The Queen v Brown[1997] QCA 170

COURT OF APPEAL

FITZGERALD P

DAVIES JA

MOYNIHAN J

CA No 121 of 1997

THE QUEEN 

v. 

ANTHONY GILBERT BROWN

Applicant

BRISBANE

DATE 28/05/97

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against a sentence imposed in the Magistrates Court at Murgon on 3 March 1997.  On that date the applicant pleaded guilty to one offence of production of a dangerous drug, cannabis sativa, and one offence of possession of a dangerous drug, again cannabis sativa.

The offences were committed on 10 February 1997 and the applicant was sentenced to a fine of $800 which he was given three months to pay, in default of payment imprisonment for 32 days.  A conviction was recorded in respect of each offence.  The applicant who is 44 years of age, born on 27 July 1952, has no prior criminal history.

On 10 February 1997, police executed a search warrant at the residence of the applicant who willingly showed them to an area where five cannabis plants were growing.  Two of the plants were five feet tall and three of them were approximately 18 inches to two feet tall.  During the search police also located two smoking pipes and a small clip-seal bag containing 4 grams of greenleaf material.

The applicant participated in a record of interview in which he stated that the plants, pipes and marijuana were his.  He appeared on his own behalf at the sentence and submitted that he smoked cannabis for medical reasons and produced a certificate from his doctor in support of that submission.  He said that he had discussed his usage of cannabis with psychiatrists and doctors over many years and considered that it was the only successful method by which he could relieve his aggression towards members of his family.  Further he said that he never took the drug away from his property and always smoked it behind closed doors.

The Magistrate accepted that the applicant had pleaded guilty at the first available opportunity, but referred to the illegality of his use of cannabis and the high penalties for growing drugs.  The respondent while supporting the sentence imposed stating that the appropriate range was a non-custodial sentence with or without the recording of a conviction, accepts that on a number of occasions this Court has indicated that convictions would not ordinarily be recorded in these circumstances.

The applicant submits that the sentence was manifestly excessive because of the recording of the convictions and that the Magistrate failed to take into account section 12 of the Penalties and Sentences Act.  The Magistrate did not ask the applicant what effect the recording of a conviction would have upon his economic or social wellbeing or his chances of finding employment and while that might ordinarily be left to the legal representative of a person convicted in these circumstances, the applicant was representing himself and the possibility of not recording a conviction does not seem to have occurred to the Magistrate.

Emphasis was given in the applicant's written outline of submissions prepared on his behalf by Mrs McGinness to the circumstances that the use of cannabis was for personal, said to be medicinal reasons and that the production of cannabis was likewise directed to that end.  The applicant, it was said, resorted to cannabis as opposed to legal drugs in order to avoid certain side effects.

In my opinion the application should be granted and the appeal allowed to the extent of setting aside the recording of the convictions and it is unnecessary to elaborate upon that conclusion beyond saying that that is consistent with the decision of this  Court in Jones v. Irvine, Court of Appeal 535 of 1994, judgment delivered 27 March 1995, where  a  number of previous cases were collected in a considered decision of the Court and in my opinion Irvine supports the course which is sought by the applicant on this occasion.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

THE PRESIDENT:  The order of the Court is application granted, appeal allowed, sentence below varied only to the extent that the recording of convictions is ordered to be deleted.  The sentence is otherwise to stand.