Shawna Michelle Fattal

Simeon George-McCool was convicted of possession for the purposes of trafficking in MDMA and possession of proceeds of crime.

The Crown sought a nine-month custodial sentence, while the defence sought a non-custodial suspended sentence.

The court considered general sentencing principles, mitigating factors (youthful offender, no prior record, family support, remorse, rehabilitation efforts, employment prospects, father of a child) and aggravating factors (Schedule I drug, trafficking context).

The court found that mitigating factors outweighed aggravating factors and that exceptional circumstances justified a non-custodial sentence.

A suspended sentence with a two-year probationary period and various conditions was imposed, along with ancillary orders.

Four accused were jointly charged with offences relating to a loaded firearm discovered in a vehicle in which they were occupants.

Two accused faced additional counts of transporting, possessing, and controlling the firearm and related ammunition offences.

After the Crown closed its case, all accused sought directed verdicts of acquittal on the basis that the Crown had failed to establish a prima facie case of knowledge or control of the firearm.

The court held that mere presence in a vehicle containing a firearm, coupled with nervous behaviour and seat movements, was insufficient to establish knowledge or control beyond a reasonable doubt, particularly where another unidentified occupant fled the vehicle from the seat where the firearm was located.

Concluding that the circumstantial evidence could not permit a properly instructed jury to find guilt beyond a reasonable doubt, the court granted directed verdicts and acquitted all accused.

The appellant appealed a decision of a Justice of the Peace.

The Court of Appeal found that the Justice of the Peace misapprehended the evidence, which materially influenced the decision to reject the appellant's evidence.

The appeal was allowed and a new trial was ordered.