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R v Harrison

 

[2018] QCA 94

COURT OF APPEAL

FRASER JA

GOTTERSON JA

ATKINSON J

CA No 53 of 2018

SC No 1561 of 2017

THE QUEEN

v

HARRISON, Justin Douglas Dean

Applicant

BRISBANE

WEDNESDAY, 23 MAY 2018

JUDGMENT

FRASER JA:  The applicant was convicted on his plea of guilty of possession of a dangerous drug, methylamphetamine, in excess of two grams.  He seeks leave to appeal against the sentence imposed upon him of 18 months imprisonment with a parole release date fixed after six months.  The grounds of the application are that the sentence was manifestly excessive and that the sentencing judge placed too great an emphasis on personal deterrence.

Police intercepted the applicant driving from an address known to police.  The applicant gave the obviously false explanation that he was in the area because he had picked up a muffler; there was no muffler in the car.  The applicant appeared nervous and was fidgeting.  Upon a search of the applicant and his car, police found a clipseal bag in the applicant’s chest pocket containing four grams of substance, of which 2.6 grams was pure methylamphetamine – a purity of 66.5 per cent.  Police also found drug paraphernalia in an Esky, but that is not relevant for present purposes.

When police asked the applicant about the drug and paraphernalia, he offered the obviously false explanation that he did not know they were in his possession.  He was arrested and declined to participate in a police interview.  The value of the drug was between about $1,300 and $2,600 upon an assumption that a gram was sold for between $500 and $1,000, or between about $1,300 and $2,900 if sold in 0.1 gram amounts for being $50 and $150.  The prosecution did not contend that there was a commercial purpose associated with the applicant’s possession and the sentencing judge proceeded upon the conclusion that the drug was intended for the applicant’s own use.

In relation to the second ground of appeal, the sentencing remarks explain why the sentencing judge regarded personal deterrence as a relevant sentencing factor.  The applicant had been punished by fines and, on one occasion, by a sentence of 18 months probation for drug offences on seven occasions between 2009 and 2016.  A probation report tendered at the sentence hearing expressed views that the applicant would benefit from interventions in the areas of substance abuse and social support.  Although he engaged well in two counselling sessions in early 2015, he continued to use substances and report that his use increased when he experienced stress.

Following positive results to cannabis, methylamphetamine and amphetamine in urinalysis after August 2014, the applicant returned a clear result on 6 March 2015 and reported a brief period of abstinence from substance use in early to mid - 2015, but he subsequently returned to regular substance use.  The report states that when the applicant was challenged about his substance use he appeared unmotivated to address it and acted in a blasé manner about it.  Later in 2014 and in the middle of 2015, the applicant committed further drug offences and he failed to report as directed in September 2014 and August 2015.  He was considered unsuitable for further community based orders following the completion of the period of probation in January 2016.  He committed the present offences some four months later.

The sentencing judge accepted that it was to the credit of the applicant that he had not incurred any further drug convictions between May 2016 and when he was sentenced in March 2018, but observed that in the absence of some evidence of attempts at rehabilitation, it was difficult to accede to the submission on behalf of the applicant that he should receive an immediate parole release date.  Having regard to the history to which the sentencing judge referred, it was plainly open to the sentencing judge to give some weight to personal deterrence in the sentence.

In relation to the ground of appeal that the sentence was manifestly excessive, it is necessary to consider all of the material circumstances of the offending and the applicant’s personal circumstances.  The applicant was 30 years old when he committed the offence, so was not entitled to that degree of mitigation usually attracted in sentences of youthful offenders who have not previously been imprisoned.  His plea of guilty was a late plea, having been entered after the matter was set down for trial and after the rejection of an application that the evidence produced upon the police search should not be admitted.  The plea did not evidence remorse or save the community any time.  The evidence that would have been given at trial was, in effect, given during the pre-trial hearing.

In favour of the applicant, the sentencing judge accepted that he had a good work history, he was in current employment, he was well qualified to do the work he was employed to do, and he was regarded by his employer as a reliable and valued employee who would be hard to replace.  References spoke highly of him.  Counsel for the applicant informed the sentencing judge that the applicant suffered a back injury and then started taking cannabis and subsequently amphetamines.

The applicant has two children, aged six months and four years, who live with their mother from whom the applicant had separated.  The sentencing judge was informed that there had been an acrimonious separation and the applicant’s former partner and her family had stopped him from seeing his son but the applicant wished to continue to be the father to both children.  The applicant’s drug use depended upon the pain he suffered, which sometimes could overwhelm him.  However, there could be no challenge to the sentencing judge’s remark that if the applicant was using this highly dangerous drug simply for pain relief, he was very misguided and needed to address his drug use seriously.

Counsel for the applicant acknowledged at the sentence hearing that the applicant could be sentenced at the higher end of the range of between 12 and 18 months imprisonment, but submitted that the applicant should not be required to serve any actual imprisonment.  Such a sentence of 18 months imprisonment with immediate parole was held not to be manifestly excessive in R v Warren [2014] QCA 175.  That decision does not establish, though, that even in the same circumstances it would not have been open for the sentencing judge to require that offender to serve some time in custody.  The amount of the drug possessed in that case and that offender’s personal circumstances have similarities with the present case, but it is a distinguishing factor that that offender’s plea of guilty was not said to be late.

In R v Armstrong [2005] QCA 116, the Court set aside a sentence of two and a-half years imprisonment with suspension after 12 months and resentenced the offender to 18 months imprisonment suspended after the nine and a-half month period that offender had spent in custody pending appeal.  It was indicated that it also would have been within the sentencing discretion for a sentence to have been imposed which required the offender to serve a lesser period of actual imprisonment.  The quantity of drug was similar to the quantity in this case and it was also found to be for that offender’s personal use.  Some circumstances were more serious, notably, that the offender had a drug history described as “appalling” and he committed the offence in breach of bail and whilst under an intensive correction order for earlier offending.  On the other hand, that offender entered an early plea of guilty and was found to have made real efforts towards rehabilitation.  In particular, drug testing established that he had been free from drugs for about a year before the sentence.  The cases are, therefore, comparable in all of the circumstances I considered.  That decision supplies powerful support for the respondent’s contention that the sentence in this case is not manifestly excessive.

The sentence is justified, in particular, by the considerations of deterrence and denunciation referred to by R v Warren and also in this case with reference to the relevance of personal deterrence and the weakness of the evidence concerning the applicant’s efforts towards rehabilitation.

For these reasons, I would hold that neither ground of the proposed appeal is established.  However, the respondent appropriately drew to the Court’s attention that there is a mistake in the endorsement on the indictment and the verdict and judgment record.  It is appropriate to rectify that mistake by directing the Registrar of the Court to substitute 6 September 2018 for the endorsement 6 November 2018 on the indictment and the verdict and judgment record.  I would make those orders and I would order that the application for leave to appeal against sentence should be refused.

GOTTERSON JA:  I agree.

ATKINSON J:  I agree.

FRASER JA:  The orders I have announced are the orders of the Court.

Editorial Notes

  • Published Case Name:

    R v Harrison

  • Shortened Case Name:

    R v Harrison

  • MNC:

    [2018] QCA 94

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, Atkinson J

  • Date:

    23 May 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment SC1561/17 (No Citation) 06 Mar 2018 Date of Sentence.
Appeal Determined (QCA) [2018] QCA 94 23 May 2018 Application for leave to appeal against sentence refused: Fraser and Gotterson JJA and Atkinson J.

Appeal Status

{solid} Appeal Determined (QCA)