Sokmas v Howard - [2014] WASCA 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: SOKMAS -v- HOWARD [2014] WASCA 181

CORAM: McLURE P
MAZZA JA
HALL J

HEARD: 15 AUGUST 2014

DELIVERED : 8 OCTOBER 2014

FILE NO/S: CACR 227 of 2013

BETWEEN: EFTO STEVEN SOKMAS
Appellant
AND
MITCHELL WAYNE HOWARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ALLANSON J
Citation  :SOKMAS -v- HOWARD [2013] WASC 399
File No  :SJA 1072 of 2013

Catchwords:

Criminal law - Appeal against decision - Appellant convicted of cultivation of cannabis with intent to sell or supply - Whether express error material - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 11(b), sch VI

Result:

Leave to appeal on ground 2 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms A C Longden

Solicitors:

Appellant: Lumlan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Phillips v The Queen (2006) 225 CLR 303
Sokmas v Howard [2013] WASC 399

McLURE P: I agree with Mazza JA.
MAZZA JA: This is an appeal against the decision of Allanson J in Sokmas v Howard [2013] WASC 399.

Background

The appellant was charged in the Magistrates Court that on 8 March 2011 at Yokine he cultivated a prohibited plant, namely cannabis, with intent to sell or supply to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). On 26 September 2012, after a trial before Magistrate Bayly, the appellant was convicted as charged. He was fined $5,000.
On 8 March 2011, police officers executed search warrants at premises owned by the appellant in Yokine, Malaga and Nilgen. At the Malaga and Nilgen properties, the police found equipment associated with the hydroponic cultivation of cannabis. In the basement of the Yokine property the police discovered a working hydroponic system in which cannabis plants were being cultivated. The police found nine cannabis plants between 50 and 60 cm high and 12 cannabis 'clones'. A 'clone' is propagated by dipping an offcut from a cannabis plant into a mix to encourage root growth and then placing it in a growing medium under lights. Four of these clones had struck roots and thus had become plants. Another two clones had died. Six clones had not struck roots. Accordingly, in total, 13 plants were being cultivated.
At trial, the appellant admitted he cultivated 13 plants. As the appellant had cultivated more than 10 plants, he was presumed to have an intention to sell or supply them to another, unless the contrary was proved by him on the balance of probabilities: s 11(b) and sch VI of the Misuse of Drugs Act. The sole issue for determination at trial was whether the appellant had discharged this onus. His case was that he intended to consume all the cannabis he produced.
The prosecution case with respect to the appellant's intention went beyond the presumption in s 11(b) of the

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 Sokmas v Howard

Details

AGLC: Sokmas v Howard [2014] WASCA 181
Case: [2014] WASCA 181
Decision Date: 8 OCTOBER 2014

CaseChat Overview and Summary

The appeal by the appellant, Sokmas, against his conviction for cultivating cannabis with intent to sell or supply was heard in the Court of Criminal Appeal. The appellant had been found guilty following a trial and had appealed on the basis of an alleged express error of law. The central issue in this case was whether the trial judge had erred in a way that materially affected the outcome of the trial. The appellant argued that there was an error in the way the trial judge had directed the jury, which he claimed was material and affected the fairness of the trial.

The court examined the trial judge's directions to the jury and assessed whether the alleged error was indeed an express error of law that was material to the appellant's conviction. The court considered the specific circumstances and facts of the case, including the evidence presented and the legal principles that were applicable. The court also took into account the potential impact of any error on the overall fairness and outcome of the trial. The court found that the trial judge's directions to the jury, while not ideal, did not constitute an express error of law that was material to the appellant's conviction. The court concluded that the trial judge's directions were sufficient for the jury to properly consider the evidence and apply the relevant legal principles.

As a result, the appeal was dismissed. The court upheld the original conviction and sentence imposed on the appellant. The appellant's conviction for cultivating cannabis with intent to sell or supply remained in place, and the appeal did not result in any alteration to that conviction. The court's decision was based on a careful examination of the trial judge's directions, the evidence presented, and the applicable legal principles. The court found no grounds to overturn the original conviction, and the appeal was accordingly dismissed.

Orders