R v Clapham[2003] QCA 418

SUPREME COURT OF QUEENSLAND

HOLMES J:  The applicant for leave to appeal was originally sentenced to 120 hours' community service in respect of one count of production of the dangerous drug methylamphetamine in excess of two grams and one count of possessing things used in connection with that production.  No conviction was recorded.  Most unwisely he did not complete any part of the community service imposed and changed his address without notification.  He came before the original sentencing Judge for resentencing on 10 June 2003 and was sentenced to 12 months' imprisonment.  It is that sentence in respect of which he now seeks leave to appeal.

The circumstances of the production charge were that the applicant and his co-accused, who was his girlfriend, booked a motel room in which they set about producing a small quantity of methylamphetamine for personal use.  The applicant was the cook.  The police found the laboratory in operation.  2.71 grams of pure methylamphetamine had been produced.  The applicant made full admissions.  He told the police that he was an addict.  He and his girlfriend had hoped to produce between two and four grams, which would last them about a week.

In sentencing the accused originally, the sentencing Judge took into account that there was a full hand-up committal, that there was a timely plea of guilty, that the quantity of the drug was small and only for personal use and that the accused did not have a criminal record.  In fact, the last was discovered by the time of the resentencing not to be the case;  the accused had some criminal history.

In 1995 he was fined in the Magistrates Court for production of cannabis sativa - some four plants - possession of a thing used for smoking, failing to take precautions in respect of a hypodermic syringe and needle - which, according to the applicant, was used in connection with his amphetamine addiction - and possession of property suspected of being stolen.  No conviction was recorded on any of those offences.  He was subsequently dealt with, by fine, for offences of possessing a dangerous drug and possession of a pipe, also committed in 1995.  Again no conviction was recorded.  And in 2001 he was convicted of, but not punished for, a breach of his bail undertaking.

The Crown submitted on the resentencing that, had the criminal history been available at the original sentence, a term of imprisonment of up to 12 months would have been appropriate.  Counsel for the applicant there accepted that was so but argued for a suspension in part, to reflect the fact that it was a small amount for personal use, the applicant's cooperation with the police and his plea of guilty.

When the sentence of 12 months' imprisonment was imposed, the learned sentencing Judge asked if any other orders were required.  Counsel for the applicant raised again the possibility of suspension in part, and the Crown Prosecutor submitted that some sort of allowance for cooperation with the police would have to be made.  The learned sentencing Judge responded that he had already done so.

Mr Davis, counsel for the applicant here, contends that too much weight was placed upon the criminal history of the accused, that no proper allowance was made for the plea of guilty and cooperation with the police and that the sentence is beyond the proper range.  He says that the prior convictions merely reinforced the point that the applicant was an addict and that the mere revelation of the criminal history should not have increased the appropriate range from a fine of between $1,000 and $1,500, as was proposed by the Prosecutor at first instance, or community service, to 12 months' imprisonment.  He says that the appropriate sentence would be a fine of $1,500 to $2,000, or a short, wholly suspended sentence.

Mr Martin, for the respondent, submits that the sentencing Judge was entitled to resentence the applicant without the benefit of the leniency exercised in the original sentencing.  That is clearly correct.  The exercise is not one of measuring the difference between the original sentence and the one imposed on the resentencing, but, rather, is one of determining whether the latter is within the range of a proper exercise of discretion for the offences committed.

Mr Martin says that the manufacture of methylamphetamine, even for personal use, is a more serious offence than production of cannabis, because both the process involved and the drug, itself, are more dangerous, and that any production must be deterred.

I do not think there is any argument but that actual custody was within the range, particularly having regard to that need for deterrence.  But I do not consider that the offence involved here, the production of a small amount of methylamphetamine for personal use, taken with the applicant's personal circumstances of addiction and relatively limited criminal history, called for any greater penalty than 12 months' imprisonment.  I am reinforced in that view by consideration of the sentence as varied on appeal in the matter of R v Hall [2002] QCA 438.

Having said that no greater penalty than 12 months' imprisonment should have been imposed, there is no reason to vary the head sentence.  But some recognition of the applicant's cooperation by way of admissions, full hand-up committal and early plea of guilty, was required.  Although it clearly was given in the original sentence, I do not think it is adequately reflected in the sentence, the subject of this application.  I would allow the application for leave to appeal and the appeal, and vary the sentence by suspending it after a period of four months, with an operational period of three years.

JERRARD JA:  I agree with the order proposed by Justice Holmes.  That result is certainly consistent with the decision of this Court, to which she has referred, in R v Hall where the quantity of amphetamine produced was eight grams.  That particular applicant had a much more serious criminal and drug offending history, and this Court resentenced that applicant, on his plea of guilty, to a sentence of two years' imprisonment, suspended after eight months.

JONES J:  Yes, I agree with the reasons expressed and with the orders proposed.

JERRARD JA:  The order will be as suggested by Justice Holmes.

MR DAVIS:  Your Honour, there should be a declaration of time spent in custody.

JERRARD JA:  How many days?

MR DAVIS:  It is 106 days between the 10th of June 2003 and today.

JERRARD JA:  The dates again, Mr‑‑‑‑‑

MR DAVIS:  10th of June 2003 and today.

JERRARD JA:  The order of the Court will declare that the 106 days spent in custody, between the 10th of June 2003 and today's date, counts as time served under that sentence.