Calam v Walton [1995] QCA 233

1 [1995] QCA 233 COURT OF APPEAL McPHERSON JA MOYNIHAN J de JERSEY J CA No 44 of 1995 M J CALAM v. GARETH ANDREW WALTON Applicant BRISBANE ..DATE 24/04/95 JUDGMENT -- 1 of 6 -- 240495 JUDGMENT 2 McPHERSON JA: I will ask Mr Justice de Jersey to deliver the first judgment. de JERSEY J: The applicant pleaded guilty in the Magistrates Court to the possession of cannabis and the production of cannabis. The Magistrate fined him on both counts and recorded convictions. The fine for production was $720 and the fine for possession was $600. The application before us concerns only the recording of convictions. The charges arose out of a police raid on the applicant's premises. The police found six marijuana seedlings and marijuana seeds. The seedlings were in a pot on a balcony of a unit. They had been planted the previous week and were about one or two inches high. It was submitted on behalf of the applicant before the Magistrate that he planted the plants for his own personal use. As to the number of seeds there was some dispute about this. The police allege that there were about 200, the applicant about 30. The Magistrate did not hear evidence about this but seems to have proceeded on the basis that there were about 200. In the end, that discrepancy probably does not matter very much. The applicant was charged with other offences relating to all of this. They were possession of a water pipe, which he used in relation to the use of drugs, possession of an unlicensed firearm and obstruction of the police. All of these things were related to the raid and all of them led to fines. -- 2 of 6 -- 240495 JUDGMENT 3 Convictions were recorded by the Magistrate for those as well but the applicant successfully appealed to a District Court Judge under section 222 of the Justices Act in relation to those matters. The District Court Judge deleted the recording of convictions for them so it is only the possession and production counts, the indictable offences, which now concern this Court. The basis of the application, of course, is that there was no ground upon which the Magistrate could reasonably exercise his discretion to record convictions for the possession and production counts consistently with authority. The applicant is a 24-year-old man of good character with no previous criminal convictions. Those facts, of course, weigh heavily against the recording of convictions although, on the other hand, it must be noticed that the production of cannabis in particular is prima facie a much more serious thing than is the mere possession of it or the possession of the implements to which I referred earlier. The Magistrate was told that the recordings of convictions in relation to these offences would likely have adverse effects in relation to the applicant's employment and the material put before us today indicates that he did lose his employment as a result of them and is presently unemployed. No doubt he will be disadvantaged as has been claimed in finding future employment if these convictions stand. The primary submission on behalf of the applicant was that it was now generally accepted as a matter of sentencing practice -- 3 of 6 -- 240495 JUDGMENT 4 that in relation to relatively minor marijuana offences a conviction should not be recorded particularly for defendants with no previous convictions. We were referred in relation to that to Dixon and Jones against Irvine, Court of Appeal 535 of 1994, a case of unlawful production which led to fines ranging downwards from $900. The case involved about 20 marijuana plants of varying heights up to 2 feet and an unspecified number of seeds. So, the case was not unlike this one particularly when one notices that the applicant there had no prior criminal convictions. He was, one notes, 53 years old, a much older man than the current applicant. The Court did say this, and I quote from page 4 of the reasons: "A distinct practice of declining to record convictions where the offender has committed a minor offence or minor offences relating to marijuana is discernible. That is, applied to persons with no significant prior convictions and the case to be now discussed shows that in special circumstances even offenders who have committed prior offences may be considered to merit the advantage of not having a conviction recorded. It is notable that most of the cases of this kind are relatively minor drug offences involving people with no significant criminal record related to young offenders." It was accepted there that the cannabis was for his own use. Now, significantly, it must be acknowledged that that decision in Dixon and Jones and Irvine was given after the Magistrate dealt with this case. Counsel for the Crown conceded before this Court that he could not distinguish this case from the case which came before the Court of Appeal in Dixon and Jones and Irvine. -- 4 of 6 -- 240495 JUDGMENT 5 One hesitates to differ from the exercise by a discretion of a Magistrate in a case like this particularly a Magistrate who is plainly doing his best to counter drug related activity in his local area. The Magistrate here gave plainly considered reasons for the approach he took to the recording of convictions. They appear in the record and amount to two closely typed pages. They read as a perfectly rational response to what is perceived in his local region to be a difficult problem to be countered by serious responses on the part of the Court. But, in the end, and with great respect, I feel that this is a case where we should, consistently with the approach illustrated in particular by Dixon and Jones and Irvine, interfere with that exercise of discretion. In other words, I feel that we should approach the case on the basis that there is no sufficient basis for recording a conviction against a relatively young offender, here 24 years old, with no prior criminal history, previously of good character, who has produced a relatively small amount of marijuana for his own use where there is a likely prejudice to his present and future employment should convictions be recorded. I would therefore allow the application and order that the recording of convictions be deleted but I hasten to emphasise in conclusion that the decision which has principally influenced me in my approach to the case, Dixon and Jones and -- 5 of 6 -- 240495 JUDGMENT 6 Irvine, was given after the Magistrate dealt with this matter in Cairns. McPHERSON JA: I agree with the reasons that have been given by Mr Justice de Jersey and with the order which he proposes. MOYNIHAN SJA: So do I. McPHERSON JA: The order of the Court is that the application for leave to appeal is granted, the appeal is allowed, and the direction to record convictions in this case is deleted. ----- -- 6 of 6 --