The Queen v Jenkins[1999] QCA 447

COURT OF APPEAL

McMURDO P

THOMAS JA

ATKINSON J

CA No 148 of 1999

THE QUEEN

v.

DARREN JOHN JENKINS Applicant

BRISBANE

DATE 27/10/99

JUDGMENT

THOMAS JA:  The applicant was convicted of three counts of possession of dangerous drugs, namely cocaine, methylamphetamine, cannabis sativa and lysergide with a circumstance of aggravation.  The drugs were found after a police raid under a search warrant.

For the first two counts the applicant was sentenced to four years' imprisonment suspended after 12 months with an operational period of five years.  For the third count of possession he was sentenced to six months imprisonment with a three year probation period from the date of sentencing. 

The applicant is 24 years old with previous convictions for obscene language, breaching a bail undertaking and breaching the Bail Act.  The drugs were found in two motor vehicles owned by the applicant and in his residence.  In his Range Rover there was a bag containing 27.7 grams of white powder which consisted of 19.2 grams of pure cocaine.  The prescribed limit under the third schedule, it may be noted, is 2 grams.  There was also a plastic bag containing 50 methylamphetamine tablets which analysed at .289 grams pure.

In the applicant's Nissan Pulsar was found a bag of white powder being methylamphetamine in the amount of 55.507 grams, 2.5 grams pure.  There was also a bag of cocaine containing 9.831 grams of powder which revealed 5.564 grams pure and two bags of cannabis sativa containing respectively 65.1 grams and 154.3 grams. Inside the residence in various locations, including the bedroom, refrigerator and the applicant's shirt pocket and wallet there were found five bags of cannabis sativa containing quantities between 1.4 and 20.8 grams of seeds, three packets or lots of cocaine containing 1.405 grams pure, a tin containing six bags of pills with a small quantity of methylamphetamine and 96 squares of LSD revealing .004758 grams of pure LSG.

The first principal argument advanced by counsel for the applicant is that the learned sentencing Judge erred in regarding as relevant his finding that the applicant's possession of the drugs was for a commercial purpose.  The rather bold submission which was advanced is that such a matter is not relevant to a charge of possession.  That certainly runs counter to many cases that have been decided in this Court and indeed all over Australia.

In my view, possession for a commercial purpose makes the possession far more serious or heinous and it is a very relevant factor.  The argument proceeded that as additional criminality might be inferred from possession for such a purpose, some other offence ought to be charged such as trafficking.  I have difficulty in following the argument because there are different elements involved in a charge of trafficking. 

To my mind in a possession charge the purpose of the possession is relevant to an understanding of the level of seriousness of the offender's actions.  Possession for one's own use is regarded as less serious than a possession that is likely to contribute to the misery of others in the community or to the promotion of the drug trade.  I do not consider there is any merit in this initial submission.

Then it was argued that His Honour erred in making the finding that the bulk of the drugs that were found were in the applicant's possession for a commercial purpose.  In my view, having regard to the following factors, the learned sentencing Judge was well justified in coming to the conclusion he did.

Firstly there is the quantity, nature and variety of the drugs that I have outlined.  Secondly their value was approximately $20,000.  Thirdly there was found also numerous clip-seal bags, scales and cutting agents.  Fourthly there is the circumstance that drugs were contained in a number of areas, including two cars and the residence.  Fifthly the fact is that the applicant was on Social Security from May 1996 to 1998 during which he was paid $20,000, but during that period he had paid household bills of at least $20,000, had been snow-skiing to Canada and had purchased two cars.

The Judge rejected the applicant's testimony after a careful analysis of the evidence.  The applicant attempted to explain his financial position as the consequence of frequent attendances at the Casino.  It is true that he was a regular attender at that place, but this was taken into consideration by the learned sentencing Judge and I consider that no error has been shown in His Honour's reasoning or in the capacity of the whole of the evidence to lead to the finding which His Honour made.

Finally it was submitted that the sentence actually imposed was excessive even if there was a commercial purpose and if such a factor was relevant.  In my view, having particular regard to cases, including Ban, CA 33 of 1992 and Hall, CA 81 of 1997, it cannot be said that the sentences are too high.  Indeed I accept the observation in the learned Crown Prosecutor's submission that given the features of this case and the structure of the sentences which includes a suspension after 12 months, the sentence could be described as compassionate.

However, in relation to count 3, counsel for the Crown has conceded that on the authority of R v. Hughes [1999] 1 Queensland Reports 389, the learned Judge erred in imposing probation on count 3 when he had imposed a term of imprisonment on counts 1 and 2.  The submissions on behalf of the Crown were that the appropriate substituted sentence should be between six and 12 months and on behalf of the applicant that a substituted sentence of six months would be appropriate.

In the circumstances I would set aside the sentence imposed on count 3 and replace it with a sentence of six months imprisonment which is, of course, concurrent with those on counts 1 and 2.  I would therefore grant leave to appeal and allow the appeal with respect to count 3, but otherwise dismiss the appeal.

THE PRESIDENT:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is granted, the appeal against sentence is allowed to the limited extent in respect of count 3 where the sentence is set aside and a sentence of six months' imprisonment is substituted.  Otherwise the sentence is confirmed.