Snadden v O'KEEFE - [2009] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SNADDEN -v- O'KEEFE [2009] WASC 26

CORAM: EM HEENAN J

HEARD: 19 JANUARY 2009

DELIVERED : 19 JANUARY 2009

PUBLISHED : 13 FEBRUARY 2009

FILE NO/S: SJA 1085 of 2008

BETWEEN: BRADLEY GORDON SNADDEN
Appellant
AND
BRENDEN SCOTT O'KEEFE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J McINTYRE
File No  :MH 4309 of 2008, MH 4310 of 2008

Catchwords:

Criminal law - Appeal - Possession of drugs with intent to sell or supply - Respondent concerting that evidence established that moneys found were lawfully obtained - Appeal conceded - Convictions quashed - Plea of guilty to lesser offence - Fine imposed

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Appeal allowed
Convictions set aside
Fined for lesser offence on plea of guilty to different charge

Category: B

Representation:

Counsel:

Appellant: Mr P W Catalano
Respondent: Mr L Hobson

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

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

Nil

EM HEENAN J: By notice dated 6 October 2008 the appellant, Bradley Gordon Snadden, applied to this court for leave to appeal against a conviction and sentence imposed upon him after a trial in the Magistrates Court by his Honour Mr McIntyre. The decision of his Honour convicting the appellant was given on 15 September 2008 and, after conviction, Mr Snadden was remanded for sentence and sentenced on or about 10 October 2008 to a period of imprisonment of 9 months, suspended for 18 months.
The charge upon which he was convicted and sentenced was that on 18 June 2008 at Greenfields he was in possession of a prohibited drug with intent to sell or supply to another and that the drug was methylamphetamine. That was a charge laid under the Misuse of Drugs Act 1981 (WA) alleging an offence against s 6(1)(a).
In addition to that particular offence there was a second offence charged, that Mr Snadden was in possession of stolen or unlawfully obtained property, on the same date and at the same place, namely, $1,105 in cash which was reasonably suspected to have been unlawfully obtained. He was also convicted of that offence and the composite penalty, which I have mentioned, was imposed.
The grounds of appeal against those convictions are as follows:
(1)there was a miscarriage of justice, in that the presiding magistrate erred in making findings where he:
(a)rejected the sworn evidence of the appellant as the accused and a defence witness, Melanie Faith Jeffrey, that the cash, $1,105 as referred to in the second charge, was money received from the ANZ Bank and not from selling methylamphetamine; and further,
(b)that his Honour rejected the appellant's sworn evidence that exhibit B4 were the receipts from the ANZ Bank which were obtained by Ms Jeffrey for the appellant on the day of his arrest;
(2)that the presiding magistrate erred in finding that because he rejected the evidence of the appellant and Ms Jeffrey in relation to the explanation of the cash of $1,105, being subject matter of the second charge, that that finding was sufficient to convict the accused on that charge and on the first charge, namely, possession of the methylamphetamine with intent to sell or supply;
(3)that there was a miscarriage of justice in the presiding magistrate entering convictions in respect of both charges when new evidence shows that exhibit B4 in fact relates to two official ANZ Bank receipts which confirmed the evidence of the appellant and his witness, Melanie Faith Jeffrey, as given at the trial.
In addition to the sentence of suspended imprisonment which I have mentioned, the learned magistrate ordered the forfeiture of the sum of $1,105 found in the possession of the appellant and ordered him to pay the costs of the proceedings. He also ordered the destruction of the methylamphetamine.
Leave to appeal from those convictions and sentence on those grounds was granted by his Honour McKechnie J in this court on 11 November 2008 and an application for bail pending appeal was also made and, it seems, granted.
The two appeals come before me today and in the written submissions and affidavits which have been filed in advance of this hearing there is further evidence to show that the amount of money, $1,105, did lawfully come from the ANZ Bank as always contended by the appellant. Counsel for the respondent, having been satisfied that that is the case, very properly concedes that both appeals should be allowed.
In the circumstances therefore, I will quash both convictions and set aside the penalties which have been imposed. I will do nothing about the order for the destruction of methylamphetamine, for reasons which will appear, and I will order that the sum of $1,105 which was confiscated to the State should be repaid to the appellant forthwith. It also follows that Mr Snadden should be entitled to the costs of this appeal and of the costs of the proceedings in the Magistrates Court, where he was wrongly convicted of those charges. There will be orders made that the respondent should pay the costs of the appeal in this court and of the proceedings in the Magistrates Court.
The situation, however, is that Mr Snadden admits that he was in possession of the quantity of methylamphetamine alleged and that this constitutes an offence contrary to s 6(2) of the Misuse of Drugs Act. In contrast to the first offence of which he was convicted, this is an offence of simple possession, without being accompanied by an intention to sell or supply and it qualifies for lower penalties.
Having regard to the result of these proceedings, the normal course would be for me to remit this matter to the Magistrates Court for sentence before a different magistrate after there has been an opportunity to make submissions on the questions of penalty. However, I am urged, both by counsel for Mr Snadden and counsel for the respondent, to exercise the powers which allow the sentencing to be conducted by this court, even though that may involve the loss of at least one right to apply for leave to appeal. I have received submissions in that regard and I have been informed that Mr Snadden enters a plea of guilty to the alternate offence and that that plea is accepted by the respondent.
Consequently, in accordance with that plea, I enter a judgment of conviction against Mr Snadden for being in possession of the methylamphetamine on the date charged and contrary to the provisions of s 6(2) of the Act. That also raises the question of the imposition of penalty and I note that the penalty available for an offence of that kind is a fine of up to $2,000 or a sentence of imprisonment for 2 years or both.
I have received submissions to the effect that Mr Snadden was born in June 1976 and is, therefore, 32 1/2years of age. He works as a builder's labourer for a construction company when work is available and, although he is not on contract at the moment, he has expectations that employment will be available soon. There is no suggestion that he is unable to work or earn a proper living.
He had been in a relationship with a woman who apparently has four children, for whom he was contributing maintenance, but something has happened in that relationship and he is no longer making provision for those children. He has a history of drug use, he says for recreational purposes, as if that were some kind of mitigation, but he says that he is undergoing rehabilitation. He was educated to year 10.
Mr Snadden has a number of previous convictions. The latest previous drug offence was in May of 1997, some 11 1/2 years ago, but in November 2007 he was convicted of being in possession of stolen property and weapons and was fined $3,400. It, therefore, appears that he does not come before this court as a person of particularly good character and one hopes that these brushes with the law will mean that he will abandon these ways because otherwise his future will be very dismal.
In the circumstances of this case, I am satisfied that I should impose a fine of $1,250 for the offence. The order for the destruction of the methylamphetamine stands. These are the orders which I consider should be made.