The Queen v McLaughlin[1997] QCA 473

HELMAN J:  On 11 September 1997 the applicant came before the Supreme Court in Brisbane to answer an indictment containing ten counts of offences against the Drugs Misuse Act 1986:  four counts of possessing the dangerous drug cannabis sativa, four counts of possessing the dangerous drug methylamphetamine, one count of possessing methylamphetamine with the circumstance of aggravation that the quantity of the drug exceeded two grams which is the quantity of methylamphetamine specified in the Drugs Misuse Regulations 1987 schedule 3, and one count of possessing things for use in connexion with the production of a dangerous drug.  The Crown allegation was that the latter drug was methylamphetamine. 

The applicant pleaded guilty to all counts. The learned sentencing Judge accepted that the pleas were timely; the offences were committed late last year and early this year. The first three offences charged on the indictment - one count of possessing cannabis sativa and two counts of possessing methylamphetamine, one with the circumstance of aggravation - were committed on 23 December 1996. The seven remaining offences were committed later when the applicant was at liberty on bail. The last two offences were committed on 27 February 1997.

The applicant was sentenced to imprisonment for four years for possessing methylamphetamine with the circumstance of aggravation, to imprisonment for three years for possessing things for use in connexion with the production of a dangerous drug, to imprisonment for twelve months for each offence of possessing methylamphetamine, and to three months for each offence of possessing cannabis sativa. His Honour directed that the ten sentences be served concurrently, but cumulatively upon a sentence for receiving stolen property imposed on the applicant on 28 April 1993 in the Brisbane District Court.

The applicant had pleaded guilty to the receiving offence and was sentenced to imprisonment for two years, suspended after three months. The operational period was five years less one day, so it can be seen that the drug offences were committed during the operational period of the suspended sentence. Before sentencing the applicant for the drug offences, his Honour ordered that the applicant serve the whole of the suspended imprisonment.

The application before us is made on the ground that the sentences of imprisonment of four years and three years were manifestly excessive. I should add that no complaint was made to us about the order that those sentences be served cumulatively upon the sentence for receiving stolen property. The applicant is twenty-eight years old, having been born on 18 October 1969. His parents separated when he was thirteen. He completed Grade 10 at school, but continued his studies while awaiting sentence. He has worked as a cleaner and general labourer. He has been addicted to drugs, which explains, at least in part, his lengthy criminal history which began in May 1983, when he was dealt with in the Adelaide Childrens Court for house breaking and larceny. He has been convicted of many offences since then, as a child and as an adult:  among them offences of breaking into premises, larceny, false pretences, motor vehicle offences, assaults, and drug offences. On behalf of the applicant, Mrs Richards made particular reference to the applicant's early pleas of guilty, to his employment history which she described as "reasonable", to the fact that although addicted to drugs when the offences were committed he was drug-free after being in custody, to the fact that the drugs were for his personal use, and to the totality principle. The penalty imposed on the applicant of imprisonment for five years and nine months in all with no recommendation for parole was, Mrs Richards submitted, manifestly excessive. A head sentence for the drug offences of imprisonment for three years, with a recommendation for parole after nine months, would have met the case, she argued.

The submission concerning the recommendation for parole raises questions concerning the power of the Court here and below to make such a recommendation in a case like this which were debated during the hearing of the appeal, but on the view that I take of this matter it is not necessary to consider those questions further.

The penalty imposed on the applicant was a heavy one, but I am not satisfied that it was manifestly excessive. The quantity of the dangerous drug which is the subject of the charge for which the applicant was sentenced to imprisonment for four years was ten times the amount provided for in the schedule, and the sentence of imprisonment for three years was imposed because the applicant was found to be in possession of the means of manufacturing the dangerous drug. It must be said that both of those offences are particularly serious.

The applicant was entitled to some consideration for the mitigating features Mrs Richards has referred to, but the record shows he was given that. At the end of his Honour's sentencing remarks he said, referring first to the applicant's timely plea, "had it not been for that and perhaps one or two other things in your favour, I would have been inclined to impose a term of five years imprisonment, even bearing in mind the totality principle."

Apart from the gravity of the offences, there are in my view, two features of the case that demonstrate that the sentences complained of were not excessive:  first, the applicant's extensive criminal history which his Honour justifiably referred to as "appalling", and secondly, the fact that the later offences were committed while he was at liberty on bail for the earlier ones.

The applicant was clearly shown to be such a persistent offender as to justify the penalties imposed. I should refuse the application.

THE CHIEF JUSTICE:  I agree.

THOMAS J:  I agree.

THE CHIEF JUSTICE:  The application is refused.