R v McAnally
[2001] QCA 66
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- Unreported Judgment
- Appeal Determined (QCA)
- R v McAnally[2001] QCA 66
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R v McAnally[2001] QCA 66
R v McAnally[2001] QCA 66
COURT OF APPEAL
McPHERSON JA
AMBROSE J
WILSON J
| CA No 297 of 2000 | |
| THE QUEEN | |
| v. | |
| GRANT ANDREW McANALLY | Applicant |
BRISBANE
DATE 28/02/2001
JUDGMENT
McPHERSON JA: The applicant for leave to appeal against sentence in this instance is Grant Andrew McAnally. He was convicted on his own plea of guilty in the Supreme Court at Brisbane on one charge of possessing a dangerous drug, with a circumstance of aggravation. The circumstance of aggravation was that the amount of the drug, which was heroin, exceeded the prescribed quantity. He was sentenced to a term of imprisonment for seven years, with a recommendation for parole after two and a half years.
The circumstances in which the offence was committed are that on 7 October 1999, he was stopped and searched at Brisbane Airport, after disembarking from an aircraft. He was found to have strapped to his body 111 grams of powder containing 67 grams of pure heroin. He claimed it was for his personal use and that he had bought a large quantity, to provide him with a supply for some months. However, the learned sentencing Judge declared himself satisfied beyond reasonable doubt that a commercial element was involved in the applicant's possession of the heroin. In the course of his sentencing remarks his Honour said:
"I am satisfied that there was a commercial element in your possession of the quantity of heroin on this particular occasion. Some of the heroin would have been used by you, but undoubtedly much would have been sold to generate profit. That may have enabled you to further satisfy your own dependent needs."
His Honour's decision on that element of the case is not open to question. There was evidence before him that the street value of this amount of heroin was between about $110,000 and $220,000 and he was entitled to reach the conclusion which he did.
The personal circumstances of the applicant are that he is 22 years old and, unfortunately, a heroin addict. He also has a criminal record, which includes convictions for drug offences in 1996, 1997 and 1998 which are clearly in respect of marijuana and not heroin. He has property offences in respect of which convictions were recorded in 1997 to 1999, although one of the recent incidents, he has told us, was committed much earlier than the conviction suggests.
It seems clear that these offences were committed in order to satisfy his addiction by providing money for that purpose. It is also to be noted that he has made some efforts to break his addiction, but without success in the long term. What, unfortunately, goes strongly against him in this application for leave to appeal is that he committed the offence while he was subject to a probation order imposed in the District Court in 1998.
The maximum penalty for an offence of this kind is imprisonment for 20 years if the Judge is satisfied that the offender is drug dependent (which is a matter of which his Honour was satisfied here), and 25 years if the Judge is not so satisfied. The maximum in this case, therefore, is 20 years and the Judge imposed a sentence of seven years, with the recommendation I have mentioned.
The decisions in comparable cases with which we have been supplied show that the head sentence here was well within the prevailing range for an offence of this kind. In R v. Truong (CA 528/96), a sentence of nine years' imprisonment was imposed, with parole after three and a half years, for possession of a comparable quantity of heroin, namely 135 grams of powder, containing 77 grams of pure heroin. In that instance, the offender was 27 years old, but he had no criminal history.
In R v. Morrison [1999] 1 Qd.R. 397, a sentence of imprisonment of five years was imposed, with parole after 18 months, which is a lower sentence than the applicant here received. In that case, however, the quantity of heroin possessed was 42 grams of powder containing 22 grams of pure heroin, and some cocaine amounting to one gram of powder containing 0.3 grams of the pure drug.
The applicant in R v. Morrison was 41 years old and had a criminal history for similar offences, but he povided the names of drug suppliers to the police and that would have counted in his favour. He too was an addict.
In R v. Nguyen and Truong [1995] 2 Qd.R. 285, the amount of heroin possessed was 42 grams of powder containing 22 grams of the pure drug, in a case in which the leading offender received a sentence of six years' imprisonment. There, of course, the quantity of heroin in possession was considerably less. In the last two cases, the sentence was lower, but the quantities involved were one-third (or less) of the quantity involved here.
Plainly, his Honour added the recommendation for parole in order to encourage the applicant and as a reflection of his youth. I do not think that we could improve upon that recommendation, which in effect reduces the period that he would expect to serve in prison from about three and a half years to two and a half.
The sentence imposed, in my opinion, cannot be described as excessive and there are no errors in the reasoning that would lead us to review it. In my view, the application for leave to appeal should be dismissed.
AMBROSE J: I agree.
WILSON J: I agree.
McPHERSON JA: The application for leave to appeal against sentence is dismissed.