R v Oldfield[1999] QCA 85

COURT OF APPEAL

McMURDO P

WHITE J

MUIR J

BRISBANE

DATE 19/03/99

JUDGMENT

MUIR J:  The applicant, a 40-year-old mother of children aged 15 and 17, was convicted on her own pleas on 30 November 1998 of possession of the dangerous drug methylamphetamine, and of, whilst the occupier or concerned in the management or control of a place, permitting the said place to be used in the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986.  She was sentenced to one year and nine months' imprisonment with a recommendation for release on parole after nine months.

The applicant was married at 21 and separated at the age of 30.  Her 17-year-old son had at the time of sentencing just finished grade 12, and her daughter had finished grade 10 and proposed to continue with her schooling.  The applicant completed Senior as an adult student at the age of 23, and had her children in the course of doing so.  She did external studies which qualified her as a library technician and then worked at the QUT campus at Carseldine as a library technician for 12 months.

At around that time she separated from her husband and went to Maryborough to look after her dying father.  The children came with her.  Her prior criminal history is limited but drug-related.  She was convicted of possession of a dangerous drug and of permitting her place to be used for the commission of a crime on 13 May 1994.  For those offences she was convicted and fined $450.  The offences were thus minor in nature.

On 20 April 1998 she was convicted of the possession on 20 April 1998 of a thing for use in connection with the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986, namely unlawful production of a dangerous drug and of possession of a dangerous drug specified in the third schedule.  On those charges she was sentenced after a trial in the Supreme Court to a term of imprisonment of two years, wholly suspended for a period of five years.

In his sentencing remarks the sentencing Judge made mention of the fact that the applicant had been hard-working and a devoted mother involved in community activities.  He expressed the view that the applicant had displayed, and I quote, "genuine and deep-seated remorse".  It is implicit in His Honour's reasons that he concluded that the applicant was shocked at the prospect of imprisonment and that this would tend against the prospects of her re-offending.

I now turn to the circumstances surrounding the offences under consideration.  The offences were discovered when police raided the premises which the applicant rented.  Methylamphetamine and traces of it were found at various places.  The total weight of drug found was .89 grams. 

Items used in the taking of the drug were found in the applicant's bedroom and in the boot and glovebox of her car. Production of the drug was carried out in the shower area of the bathroom of a granny flat in a large shed behind the house.  The bedroom was shared by the applicant with one Steven Wynn who was cohabiting with her. 

At the commencement of her trial the applicant pleaded to the count of possession.  She was then arraigned on three other counts, including a further count of unlawful possession of a dangerous drug and one of unlawful production.  After a number of adjournments in the course of the first day of the trial the applicant pleaded guilty to count 4 and the remaining two charges were withdrawn. 

The applicant relies principally on the following matters:

(a)there was no evidence that the applicant used amphetamine herself;

(b)there was no evidence that the applicant stood to gain anything from the production of amphetamines;

(c)the offences of which she was convicted in April 1998 were more serious than those now under consideration;

(d)a proper application of the totality principle did not require a custodial sentence, and the learned trial Judge erred in holding otherwise;

(e)the better could have been to impose a non-custodial sentence such as a community service order;

(f)in the alternative the sentencing Judge should have ordered a term of imprisonment, suspended after three months, for an operational period of five years.

I note that the applicant has been serving her term of imprisonment since the sentence was imposed.  The Crown Prosecutor submitted at first instance that although a non-custodial sentence may have been technically within range, the following factors supported the sentence imposed:

(1)the applicant was on bail for drug-related offences when the subject offences were committed;

(2)the applicant had previous drug convictions;

(3)the applicant was a mature woman.

Mr Bullock, who appeared for the Crown, advanced similar submissions before us. On the sentencing hearing a number of references were tendered by persons who testified as to the care the applicant took of her children, her involvement in community volunteer work, and her assistance to friends, relatives, and neighbours.  Included in the references were ones by her son, her sister, and her mother.

The 1998 conviction was made possible by virtue of that part of section 57 of the Drugs Misuse Act, which provides that a dangerous drug was in a place of which a person was the occupier or concerned in its management or control, is conclusive evidence that the drug was in the person's possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place.

It is suggested that the unlawful production of methylamphetamine, the subject of the 1998 conviction, was affected by Shirley Wynn, the wife of Steven Wynn.

The conviction of the applicant on one of the offences now under consideration was also made possible by application of those provisions of section 57.

In his sentencing remarks the learned sentencing Judge stated that he had to apply the principle enunciated by the High Court in Mill v. The Queen (1998) 166 CLR 59.  That principle finds expression in a passage from the judgment of Street CJ in The Queen v. Todd [1982] 2 NSWLR 517 at 519 to 520. 

The subject offences were committed about 18 months after the 1995 offences and in excess of two years after the relatively minor 1994 offences.  They were committed at, or in respect of different premises.  The applicant is not presently serving any term of actual imprisonment. Whether she serves any such term in respect of the 1995 offences depends entirely on whether she commits a further offence.

There must thus be some doubt as to the application of the principle in Mill to the facts under consideration.  If it does operate it would do so only in respect of the 1995 offences and the subject offences.  Furthermore, its operation could be expected to produce some reduction in the severity of the sentence imposed for the subject offences, particularly having regard to the fact that the 1995 offences appear to have been more serious in nature than those now under consideration.

I do not detect any such reduction in the sentence imposed by the sentencing Judge or in his reasons for imposing it.  In my view, for the reasons I am about to give, the sentence imposed was outside the range of a sound sentencing discretion.

The fact that the subject offences were committed whilst the applicant was on bail is a matter which strongly operates against the applicant and, in my view, suggests the desirability of some custodial sentence.  However, there are a number of factors which operate strongly in her favour and to which, in my view, the sentencing Judge had insufficient regard. 

They are:

(a)the possession charge is in respect of an extremely small quantity of drugs;

(b)there is no suggestion in the evidence of active involvement or assistance on the part of the applicant in the production of drugs;

(c)the applicant's relationship with the person allegedly producing the drugs has now ceased;

I note that there is evidence of violent conduct engaged in by that person, but not against the applicant herself;

(d)the evidence accepted by Mr Justice Chesterman who sentenced the applicant in April 1998, but she has now shown remorse and resolved on a change of course the subject offences, of course, were committed by the applicant before her 1998 trial and before she faced the sobering prospect of a prison sentence;

(e)her general good character; and

(f)the undesirability of interfering with the support which she gives her mother and children. 

I considerable desirable that the applicant be permitted to avail herself of the opportunity of self rehabilitation afforded her in her 1998 sentence.

I would allow the appeal, set aside the sentence imposed below and in lieu thereof order that the applicant be sentenced to a term of imprisonment of 12 months, such sentence to be wholly suspended with effect from today with an operational period of two years from 30 November 1998.

THE PRESIDENT:  I agree.

WHITE J:  I agree also.

THE PRESIDENT:  The orders are, the application for leave to appeal against sentence is granted.  The appeal is allowed.  The sentence below is set aside and instead a sentence of 12 months imprisonment is imposed wholly suspended from today with an operational period of 2 years from 30 November 1998.