

FORRESTER J:

Introduction

On 22 November 2022, the appellant was convicted in the Narrogin Magistrates Court on a charge that, being an occupier of premises, she knowingly permitted those premises to be used for the purpose of the use or preparation of a prohibited plant, namely cannabis, contrary to s 5(1)(a)(ii) of the Misuse of Drugs Act 1981 (WA) (charge NG 938 of 2022).
The appellant was fined $1,000.
The appellant seeks leave to appeal her sentence on the basis that no spent conviction order was made.

The hearing

When the matter was called, the learned magistrate asked the appellant if she was representing herself. The appellant responded that she was not; she had a lawyer. She told the learned magistrate that, as far as she was aware, the charges were being 'amended', so her lawyer did not think that it was necessary for him to attend that day.
The charges originally listed on 22 November 2022 did not include charge NG 938 of 2022. The prosecutor informed the learned magistrate that charge NG 938 of 2022 was listed on 20 December 2022.
The following exchange then occurred:[1]
[PROSECUTOR]: … I would seek on the basis of a guilty plea to 938 of '22, which is currently first listed for 20 December, your Honour, and I will be in a position to…

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 Sherlock v Cordiner

Details

AGLC: Sherlock v Cordiner [2023] WASC 308
Case: [2023] WASC 308
Decision Date

CaseChat Overview and Summary

Josephine Sherlock appeals against her conviction and sentence in the Narrogin Magistrates Court for knowingly permitting her premises to be used for the purpose of cultivating cannabis, contrary to s 5(1)(a)(ii) of the Misuse of Drugs Act 1981 (WA). The sole ground of appeal is that the learned magistrate erred in failing to make a spent conviction order. The appeal was heard by Forrester J in the Supreme Court of Western Australia. The appellant sought to adduce additional evidence to support her application for a spent conviction order. This evidence included three character references, an affidavit of the appellant, a transcript of the sentencing proceedings of the appellant's partner, and a letter from the appellant's psychologist. The respondent did not oppose a finding that the appellant was of good character, but opposed the making of a spent conviction order. The court concluded that the appellant was unlikely to reoffend and was of good character. However, the court was not satisfied that the appellant's personal circumstances warranted the making of a spent conviction order. The appeal was dismissed. Leave to appeal was granted.

Orders