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R v Pratt[2008] QCA 402

  

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

SC No 474 of 2008

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

12 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2008

JUDGES:

McMurdo P, Fraser JA and Chesterman J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Application for leave to appeal granted
  2. Appeal allowed
  3. Sentence imposed at first instance set aside.
  4. Instead, the applicant is sentenced to:

(a)in respect of count 1:

(i)  probation for 18 months on the terms and conditions set out in s 93(1) Penalties and Sentences Act 1992 (Qld) with a further condition that the applicant must submit to all such tests, examinations and assessments where and as often as an authorised corrective services officer may reasonably require for the purpose of ascertaining the presence of any dangerous drug (as that term is defined in the Drugs Misuse Act 1986 (Qld)) in the applicant's body; and

(ii)  perform unpaid community services for 100 hours and comply with the requirements set out in s 103(1) Penalties and Sentences Act 1992 (Qld).

(b)in respect of each of counts 2 and 3, 6 months probation on the same terms and conditions as the probation order imposed on count 1.

  1. A conviction is recorded on count 1.  No convictions are recorded on counts 2 and 3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – applicant pleaded guilty to one count of supplying, and two counts of possession of, a dangerous drug – applicant sentenced to 18 months probation with a special condition as to drug testing and 100 hours community service with conviction recorded – sentence not endorsed on indictment with respect to any particular count – failure to sentence individually on each count an error which causes the Court of Appeal to re-sentence – applicant 24 years old and studying for a nursing degree – supply count entirely based on the applicant's admissions to police – effect on applicant's future employment of convictions being recorded – Court of Appeal re-sentenced applicant to an effective sentence of 18 months probation with a conviction recorded on the supply count only

Nursing Act 1992 (Qld), s 54(3A), s 54(3C), s 54(3D)

Penalties and Sentences Act 1992 (Qld), s 9, s 12(2)

R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, applied

R v Crofts [1999] 1 Qd R 386; [1998] QCA 060, followed

R v Dolan [2008] QCA 41, followed

R v HAP [2008] QCA 137, followed

R v Mirza; ex parte A-G (Qld) [2008] QCA 23, cited

R v Richardson [1997] QCA 161, compared

COUNSEL:

R A East for the applicant/appellant

D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

[1]  McMURDO P:  The applicant pleaded guilty on 29 August 2008 in the Supreme Court at Brisbane to one count of supplying a dangerous drug and two counts of possessing a dangerous drug.  She was placed on 18 months probation with a special condition as to drug testing and ordered to perform unpaid community service for 100 hours.  A conviction was recorded.  She applies for leave to appeal against her sentence only as to the recording of a conviction. 

[2] It should immediately be noted that the learned primary judge's sentencing remarks suggest that he imposed a single sentence for the three offences instead of imposing individual sentences in respect of each offence.  That conclusion is also supported by the endorsement on the indictment which does not state that the single sentence imposed relates to each individual offence.  In those circumstances, this Court is required to allow the appeal and to re-exercise the sentencing discretion: R v Crofts;[1] R v Dolan[2] and R v HAP.[3]  The issue in this appeal then is whether this Court, in re-sentencing the applicant, should record a conviction on all or any of the offences.

The sentencing proceeding

[3] The applicant was 24 at the time of her offending and 25 at sentence.  She had one entry in her criminal history on 2 July 2007 for breach of a bail undertaking for which she was fined $200; the breach concerned an unrelated driving matter.  She therefore had no relevant criminal convictions.

[4] The prosecutor stated that the applicant indicated her intention to plead guilty at an early stage; the matter proceeded by way of handup witness statements without cross-examination at committal; she had saved the State considerable time and expense.

[5] The circumstances of her offending were as follows.  On 20 September 2007, the applicant was present when police executed a search warrant at an address on the Sunshine Coast.  She handed police a glass pipe which was in her handbag.  Police searched her handbag and found a small clipseal plastic bag containing about half a gram of cannabis (count 3).  They found green plant material in the pocket of her blue jeans.  They found another small clipseal plastic bag containing a small quantity of crystal beige substance which was methylamphetamine (count 2).  Neither the cannabis nor the methylamphetamine was the subject of analysis.  She told police that she used the glass pipe for smoking "ice" or "rock".  She said that the green plant material was cannabis and the crystal beige substance was "rock" or "ice", a kind of methylamphetamine.  She had purchased the rock for herself and for others in the past.  She had never profited from her dealings in it.  She had never supplied cannabis to anyone.  She had last obtained "rock" for a friend a few weeks previously.  Whenever a friend wanted the drug, each would put in $200 and they would buy a gram for $400.  Because of the poor recording quality of the police field tape, she agreed to take part in another interview at the police station in which she repeated these admissions.  She added that she had bought "rock" for about five friends aged between 21 and 25.  She had been addicted to methylamphetamine but had cut back from using about half a gram a day to using about a gram once a month.  She could manage without it when necessary.  Count 1 was based largely on her admissions.

[6] The prosecutor submitted that despite the mitigating features, the offending was serious because it involved the supply of a schedule 1 drug to five others in circumstances where she knew it was both addictive and undesirable.  Personal and general deterrence were apposite sentencing principles.  Probation and community service were appropriate.

[7] Defence counsel made the following submissions.  The applicant had developed an addiction to methylamphetamine and had actively taken steps to cut back her usage before being charged.  Defence counsel tendered a medical report from general practitioner Dr Melanie Watson which certified that the applicant had been treated for panic attacks since October 2005 and was on prescription drugs for this condition.  She was in the final year of her degree in nursing but had deferred her studies pending the outcome of these proceedings.  She was presently working as an assistant manager in a nightclub.  She was no longer using illicit drugs.  She was especially co-operative with the authorities.  She would not have been charged with the more serious count of supplying a dangerous drug but for her admissions to police.  The recording of a conviction was likely to have a significant effect on her ability to earn a living in the future, so that under s 9 Penalties and Sentences Act 1992 (Qld) a conviction should not be recorded. 

[8] During the course of sentencing submissions, the learned primary judge expressed the tentative view to defence counsel that if a conviction were not recorded on the offences the applicant would be a liberty to withhold information about her commission of them on any application for registration as a nurse.  The judge also noted the absence of any material supporting the submission that she was now not using illegal drugs.

[9] The learned and experienced primary judge made the following observations in his sentencing remarks.  The applicant had entered early pleas of guilty.  The mitigating circumstances warranted a more lenient sentence than otherwise.  It was said on her behalf that she was now drug-free but there was no corroboration of that assertion.  Probation and community service were the appropriate penalties.  Convictions should be recorded.  The offending involved two different dangerous drugs and the most serious count involve the supply of a schedule 1 drug.  There was no scientific or other evidence to demonstrate that the applicant had really given away dangerous drugs.  The recording of a conviction may have some impact upon the prospect of the applicant achieving registration through the Nurses Registration Board but that issue can be sufficiently addressed by her persuading the Board that she has implemented effective relapse prevention plans and given away illicit drug use. 

The submissions in the appeal

[10]  Mr R A East, on behalf of the applicant, emphasises that under the Nursing Act 1992 (Qld) in applying for registration as a nurse the applicant will have to disclose these offences as part of her criminal history whether or not a conviction was recorded.[4]  He also submits that the judge should have accepted defence counsel's assertion that the applicant was no longer using illicit drugs and that this and a consideration of the relevant matters under s 12 Penalties and Sentences Act favoured the non-recording of a conviction.  Although she would be required to disclose the present offending if she sought registration as a nurse, were convictions not recorded, she might not be required to disclose her offending in seeking other forms of employment.  It may be accepted, he submitted, that a conviction would affect her prospects of obtaining employment generally: cf R v Cay, Gersch and Schell; ex parte A-G (Qld).[5]  She was a youthful first offender who pleaded guilty to the commission of criminal conduct, the most serious aspects of which only came to light because of her admissions to police.  For these reasons, he submitted, a conviction should not be recorded.

[11]  Mr Meredith, who appears for the respondent, makes the following submissions.  The offence of supplying concerned a schedule 1 drug.  This was a distinguishing factor from R v Richardson,[6] the only decision of this Court where no conviction was recorded for supplying methylamphetamine.  When Richardson was decided, methylamphetamine was a schedule 2 drug. 

Discussion and conclusion

[12]  It is common ground that the sentence imposed at first instance, 18 months probation with a special condition as to drug testing and a 100 hour community service order is the appropriate sentence in respect of the most serious of the three offences, that of supplying methylamphetamine.  Concurrent short terms of probation are the appropriate penalties in respect of counts 2 and 3.  But should convictions be recorded on all or any of those counts? 

[13]  In determining whether to record a conviction, a court has a broad discretion where there is that option on the penalty imposed under the Penalties and Sentences Act.  Section 12(2) provides:

"In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

(a) the nature of the offence; and

(b) the offender’s character and age; and

(c) the impact that recording a conviction will have on the offender’s—

(i) economic or social wellbeing; or

(ii)chances of finding employment."

[14]  The offence of supplying the dangerous schedule 1 drug methylamphetamine to others is punishable by up to 25 years imprisonment.[7]  This offence was a relatively minor example of that serious offence.  In her favour, the applicant supplied the drugs only in small quantities to adult friends and acquaintances who were already users.  She did not make a profit.  Methylamphetamine is, however, dangerous in the ordinary sense of that word.  As the primary judge recognised, it is both highly addictive and destructive.  The applicant knew this at the time she supplied the drug to others.  She had no relevant prior criminal history and was relatively young.  She pleaded guilty at an early time and cooperated with the authorities to the point where she would not have been charged with the most serious of the three offences but for her admissions to police.  She also admitted the nature of the drugs in counts 2 and 3 so that analysis was not required.  Her cooperation is a factor greatly in her favour.  I accept that the recording of a conviction is likely to have some impact on her economic and social wellbeing and her chances of finding employment.  At least in the field of nursing, the fact that she has been dealt with for these offences, even without the recording of convictions, would also have a significant impact on those matters. 

[15]  It was common ground that, although there have been sentences at first instance where convictions were not recorded for minor examples of supplying a dangerous schedule 1 drug, the only decision of this Court to that effect is Richardson.  He pleaded guilty in the Magistrates Court to supplying cannabis, possession of cannabis, supplying amphetamine and possession of amphetamine, then a schedule 2 drug.  He was sentenced on each charge to imprisonment for six months suspended after two months with an operational period of two years.  He was 23 years old and had been in the Australian Navy for the past six years.  He had only recently become a user of drugs.  After police conducted an unsuccessful raid at his residence, he attended at the police station and admitted to involvement in the supply of small quantities of cannabis and amphetamine to others.  He took a "cut" of the drugs for his own use.  The charges resulted solely from those admissions.  The police did not find him in possession of any drugs.  He also provided the name of his supplier to police.  Before speaking to police, he had made admissions to a navy disciplinary board and he was, at sentence, awaiting a decision from it as to what disciplinary action would be taken.  The recording of convictions would lead to his discharge from the navy; if convictions were not recorded there was a substantial prospect that he may be able to remain in the navy.  The respondent conceded that a non-custodial sentence was within range so that under s 9(4) Penalties and Sentences Act at that time,[8] a custodial sentence should not have been imposed.  This Court determined that the sentence was manifestly excessive and re-exercised its discretion to re-sentence Richardson to 160 hours community service and 12 months probation in respect of each offence, without recording any conviction.  The Court placed considerable emphasis on the fact that Richardson had named his supplier to police, an unusual circumstance and very much to his credit.

[16]  As noted, since Richardson was decided amphetamine has become a schedule 1 drug.  Unlike Richardson, the present applicant did not name her supplier to police.  She has not shown that the consequences of the recording of a conviction have as immediate and direct impact on her economic or social wellbeing and chances of finding employment as in Richardson's case.  When considering the matters set out in s 12(2) and the other relevant circumstances, there are a number of factors which favour the applicant, but in my view these do not outweigh the seriousness of the offence of supplying methylamphetamine in this case.  A conviction should be recorded on the most serious offence of supplying methylamphetamine (count 1).  Convictions should not be recorded on counts 2 and 3.

[17]  I propose the following orders:

1.Application for leave to appeal granted

2.Appeal allowed

3.Sentence imposed at first instance set aside.

4.Instead the applicant is sentenced to:

(a)in respect of count 1:

(i)probation for 18 months on the terms and conditions set out in s 93(1) Penalties and Sentences Act 1992 (Qld) with a further condition that the applicant must submit to all such tests, examinations and assessments where and as often as an authorised corrective services officer may reasonably require for the purpose of ascertaining the presence of any dangerous drug (as that term is defined in the Drugs Misuse Act 1986 (Qld)) in the applicant's body; and

(ii) perform unpaid community services for 100 hours and comply with the requirements set out in s 103(1) Penalties and Sentences Act 1992 (Qld).

(b) in respect of each of counts 2 and 3, 6 months probation on the same terms and conditions as the probation order imposed on count 1.

5.A conviction is recorded on count 1.  No convictions are recorded on counts 2 and 3.

[18]  FRASER JA: I agree with the reasons of the President and with the orders proposed by her Honour.

[19]  CHESTERMAN J:  I agree with the order proposed by the President for the reasons given by her Honour.

Footnotes

[1] [1999] 1 Qd R 386; [1998] QCA 060.

[2] [2008] QCA 41.

[3] [2008] QCA 137.

[4] Nursing Act 1992 (Qld), ss 54(3A), (3C) and (3D) and the definition of "criminal history" in s 4, and cf R v Mirza; ex parte A-G (Qld) [2008] QCA 23 at [25]-[26].

[5] (2005) 158 A Crim R 488; [2005] QCA 467 at 495 [43].

[6] [1997] QCA 161.

[7] Drugs Misuse Act 1986 (Qld), s 6.

[8] Section 9(4) then stated: "A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having—

(a) considered all other available sentences; and

(b) taken into account the desirability of not imprisoning a first offender;

is satisfied that no other sentence is appropriate in all circumstances of the case."

This s 9(4) was repealed by s 6 of the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld), Act No 4 of 1997.

Close

Editorial Notes

  • Published Case Name:

    R v Pratt

  • Shortened Case Name:

    R v Pratt

  • MNC:

    [2008] QCA 402

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Fraser JA, Chesterman J

  • Date:

    12 Dec 2008

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC474/08 (No Citation)29 Aug 2008Sentenced to 18 months probation with special condition as to drug testing and 100 hours community service; convictions recorded
Appeal Determined (QCA)[2008] QCA 40212 Dec 2008Appeal against recording of conviction; conviction should be recorded for offence of supplying a dangerous drug; no conviction recorded for offences of possessing dangerous drugs; primary judge imposed single sentence for three offences instead of individual sentences for each offence; application for leave to appeal granted; appeal allowed; sentence set aside; sentenced to McMurdo P, Fraser JA and Chesterman J

Appeal Status

Appeal Determined (QCA)

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