Attorney-General v Scalia[1999] QCA 385

PINCUS JA:  This is the matter of Scalia.  There is an appeal against sentence by the Attorney-General on the ground that the sentence imposed by the learned primary judge was insufficient.  There were three counts, all of them relating to cannabis, one of supply - a very small quantity - and two of possession.  The two counts of possession were dated 5 October and 14 October 1998.  A police operative came to the respondent and there was discussion about the sale of 20 pounds of cannabis at $3,000 per pound.  There was no examination on that date of the amount of cannabis available but 20 pounds was discussed as being able to be sold.  Subsequently, there was a search warrant executed on 14 October and four and a half kilograms of cannabis was located.

There is no dispute that the cannabis was in the possession for a commercial purpose, that is, for sale.  There was some discussion about its price or value.  The wholesale price was said to be $2,500 per pound but it was said that there might be a possibility of getting it for $2,000.  As to the 20 pounds mentioned on 5 October, then, the price or value would have been something in the order of $40,000 to $50,000 and of course half that in respect of the amount actually found on 14 October.  Mrs Clare, who has appeared for the Attorney today, says that she relies upon the 4.5 kilograms found on 14 October. 

There was some discussion below, that is, before the primary Judge, as to what the respondent might have made from the sale and the suggestion was, as I understand it, about 10 per cent of the price. 

The learned primary Judge was addressed by counsel on the basis that the respondent, a man of 41 years of age, is a family man who has an eight-year-old child dependent upon him and two other children; that he has had serious financial trouble, details of which were given, and was in serious need of money.  At the time in question he was apparently farming on five acres and hoping to make money in that fashion. 

The primary Judge took what is, on any view, a lenient approach to the matter.   His Honour sentenced the respondent to imprisonment for two years, suspended it forthwith and fixed the operative period as five years which, as his Honour pointed out, was the maximum permissible under the statute. 

The two year sentence is not challenged in the appeal and the question which is raised by Mrs Clare on behalf of the Attorney is whether it was a proper approach to suspend it.

It is argued by Mr Donnelly, correctly, that there are restraints on Attorney appeals; the limits of which are familiar and it would seem to be the case that we would not interfere unless of the opinion that what the primary Judge ordered was plainly, or clearly, beyond the proper range.

We have been referred to a number of authorities and of those five I will mention four.  One of them is Diefenbach (CA No 334 of 1996, 25 March 1997).  That was rather a complicated case, in one sense, in that there were three counts and on appeal the appellant against conviction  succeeded with respect to two of them, leaving only a cannabis count standing.  The amount of cannabis involved was one and a half kilograms.  The case was one in which the precise connection of Diefenbach with that one and a half kilograms, which was in premises which he controlled, was not made clear.  Section 57(c) of the Drugs Misuse Act was relied on.

Diefenbach was younger than Scalia.  He was 23 years of age.  He had only one conviction but that was for a number of drug offences and the punishment for those offences had been a fine.  He was initially sentenced to four years' imprisonment and the sentence was reduced by this Court to two years.  It is suggested by Mrs Clare, on behalf of the Attorney that Diefenbach is, on balance, reasonably comparable with the present case.

The second case of possession to which we were referred was Boyle (CA No 203 of 1995, 31 July 1995).  The offender there was about the same age as the present respondent.  He had a number of previous convictions including assaults but had never been to prison.  He was charged as a courier.  There was 23 and a half kilograms of cannabis involved which was being transported and his fee was going to be $4,800.  There was a guilty plea.  A sentence of three years was imposed and that was approved.  It was described as being in the middle of the appropriate range.

Both Boyle and Diefenbach to my mind suggest that the sentence with which we are presently concerned is not within the appropriate range; but there is Clarke (CA No 38 of 1995, 16 March 1995) upon which Mr Donnelly particularly relies and this was an application for an extension of time.

There the sentence was 18 months wholly suspended.  The amount of cannabis involved was 1.2 kilograms.  The sentence was imposed on the basis it was in possession to facilitate disposition by others.

That is, it was another case in which the precise connection of the offender with the cannabis was not very clear; that is not so in the respondent's case, where it is very clear.  There were, in Clarke's case, prior drug offences.  The difficulty, as it seems to me, in relying heavily upon Clarke is that all that happened there was that the Court refused an extension.  It does not seem to me that it is of any real value in determining what this Court thinks is the proper range.

The fourth case to which I refer is Hopkins (CA No 286 of 1992, 4 February 1993).  There was a plea of guilty.  There were charges of producing as well as supply and possession of cannabis.  The sentence was three years.  The case has in common with the present that according to McPherson JA one of the relevant circumstances was that the applicant Hopkins got involved because he took a job when he was desperate for work; it turned out that an aspect of the job was that he had the opportunity to engage in marijuana production, which was apparently in existence at the time when he came along.

He worked on a small plantation.  There was 13 kilograms live weight of plants when the police arrived and one and a half kilograms dry weight of cannabis.  The financial prospect for him was rather similar to that here, in that he hoped to get $2,000 or $3,000.

He was a younger man, 29 years, but his youth would not, it seems to me, have gone much in his favour; he had no previous convictions and he pleaded guilty.  The sentence imposed of three years, again, seems to suggest that the sentence imposed here is not within the appropriate range.

In the end, the case is one in which one would have expected a sentence of two years or more, unsuspended.  The arguments against interfering are really two, as it seems to me - both put by Mr Donnelly.  One is the reluctance this Court has exhibited particularly since the High Court's decision in Everett & Phillips (1994) 181 CLR 295 to accede to Attorney's appeals unless it is clearly necessary to do so.

The second is that the respondent, Mr Scalia, was in serious financial trouble.  As against that, there is the fact that you have possession, plainly for sale, of substantial quantities of the drug involving substantial amounts of money.  My view is that the case is plain enough, with respect to the learned primary Judge, to warrant, indeed to require interference by this Court. 

The orders which I would propose are that the sentences imposed below be varied by deleting the order for suspension of the sentence.  That is, I would replace the sentence which was imposed below of two years suspended by sentences in respect of each matter of two years concurrent, with no order for suspension.

AMBROSE J:  I agree.

CHESTERMAN J:  I agree.

PINCUS JA:  The appeal will be allowed and the sentence imposed below will be replaced by those which I have mentioned.

MR DONNELLY:  Your Honour, before the matter is completed could I ask if a warrant be issued and that it lie in the Registry for seven days so that my client may take care of certain administrative matters.

PINCUS JA:  What do you say, Mrs Clare.

MRS CLARE:  I have no objection to it lying for seven days.

PINCUS JA:  Yes, very well.  Let a warrant issue for the respondent's arrest and let it lie in the Registry for seven days.