COURT OF APPEAL

DAVIES JA

McPHERSON JA

LEE J

CA No 81 of 1997

THE QUEEN

v

DERRICK GORDON HALL Applicant

BRISBANE

DATE 12/05/97

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the Supreme Court on 7 March this year to two counts of possession of dangerous drugs. The first of these was that on 2 February 1996 he unlawfully had in his possession methylamphetamine in various forms, tetrahydrocannabinol, cocaine and lysergide. The MDMA, which I will call it for short, was a thing specified in the Second Schedule to the Drugs Misuse Act 1986 and the quantity exceeded the quantity specified in the Third Schedule.

A second count was that on 31 May last, he unlawfully had in his possession lysergide, MDMA, tetrahydrocannabinol and methylamphetamine, and in that case the lysergide exceeded the quantity specified in the Third Schedule.

The appellant was sentenced to three years imprisonment on each offence, 87 days pre-sentence custody were declared to be imprisonment already served under the sentence. He appeals against that sentence, although Mr Collins on his behalf does not quibble with the three years but submits that a more generous allowance ought to have been made in particular for the plea of guilty on an ex officio indictment.

The applicant is 28 years of age, having been born on 1 May 1969.  He has two previous but apparently minor drug-related convictions, one in February 1988 of possession of a dangerous drug for which he was fined $250, and one in 1995 of possession of a pipe for which he was fined $100.

At 10.30 p.m. on 2 February 1996 the applicant's car was pulled over on the Southeast Freeway because he had been speeding. When questioned he appeared to be affected by liquor or a drug, and when it was found that his condition was not caused by alcohol the police searched his vehicle. They found the drugs to which I have already referred. There is some question as to whether the applicant owned all of the drugs but none that he knew of their presence in his car. The applicant said that he was addicted to methylamphetamine. Also found in his car was a set of scales and a number of receipts with his name on them.  He was arrested, charged and granted bail.

The offence of 31 May 1996 occurred whilst the applicant was on bail. The police searched his premises where they found the drugs to which I have also referred. The lysergide consisted of 350 tabs, the amount being six times the amount specified in the Third Schedule. It was submitted on behalf of the Crown and accepted by His Honour that it was a commercial quantity and that the offence therefore had a commercial element to it. The Crown said that the drug had a street value of $9,000 although the appellant claimed that it cost him only $1,200 although it was said it was cheap at that price.

Also located at the applicant's premises was a strainer with remnants of methylamphetamine on it, a set of scales and $60 curiously which appeared to have been flushed in the toilet although it had not gone down. There were also four mobile phones in and around the house. The applicant was apparently seen running from the house.  He was later arrested.

There is no doubt that these were serious cases of possession. As His Honour the sentencing Judge pointed out, the most serious of these was a possession of LSD which he described as one of the most pernicious of drugs, and as I have mentioned, that this was a commercial quantity. His Honour therefore thought the second offence was particularly curious and, in the circumstances, called for the imposition of a substantial custodial term.

In the applicant's favour is his relatively young age and the absence of any substantial prior convictions. He has not previously been sent to gaol. Some allowance must also be made for his early plea of guilty, although it must be said that these can hardly be said to be attributable to remorse given that there was plainly no defence to either of the charges.

There were some other matters put forward in his favour both below and before this Court in the written outlines by Mr Collins.  It was said that the time spent in pre-sentence custody had a great impact on him and left a lasting impressions. It was said that as a result of his incarceration he has lost a lot of property which was in the house in which he was living. It was said that he has distanced himself from the drug community since his release on bail, and it was said that he had a very supportive family. It was also said that he had a history of employment and a guarantee of full-time employment when he is released, although apparently he was not in employment at the time of commission of either of these offences.

As I have already said, it was not contended on his behalf in this Court that he should not have received a custodial term, nor was it submitted that the term of three years was excessive. The submission was that, having regard to the factors in his favour to which I have referred, the learned sentencing Judge should have recommended eligibility for parole after 12 months.

The sentence imposed on the applicant in the absence of some such recommendation was, in my view, a high one and there is therefore some merit in the submissions made for the applicant. However, having regard to the seriousness of these offences, including the commercial element involved in the second, and the importance of public deterrence in cases of this kind, I cannot be satisfied that the sentence imposed was outside the range of a sound sentencing discretion. Accordingly I would refuse the application.

McPHERSON JA: I agree.

LEE J: I agree.

DAVIES JA: The application is refused.