The Queen v Richardson[1997] QCA 161

COURT OF APPEAL

FITZGERALD P

DAVIES JA

MOYNIHAN J

CA 159 of 1997 

THE QUEEN 

v. 

SHANE ANTHONY RICHARDSON

BRISBANE

DATE 28/05/97

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against the sentence imposed in the Magistrates Court in Cairns on 23 April 1997.  On that date, the applicant pleaded guilty to supplying a dangerous drug, cannabis sativa, to having possession of that drug, to supplying another dangerous drug, amphetamine, and to having possession of that drug.  The offences were committed between 30 September 1996 and 9 March 1997, and on each charge the applicant was sentenced to imprisonment for six months to be suspended after two months with an operative period of two years.  He was in custody from 23 April to 1 May when he was released on bail pending this appeal.

The applicant is 23 years of age, born on 17 March 1974 and has served in the Australian Navy for the past six years.  He has no prior criminal history and had only recently become a user of drugs prior to the offences of which he was convicted.  On 10 March 1997, police conducted a search at a residence in Sheridan Street, Cairns but could not locate any evidence of criminal activity at that address.  On the following day, the applicant went to the Cairns Police Station where he informed drug squad officers that he wished to assist them with their inquiries, and that evening, he participated in a record of interview.  In that, he stated that he was involved in supplying cannabis to workmates from October 1996 and estimated that he had supplied 30 to 50 $25 foils of cannabis to his friends who he described as experienced drug users.  The applicant's supplier was his flatmate who provided him with free cannabis as his only remuneration.

The applicant also admitted that he had dealt in amphetamines saying he had often purchased $500 worth of amphetamine, divided that into one gram bags and would sell five of them for $100 each.  He would retain two of the bags as his reward.  At other times, he purchased $100 bags on behalf of his workmates. It was accepted at sentence by the prosecution that the amounts of amphetamine were, in each case, less than two grams.

The charges resulted solely from the applicant's own admissions, the police did not recover any drugs from him and there was no evidence from any other person of any individual supply.  Further, the applicant provided the name of his supplier to police.  Prior to the interview with police, the applicant had been called before a disciplinary board of the Navy where he also made admissions, and at the time of his sentencing, the applicant had yet to receive a decision from the Navy as to what disciplinary action will be taken if any.

However, if the recorded convictions - I omitted to state that convictions were recorded in respect of the offences.  If the recorded convictions stand, it is common ground that he will be discharged from the Navy whereas there seems to be some considerable substantial prospect that if convictions are not recorded he may be permitted to remain in the Navy which will obviously be to his benefit in the manner spoken of in the Penalties and Sentences Act.

At sentence, the Magistrate accepted that the applicant's only gain was a free supply of drugs and that he has only recently commenced to use drugs, but he considered that there were aggravating features in the applicant's conduct including his preparation of the amphetamine for distribution by sale.  The Magistrate went on to say that the applicant had set up a network for the supply of drugs to Navy personnel and he went into the operation with his eyes fully opened.  He received a benefit in the form of the free drugs although no financial gain.

The Magistrate considered that mitigating circumstances included his expression of remorse and his co-operation with police which saved a considerable amount of time and investigative work and he considered however that the applicant must have thought that there was a substantial chance of him being found out, or likely that he would be found out after the police had attended the premises in Sheridan Street, Cairns.

The Magistrate also referred to the applicant's youth and lack of previous convictions as mitigating circumstances but stressed that cannabis is highly prevalent in the community and that the increasing presence of amphetamines is even of greater concern.  He referred to the need to deter people who were similarly minded from setting up business for themselves and considered that a custodial sentence was warranted although he sought to give credit to the applicant's mitigating factors by suspending part of the sentence.

While the respondent supports the sentence imposed, it accepts that a non-custodial sentence was within range and also recognises that, once that point is reached, then in accordance with subsection 9(4) of the Penalties and Sentences Act, a custodial sentence should not have been imposed.

In support of his application for leave to appeal, the applicant submits that the Magistrate failed to adequately take into account his youth, good background, full co-operation and plea of guilty.  He further submits that the Magistrate paid insufficient attention to the effect of recording a conviction upon the applicant's future prospects.

Initially it was submitted that the applicant should have received a fine or a wholly suspended sentence, but later we were informed that the applicant has given instructions that he will consent to community service and to probation if that is what the Court considers is appropriate.

Having regard to the applicant's admissions to the police, the lack of other evidence to support the charges, the effect upon his career, his youth, his good work and history and lack of any prior criminal convictions, to the circumstance that as was accepted by the sentencing Magistrate, the applicant did not, at any time, introduce anybody to the use of drugs, the absence of financial reward, his abstinence from dealing in drugs sometime before he went to the police station, his early plea of guilty and it seems to me that the concession made by the prosecution that a non-custodial sentence would have been within range was correctly made, the Court should grant the application, allow the appeal and impose such a sentence.

The matter I omitted to mention earlier was the significant consideration that the applicant did name his supplier to police which tends to be an unusual circumstance and one which stands very much to the applicant's credit.

Having regard to the various matters referred to, I would grant the application, allow the appeal and set aside the sentence of imprisonment imposed below.  Taking into account the eight days which the applicant has already spent in custody, I would order that he perform community service of 160 hours and that he be placed on probation for a period of 12 months from today and that he report to the probation authorities in Cairns.  I would further order that convictions not be recorded.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

THE PRESIDENT:  The order of the Court is application granted, appeal allowed, sentence imposed below set aside, and in lieu, order that the applicant perform 160 hours community service, be placed on probation for 12 months from today, report to the probation authorities in Cairns and that no convictions be recorded in respect of the offences.