SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 31 March 2009 the appellant was convicted upon the verdict of a jury of one count of possession of a dangerous drug, namely 3,4, Methylenedioxymethamphetamine ("ecstasy"), the quantity of which exceeded 2.0 grams, and one count of possession of the dangerous drugs methylamphetamine, lysergide and cannabis sativa.  These offences were contraventions of s 9(c) and (d) respectively of the Drugs Misuse Act 1986 (Qld) ("the Act").

[2] On 20 and 22 May 2009 the appellant was sentenced on each count to imprisonment for two years and eight months.  A period of 17 days was declared to be time served under the sentence.  A parole release date was fixed at 9 August 2010 being the halfway point of the sentence taking into account the 17 days of pre-sentence custody already served by the appellant.

[3] The appellant seeks to appeal against both conviction and sentence.  In relation to the challenge to the convictions, the appellant's notice of appeal raised a number of contentions, but only one is pressed in the submissions advanced on the appellant's behalf in this Court.  That contention is that the summing-up by the learned trial judge was so unbalanced against the appellant that it may have deprived him of a fair chance of being acquitted.  It is necessary to summarise the relevant aspects of the case at trial before discussing that contention. 

The case at trial

[4] The indictment presented by the Crown against the accused originally charged the appellant with other and more serious offences, but the Crown declined to proceed with those charges.  The offences of which the appellant was convicted were alleged to have been committed on 20 December 2006.

[5] The Crown case in respect of the counts on which the appellant was convicted was that police found drugs in a cupboard in the kitchen of a unit at the Silver Sands motel at Torquay.  The appellant was present in the kitchen near where the drugs were found when the police raided the unit.  There were 95 tablets of ecstasy with an equivalent pure weight of 6.404 grams.  There were 5.773 grams of methylamphetamine with a pure equivalent of 0.378 grams.  The quantity of cannabis was 145.2 grams.  There were three tabs of lysergide.  There were scales in the kitchen with specks of green leaf material (too small to be identified) in the same general area.  There was also a box of clip-seal plastic bags.  The appellant was also found to be in possession of $2,625 in cash in his pocket.  No fingerprints were found on the drugs or the plastic bags. 

[6] The Crown case was that the appellant was at the time occupying the unit with Melissa Wilson and Darryl Hall.  Wilson and Hall each pleaded guilty to charges brought against them for possession of the drugs in question.  The three of them had moved into the unit in the Silver Sands on the previous day from premises at Urangan where they had lived for three weeks.  The unit had been booked by Hall's mother in the name of the appellant and Hall after the landlord had expressed reluctance to take the booking in Hall's name only.  The appellant's clothes had been moved into the unit.  A prescription for medication for the appellant was found on top of the cupboard in which the drugs were found.  While the police were present in the unit, a mobile phone rang but was not answered by the appellant.  There were messages on the mobile phone which could have suggested drug related activity on the appellant's part.  One of these messages was admitted by the appellant to concern a request from his then estranged wife, Jessica Lewis, to supply her with cannabis but he said it had been sent six weeks earlier.  As to the cash found on the appellant, there was evidence that the appellant was unemployed at the time.  It may be noted here that the appellant gave evidence that the money was the proceeds of the sale of his car.

[7] The Crown case against the appellant was put on two bases:  first, the appellant was deemed, pursuant to s 129(1)(c) of the Act, to be in possession of the drugs because he was the occupier of the premises in which they were found, and he did not prove that he neither knew of the drugs nor had reason to suspect that the drugs were in the unit; secondly, the appellant knew of the presence of the drugs in the unit and had actual control over them.  The jury were not required to decide on which of these bases the appellant was guilty of the charges; but the learned trial judge in passing sentence on the appellant found that the appellant had actual knowledge and control of the drugs.

[8] The appellant's case at trial was that he was not an occupier of the unit at the Silver Sands at the time of the police raid on 20 December 2006.  On this basis it was argued that the deeming provision of s 129(1)(c) of the Act had no operation. 

[9] Section 129(1)(c) of the Act provides that in respect of charges under s 9 of the Act:

"proof that a dangerous drug was at the material time in … a place of which [the person charged] was the occupier or concerned in the … control of is conclusive evidence that the drug was then 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 … that place". 

[10]  The appellant gave evidence that on the evening of 19 December 2006 he drove from the previous accommodation at Urangan to the Gold Coast with Jessica Lewis to visit her mother "for Christmas".  After staying for half an hour at the Gold Coast, he drove back to Hervey Bay.  It seems (although his evidence is not entirely clear) that he left Ms Lewis at the Gold Coast.  The appellant gave evidence that he and Ms Lewis reconciled during the drive to the Gold Coast and arranged to move to Craignish where they had a four bedroom home together.  He gave evidence that he returned to the unit at the Silver Sands because he did not want to leave without informing Hall of his intentions.  When the appellant returned to the unit at the Silver Sands on the morning of 20 December, Hall was asleep and so, at the time of the police raid, he was waiting at the unit for Hall to wake up. 

[11]  The evidence of Ms Doyle, who was a police officer at the relevant time, is relevant to the ground on which the conviction is challenged.  Ms Doyle gave evidence that she was carrying out surveillance on the unit in the Silver Sands when she saw the appellant and Hall together in the doorway of the unit at just after 9.00 am.  At 9.45 am she saw Hall again.  She saw the appellant leave the unit at 11.46 am and return at 1.27 pm.  She also saw the appellant doing some laundry.  Ms Doyle was not cross-examined on these aspects of her evidence.

[12]  Sergeant McCartney, another police officer, said that as he was approaching the unit to carry out the raid, he saw Hall come to the door then go back inside where police found him apparently asleep.

[13]  The appellant, in his evidence-in-chief and in cross-examination, gave evidence in which he said that Hall was asleep until the police raid.  The appellant denied that he had been with Hall at the door of the unit shortly after 9.00 am on 20 December.  It was not suggested to him in cross-examination that he had invented his evidence denying that Hall was up and about in the unit after the cross-examination of Ms Doyle.

[14]  The learned trial judge summed up the Crown case and the defence case in relation to the issue whether the appellant was an occupier of the unit at the time of the discovery of the drugs by police.  His Honour referred to the evidence of Ms Doyle and noted that her evidence of seeing Hall and the appellant together in the doorway to the unit shortly after 9.00 am was unchallenged. 

[15]  The learned trial judge said to the jury:

"Now, whether you accept the evidence of any of these people is a matter for you but if you accept the police evidence there are real difficulties with the evidence given by Mr McGregor.  The police evidence wasn't challenged in cross-examination.  Those are all matters that you need to take into account in deciding what evidence you accept, what evidence you reject."

[16]  No application was made on the appellant's behalf at trial for a redirection in relation to this point.  That being so, the question is whether there has been a miscarriage of justice because the appellant was denied a fair opportunity of an acquittal by his Honour's observation that the evidence of Ms Doyle had not been challenged in cross-examination.[1]

The argument on appeal

[17]  The appellant's argument relates to whether the appellant's version as to why he was still at the unit at the time of the police raid is one which was worthy of belief.  The appellant's argument is that he had never actually moved into the unit so as to be in occupation.  Obviously, if Hall was up and about at a time when the appellant wanted to leave the unit, the appellant's story that he was there only because he was waiting for Hall to wake up would lack credibility and the jury could more readily conclude that the appellant was in occupation of the unit.

[18]  On the appellant's behalf it is argued in this Court that the learned trial judge's observation that the evidence of Ms Doyle was unchallenged in cross-examination was unfair to the appellant because Ms Doyle's evidence was effectively challenged by the appellant's own evidence.  The absence of challenge to Ms Doyle's evidence on this point is readily explicable as an oversight on the part of the appellant's counsel at trial.  His Honour's reference to the absence of challenge in cross-examination of Ms Doyle's evidence may, it is said, have led the jury to regard the appellant's evidence that he was waiting for Hall to wake up as a recent invention even though no suggestion to that effect had been made by the Crown Prosecutor.  Thus, so it is said, the appellant may have been deprived of a fair chance of an acquittal in what was an evenly balanced case.

[19]  It may be said immediately that the contention that the learned trial judge's observation was apt unfairly to tip an evenly balanced case against the appellant minimises the strength of the case against the appellant on the issue of his occupation of the unit. 

[20]  The appellant's case was that his presence in the unit at the time of the raid was explicable on the basis of "common courtesy" to Hall who was "under the assumption [the appellant] was moving there with him".  This statement was made by the appellant in cross-examination:  it was not apt to help his case because it suggests that arrangements had been made for the appellant to move in with Hall and Wilson.  The appellant went a further step towards destroying his own case when he said in cross-examination that he and Jessica Lewis had decided to reconcile and that he "was going to go back up there [scil Craignish] Christmas Day".  The jury may well have regarded this as evidence that he was, and would remain, in occupation at Silver Sands until Christmas Day.

[21]  There was uncontested evidence which supported the conclusion that the appellant was in occupation of the unit at the time of the police raid.  The appellant was observed, and admitted, using the laundry facilities at Silver Sands to do some washing before the police raid.  A prescription for medicine for the appellant was found on top of the cupboard in which the drugs were located.[2]  That the unit had been booked in his name was unexplained.  The appellant's clothes had been moved into the unit:  that was the fact even though the appellant denied having caused his effects to be moved into the unit.  How they came to be there was unexplained.  There was no evidence that his clothes had been packed in anticipation of moving from Silver Sands.  While it may be accepted that a person does not become an occupier of premises merely because some of his or her belongings are located there,[3] there was no basis on which it could be suggested that his clothes had been left at the unit for safekeeping rather than because that is where he would be living in the immediate future.  This evidence provided ample justification for the conclusion that the appellant was in occupation of the premises when the drugs were found by the police.[4]

[22]  In my respectful opinion, in these circumstances the learned trial judge's observation to the jury that the evidence of Ms Doyle of her sighting of Hall had not been challenged in cross-examination was not likely to disadvantage the appellant's prospects of an acquittal.  Nor was the observation unfair.  His Honour's observation was accurate.  A more elaborate comment by his Honour would not necessarily have been to the appellant's advantage.  It would not have been to the appellant's advantage to have the jury told that Ms Doyle had been deprived of the opportunity to address any suggestion that her evidence on this point was inaccurate or unreliable. 

[23]  The appellant's evidence was clearly to the effect that Hall was in bed asleep when Hall was supposed to have been seen by Ms Doyle.  His Honour did not invite the jury to draw any inference adverse to the appellant's credibility on this point.  His Honour's summary of the defence case made clear to the jury that the appellant denied that Hall could have been seen by police prior to the raid because, on the appellant's evidence, Hall was in bed and had not been in the kitchen prior to the raid. 

[24]  The jury could not have been under any misunderstanding as to the appellant's denials, and there was no suggestion by his Honour that these denials might be a recent invention.  Nor was there any suggestion, or indeed room for a suggestion, that the absence of cross-examination could have been interpreted by the jury as a basis for inferring that the appellant had instructed his counsel at trial that Hall was indeed awake and about prior to the police raid.[5]

[25]  In summary, seen in the light of the evidence against the appellant, including his own testimony, the learned trial judge's observation as to the absence of cross-examination of Ms Doyle was not unfair and was not likely to have had an adverse impact on the appellant's prospects of an acquittal.  Accordingly, the appeal against conviction should be dismissed.

Sentence

[26]  The learned sentencing judge noted that the appellant had been in custody for a total of 51 days but that only 17 days could be declared to be time served in respect of the instant offences.  For that reason, his Honour expressly reduced the head sentence which would otherwise be imposed by about a month.

[27]  The appellant was 50 years of age when the offending in question occurred.  He was 52 years old when he was sentenced.  The appellant has a history of minor drug offences and street offences.  He has not previously been sentenced to prison.

[28]  The appellant contends that the sentence imposed on him was manifestly excessive.  He also contends that the learned sentencing judge imposed a sentence which involved punishment for the supply of drugs when the prosecution had declined to prosecute charges of supply of drugs.

[29]  In relation to this latter point, the learned sentencing judge was merely expressing the view that the appellant's possession of the drugs was for a commercial purpose.  That view was open to his Honour.  The quantity of ecstasy in the appellant's possession was a commercial quantity, and other evidence, such as the scales, the amount of cash in his possession and the incriminating mobile phone messages, all suggested that the possession was for a commercial purpose.

[30]  It is also said on behalf of the appellant that the disparity between his sentence and that imposed on Hall who pleaded guilty to possession of the same drugs was such as to give rise to a legitimate sense of grievance in the appellant. 

[31]  On 25 March 2009 Hall was sentenced to two years imprisonment with parole eligibility after 10 months.  By the time Hall came to be sentenced he had spent approximately 18 months in custody which could not be declared as time served for these offences.  The learned sentencing judge expressly remarked in sentencing Hall that this consideration "had a significant influence on the sentence" he imposed on Hall.  Moreover, Hall was entitled to the benefit of a plea of guilty.

[32]  Hall was only 19 years old when the offences in question were committed.  Hall, unlike the appellant, was drug dependent.  Hall had also been a friend of the appellant's since Hall was a child.  The appellant, not Hall, was found in possession of more than $2,000 in cash.  And it was the appellant's mobile phone that contained the evidence of the organisation of drug related activity.  In these circumstances, it was open to the learned sentencing judge to regard the appellant as the more influential as between himself and Hall in terms of the criminality of their conduct.

[33]  It is apparent that there were good reasons for the difference in the sentences imposed on the appellant and Hall.  The learned sentencing judge noted these points:

"I am conscious that Mr Hall has been sentenced as a result of the same events. There was one particular unusual circumstance which affected his sentence; it was that he had, by the time of the sentence, spent 18 months in custody and that resulted in some reduction in the head sentence imposed on him.

I am conscious that the head sentence in his case reflected both the delay in sentencing and his co-operation. He pleaded guilty to the offences with which he had been charged.

You are significantly older than Mr Hall. Mr Hall was a person who was drug-dependant and to some extent his conduct was explicable by reason of that fact and by reason of the difficult background by which he had had prior to the time of these events. Those matters do not weigh in your favour.

Your criminal history is less significant than Mr Hall's but it does include one offence of supplying a dangerous drug.

There is, in my view, reason to think that you had a significant controlling role in the activities of the occupants of Silver Sands."

[34]  Because of these reasons for the difference between the sentence imposed on Hall and the sentence imposed on the appellant, the difference cannot give rise to a legitimate sense of grievance in the appellant.

[35]  The sentence imposed on the appellant was imposed after a trial.  The recent decision of this Court in R v Marsanic[6] confirms that a sentence of up to three years imprisonment without early parole was well within the appropriate range bearing in mind that the appellant was not entitled to the benefit of a plea of guilty. 

[36]  In Marsanic, a 24 year old offender with a good record who pleaded guilty to possession of ecstasy, possession of cocaine, and possession of cannabis sativa, lysergide and MDEA (a form of ecstasy) was originally sentenced to an effective sentence of three and a half years imprisonment with parole eligibility fixed after a year.  On appeal to this Court the sentence was reduced to two years and six months imprisonment and he was released on parole after serving nine months in actual imprisonment.  The offender in Marsanic had been drug dependant but had largely rehabilitated himself.  The personal circumstances in favour of the offender in Marsanic contrast strongly, and unfavourably, against the appellant. 

[37]  The application for leave to appeal against sentence should be refused.

[38]  HOLMES JA:  I agree with the reasons of Keane JA and the orders he proposes.

[39]  FRASER JA:  I agree with the reasons of Keane JA and with the orders proposed by his Honour.