The Queen v Slack[1998] QCA 142

COURT OF APPEAL

PINCUS JA

McPHERSON JA

DOWSETT J

CA No 442 of 1997

THE QUEEN

v.

PATRICK WILLIAM SLACK Applicant

BRISBANE

DATE 19/03/98

JUDGMENT

McPHERSON JA:  The applicant seeks leave to appeal against his sentence imposed in the Supreme Court on 2 December 1997. He was charged with a count of supplying a dangerous drug, a count of unlawfully producing a dangerous drug with the circumstance of aggravation in that the quantity of the drug specified in the schedule of the Drugs Misuse Act exceeded the quantity identified in Schedule 3, a count of being in possession of a document containing instructions about how to produce a dangerous drug, a count of possessing a dangerous drug and one count of possession of things used in connection with a crime. The relevant dangerous drug in all instances was cannabis sativa.

The applicant pleaded guilty to these charges and was convicted and sentenced to 200 hours of community service with convictions to be recorded. The hours of community service were apportioned as to 40 hours for each charge.

The offences charged arose out of matters that occurred on 24 May 1997 when the police executed a search warrant at the applicant's residence at Red Hill in Brisbane. The police asked the applicant, who was at that time a 21 year old student, whether he had anything to declare, whereupon he showed them five cannabis plants of total weight 566.9 grams which he was growing in a hydroponic system in his bedroom. They also discovered a quantity of hydroponic chemicals, a bong, a set of instructions regarding growing of cannabis, a clip-seal bag containing .1 of a gram of cannabis seeds and another bag containing 14 grams of cannabis.

A further quantity of cannabis was found in a bag in the living room but a house mate claimed that this belonged to him. The applicant admitted he had supplied it to that person. He also admitted to growing the cannabis as a hobby for about three months and said it was for his own use; however he admitted that he did intend to share it with others.

The applicant submits that the sentence imposed is manifestly excessive in that, although the order for 200 hours of community service was not unreasonable, the Judge ought also to have ordered that no convictions be recorded. In that regard he relies on his cooperation with the police, his early plea of guilty and his personal circumstances. He submits that the learned trial Judge gave insufficient weight to these considerations and, that if no conviction were recorded and he fails to comply with the orders imposed, the opportunity to record a conviction would then present itself on a later occasion.

The applicant studied for some time at QUT and at the University of Queensland. He was, at the time in question, undertaking a TAFE course in web design and his counsel at the hearing said that he hoped to obtain employment in the information technology field. This, it was said, may involve Government work. Like many, and perhaps most other people in Australia, he also hopes to travel overseas, and it was said that this might take place in June or July 1998.

The learned sentencing Judge described the applicant's action as "a relatively sophisticated but small scale hydroponic production" of cannabis essentially for the applicant's own use. The applicant embarked on the enterprise because of his concern about the cost of obtaining the drug from other sources. The learned Judge remarked that the elaborateness of the enterprise upon which the applicant apparently enthusiastically embarked weighed against the other mitigating factors and was influential in his Honour's decision that a conviction should be recorded.

The applicant has one prior conviction dating from February 1996, when he was fined $70 in the Magistrates Court for using insulting words. No conviction was recorded for that offence on that occasion.

So far as the matter of recording convictions for drug offences of this general and, I will say, minor kind is concerned, the question has been considered in several cases that have reached this Court. In Calam v. Walton (CA 44 of 1995 24/4/1995) the Court of Appeal allowed an application that the recording of convictions against a 24 year old be deleted. The applicant on that occasion was also convicted of the production and possession of cannabis.

In R v. Richardson (CA 159 of 1997 28/5/1997) the Court of Appeal reduced the sentence of an applicant who pleaded guilty to supplying and possession of cannabis and amphetamine. His sentence was reduced from a custodial term to an order for community service and probation and, in consideration of the effect it was shown to be likely to have on his employment prospects in the Australian navy, his convictions were ordered not to be recorded. The case was, however, one in which the whole sentence was, for other reasons, liable to be upset and so came under review before the Court on an original basis.

In Dickson and Jones v. Irvine (CA 535 of 1994 27/3/1995) the Court of Appeal went so far as to speak of a "distinct" practice of declining to record convictions where the offender has committed a minor offence or minor offences relating to marijuana. There it was ordered that the applicant's convictions for possession and production of cannabis should not be recorded.

On the other hand, in Graczyk v. Melda (CA 86 of 1994 14/6/1994) this Court did not interfere with the recording of the applicant's convictions for production and possession of cannabis.

The cases show no completely uniform pattern and it would, no doubt, be right to say that factors, such as the amount and the determination with which the cannabis has been possessed or produced, and what was done or intended to be done with it, are factors that affect the sentencing discretion. In this case it should not be overlooked that the amount involved was, although not by much, such as to bring it within the quantity specified in Schedule 3 so as to constitute an aggravating circumstance under the statute.

In the present case the learned sentencing Judge was aware of these decisions, some or all of which were cited to him and, in one of which, that is Richardson, he was a member of the Court that gave the decision. It cannot be said that his Honour failed to take account of the tendency of Courts not to record convictions where the amount of cannabis involved is small and, indeed, he specifically referred to that tendency in the course of his submissions. His remark that this was a more elaborate enterprise, rather then simply the case of a first offender in possession of a small quantity of the drug for his own use, shows the way in which he approached the matter.

Having a discretion to  record or alternatively not to record a conviction and, with that matter and others in mind, he exercised it in favour of recording a conviction. Unless we are prepared, which I am not, to say that a Court is duty-bound not to record a conviction in a case of this kind, it is, I think, difficult to identify any compelling respect in which the sentencing discretion can be said to have miscarried in this case.

It remains to mention the two matters relied on by the applicant's counsel at the sentencing hearing as amounting to particular prejudice in the applicant's case. The reference to his TAFE course and web design is pretty vague. We are not told how far he has progressed or with what degree of success, and the same may be said of the statement that he may, in future, be involved in trying to get employment with Government. Whether having a recorded conviction would affect an attempt by him to obtain such employment is assumed rather than stated or demonstrated in the submissions of counsel either below or in this Court.   I have not been successful in identifying the basis for that assumption.

It is true that regulation 29 of the regulations under the Public Service Administration and Management Act 1988 requires an existing officer in the public service to report the fact that he has been convicted of an indictable offence, but under that regulation reporting is also required if an officer is merely charged with such an offence. Not recording the conviction would not help the applicant here if he were, in any application he might make to the public service, required to disclose the fact of his having been charged with an indictable offence.

As regards the travel overseas, I would simply refer to what was said by members of this Court in R v. Gallagher (CA 352 of 1997 19/12/97).  There is no obstacle, of which I am aware, to obtaining an Australian passport from the fact that a conviction of any kind has been recorded. It is rather a matter for the country of entry and the laws of that country to determine whether the fact of such a conviction would affect the prospects of an Australian passport holder of being admitted there.

I do not think it possible for us to attempt, by any decision we give in this Court, to control the laws of foreign states; but it may be said that, if he were to be asked whether he had been convicted, the question would have to be answered, one would presume, according to the law of the place he was trying to enter and not according to our law.

In all this, I can find no ground for interfering with the discretion of the sentencing Judge. As I have already said, he had a discretion whether to record or not to record a conviction. If he had decided not to do so, it might very well have been difficult to challenge the decision on appeal. Having decided, as he did, that a conviction should be recorded and not, so far as I can see, having made any error in the exercise of that discretion, I am not able to say that it is a case in which this Court would be justified in intervening to set aside that decision. In the result I would refuse the application for leave to appeal.

PINCUS JA:  The practice appears to have developed, with some encouragement from this Court, not to record a conviction in relation to minor marijuana offences, especially first offences, and especially when the offender is a young person. The present appears to me to be a marginal case in the sense that there were features which made the offence a little more serious than others in which a conviction had not been recorded.

I agree with the observations made by Mr Justice McPherson to the effect that there is no discernible error either as to the result or in the reasoning below and it does not appear to me that we would be justified legally in interfering with His Honour's decision. I, too, would dismiss the application.

DOWSETT J:  I also agree.

PINCUS JA:  The application is refused.