- Unreported Judgment
- Appeal Determined (QCA)
COURT OF APPEAL
CA No 150 of 2018
SC No 1488 of 2017
DONACI, Robert Frank Applicant
THURSDAY, 20 SEPTEMBER 2018
HENRY J: The applicant was intercepted by police when driving with his young son. A search of the vehicle’s boot discovered ecstasy weighing 4.015 grams gross and 2.726 grams pure and methylamphetamine weighing .058 grams gross. The ecstasy was hidden in the CD stacker, and the methylamphetamine was in a bag stored under the spare tyre. The applicant was also found to have $4,200 in his pocket, but that was returned to him by police.
He was charged, committed for trial and in due course pleaded guilty to one count of possession of ecstasy in excess of two grams and one count of possession of methylamphetamine simpliciter.
He was sentenced on the first count to 18 months imprisonment with immediate parole release. On the second count he was ordered to perform 50 hours community service.
He applies for leave to appeal his sentence on the ground it was manifestly excessive. His application implicitly relates to the sentences on both counts.
There is no substance to the application.
The applicant’s best point is that he was sentenced on the basis he possessed the drugs for his personal use. On that topic the prosecution acknowledged that while the amount, and 67.9 per cent purity, of the substance containing the ecstasy was concerning there were insufficient other circumstances to contend for an inference of commerciality. Defence counsel explained the applicant had acquired the ecstasy preparatory to a New Year’s Eve celebration and that the methylamphetamine was “mere residue” he had forgotten about.
As an isolated consideration, possession of unlawful drugs for a commercial purpose is inherently more serious than possession for personal use. However, the motivation behind an offender’s possession of unlawful drugs is not the only relevant sentencing consideration. The quantity of the drug and the question of whether an offender is drug dependent are each relevant, indeed, they affect the maximum penalty. Here the applicant was not said to be drug dependent and the amount of ecstasy exceeded the statutory aggravating weight of two grams, thus lifting the maximum penalty from 15 to 25 years imprisonment – see s 9 Drugs Misuse Act 1986 (Qld).
An offender’s antecedents is also relevant. All things being equal, a youthful first offender will ordinarily be sentenced more leniently than a more mature offender with previous convictions. The applicant is in the latter category. He was 36 years old when he offended and has a criminal history. It includes convictions for various offences committed when he was a young adult, including trafficking and possessing ecstasy in Victoria in 2003, for which he received four months imprisonment to be served as an intensive correction order. More recently it includes weapons offences in Victoria in 2016 and possessing dangerous drugs in Queensland in 2016, less than a month before the present offending.
In light of that background it is unsurprising the prosecution below did not submit for a sentence of probation, as the applicant had apparently hoped they would. Indeed, when the learned sentencing Judge below intimated she was contemplating a sentence of two years imprisonment with immediate parole the applicant’s defence counsel responded, “I don’t cavil with that.”
In the end result her Honour opted for a somewhat lesser head sentence with immediate parole but included a community service order, hardly a harsher outcome than that conceded below. Defence counsel’s concession makes it difficult to sustain a complaint of manifest excess – see for example the observations of Keane JA as he then was in R v Walsh  QCA 391 .
Compounding that challenge is this Court’s decision in R v Warren  QCA 175. The circumstances of the offending and the offender there were similar to those here. Warren’s application for leave to appeal his sentence of 18 months imprisonment with immediate parole release was refused. In observations which could rightly be made about the present case, McMurdo J, as he then was said:
“The present applicant must do more than demonstrate that another sentence not involving a term of imprisonment, might have been imposed. He must demonstrate that in the circumstances of his case, it was not open to impose this sentence. In my conclusion, that has not been demonstrated. The order for immediate release on parole adequately allowed for the mitigating factors, most importantly, the plea of guilty and the absence of a commercial purpose. It was open to impose a term of imprisonment, as the sentencing judge remarked, having regard to considerations of deterrence and denunciation.
The length of the term may not have been that which others would impose, but it doesn’t reveal an error in the exercise of the sentencing discretion.”
Given the outcome in a case as comparable to the present as Warren, it is clear the applicant’s proposed ground of appeal has no prospect of succeeding. The application for leave should be refused.
I would order:
Application for leave to appeal sentence refused.
SOFRONOFF P: I agree.
PHILIPPIDES JA: I also agree.
SOFRONOFF P: The order of the Court is that the application for leave to appeal against sentence is refused. Adjourn the Court, please.
- Published Case Name:
R v Donaci
- Shortened Case Name:
R v Donaci
 QCA 226
Sofronoff P, Philippides JA, Henry J
20 Sep 2018
|Event||Citation or File||Date||Notes|
|Appeal Determined (QCA)|| QCA 226||20 Sep 2018||Application for leave to appeal against sentence refused: Sofronoff P, Philippides JA and Henry J.|