The Queen v Morrison[1998] QCA 162

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 391 of 1997

Brisbane

[R v Morrison]

THE QUEEN

v

PHILLIP JOHN MORRISON

(Applicant) Appellant

Fitzgerald P

Davies JA

Pincus J.A.

Williams J

Fryberg J

Judgment delivered 26 June 1998

Separate reasons for judgment of Fitzgerald P, Davies JA and Williams J, joint reasons of Pincus JA and Fryberg J; all concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED, SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF THE APPELLANT IS SENTENCED TO IMPRISONMENT FOR 5 YEARS WITH A RECOMMENDATION THAT HE BE ELIGIBLE FOR PAROLE AFTER 18 MONTHS.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 26 June 1998

The circumstances giving rise to this appeal are set out in the extensive reasons for judgment of Williams J., which have considerably simplified my task.  I am in general agreement with those reasons, and support the orders which his Honour proposes.  I propose to elaborate on only one matter.

It is well established that, notwithstanding s. 15 of the Penalties & Sentences Act 1992,^[1] the prosecution must prove disputed matters which it relies on at sentencing which are not necessarily concluded against a convicted person by the jury verdict or guilty plea.^[2]  A number of decisions of the Court of Criminal Appeal,^[3] and one decision of this Court,^[4] hold that factual issues for the sentencing judge’s decision need not be proved beyond reasonable doubt but only on the balance of probabilities, subject to the proviso that the requisite degree of probability is commensurate with the importance and gravity of the issue and the consequences.

All of the decisions of the Court of Criminal Appeal preceded the decision of the High Court in Anderson v. R.,^[5] in which a majority held that, in South Australia, the standard of proof which rests on the prosecution is “the ordinary criminal standard, namely, beyond reasonable doubt”.^[6]  Since then, the Western Australian Court of Criminal Appeal,^[7] the New South Wales Court of Criminal Appeal,^[8] and the Victorian Court of Appeal,^[9] in each instance constituted by five judges, has each held that proof beyond reasonable doubt is required in its State.  This Court, consisting of five judges, is called upon to decide whether, in future, proof beyond reasonable doubt should also be required in Queensland courts in relation to disputed prosecution allegations at sentencing.  The Court is free to overrule Nardozzi and the earlier decisions of the Court of Criminal Appeal if to do otherwise would perpetuate error.^[10]

As Pincus J.A. pointed out in his dissenting judgment in Nardozzi, the position in Queensland is not readily distinguishable from the South Australian position which the High Court dealt with in Anderson.  Similarly, the Queensland position is not obviously different from the positions in New South Wales, Victoria and Western Australia.  In particular, the Penalties and Sentences Act does not require that the previous Queensland rule be continued.  In these circumstances, there is obviously good reason for Queensland courts to follow the majority High Court opinion in Anderson.  There are also powerful reasons why the law in Queensland should be brought into line with the law in all other States,^[11] especially since the courts in each State enforce Commonwealth law in addition to the law of the State.

Much of the criminal law of Queensland is statutory.  The most notable example is, of course, the Criminal Code, but numerous other statutes, including the Penalties and Sentences Act, the Evidence Act 1977, the Bail Act 1980 and the Corrective Services Act 1988, determine large areas of substantive and procedural criminal law.  Not only are common law rules used in the interpretation of the applicable statute law,^[12] but the common law also supplements the legislation.^[13]  Generally speaking, that common law is not Queensland, but Australian, common law.  As stated authoritatively by the High Court in Lange,^[14] "There is but one common law in Australia.... [T]he common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations".^[15]  The point is emphasised by the High Court’s constitutional role as the final appellate court for State as well as Commonwealth matters,^[16] as well as other constitutional provisions.^[17]   Some elaborate discussion^[18] has suggested qualifications and exceptions to the notion of an entirely uniform common law through Australia, but in my opinion casts no doubt on the proposition that, unless otherwise required by statute, the content of the fundamental common law right of an accused person to a fair trial, up to and including sentencing,^[19] is uniform throughout Australia.  This is a circumstance where an intermediate appellate court in this country should obviously follow a decision of another intermediate court on such a matter unless convinced that it is incorrect.^[20]

When, as here, there are conflicting decisions of intermediate appellate courts, including on one side a prior decision of this Court and decisions of its predecessor Court of Criminal Appeal, the Court should, in my opinion, consider both the preponderance of authority and what is correct in principle.  Obviously, any statement by the High Court, even if not binding, will at least be highly persuasive.

It is difficult to identify any principle which supports the Nardozzi standard of proof.  On the contrary, as is recognised in the other jurisdictions, it would be  incompatible with fundamental common law doctrine if a convicted person’s punishment were to be influenced by factors adverse to the offender which were the subject of reasonable doubt.^[21]

In summary, principle, comity and deference to the majority opinion in the High Court in Anderson all point to acceptance of a requirement that a sentencing judge must be satisfied beyond reasonable doubt of all disputed matters relied on by the prosecution at sentencing which are not necessarily concluded against a convicted person by a jury verdict or guilty plea.  In my opinion, that should be declared to be the law in Queensland, and previous decisions of the Court of Criminal Appeal and this Court should be overruled insofar as they held to the contrary.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 26 June 1998

I have read the reasons for judgment of the President, Williams J. and the joint judgment of Pincus J.A. and Fryberg J.  I agree with the orders proposed by Williams J. and with his reasons.  There are two strong reasons for adopting the conclusions of Williams J.  The first is the unfairness, adverted to by Pincus J.A. and Fryberg J. in their reasons, which results from the alternative view which presently prevails in Queensland, that on a sentencing hearing, which may have as much or even more important effect on punishment of an accused as the trial and conviction, the facts adverse to him, in the sense that their proof will result in a more severe sentence than if no evidence were adduced on the question, do not need to be as strictly proved as at trial.

The second reason, elaborated on in the reasons of the President, is the desirability for uniformity throughout Australia.  Unless we are convinced that the decisions of the other state appellate courts, which now adopt a generally uniform approach, are wrong I think we should follow them.  To that should be added the persuasive force of the majority view in Anderson v. R. (1993) 177 C.L.R. 520.

Unlike Pincus J.A. and Fryberg J., I do not think that, even if the adoption of the conclusion preferred by Williams J. results in more protracted and therefore more costly hearings, that is a sufficient reason for not adopting it.  But I do not think that it will in most cases and in those few cases in which it will I think it may well be possible to implement cost saving procedures.  I think that we should assume that judges would not permit sentencing hearings to become a sham, paying only lip service to the need for proof beyond reasonable doubt.  Moreover, though I agree with their Honours that there is no exact correlation between proof of ultimate facts at trial and proof of adverse factual issues on sentence there is, in my view, nevertheless an approximate correlation provided that adverse factual issues means, as I understand it, issues which, if proved, would result in a more severe sentence than if no evidence were given on the issue.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. & FRYBERG J.

Judgment delivered 26 June 1998

We have read the reasons of Williams J., in which the issues and the relevant  authorities are, with respect, analysed accurately and comprehensively.

To prove that an offence, serious or trivial, has been committed, the prosecution has to prove its case beyond reasonable doubt;  more generally, proof of guilt is hedged about with a multitude of safeguards, and a verdict may be  vitiated by an error of an entirely technical character:  see for example Maher (1987) 163 C.L.R. 221.

In contrast, the sentencing process is relatively informal;  in over 700 sections, our Criminal Code imposes no requirements as to the procedure to be followed on sentencing.  As for the Penalties and Sentences Act 1992, one of the purposes of which was to provide fair procedures for imposing sentences (see s. 3(d)(i)), one finds in it little of general application, on that subject, apart from the requirement that reasons for sentence be stated (s. 10) and the enigmatic provisions of s. 15, which is as follows: 

"In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 1988, section 201, that it considers appropriate to enable it to impose the proper sentence".

Other procedural provisions in the Penalties and Sentences Act 1992 are concerned with what is to be done in certain specific situations:  e.g. ss. 54, 116, 137, 164, 166, 167 and 172B.  The contrast between the tight regulation of procedures at trial of the question of guilt and the general looseness applicable when the (often just as important) question of how severely the offender will be punished is particularly striking when one keeps in mind that the overwhelming majority of accused persons have their fate determined after a sentencing hearing only.  So to put the matter however, understates the contrast;  after the sentencing hearing, the punishment of the convicted prisoner may depend upon decisions made at an administrative level by other authorities;  gaol managers can make decisions, based on views about the offence committed, having the effect of adding years to the time which might otherwise have been spent in custody:  McCasker v. Queensland Corrective Services Commission (Appeal No. 10495 of 1997, 19 December 1997).  They do not conduct any hearing at all.

An example of a situation in which the sentencing hearing seemed more important than the determination of guilt and innocence is to be found in the sentencing of one Savvas to 25 years imprisonment for drug offences (see Savvas (1995) 183 C.L.R. 1).  He was convicted of conspiracy.   At sentencing the primary judge found 32 facts which had been established against Savvas - "a long series of facts relating to the importation and supply of heroin and [Savvas’] involvement":  Savvas (No. 2)  (1991) 58 A.Crim.R. 174 at 178.  These additional facts in themselves established serious offences, committed following the making of the agreement which constituted or initiated the conspiracies.  The judge’s findings  resulted in Savvas’ sentences being substantially more than they would have been, had the judge’s findings not been made.  A more familiar example of a case in which the sentencing judge’s role can be dominant is that of manslaughter, where the plea or verdict of guilty may not in itself convey anything of consequence about the degree of heinousness of the offence. 

If a foreigner, unfamiliar with our system, were to inquire for what reason trials should be subject to such elaborate safeguards and sentence hearings generally run in a more summary way, none other than an historical explanation could be given.  If the inquirer were to ask why the judge’s or magistrate’s decision as to whether or not an offender should be sent to prison, and if so for how long, is determined mainly on the basis of impressions gained from assertions made from the bar table, all one could say is that this is the way things are done.  The present case involves an attempt by counsel for the applicant to move the post‑conviction processes closer to those which are applied in determining guilt, in one respect, viz. as to the standard of proof of certain matters asserted by the Crown.  It is not argued that the trial process in its entirety should be applied to fact-finding for sentencing purposes;  the contemplation is that the ordinary procedure will involve, as at present, assertion and counter-assertion from the bar table. 

Appellate courts in other States have recently accepted the invitation made to us;  in Victoria and Western Australia, after elaborate examination of the questions involved, it has recently been laid down that the Crown must at sentencing prove beyond reasonable doubt facts adverse to the accused’s interests:  Storey [1998] 1 V.R. 359 and Langridge (1996) 17 W.A.R. 346 at 367, 370.  We shall call this "the Storey rule".  A similar conclusion has been more succinctly reached in New South Wales:  Isaacs (1997) 41 N.S.W.L.R. 374 at 378.

The most obvious objection to this Court’s following suit is that, unless the sentencing hearing becomes substantially more protracted, involving the calling of evidence on disputed points, the purported finding of adverse facts beyond reasonable doubt may sometimes appear to be a sham - paying only lip service to the Storey rule.  At present, if the defence says that although guilt is admitted there was some sort of provocation, in an assault case, the Court may, by the exercise of commonsense, reject that as being improbable:  Jobson [1989] 2 Qd.R. 464 at 475.  For the Court to declare, in such a case, that it is satisfied beyond reasonable doubt that the assault was in no sense provoked may itself have an implausible ring, if the asserted state of satisfaction is based on no more than what is said from the bar table, untested and unsworn.  If the prosecutor were to "inform" (the word used in the Criminal Offence Victims Act 1995, s. 14) the Court of serious psychological harm done to the victim, then could the Court genuinely be satisfied of the accuracy of the prosecutor’s allegation, to the extent of entertaining no reasonable doubt, merely because the victim impact statement was not contradicted by the defendant?  Unless the matter was the subject of investigation in Court, or the defendant had some way of knowing about the alleged harm, the Court would lack a secure foundation for an adverse finding.  There is no reason to think that the confidence the judge or magistrate must feel, to truly be satisfied to a high standard, can be attained in such cases merely on the basis of lack of contradiction, where the defendant has not any means of knowing the truth.  Of course, the well-financed defendant will be less likely to rely, when important sentencing issues arise, on simple non-admission of what the prosecutor says;  but such defendants are the minority.

It is not every sentencing which involves a dispute of fact, and where there is none the Storey rule will have no effect;  but we suggest that in many instances the rule will if adopted be hard to implement, because of the difficulty of applying a strict standard of proof to a loose fact-finding process.  This prompts the thought that the Court should leave what some might think to be well enough alone, on the basis that it is impractical to require the Storey rule to be followed, without substantial changes to the way sentencing hearings are conducted;  that would entail each side applying more time and effort to preparing for the hearings - and no doubt funding problems, particularly from the point of view of legal aid.  It is in our opinion doubtful whether it would be within this Court’s authority to require that judges and magistrates act, when sentencing, on information obtained by more formal processes than at present, and more particularly beyond its authority to require that disputed factual questions be decided on the basis of sworn evidence only;  the reason is that the legislature has intervened.  Under present practice, of long standing, not only sworn evidence given at the trial (if any) or sentence hearing, but assertions from the bar table, as well as depositions from the Magistrates Court, may be considered by sentencing judges.  Then various unsworn documents such as character references are sometimes tendered.  There is no specific legislative warrant for these procedures, but the enactment of s. 15 of the Penalties and Sentences Act 1992, quoted above, should be treated as implicitly authorising or at least accepting them;  when speaking in that section of receipt of "information" rather than of evidence, in imposing sentence, the legislature must be taken to have had in mind such information as was in 1992 ordinarily received, accepting the then recent decision in Clayton [1989] 2 Qd.R. 439 at 441, 442.  Consistently with that view, s. 14(1) of the Criminal Offence Victims Act 1995 says that the prosecutor should "inform" the sentencing court of the harm caused to a victim by the crime, rather than requiring that evidence be called.

It is against the background that the law does not require that the sentencing court necessarily be constrained by any of the rules of evidence, in receiving information, that one considers the proposal to adopt the rule that certain matters must, at sentencing, be proved beyond reasonable doubt, as has been held in other States.

Another, less obvious problem than the looseness of the "informing" process is that the "beyond reasonable doubt" requirement which applies to the finding of guilt has application only to ultimate facts and to those facts which form part of a single chain of reasoning leading to a finding of the ultimate facts.  To illustrate the point in a practical way, if one of the strands of proof relied on is confessional evidence, another is eyewitness evidence, and there are other strands, the jury need not be told that they must be satisfied beyond reasonable doubt of the veracity of any single category of evidence;  they may convict if satisfied to that standard of all the elements of the offence:  Shepherd (1990) 170 C.L.R. 573 at 579.

In sentencing, there is not, or at least not ordinarily, any set of facts corresponding to the list of elements of the offence, which is all that must at the trial stage be supported by satisfaction beyond reasonable doubt.  Where there is a conviction of a serious assault by one spouse on another, evidence or assertions as to what lay behind the assault could cover a variety of topics, such as accusations from each side of past assaults, insults, or other acts of misbehaviour.  In a domestic manslaughter case, would the Storey rule require that no incident relied on by the Crown, perhaps aimed at presenting a more balanced picture of the relationship between killer and victim than that painted by the defence, be taken into account unless proved beyond reasonable doubt?  If so, that can hardly be justified by the necessity of having the sentencing standard of proof conform to the conviction standard;  there is no true analogy between proof of the ultimate facts necessary to convict and proof of the history of the domestic relationship, in such a case as we have postulated.

In Langridge, Kennedy J. referred, at p. 367, to this problem, remarking:

". . . not all facts in the sentencing process need to be proved beyond reasonable doubt:  see Shepherd v. The Queen (1990) 170 C.L.R. 573".

In Storey, at p. 372, the majority said in effect that it is "the relevant issue . . . not each of the individual facts which is said to bear upon the issue" which must be proved, on sentencing, beyond reasonable doubt.  Identification of those facts which require such proof at trial is not necessarily a simple matter;  Shepherd was a retraction of what was said on that subject in Chamberlain [No. 2] (1984) 153 C.L.R. 521 at 536, 538.  One finds in the authorities suggestions of means of discriminating between those sentencing facts which do and those which do not require specially strict proof, one of the simplest definitions of the former being the "details of the offence" (Welsh [1983] 1 Qd.R. 592 at 594) and another "the circumstances of the offence"  (Ali [1996] 2 V.R. 49 at 60, 61).  If those expressions mean the elements of the offence, then there is no difficulty, but if not their meaning remains obscure.  Applying two different rules, depending on whether the fact in question tends to aggravate or mitigate, is a clear enough concept;  but in many situations it will be awkward to use - as for example when trying to gain a true picture of the relationship between a couple, one of whom has killed the other.  The result of a conscientious application of the Storey rule might be to arrive at a description of the relationship which the judge does not believe to be true, produced by using a different standard of proof, as to the matters relied on by one side, from that by which the other side’s evidence is judged.  Of course, this outcome may be especially likely when what is in issue is the true motive of the offender, or any other fact peculiarly or mainly within his or her own knowledge.  More simply, if the person convicted of manslaughter by shooting asserts and the Crown denies that he did not know the gun was loaded, the question whether one treats the issue as one of aggravation or of mitigation can receive, we are inclined to think, no better than an arbitrary answer.  We note that in Storey Callaway J.A. suggested a further subdivision:  that there should be an exception to the general rule, for "circumstances of mitigation extraneous to the offence" (376).  But the majority in Storey appeared to require a three-way division of the issues:  those ultimate issues, as to which proof is required beyond reasonable doubt;  the "individual facts" which are judged by some lesser standard;  lastly, mitigating facts, as to which the onus is, presumably, on the defence to prove such matters on the balance of probabilities.  We say "presumably" because the judges did not accept "that the Crown bears any general onus of proving the facts that form the basis for sentencing".

This is, whatever its merits, not a simple system.

We turn now to what we believe to be the main two contentions in favour of the Storey rule.  One is that the rule, although recently adopted, now governs in most of the other States.  When there is no obvious reason why a rule should differ from State to State, its considered adoption in a number of States at appellate level is a matter whose importance can hardly be overstated.  Variation from State to State of the standard of proof of sentencing facts was called "not satisfactory" in Salisbury (1994) 12 W.A.R. 452 at 465.  On the other hand, it is unclear why that type of variation should have been thought less defensible than other differences between Australian criminal law systems.  One of the objects of the federal structure of the Australian Constitution was to enable States to preserve and indeed augment, if believed to be advantageous, differences between their various laws.  It may be that differences between parliamentary laws are more readily accepted than those between laws of the present kind, but it is clear enough that this Court has no absolute obligation to apply non‑statutory procedural rules accepted in other States.  When benches of five judges have been assembled to consider a matter of public importance, we must of course, as a bench of five, carefully consider the questions of principle involved.

The second major contention which supports adoption of the Storey rule in this State is that it is unjust that anyone should be deprived of his or her liberty on less than certain proof of the facts on which deprivation is ordered.  The question is asked:  why should punishment, which may well be the only substantial issue, be decided on the basis of a more lax standard of proof than conviction?  This is a troubling question, (cf. Gardiner (1982) 140 D.L.R. (3d) 612) but it over-simplifies the problem.  Civil judgments, for example judgments leading to bankruptcy, can be quite disastrous for the unsuccessful defendant, resulting in loss of home, disruption of a family’s life and perhaps loss of reputation.  Criminal proceedings on the other hand need not hurt the offender much, in less serious cases such as those often heard by magistrates.  There is as good an argument, if one wishes to preserve litigants from incurring great harm on less than solid proofs, for raising the standard in certain civil matters as there is for adopting the Storey rule in all criminal cases - including that majority of cases in which conviction cannot possibly lead to imprisonment.  And as we have pointed out, important decisions about the length of time a prisoner will serve would, if the Storey rule were adopted in this State, be made as at present administratively.

To return to the present law, in this State, it was said in Welsh (above), referring to an article by Judge Loewenthal, that it explained authority suggesting that the Crown must prove sentencing facts beyond reasonable doubt "correctly, in our respectful opinion, as being confined . . . to proving details of the offence" (594).  In Jobson (above), the principal judgment was that of Ryan J. who referred to Welsh as having decided "that facts relevant to sentence other than details of the offence may be accepted or rejected as a matter of probability . . ." (475).  The issue in Jobson, with respect to standard of proof, related to an assertion made by one who had pleaded guilty to incest, that the complainant had instigated the act of intercourse.  It was held that the Crown did not have to prove otherwise, beyond reasonable doubt (475), so presumably that was not regarded as having to do with the "details of the offence".  Then in Nardozzi [1995] 2 Qd.R. 87, the standard-of-proof question related to whether or not Nardozzi, who was convicted of offences relating to heroin and cannabis, had those drugs in his possession wholly or partly for a commercial purpose;  that was held not to attract the standard of proof beyond reasonable doubt.  Macrossan C.J. said in effect that in Queensland the standard of proof had been taken to be "on the balance of probabilities for any additional relevant circumstances which are not elements of the offence covered by the guilty plea . . .".  Because of Jobson and Nardozzi and because a rule that certain, undefined, "details of the offence" must be proved beyond reasonable doubt would be too uncertain to be workable, we take the law to be that at present, on sentencing, only the elements of any offence involved must be proved beyond reasonable doubt.  Ordinarily, the result will be that no disputed matter on sentence has to be proved beyond reasonable doubt, because the verdict or plea covers the elements of the offence;  but that will not always be so.  As Savvas illustrates, it may fall to a sentencing judge to make findings as to whether or not certain activities of the prisoner, constituting separate offences, have been proved.  Because of this decision, and for other reasons it may be that:

"[a]t some stage it may be necessary for this Court to revisit R v. D, [[1996] 1 Qd.R. 463] some points of which are arguably inconsistent with other authorities both in this Court and in other jurisdictions . . .":  per Thomas J. in Bettridge (C.A. No. 51 of 1998, 27 May 1998)

In our opinion, the Court should continue to accept the authority of Jobson, with the clarification that the reference in that case to "details of the offence" should not be taken to imply that facts not forming part of the elements of the offence need be proved beyond reasonable doubt.

We turn now, and briefly, to the specific issue before the Court, explained by Williams J.  His Honour has reached the conclusion that the material before the learned sentencing judge did not support certain findings, identified in the reasons of Williams J.  We agree with that conclusion, but on the basis that the question of standard of proof is governed by Jobson.  In our opinion, having regard to the seriousness of the consequences, the finding of commercial purpose in particular was not open to the learned sentencing judge.

Since writing the above, we have had the advantage of reading the reasons of Davies J.A.  We are not in agreement with his Honour’s view that we have adopted, as sufficient reason for rejecting the Storey rule, that it would result in more protracted and therefore more costly hearings.  These might well ensue, but the possibility of their doing so is not a reason for our conclusion.  Those reasons are summarised below.

Summary

The rule that on sentence facts which aggravate the offence must be proved beyond reasonable doubt, but those which mitigate must be proved on the balance of probabilities, should not be accepted.  Our reasons are that the rule cannot sensibly be applied to all facts tending to aggravate, but must be confined to "ultimate" facts, a notion to which no reasonably clear meaning can be given;  that the application of different rules to different issues will lead to an excessive degree of uncertainty, since in some areas of practical significance the classification of an issue as going to aggravation rather than mitigation, or vice versa, will be in essence arbitrary;  that preservation of the present means of acquiring sentencing information, which is what is contemplated, cannot stand comfortably or indeed convincingly with imposition of a strict standard of proof of adverse facts.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 391 of 1997

Brisbane

Before  Fitzgerald P

Davies JA

Pincus JA

Williams J

Fryberg J

[R v Morrison]

THE QUEEN

v

PHILLIP JOHN MORRISON

(Applicant) Appellant

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 26 June 1998

The applicant pleaded guilty to a charge that he unlawfully had possession of a dangerous drug, namely heroin, the quantity of which exceeded two grams, and to a further charge that he unlawfully had possession of a dangerous drug, namely cocaine.  On the heroin charge he was sentenced to imprisonment for a period of 10 years with a recommendation that he be eligible for parole after serving 3½ years, and on the cocaine charge he was sentenced to nine months imprisonment; the sentences to be served concurrently.  He seeks leave to appeal against the sentence imposed for possession of heroin on the ground that it was manifestly excessive.  There was an issue before the learned sentencing judge as to whether the applicant had possession of the drug solely for his own use, or for a commercial purpose.  In the sentencing remarks reference was made to R. v. Nardozzi [1995] 2 Qd.R. 87, where the Court of Appeal confirmed that on a sentence the Crown bore the onus of proving on the balance of probabilities any additional relevant circumstances.  However, after reviewing the material before him, the learned sentencing judge concluded that the “Crown satisfied me beyond reasonable doubt that you had possession of this large amount of heroin for commercial purposes”.  Before this Court the applicant wishes to contend that such finding ought not to have been made, and that he should have been sentenced on the basis that he had the heroin solely for his own use. 

On considering that contention it would be necessary for this Court to have regard to the appropriate standard of proof.  Since Nardozzi, and no doubt consequent upon certain remarks by some members of the High Court in Anderson v The Queen (1993) 177 C.L.R. 520, that question has been addressed by a five member Court of Criminal Appeal in New South Wales (R. v. Isaacs (1997) 41 N.S.W.L.R. 374), a five member Court of Appeal in Victoria (R. v. Storey [1998] 1 V.R. 359), and a five member Court of Criminal Appeal in Western Australia (J.L. Langridge (1996) 17 W.A.R. 346).  After reviewing earlier decisions of their own courts, and decisions in other jurisdictions including Nardozzi and earlier Queensland authorities, each of those courts rejected the Briginshaw test as being appropriate to the resolution of all disputed factual issues arising at sentence.  Each of those jurisdictions has now confirmed in general terms that the burden on the Crown at sentence is proof beyond reasonable doubt, the position which has existed in South Australia for some time.  

As Queensland appeared to be out of step with all other Australian jurisdictions, it was decided to sit a five member Court to hear this application and determine the approach which should be applied by Queensland judges in the future to the resolution of disputed factual issues which arise on sentence.

QUEENSLAND POSITION TO DATE

Section 650 of the Criminal Code enacted by the 1899 legislation provided: “The Court may, before passing sentence, receive such evidence as it sees fit in order to inform itself as to the sentence proper to be passed.”  That is now superseded by s. 15 of the Penalties and Sentences Act 1992 which, so far as is relevant, provides: “In imposing a sentence on an offender, a court may receive any information ... that it considers appropriate to enable it to impose the proper sentence.”   Few decisions over the years have specifically addressed the meaning and scope of operation of those provisions.

The offender in R. v. Murphy [1947] Q.W.N. 4 had been convicted of bigamy and at sentence challenged the accuracy of police information put before the sentencing judge by the prosecutor as to the background of the offence.  Notwithstanding that, the prosecution called no evidence.  It was accepted in the Court of Criminal Appeal that the judge had sentenced on the basis of the disputed statement being correct.  The then Chief Justice (with whom the other members of the Court agreed) observed that in “those circumstances the trial judge was not entitled to assume that the statements made by the police were correct and to act on them without their being proved by evidence”.  The sentence imposed was set aside.  That approach was followed by the Full Court in West v Sprinkhuizen, Ex parte Sprinkhuizen [1961] Qd.R. 313.  In that case Stable J  (with whom the other members of the court agreed) said at 319-20:

“In the result, it appears clear that when a person convicted of an offence disputes a material statement made by the police on the matter of sentence, the Court should exclude the content of that statement from consideration unless it becomes substantiated by sworn evidence.  In the present case the disputed statement was not so substantiated, and in that event should not have been taken into consideration on the question of punishment.”

Again in Jones v Chalmers ex parte Chalmers  [1965] Qd.R. 508 the Full Court concluded that the Magistrate, in imposing penalty, took into consideration a statement which had been disputed by the appellant.  Lucas J  (with whom the other members of the Court agreed) said  at 513 that the disputed statement should not be taken into account “unless it is substantiated by sworn evidence.”  Those cases do not consider by what standard the matter in issue had to be “proved” or “substantiated”.

The decision of Skerman J in R v Haselich [1967] Qd.R. 183 is also of some relevance for present purposes.  There the offender was convicted by the jury of rape.  It was submitted by his counsel that on sentence the judge should act on the basis that the jury might well have rejected a view open on the Crown case, namely that the rape was premeditated, and accepted as the basis for conviction facts in a statement given by the offender to investigating police that the rape occurred after some prior consensual sexual activity.  His Honour considered that the correct approach was that expounded by the Full Court of Victoria in R v Harris [1961] V.  R.  236 wherein the Court rejected the proposition that the presiding judge was bound to take the most lenient view of the facts which would support the jury’s verdict.  The judgment therein at 236-7 went on: “The responsibility of awarding punishment once a jury has convicted a prisoner lies solely upon the judge.  He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or leniently he should deal with the offender.  The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts.”  Skerman J accepted that, but also adopted a qualification formulated in an earlier unreported decision of the Queensland Court of Criminal Appeal to the effect that there “may well be cases in which the Judge in passing sentence ought to take into account the possibility that the jury may have taken the more lenient of two possible views of the facts, but he is not bound to do so in every case.”  (185-6).

That reasoning of Skerman J was adopted and approved by Andrews SPJ (with whom Kelly J agreed) in R v Cooksley [1982] Qd.R. 405.  In that case the Court of Criminal Appeal confirmed that, on sentencing the offender for a single count of incest with his daughter, the trial judge was entitled to have regard to evidence given at the trial of the development of a passionate relationship over a period of time.  After referring to s.650 of the Criminal Code, Andrews SPJ said at 409: “In my view in such circumstances the Court may hear evidence of the development of a passionate relationship of an accused towards the victim of his (or her) passion without involving the establishment of other offences and certainly not for the purpose of adding to the severity of punishment attracted by a single subject offence, thus seen in proper perspective.”  In that case McPherson J cited with approval the annotation in Carter’s Criminal Law to s.650 of the Code detailing the well settled Queensland practice “for the Crown Prosecutor to read out a police report concerning the prisoner’s antecedents and convictions, but should the prisoner deny or call in question any material allegation in such report, then the judge will not take that allegation into consideration unless it is proved by evidence in accordance with the last paragraph of  (S.650 of the Code).” (414).  Again, in neither Haselich nor Cooksley was the required standard of proof alluded to.

The relevant standard of proof appears to have been considered in depth for the first time by the Court of Criminal Appeal in R v Welsh [1983] 1 Qd.R. 592.  There the offender pleaded guilty to causing grievous bodily harm to a young girl.  After the incident giving rise to the charge she was suffering from significant brain damage.  The problem arose because material was placed before the sentencing judge suggesting, if not establishing, that the girl had accidentally fallen on some two occasions before the assault and then sustained at least bruising to the head and face.  Medical evidence was called from the doctor who saw the young girl on admission to hospital.  He conceded under cross examination by counsel for the offender that possibly some of the head injuries could have been occasioned by a fall.  The sentence was imposed on the basis that all the girl’s injuries were occasioned by the offender’s assault which went beyond slaps with the open hand as alleged by the offender in his statement to investigating police; such statement the sentencing judge referred to as self serving.  In the judgment of the court (Campbell CJ, Matthews and McPherson JJ) there was no onus on the Crown to prove beyond reasonable doubt that at the time the applicant assaulted the child she was not already suffering brain damage as a result of the prior falls (594).  The Court then expressed the opinion that Woolmington [1935] A.C. 462 was confined to matters relevant to conviction and did not apply to matters considered upon sentence.  Their Honours found support for that conclusion in a remark of Dixon CJ in Wendo v The Queen (1963) 109 CLR 559 at 562.  They then went on to say:

“In R v Flewell-Smith (C.A. No.7 of 1979) and R v L.J. Byrne (C.A. No.100 of 1978) the Court found no fault with the decisions of sentencing judges who had acted on probability, and in R v Carson (C.A. No.  296 of 1978) itself acted on a factual basis not consistent with satisfaction beyond reasonable doubt.  The view ... that the sentencing judge is entitled to act on probability is in our view correct, and we would only add to it a qualification to the effect that a trial judge would necessarily be guided or influenced in his acceptance or rejection of particular facts by having regard to the significance of their bearing upon the increasing or reducing of what might be considered an average or normal sentence (c.f.  Briginshaw v Briginshaw (1938) 60 CLR 336).

If differing versions of relevant events have like probability then that one of them which is favourable to the accused will be accepted.  It does not follow, however, that the sentencing judge is to be satisfied beyond reasonable doubt before he acts on one of such versions.  In our view, and having regard to the submission that the child may have had brain damage before the applicant’s assault on her, there was no onus on the Crown to dispute this fact, because there was little if any evidence to support it and, indeed, the doctor’s testimony does not lead to a conclusion in favour of the accused on any balance of probabilities.”  (595).

The question was next considered by the Court of Criminal Appeal in R v Boney ex parte Attorney-General [1986] 1 Qd.R. 190.  There the offender had initially been charged with murder, but after the jury failed to agree on his first trial, the Crown accepted a plea of guilty to manslaughter.  Evidence was called before the sentencing judge of the facts surrounding the killing.  Medical evidence suggested that the offender may have had sexual intercourse with the victim before killing her.  The Attorney-General appealed against sentence.

Relevantly for present purposes Andrews CJ said at 192-3:

“Crown counsel intimated that he was not in a position to prove that death occurred after intercourse.  The learned sentencing Judge was entitled to take into account facts which emerged during the giving of evidence relevant to issues properly raised before him, and thus to act upon a finding that intercourse preceded death.  His Honour’s power to receive evidence on sentence is given by s.650 of the Criminal Code ...

It was inherent in argument on behalf of the respondent that the Crown was conceding that sexual intercourse had not occurred before death and therefore that rape had not occurred.  This simply was not so.  The Crown did not suggest that the matter was to proceed on that assumption.  It was mentioned as a reason for not asserting rape and therefore murder.  His Honour in proceeding to sentence was not required to be satisfied beyond reasonable doubt of facts which were relevant to punishment or to exclude beyond reasonable doubt matters which might be mitigatory.  He was entitled to act on the balance of probabilities but having regard to the significance of the bearing of facts considered upon the severity or otherwise of the sentence to be imposed for the offence with which he was dealing, bearing in mind that where different versions of relevant events might be said to be of like probability, one most favourable to the accused should be accepted.  (See R v Welsh ... ).”

The learned Chief Justice was in the minority on the critical issue in that case; the majority (Macrossan and McPherson JJ) held that a sentencing judge could not take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.  In so deciding those judges made particular reference to R v De Simoni (1981) 147 CLR 383 and Kingswell v The Queen (1985) 159 CLR 264.  For present purposes the following observation by McPherson J at 208 should be noted: “Other considerations apart, the standard of proof of facts for sentencing purposes has in Queensland been held to be the balance of probability and not beyond reasonable doubt: R v Welsh.”

The next significant decision is that the Court of Criminal Appeal in R v Jobson [1989] 2  Qd.R. 464.  The offender pleaded guilty to incest with his sister. The attention of the sentencing judge was drawn to the fact that the Crown and defence were at variance as to the facts upon which the sentence was to be based.  The Crown claimed that it was not an isolated occasion and that the offender had applied some pressure on his sister to obtain his way; the defence maintained that incest had occurred only once, and that it was instigated by the complainant.  The Prosecution tendered the complainant’s statement which had become part of the depositions and her further oral evidence given at committal proceedings; but she was not called to give evidence as part of the sentencing process.  The offender did give evidence.  The sentencing judge made findings of fact as follows:

“I conclude that the incident in respect of which you fall to be sentenced was not an isolated incident of sexual interference by you with your sister.  Nor am I persuaded that she instigated it. Having said that, I think it is unlikely that sexual interference occurred with the frequency which appears in the evidence as being your sister’s version of events.  I should record that I proceed on the basis of a statement made by your sister and her depositions.”

It should also be noted that the sentence in question followed immediately after a trial for incest of the complainant’s father in which she had given evidence.  Mention was made by the Prosecutor of the fact that the sentencing judge had had the opportunity of seeing the complainant give evidence at that trial.

One of the critical questions litigated before the Court of Criminal Appeal was the admissibility of the depositions and the weight which should be attached to them.  Ryan J (with whom Connolly J agreed) relevantly said:

“The question which I must now examine is whether his Honour was entitled to act on the basis of the depositions when contrary sworn evidence was given by the prisoner.  It is not necessary in this case to consider whether the depositions and statement were properly receivable on the issue of sentence, since no objection was made to their tender, though I have decided in R v Clayton [1989] 2 Qd.R. 439 which was heard together with this application that they were receivable.  It appears that what his Honour did was to decide on the basis of the complainant’s sworn statement and the decision of the jury on the trial of her father at which she gave evidence that he accepted her version of the relationship between her and the prisoner in preference to the sworn testimony of the prisoner. 

... But where sworn evidence is given by a prisoner, on which he is subject to cross examination, and the evidence by the Crown consists merely of a sworn declaration by the complainant, who is not produced by the Crown, so as to be subject to cross-examination, the question arises as to whether the judge could safely reject the prisoner’s account and accept the sworn declaration of the complainant.”  (473-4).

Ryan J then referred with approval to the decision of the New South Wales Court of Criminal Appeal in R v O'Neill (1979) 2 NSWLR 582.  In broad terms it was there held that where depositions are tendered and admitted the sentencing judge is entitled to determine the nature of the offence by reference to the depositions.  Where there is a dispute, the appropriate course is for the accused to give evidence on oath and for the Crown to call any contrary evidence.  But where the depositions are before the sentencing judge without objection and evidence has been given by the accused, it is the task of the sentencing judge to weigh the evidence on either side and to attach such weight to it as he thinks fit.

Ryan J then considered Welsh and went on:

“It is not however required in a criminal trial nor is it required in sentencing that every fact alleged by the Crown must be proved beyond a reasonable doubt.  The requirement is that every element of the offence charge must be proved beyond a reasonable doubt before a person can be convicted; and by pleading guilty a person admits all the essential elements of the offence charged though he does not admit to the truth of all that is contained in the depositions.

The principle that the standard of proof required for Crown allegations detrimental to the offender is proof beyond reasonable doubt is accepted in Canada; R v Gardiner (1982) 2 S.C.R. 368.  But this Court in R v Welsh has decided that facts relevant to sentence other than details of the offence may be accepted or rejected as a matter of probability though ‘a trial judge would necessarily be guided or influenced in his acceptance or rejection of particular facts by having regard to the significance of their bearing upon the increasing or reducing of what might be considered an average or normal sentence’ ...”. (475).

Thereafter Ryan J referred to the Victorian decision of R v Chamberlain [1983] 2 V.R. 511, which also adopted the Briginshaw test, and continued:

“While I have concluded that it was permissible for his Honour to have regard to the depositions and statement of the complainant in deciding which version of the facts he should act upon for the purpose of sentence, it was not permissible for him in my opinion to decide the issue by having regard to evidence given in another trial at which he had fortuitously presided.”  (475).

For that reason the findings on which the sentence was based were set aside.  The Court did not send the matter back for rehearing but substituted a sentence.

The third member of the Court in Jobson, Thomas J, added some further observations.  At 467 he said: “Because the actual circumstances of this offence, and their context have such a direct bearing upon the sentence to be imposed, it is obvious that a high standard of persuasion is necessary before the court should act on a view of the facts adverse to the prisoner.”  He then referred to Welsh and Chamberlain and went on: “In the latter case it was observed that it would be unfair to allow a finding of a fact which was critical to the determination of sentence to be used if it admits of the existence of a reasonable doubt.  However, the adoption of such a test may create difficulty, particularly in defining facts which are ‘critical’ to the determination of a sentence.”  After discussing some of the problems which may arise, he concluded: “It cannot be seriously suggested that all facts necessary to be ascertained in the sentencing process must be established beyond reasonable doubt.”  (468).  Thus he arrived at the following conclusion: “It is therefore possible to see the whole proceeding as covered by the single sliding scale recognised in Briginshaw.  At the lower end of the scale, most antecedents would need to be proved only on the balance of probabilities.  At the higher end of the scale the details of the offence itself will need to be established beyond reasonable doubt.  In between these extremes the necessary degree of satisfaction will vary according to the gravity of the fact to be proved and its potential effect upon the prisoner.”  (468-9).

There was reference in Jobson to the decision in Clayton [1989] 2 Qd.R. 439. That decision of the Court of Criminal Appeal confirmed two points.  Firstly, on a sentence hearing the judge was entitled to admit the depositions and treat them as evidence in determining disputed facts for the purpose of sentencing.  In the course of delivering the reasons of the Court, Ryan J said at 441: “The information upon which a judge may safely act in determining facts for the purpose of imposing sentence must depend upon the nature of the matter to be determined.  In some cases it would be unfair to act on hearsay evidence; in others no unfairness may be involved.  But in my opinion a judge may admit depositions and sworn statements admitted at the committal stage in order to determine the facts.”  Secondly,  the Court reaffirmed the proposition, previously enunciated by the Court of Criminal Appeal in R v Rogers [1985] 2 Qd.R. 43, that the sentencing tribunal is not bound to accept what the prisoner has said by way of explanation if the explanation be inherently improbable.

The most recent significant decision is that of the Court of Appeal in Nardozzi.  The offender in that case was convicted of the offence of possession of a dangerous drug, namely heroin, in excess of the quantity specified in the Third Schedule of the Drugs Misuse Act 1986, and of the further offence of the possession of a dangerous drug, namely cannabis sativa.  An issue arose before the sentencing judge as to whether the offender had possession of the heroin for a commercial purpose.  The appeal against sentence raised for the consideration of the court questions as to the relevant onus and standard of proof.  The contention raised on behalf of the offender on appeal was that the correct standard to apply in determining the relevant facts following the plea of guilty was proof beyond reasonable doubt.  Macrossan CJ said at 89:

“From the remarks the judge made when passing sentence, it appears that he considered that the quantities of the drug which were involved were themselves sufficient to indicate a prima face case of the presence of a commercial element. ... I consider that this approach discloses no error and, in particular, that there was no reason why, in coming to a conclusion that a commercial element was established, the judge was not entitled to take into account the excess of the quantity of the drug over the Third Schedule limit, as well as its quantity in absolute terms, together with the other relevant circumstances.”

Dealing with the requisite standard of proof the Chief Justice said: “The standard of proof was not expressly referred to below.  In this State it has heretofore been taken to be on the balance of probabilities for any additional relevant circumstances which are not elements of the offence covered by the guilty plea, but the standard should be taken as reflecting the seriousness with which the issue should be determined.”  (90).  There was an express reference to Jobson and then consideration of a passage in Anderson at 536.  The learned Chief Justice concluded that there the members of the High Court were merely stating the law which was applied in South Australia from where that appeal had come, rather than laying down a proposition “of general application in other jurisdictions”.  He concluded by saying: “Until an authoritative determination to the contrary is made, the law applicable in Queensland on this matter should be taken to be as expressed in Jobson.”

McPherson JA agreed with the Chief Justice.  He added (96): “In the case of an amount of that order and value, there is an immediate and compelling inference that the applicant had a commercial purpose, such as a resale, in mind.  Indeed, it is not easy to think of other purposes that would be served by having such a large and expensive amount in one’s possession.  The suggestion was that the applicant bought in bulk in order to obtain a lower price.  Even if that is not a commercial purpose, it is plain that, having seen and heard him giving evidence, the judge did not accept that version of the matter.”

The third member of the Court, Pincus JA, dissented.  At 93-4 he said: “The question of the application of the law as expounded in Anderson to the Queensland Statute is complicated by the circumstance that the South Australian provisions there considered are significantly different from ours.  But the basic structure of the immediately relevant provisions is much the same, and I have come to the conclusion that it would be inconsistent with Anderson to apply, under our Act, the principle that possession of a Third Schedule quantity, or possession of a large quantity, of a drug creates a presumption that the possession was for a commercial purpose, throwing the onus on the convicted person to prove otherwise.”  His Honour then went on to consider statements in Anderson and concluded (95-96): “the majority drew attention to contrary views, including those in Welsh and Jobson.  It is not clear to me that the High Court intended to overrule those Queensland decisions, although one may reasonably inquire why the law in South Australia on the point should differ from that in Queensland.  In my opinion, reached with some uncertainty, the proper course is to continue to apply the law as stated by Ryan J in Jobson.  The result is that the standard of proof of commercial purpose is one of probability, but with the important reservation that the significance of a finding of commercial purpose, so far as sentence is concerned, is such that a high degree of satisfaction would have to be attained before the court would act on the basis that there was a commercial purpose.”

The final decision to which brief reference should be made is that of R v D [1996] 1 Qd.R  363.  The ratio of that decision of the Court of Appeal was that a matter which it would be permissible otherwise to take into account at sentence was not to be taken into account if it would establish a separate offence of which the offender had not been convicted.  In the course of dealing generally with what a sentencing judge could take into account in order to determine the appropriate sentence, reference was made to the standard of proof as defined in Jobson; but the court went on to comment at 367: “It is not necessary for present purposes to consider whether the proposition for which Jobson is cited is correct.”

OTHER AUSTRALIAN JURISDICTIONS

It is not necessary to trace the relevant history when considering the position in other jurisdictions; all that is relevant for present purposes is the current state of the law in those places.

The position in South Australia is clearly established by the reasoning of Bray CJ in Law v Deed (1970) SASR 374 at 378 and the decision of the Banco Court in Queen v Stehbens (1976) 14 SASR 240 at 246.  In the latter case the Court said: “The judge must give the prisoner the benefit of any reasonable doubt when forming his view of the facts for the purpose of sentencing the prisoner, consistent with the verdict of the jury.”

Anderson was an appeal from South Australia.  At 536 Deane, Toohey & Gaudron JJ said: “It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt.”  Interestingly the footnote to that passage refers not only to Law v Deed but also to authorities in other jurisdictions  including Welsh and Boney.  Brennan and Dawson JJ at 526 said: “It has been the practice in South Australia for the prosecution on sentence to carry the onus of proving beyond reasonable doubt contested facts unfavourable to an offender which have not been established by the verdict or plea of guilty. ... The practice in other States and Territories is not uniform.”  The footnote to that passage refers to numerous other Australian authorities; omitting most of the case references the footnote is to the following effect: “The approach in South Australia has been followed in New South Wales; in Tasmania; in the Australian Capital Territory; and perhaps in Western Australia.  However, a different view has been taken in Victoria; in Queensland.  The placing on the prosecution of an ultimate onus of proof beyond reasonable doubt seems at odds with what was said in R v Tait & Bartley (1979) 46 F.L.R. 386 at 396.”

With respect it must be said that the passage referred to in Tait is not specific as to the standard of proof required.  There the Full Federal Court (Brennan, Deane and Gallop JJ) said:

“When a plea of guilty avoids the necessity for a trial, it is no doubt convenient for the facts relevant to sentence to be stated from the Bar table to the extent to which those facts are agreed or, not being reasonably open to challenge, are unchallenged.  But if one of the parties invites the court to act upon an alleged fact or circumstance, whether favourable or unfavourable to the defendant, which is not common ground between the Crown and the defendant, that fact or circumstance should be proved by the calling of evidence by the party on whom the evidentiary onus rests.  The strict rules of evidence can be waived if the proof tendered is sufficiently cogent, but a finding on the relevant matter cannot be sought in reliance merely upon an unsupported assertion from the Bar table if the truth of that assertion is not accepted by the other party.”

Prior to the decision of the Court of Criminal Appeal in Liu (1989) 40 A.Crim R. 468 the Courts in Western Australia followed the South Australian position and required proof beyond reasonable doubt of disputed circumstances of aggravation on a plea of guilty.  However, in Liu it was decided to follow the decision in Welsh.  After the decision in Anderson a 5 member Court of Criminal Appeal sat in Langridge to resolve the issue.  The principal judgment was that of Kennedy J.  He reviewed at length the historical position in Western Australia, and dealt with decisions in other States and Territories and overseas, before concluding that where there is a disputed version of the facts when sentencing on a guilty plea, a sentencing judge is not entitled to find those facts on the balance of probabilities.  Walsh, Wallwork and Owen JJ agreed in that.  Kennedy J observed at 367 that the “Queensland and Victorian positions may not be as far removed from the other States and Territories as appears at first sight.  In Queensland, in Welsh, it was accepted that the higher standard of proof was required to establish the ‘details of the offence’ (and see also Jobson), while in Victoria, in Chamberlain, it was acknowledged that the finding of a fact which is critical to the determination of the sentence to be imposed upon a basis that admits of the existence of a reasonable doubt about the existence of that fact would plainly be unfair.”  There is force in that observation; perhaps the reason why a significant problem has only risen in recent times with respect to the question of onus and standard in these circumstances (see Kennedy J at 350) is because in practice, applying the Welsh test, judges in practice were requiring proof beyond reasonable doubt.

Before leaving Langridge the comments therein on Anderson should be noted.  Kennedy J at 367 concluded “that the general rule should be that it is for the Crown to prove beyond reasonable doubt the facts going to sentence and which, if found, would be likely to result in a more severe sentence than would otherwise be the case” because such a rule “accords with the preponderance of authority” and “appears to me to be correct in principle”.  He went on to say: “In particular, it accords, I believe, with the majority view in the High Court in Anderson.  I do not consider Deane, Toohey and Gaudron JJ were limiting their observations to the position in South Australia.”  Walsh and Owen JJ at 370 referred to the fact that Anderson was a decision which relied on principles fundamental to the criminal law and went on: “Accordingly we believe that the reasoning in Anderson is applicable in this State and that on a plea of guilty disputed circumstances of aggravation must be proved by the Crown beyond a reasonable doubt.”

It is obvious from the quotations above from the Queensland cases that many of the judges involved were influenced, at least to some extent, by the reasoning of the Victorian Court of Criminal Appeal in Chamberlain.  But that decision has now been overruled by the 5 member Court which determined the matter of Storey.  The principal judgment was that of Winneke P,  Brooking and Hayne JJA and Southwell AJA.  In that case it appeared that the learned sentencing judge held that the offender had possession of a firearm for the purpose of protecting his drug trafficking business, and was therefore an aggravating factor warranting a more severe sentence; but there was a strong argument the evidence did not establish beyond reasonable doubt that such was his purpose.  At 366 the judgment referred to the well established principle that “facts implicit in the verdict or plea of guilty cannot be controverted.”  The judgment at 367 then went on: “There can be no question of either party’s undertaking any onus of proving any further fact unless and until it is suggested that there are matters beyond the bare elements of the offence (elements that are established by the verdict or plea) which the judge should take into account in passing sentence.”  Then those learned judges referred to the important distinction between matters adverse to the offender and matters in the offender’s favour.  They then made an observation which is of general importance for present purposes: “It is not for the Crown to prove what is a proper sentence for the offender or to prove the facts that should be taken into account in reaching such a sentence any more than it is for the offender to prove either of those matters; it is for the judge to find the facts which he or she considers affect the exercise of the sentencing discretion and then determine an appropriate sentence.” (368).

Their Honours then considered the decision of the High Court in Anderson.  Relevantly they said at 369:

“Even if the High Court’s decision in Anderson does not compel the result (and it may do so) we consider that principle requires the conclusion that if the circumstance is one that the judge considers aggravates the offence, the judge must be satisfied of that fact beyond reasonable doubt.  Despite the caveat entered by Brennan and Dawson JJ in Anderson we do not consider that that conclusion is at odds with what was said by the High Court (sic) in Tait & Bartley.  What the Court in Chamberlain referred to as “the basal requirement of the criminal law” entails the proposition to which we come.  We would not confine the proposition to circumstances which ‘aggravate the offence’ but would extend it to any circumstance which the judge proposes to take into account adversely to the interests of the accused - ‘adversely’ in the sense that it is ‘likely to result in a more severe sentence than would otherwise be the case’.”

At 369 they pointed out that circumstances which the judge proposed to take into account in favour of the accused would only have to be proved on the balance of probabilities.  In that context they also said: “We do not accept the submission on behalf of the applicant that the Crown must disprove, beyond reasonable doubt, matters which the judge proposes or is invited to take into account in favour of the offender.”

The following passages from the majority judgment at 371-3 are also of general relevance for present purposes:

“We have spoken of ‘proof’.   Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea.  Judges have always relied heavily on what is asserted from the Bar table and we see no reason why that practice should not continue. ... There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence. ... Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order for the jury to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard - not each of the individual facts which is said to bear upon the issue. ... We do not intend what we have said to introduce ‘excessive subtlety and refinement’ to the task of sentencing. ...

... we are not to be taken as suggesting that in a case in which a judge does have to make a finding on a matter which the parties have not expressly or implicity accepted it will be necessary for the judge to do more than state in substance that he or she is satisfied of the relevant fact. ... we are not to be taken as saying that the bare fact that the judge does not expressly refer to the relevant standard of proof in the course of sentencing remarks is itself evidence of sentencing error.”

Callaway JA published separate reasons.  He agreed with the majority that where there was a contest between the Crown and the offender as to a circumstance of aggravation that issue must be established beyond reasonable doubt.  However, he adopted a different approach with respect to circumstances of mitigation.  He drew a distinction between mitigating circumstances extraneous to the offence and mitigating circumstances that are not so extraneous.  The former must be proved by the offender on the balance of probability, but with respect to the latter, while there is an evidentiary burden on the offender, the relevant circumstance in mitigation must be assumed in favour of the offender unless the contrary is established beyond reasonable doubt (378). He summarised his opinion at 379-80 by stating:

“1.Questions relating to the standard of proof and the evidentiary and legal burdens of proof, are important only in relation to sentencing issues (where there is a contest between the Crown and the offender).

2. Where there has been a jury trial, the sentence must be consistent with the verdict and any factual findings that are clearly implicit in it; but, where the verdict is consistent with more than one view of the facts, the judge must decide which view to adopt, for different jurors may have followed different chains of reasoning.
3. Circumstances of mitigation extraneous to the offence, in respect of which there is an issue, are to be established on the balance of probabilities.  In the nature of the case, this will have to be established by the offender, who will often have to give evidence himself or herself in order to discharge that onus.
4. Subject to paras 1, 2 and 3 above, the judge is to take the most favourable view, both of the circumstances of the offender and of the offence, that is reasonably open on the material before the court.
5. In conventional language that means that the judge must be satisfied beyond reasonable doubt before acting on a view of the facts adverse to the offender.  It matters not whether the issue goes to circumstances of aggravation or mitigation, except that in the latter case the offender bears an evidentiary onus.”

In New South Wales the decision in O'Neill had generally been regarded as establishing that on sentence the offender should be given the benefit of any doubt.  But to clarify the position, particularly given the more recent appellate decisions just analysed, the New South Wales Court of Criminal Appeal specifically addressed the question in Isaacs.  The Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) were unanimous in laying down guidelines for the sentencing procedure in that State.  The offender was charged with murder but convicted by the jury of manslaughter.  That alternative verdict had been left to the jury on two bases; either death from an unintentional unlawful and dangerous act, or provocation.  The issue for the sentencing judge was as to which of those possible bases should be accepted for sentencing purposes.  It was universally accepted that the sentencing judge was correct in not questioning the jury as to the basis on which they found manslaughter.  The sentencing judge acted on his assessment that the jury in fact arrived at its verdict on the basis of provocation.

The Court noted that the following principles concerning the law and practice of sentencing in New South Wales were well established:

“1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing.  Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings.  The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion.
3. The primary constraint upon the power and duty of decision making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of  the jury.  This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict. ...
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of (4) above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender.  When that occurs, it will be because of the application of the principle referred to in (4) to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency. ...” (377-8).

Decisions in other Australian jurisdictions can be covered summarily.  In Tasmania the decisions in Prokopiec (1982) Tas. R. 170, Bresnehan (1992 ) 1 Tas.  R.  234, and Turnbull (1994) 4 Tas.  R.  216 all establish that at least certain disputed facts on sentence must be proved beyond reasonable doubt.  Muirhead J sitting in the Supreme Court of the Northern Territory in Browne v Smith (1974) 24 FLR 1 applied Law v Deed and required proof beyond reasonable doubt.  That also appears to be the position in the Australian Capital Territory - see Capobianco (1978) 20 ACT R.  29.

The question does not appear to have been considered extensively in depth in the United Kingdom but decisions of the Court of Criminal Appeal appear to support the proposition that relevant facts on sentence must be proved beyond reasonable doubt; Taggart (1979) 1 Cr.  App. R. (S) 144, Newton  (1982) 77 Cr.  App.  R.13, McGrath  (1983) 5 Cr. App. R. (S) 460, and Kerrigan (1993) 14 Cr.  App.  R.  (S) 179.

Reference has already been made to the Canadian case of Gardiner in which it was held that any fact relied on by way of aggravation must be established beyond reasonable doubt.

Clearly the position in Queensland established by the decisions in Welsh, Jobson and Nardozzi is out of step with the position not only in other Australian jurisdictions, but also with that adopted in other common law countries.

QUEENSLAND SENTENCING PRINCIPLES

Given the weight of authority in other jurisdictions, and after considering in the light of those decisions the basic principles which underlie the criminal law, it becomes clear that it is inappropriate to continue the practice in Queensland of requiring factual issues adverse to an offender on sentence  (that is, factual issues which, if proved, would be likely to result in a heavier sentence) to be proved on the balance of probabilities.  To the extent that previous authorities support that proposition they should be overruled.  Not all of the reasoning in decisions such as Welsh and Jobson is affected by that conclusion. 

The rather lengthy review  of earlier Queensland authorities indicates the variety of issues which may arise in the course of the sentencing procedure, and the variety of ways in which those issues may arise.  The way in which those matters were resolved by those authorities may need to be modified to meet the altered standard of proof for the future, but again much of the reasoning therein will remain relevant.

In practice in most cases no evidence will be called as part of the sentencing procedure.  Often any dispute will be treated informally; the judge will be left to decide between conflicting statements made from the Bar table.  There will in general be no problem if the sentencing judge imposes sentence on a particular basis provided that proof beyond reasonable doubt is required of any disputed factual issue which, if proved, is likely to result in a heavier sentence.

Given the foregoing analysis it is clear that upon conviction, whether in consequence of a jury verdict or a plea, it is for the judge to determine the facts material to the exercise of the sentencing discretion.  The facts as determined by the judge for sentencing purposes must be consistent with the jury verdict or plea of guilty; facts implicit in the conviction cannot be controverted.  Where a fact is admitted or not challenged, the sentencing judge may act on that fact without making any formal finding in relation thereto.  But where it is sought to prove an issue which is adverse to an offender in the sense that, if proved, it would be likely to result in a heavier sentence, and that issue is disputed, it must be proved beyond reasonable doubt.  Where, on the other hand, a disputed factual issue, if proved, would favour the accused in the sense that it would be likely to result in a less heavy sentence, the sentencing judge need be satisfied of that proof only on the balance of probability.  It is not for the prosecution, in such circumstances, to disprove the matter beyond reasonable doubt.  Where a jury verdict may be supported on more than one basis, it is for the sentencing judge to find the facts relevant to sentence, consistent with the jury’s verdict, and applying those principles.

THE PRESENT SENTENCE

The applicant was aged 41 at the time the offence was committed, namely 24 January 1997.  He had a criminal history, including some convictions for drug related offences.  He was convicted and fined in New South Wales in October 1984 for using heroin, and then on 1 February 1985 he was placed on a good behaviour bond for 12 months, again for using heroin.  There were further convictions on 17 October 1985 for possessing and supplying drugs; a fine was imposed for the possession and he was sentenced to 6 months imprisonment for the supply.  There was another such conviction on 26 November 1986.  Then on 19 October 1989 in this court he was convicted of possession of and supplying a First Schedule drug.  On that occasion Kelly SPJ fined him $900 and placed him on probation for 2 years with a condition that he submit to medical and psychiatric treatment as required.

The applicant was intercepted at Coolangatta airport on 24 January shortly after his arrival on a flight from Sydney.  He maintained that he had nothing to declare and was subsequently strip searched.  It is sufficient to record that a plastic bag containing white powder was removed from inside his underpants.  According to the facts as outlined by the prosecutor, the following conversation occurred:

Police Officer -“What’s this?”

Applicant - “It’s just mine, for my own use.  I’m not dealing.”

Police Officer - “What is it?”

Applicant - “Heroin”.

Police Officer -“There’s a bit there.  What is it?  An ounce?”

Applicant - “Yes.”

Police Officer - “You’d get about $100,000 out of this all cut up.”

Applicant - “No way, no way in the world.”

On scientific analysis, the package in question was found to contain the following:

1. Heroin.  The total weight of the substance was 41.850 grams and the calculated weight of heroin therein was 21.845 grams; that made the proportion of heroin in the substance 52.2%.
2. Cocaine.  The weight of the powder was 1.085 grams and the calculated weight  of cocaine in the powder was .303 grams; that made the proportion of cocaine in the powder 28%.

There was no challenge to the details in the analyst’s certificate or the quoted conversation.

The applicant declined to be formally interviewed by investigating police.

The above facts constituted the only factual material placed by the prosecutor before the sentencing judge.  In response to a question from the sentencing judge as to whether the prosecution said anything as to “what this heroin was worth?” the prosecutor replied: “... there had been no actual estimate made.  I will put up some authorities to your Honour in a moment, but the submission I would make is that the amount of heroin that was found could only - the inference that your Honour would draw would be that it was for a commercial purpose.”  There was then reference to the fact that there was a high degree of purity with regard to the heroin.

There then followed an exchange between the prosecutor and the sentencing judge dealing with comparable sentences.

Counsel for the applicant opened his submissions on sentence by referring to the fact that  the applicant had been “a heroin addict on and off for the last 20 years or thereabouts”.  He outlined the applicant’s family background which included the fact that his father died of cancer in 1978 leaving the applicant, possibly subject to a trust, a significant inheritance.  According to the submission it was against the background of his father’s death that the applicant became addicted to heroin and used a lot of it.  Some detail was given of the applicant’s lifestyle as an addict.  After his mother remarried and moved to the Gold Coast, the applicant began spending more time there with her rather than living in Sydney.  That move, according to the submission, resulted in a reduced dependency on heroin.  His mother’s second husband died in 1995 and in 1996 she was diagnosed with cancer.  She returned to live in Sydney, and the applicant visited her there from time to time.

According to the submission it was on one of those trips to Sydney that he purchased the heroin and cocaine in question for $6,000.  Counsel then specifically put to the sentencing judge that the drug was bought for the applicant’s own use.  That elicited the response from the sentencing judge that it was “a very big quantity of heroin. ... Pure heroin.”

There followed an exchange between counsel for the applicant and the sentencing judge about the purity of heroin now available on the streets.  There was also mention of the purchase price of a street gram of heroin.

Counsel for the applicant then informed the sentencing judge that at the time of arrest the applicant was “using about 2 grams a day”.  On that basis the heroin in his possession at the time of arrest would have lasted for about 3 to 5 weeks.  There was then reference to the applicant’s “delusional belief” that through using this particular batch of heroin over an extended period of time he could wean himself off it. 

A series of references and reports relating to the applicant were tendered; they will be referred to subsequently.  Mention is made therein of treatment the applicant had undergone for his dependency subsequent to his arrest.  The learned sentencing judge noted that all of that material was “directed to having me make a finding that heroin of which he had possession was for his own use”.  The submission was made, and readily accepted by the sentencing judge, that the applicant was “heroin addicted”. 

In the following exchange between Bench and Bar there was discussion of Nardozzi and the standard of proof referred to therein.  Counsel for the applicant then referred to the New South Wales decision of Isaacs.  The submission was made that the court ought not be satisfied to the required standard that the applicant had possession of the heroin for a commercial purpose.  In the course of that exchange the learned sentencing judge observed: “If you have got a large quantity of quite high grade heroin, I don’t think I need much more to infer that there is a commercial element”.  In that context speaking of the value of the heroin in the applicant’s possession the learned sentencing judge observed: “I realise that, but by the same token, I have got some idea from other cases, for instance, this one of Truong, 76.896 pure heroin, street value of about $300,000”. 

After a further exchange counsel for the applicant made the decision to call his client to give sworn evidence.  On oath the applicant admitted possession of the drugs in question but said: “... it was for my personal use.  I was scoring on the Gold Coast and it was costing me on the average of about $400 a day.  I had been visiting my mother in Sydney. ... I got the offer to buy a quantity down there for an amount of money.  I borrowed the money - I had some money already from - that my father had left me, and I also borrowed another $3,000 off my mother and purchased that drug down there.”  He said he paid $6,000 in all for the drugs.  He did say that he “had no idea that it was the amount that I was going to be receiving”.

Under cross-examination he said he had been a heroin addict on and off for about 20 years.  He had been left $800,000 on his father’s death and that had “dwindled to nothing”; primarily it had been spent on drugs.  His mother had been holding back some of that money from him.  He specifically denied ever selling drugs to anybody.  His mother had recently died and on her death he inherited property having a value of approximately $900,000.

Under further questioning he denied distributing heroin on the Gold Coast, but admitted purchasing heroin from people on the Gold Coast as well as from people in Sydney.  At the request of the prosecutor he wrote on a piece of paper the names of at least two people from whom he had purchased heroin.  There then followed these questions and answers:

Q.If you were to sell that.  Forget about using it for your own use.  If you were going to sell that at a street level, you would get a thousand deals out of it? -

A.If you - yea, if you say so.  I would have just been taking - it was only for me and I was just taking it home to break off as I needed it.

Q.Yes, I know what you are saying.  The question is if you were going to sell it at the street level you could have got anything up to a thousand deals out of it.  You disagree with that? -

A.Well, no.  I suppose not.

Nothing further in the cross-examination is of particular relevance for present purposes.  The submissions on sentence concluded with some further reference to the decisions in Nardozzi and Isaacs. 

The references previously referred to included one from the applicant’s current female companion, Natalie Ellett, and a family friend, Betty Wheaton.  In each of those there is the suggestion that the applicant’s relapse occurred when he became aware of his mother’s terminal illness.  There is also therein reference to serious attempts being made by the applicant to obtain treatment in an endeavour to break his dependency.  Another of those documents is from a Mr Sam Rosenberg who has had extensive counselling experience with persons on probation or parole.  He has known the applicant for many years, through an association with the applicant’s mother and step father.  Since arrest he has had extensive regular contact with the applicant and noted the extent to which the applicant has sought professional assistance for his drug problem.  During the period since arrest the applicant has subjected himself, at least on some occasions, to urine screening and that has proved negative as evidenced by documents tendered.  The applicant voluntarily presented for admission to the Goldbridge program in April 1997.  That is an organisation providing a range of services for people seeking to break drug dependency.  According to the documentation the applicants successfully completed a treatment program with that organisation.  From about February 1997 the applicant attended meetings of Narcotics Anonymous and has apparently satisfied that organisation that he is making a genuine attempt to rehabilitate himself from drug use.  There is also a letter under the hand of the Program Manager of the GAIN organisation, another provider of treatment for drug dependent persons.  Again, at least over a short period, the applicant has apparently been receptive to that program.

It was in the light of all that material that the sentences in question were imposed.  In his sentencing remarks the learned judge recounted the apprehension at the airport, and the conversation there had with police.  He set out the details of the analysis of the drug and recorded that the “heroin was well over the 2 grams mentioned in the Third Schedule”.  Then followed an outline of the applicant’s criminal history and some review of the evidence.  The learned sentencing judge said: “I am satisfied that you were a drug dependent person when you were apprehended.”

He then dealt with the question whether or not there  was a “commercial element” involved in the possession.  The following extracts from the sentencing remarks indicate the approach adopted:

“The second issue is whether the Crown has satisfied me that your possession of the heroin involved a commercial element or had a commercial aspect .... Now the Crown bears the onus of satisfying me of that.  ... In the Queen v Nardozzi ... the Court of Appeal held that for the purposes of sentencing for an offence against s.9 of the Drugs Misuse Act the Crown has the onus of proving on the balance of probabilities any additional relevant circumstance which were not elements of the offences covered by the guilty plea but that the standard of proof should be taken as reflecting the seriousness with which the issue should be determined.  Now, in your case you had possession of this heroin with the circumstance of aggravation, namely that at the time the quantity of the heroin exceeded two grams. ... I have already read out what the investigating police officer said to you at the time you were apprehended and your responses.

Now, the sheer quantity of this pure heroin, it was over ten times the 2 grams mentioned in the Schedule, and the percentage of the heroin inside the package, those matters alone raise a very strong inference that you had the heroin for commercial purposes.  Now, in drawing that inference I have deliberately omitted any reference to the value of the heroin.  The policeman asserted to you that it could be worth $100,000, but you said, “No way.”

When you gave evidence you conceded that there could be up to one thousand deals taken out of that heroin.  All in all I see no reason not to accept the assertion of the police officer that the heroin, when cut down, could bring in up to $100,000.  Once I do that, the inference which I earlier mentioned as very strong becomes compelling. ... So it was said that you bought the heroin for your own use and not for any commercial purpose.  You gave evidence, and I listened carefully to what you had to say.  I reject your claim that you bought the heroin for your own use.

...

Now, I take account of the seriousness of this issue of the commercial element concerning the heroin.  The Crown satisfied me beyond reasonable doubt that you had possession of this large amount of heroin for commercial purposes. ...

I should add that in making these findings I have taken account of the documentary evidence which was handed up to me ... I accept that since you were apprehended in January you have attended two courses to assist you with your drug dependence ...

... I am told that your addiction increased from about October 1996.  Mr Wilkin said you were then using 2 grams of heroin a day and that the quantity found on you, which I found was for commercial purposes, would have lasted 3 to 5 weeks.  One of the matters that surprised me was that you did not seek any professional help for your drug dependency until after you were apprehended by the police. ...

Now, you have pleaded guilty and that is a matter that goes to your benefit.  You have also given two names to the prosecution and that is a matter which also goes to your benefit and which I propose to reflect by making an earlier recommendation for parole than otherwise would have been the case.

...

There has been some debate concerning cases to which I have been referred.  One of these is the matter of the Queens v Suong Thu Tauong Appeal 289 of 1996.  That case gives me some guidance but there are quite great differences between you and that woman.  She was younger than you, she had no prior criminal history, she had assisted the police, she had very young children, and she was a courier. ... The other matter which I have mentioned is the matter of Nardozzi.  That was a case where the quantity was very much less than the quantity of heroin which is now before me. ...

In the circumstances I sentence you to 10 years imprisonment and I recommend that you be considered as eligible for parole after you have served 3½ years of that sentence.”

Two questions arise for consideration on the hearing of this application.  Firstly, was the material before the sentencing judge capable of supporting a finding beyond reasonable doubt that the applicant had possession of the heroin for a commercial purpose, and secondly, in those circumstances was the sentencing judge entitled to impose sentence equating such possession with the offence of supplying heroin.

A careful analysis of the material before the learned sentencing judge does not support his findings that “there could be up to one thousand deals taken out of that heroin” and that it “could bring in up to $100,000".  The passage from the cross-examination of the applicant quoted above does not amount to a clear concession that the heroin could have been cut into one thousand deals; even if the answer was capable of carrying that implication it did not amount to any concession that he had the heroin in his possession with that in mind.  Further, the only mention of $100,000 in the material before the sentencing judge was the assertion made by the police officer in the conversation at the airport, an assertion which the applicant denied.  Thus the “facts”  which the learned trial judge considered made the drawing of the inference that possession was for a commercial purpose “compelling” are at best supported by dubious evidence in circumstances  where the standard of proof is beyond reasonable doubt.  It would appear that the learned sentencing judge has wrongly had regard to values of heroin put forward in other cases.

Given the quantity of  heroin involved, the inference was possibly open that the person in possession of it had some commercial intent, but whether or not that inference could be drawn, and specifically drawn beyond reasonable doubt, would be dependent upon the surrounding circumstances. One cannot look at quantity alone in isolation; that must be considered in the context of all the evidence.

Here there is no doubt that, as was found, the applicant was drug dependent on heroin.  There is also no doubt that he had access to substantial sums of money enabling him to satisfy that habit.  In those circumstances possession of a large quantity of heroin could be readily truthfully explained as being solely for his own use; in other words, in those circumstances the inference that possession was for a commercial purpose is less strong.  Certainly in those circumstances his statement that he had the heroin for his own personal use is not improbable.

Further, it must be emphasised that here there was no evidence suggesting a commercial element other than the quantity found in the applicant’s possession.  There was absolutely nothing else in the material placed before the learned sentencing judge which would support the drawing of an inference that the possession was for a commercial purpose.

In those circumstances the conclusion by the learned sentencing judge that the applicant had possession of the heroin for a commercial purpose cannot be sustained on the material, given that such finding must be established beyond reasonable doubt.

But even if the finding was open that the applicant had possession for a commercial purpose, that cannot equate the offence with that of supplying heroin (or trafficking).  The legislation does not refer to a commercial purpose, but it has generally been regarded that possession for a commercial purpose (that is supply) is more serious than possession for one’s own use.  What that means is that if the possession has a commercial element associated with it the sentence will be towards the upper end of the range for possession; it does not mean that the offender can be sentenced in accordance with the range applicable to offences of supply or trafficking. 

A sentence of 10 years imprisonment with a recommendation for parole after serving 3 ½ years is more commensurate with the range applicable to trafficking in heroin or for a number of counts of supply motivated purely by profit making.  Even if a finding of possession with a commercial element was sustainable the sentence imposed would be manifestly excessive (well outside the permissible range) for such an offence.

There are not a lot of cases indicating the appropriate sentence for possession of a large quantity of heroin.  More often than not where a quantity such as that in question in this case is involved, there will also be a charge of trafficking or supply.  In Nardozzi the block weighed 9.017 grams and it contained 6.077 grams of heroin.  The sentence, on the basis of possession with a commercial element, was 5 years imprisonment with a recommendation for release on parole after 18 months.  The quantity in R v Clare [1994] 2 Qd.R. 619 was “considerable”.  The offender in that case had served a prior significant gaol sentence for a drug offence.  In that case the sentence was 6 years imprisonment; it was after a trial.  There are also many cases in which sentences of the order of 4 years imprisonment have been imposed on persons convicted of trafficking in or supplying heroin to support their own habit.  The fact that the offender is drug dependent is recognised by the legislation as a relevant fact because a lower maximum penalty is prescribed.

In this case given:

1. the quantity of heroin in the applicant’s possession;
2. that he was a drug dependent person;
3. that the possession was for his own use;
4. there was an early plea of guilty;
5. that the applicant supplied the names of some of those from whom he purchased;
6. the fact that he had previous drug related convictions but had not previously served a significant goal sentence;

the appropriate penalty is 5 years imprisonment with a recommendation that he be eligible for parole after serving 18 months.

The orders of the Court will therefore be:

Application for leave to appeal against sentence granted, appeal allowed, sentence set aside and in lieu thereof the applicant is sentenced to imprisonment for 5 years with a recommendation that he be eligible for parole after serving 18 months.