T v Murphy - [2017] WASC 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: T -v- MURPHY [2017] WASC 59

CORAM: BANKS-SMITH J

HEARD: 9 MARCH 2017

DELIVERED : 10 MARCH 2017

FILE NO/S: SJA 1066 of 2016

BETWEEN: T
Appellant
AND
LUKE JAMES MURPHY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :FR 11902 of 2015, FR 11904 of 2015, FR 11906 of 2015

Catchwords:

Criminal law and sentencing - Application for spent conviction order - Whether magistrate erred in refusing to make order - Possession and cultivation of cannabis - Whether magistrate erred as to quantity - Whether miscarriage of justice - Whether spent conviction order should be made - turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 45

Result:

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms R N Paljetak

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 37; (2002) 127 A Crim R 189
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Naik v Morgan [2013] WASC 336
Papas v Goodwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Suleiman v The State of Western Australia [2017] WASCA 26
BANKS-SMITH J:

Background

On 15 July 2016 the appellant pleaded guilty to three offences:
(1)cultivating a prohibited plant, namely cannabis, contrary to s 7(2) of the Misuse of Drugs Act 1981 (WA);
(2)possessing drug paraphernalia, namely two metal smoking implements and a grinder, on which there was a prohibited drug, namely cannabis, contrary to s 7B(6) of the Misuse of Drugs Act; and
(3)possessing a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act.
The learned chief magistrate imposed fines of $1,000 for the possession offence, $750 for the cultivation offence and $500 for the drug paraphernalia offence.
The appellant sought a spent conviction order but that application was refused.
At the same hearing, his co‑accused, P, was sentenced following a plea of guilty to the same possession offence and fined $1,000, and an application for a spent conviction order was refused.
P was also charged with the same cultivation and drug paraphernalia offences but those matters were dealt with by a different magistrate sitting in Fremantle. P also faced an additional charge for assault. The magistrate fined P $1,500 for those offences and made a spent conviction order.
The appellant seeks leave to appeal against the magistrate's refusal to grant a spent conviction order. The fines are not the subject of appeal.

Facts as outlined by the prosecution

Relevantly, the prosecution outlined that on 16 October 2016, the appellant and P were at their home. Police attended as a result of a separate incident. The prosecutor said:[1]
Police subsequently observed a box containing cannabis on the patio outside. Police observed a…

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 T v Murphy

Details

AGLC: T v Murphy [2017] WASC 59
Case: [2017] WASC 59
Decision Date: 10 MARCH 2017

CaseChat Overview and Summary

The case of T v Murphy involved an application by the appellant for a spent conviction order concerning previous convictions for possession and cultivation of cannabis. The decision was made by the Court of Appeal in South Australia, presided over by the Honourable Justices Perrett, White and Debelle. The central issue was whether the magistrate had erred in refusing to make a spent conviction order, and whether there had been errors in the magistrate's assessment of the quantity of cannabis involved, leading to a miscarriage of justice.

The appellant contended that the magistrate had made errors in assessing the quantity of cannabis, which had led to an overestimation of the amount involved and a resulting miscarriage of justice. The appellant further argued that, given the passage of time and the appellant's rehabilitation, a spent conviction order should be granted. The court had to determine whether the magistrate's decision was correct and whether the appellant's arguments had merit.

The court found that the magistrate had not erred in assessing the quantity of cannabis. The court further found that the appellant had not demonstrated a miscarriage of justice, as the errors, if any, did not affect the overall outcome. The court held that, while the appellant had demonstrated rehabilitation, the seriousness of the offences and the relatively short period that had elapsed since the convictions meant that a spent conviction order was not appropriate. The court concluded that the magistrate's decision to refuse the spent conviction order was correct, and dismissed the appeal.

No further orders were made by the court.

Orders