Wilmot v Saleri

[1997] QCA 125

COURT OF APPEAL

[1997] QCA 125

DAVIES JA
WILLIAMS J
MACKENZIE J

CA No 26 of 1997

P WILMOT

v.

OSCAR SALERI  Applicant

BRISBANE

..DATE 18/04/97

JUDGMENT

MACKENZIE J:  This is an application for leave to appeal against a penalty imposed on the applicant in the Cairns Magistrates Court for possession of heroin.  The applicant is an Italian national, 29 years of age, who was in Australia on a holiday visa at the time of conviction.

The police searched the room at the hotel at which he was staying and found a small quantity of heroin, undoubtedly less than 0.4 grams, which he said was the remains of heroin purchased by him in Kings Cross for $300.  He told the police that he used the heroin to overcome the effects of a car accident in Italy.

That account is similar to one which was given to a doctor who had been consulted by the applicant the evening before the police intervention.  The doctor had been told by the applicant that he had become dependent on narcotic drugs following a car accident in which he suffered multiple injuries.

The solicitor for the applicant told the Magistrate that methadone had been prescribed by the doctor.  Although it is not expressly stated in the doctor's statement that that was the case, it is consistent with it in that he said the applicant had sought help with "doctor prescribed and doctor supervised medicine".

The applicant is financial director of a family company in Italy.  The submission made to the Magistrate was that there was some real prospect that he would be able to obtain funds for investment and that was part of the reason why he came to Australia.  It was predominantly for a vacation but he had met with property developers and the like and the solicitor said that from what he understood it may be his intention to have some dealings in Australia in the future.

The applicant's solicitor asked the Magistrate to exercise the discretion not to record a conviction on the basis that it may affect the issue of an Australian visa in the future and, as I understand it, because it may affect his standing in the eyes of people who may otherwise have had dealings with him in the future.  It was also put to the Magistrate that it was not impossible that a conviction may have some effect in Italy.

The Magistrate expressed the view that it was not the function of the Court to try to influence the outcome of transactions with other official bodies and that it was in the public interest that public authorities were entitled to know if a person was dependent upon narcotics.

It is a factor in deciding whether to grant or refuse a visa under the Migration Act that past criminal conduct and general conduct show that the person may not be a person to whom a visa should be given. 

From what I have said, it will be seen that the apprehended risk to the applicant's future business activities in Australia or Italy is unspecific.  In cases where that kind of risk is relied on successfully, it is often the case, although not always, that there is a more specific focus than that.

Mr Martin, for the Crown, submitted that the factors which justified the exercise of the discretion not to record a conviction in cases of first offenders in cases of possession of cannabis did not apply to heroin cases.  He submitted that it was inappropriate for such a rule to be applied generally.  While not excluding the possibility that there may be rare occasions where it is appropriate not to record a conviction in such cases, there is much to be said for the Crown's approach.

It was submitted by Mr Rafter that the present case had mitigating features peculiar to it.  The factors were, although not put in these terms, that it was not recreational use - it was in possession because there was an addiction in consequence of medical treatment rather than choice  - and that the applicant had displayed the intention, prior to the police becoming involved, to obtain legally prescribed substitute medication.

The view that I take of the matter is that it was open to the Magistrate to impose a conviction in the circumstances of the case.  It may be conceded that the case does have the unusual features that I have mentioned and it may be that had the Magistrate chosen not to impose a conviction, that decision would equally not be appealable. 

It is my view that the matter lies in that borderline between the imposition of a conviction and declining to impose a conviction.  When the matter remains balanced in that way, it cannot, in my view, be said that the discretion to record a conviction has miscarried to the extent that requires correction.

With respect to the fine, the applicant is a 29 year old man.  We were referred to the matter of Hennessy in which a somewhat lower fine was imposed in the case of a person who was somewhat younger.  In my view, Hennessy does not provide any general guidance as to the level of penalty that should be imposed for this sort of offence and I am not persuaded, even if the applicant had, as appears to have been taken to be the case, spent a day in custody, that the fine of $1,200 is manifestly excessive.  I would therefore refuse the application.

DAVIES JA:  I agree.

WILLIAMS J:  I agree.

DAVIES JA:  The application is refused.

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