SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with Chesterman JA's reasons for refusing this application for leave to appeal against sentence. 

[2] True it is that the sentence imposed in this case was unusual: a term of six months imprisonment with a parole release date fixed on the last day of that term.  But it was a lawful sentence under s 160B(3) and s 160G(1) Penalties and Sentences Act 1992 (Qld).  The judge's reasons for this unusual sentence emerge plainly enough from his sentencing remarks in the context of the preceding exchanges between counsel and the judge. 

[3] The applicant's criminal history was highly relevant to the sentence imposed.  It demonstrated that he remained a recidivist marijuana user, despite the lenient sentences previously imposed which offered him the opportunity to rehabilitate.  He was fined without conviction for possessing marijuana when he was 17.  In 2006, aged 22, he was convicted and placed on 12 months probation for offences including supplying, producing and possessing marijuana.  In August 2008, aged 23, he was again convicted for drug offences including the supply of marijuana.  He was convicted and sentenced to four months imprisonment wholly suspended for a period of two years.  Later that year, after he turned 24, he was convicted of drug offences including possession of marijuana, and sentenced to a further four months imprisonment.  His suspended sentence of four months imprisonment was activated but he was released on parole immediately. 

[4] The present offence also occurred during the operational period of the suspended sentence imposed in August 2008.  This then was the applicant's second series of offending involving marijuana during that operational period. 

[5] The applicant was 25 at sentence and 24 when he committed the present offence.  His growing maturity has not brought with it the willpower necessary to stop flouting the law and committing offences against the Drugs Misuse Act 1986 (Qld). 

[6] The present offence is punishable by a maximum term of 20 years imprisonment. 

[7] The judge clearly understood the applicant had pleaded guilty and cooperated with police.  He stated as much in his sentencing remarks.  His Honour also considered defence counsel's submission that an intensive correction order should have been imposed.  But his Honour rejected that option because the applicant had not taken advantage of past community based orders, including suspended sentences and parole.  His Honour considered that the only solution was an actual period of imprisonment.  It is clear from his Honour's sentencing remarks, even without adverting to the judge's preceding exchange with counsel, that he determined the applicant required a period of six months actual imprisonment to break his cycle of dependency on marijuana and to deter him from re-offending.  The sentence imposed does not involve community supervision, but such sentences had not assisted the applicant in the past in ending his unlawful use of and dependence on marijuana.  Whilst not stated in terms, it can be clearly inferred from the judge's comments that, at this time, this was achievable only by the applicant's commitment to stop offending. 

[8] Ms M J Power on behalf of the applicant capably put forward in her oral and written submissions everything that could be argued on the applicant's behalf.  It is true that the sentence suggested by defence counsel at sentence, a 12 month intensive correction order, particularly with drug testing and drug counselling requirements, would also have been open.  But the judge was entitled to conclude that a short, sharp, wake-up call of six months actual imprisonment without any community supervision was required in this case.  The sentence was neither manifestly excessive nor based on any error. 

[9]  FRASER JA:  I agree with the reasons for judgment of Chesterman JA and the order proposed by his Honour. 

[10] CHESTERMAN JA:  On 19 November 2010 the applicant pleaded guilty in the Supreme Court at Cairns to possessing more than 500 grams of the dangerous drug cannabis sativa.  He was sentenced to six months’ imprisonment without early release on parole.  He seeks leave to appeal the sentence on the grounds that:

(a) The sentencing judge did not give sufficient reasons for requiring the applicant to serve the full term of imprisonment;

(b) The sentencing judge did not alert counsel to the prospect that a parole release date beyond the mid point of the sentence might be imposed;

(c) The sentencing judge failed to take into account the applicant’s plea of guilty;

(d) The sentencing judge placed too much weight upon the applicant’s criminal history; and

(e) The sentence is manifestly excessive.

[11] On 18 October 2009 the applicant was the occupant of a room in a hotel at Spring Hill in Brisbane.  Hotel staff who smelt burnt cannabis in the room called police.  Their search found 2.1 grams of cannabis leaf in a packet of cigarettes.  More significantly the applicant had 384.4 grams of the drug in a clip seal bag placed in the pocket of a pair of shorts.  In the other pocket was a clip seal containing 194.9 grams of cannabis.  The total weight of cannabis in the applicant’s possession was 582.4 grams.  The police also found a number of empty plastic bags in a bin.  The applicant said he had transferred the cannabis from the smaller bags into the two larger bags.  He had used a pair of scissors to cut up some cannabis before smoking it.  The applicant told police that the cannabis was hydroponically grown and he had bought it for about $3,000.  He said the drug would have a value of about $6,000 in Cairns.  The applicant was also found to be in possession of $478.65. 

[12] The applicant has a significant criminal history.  He has convictions for stealing, possessing dangerous drugs, obstructing police officers, committing a public nuisance, entering premises and committing an indictable offence, supplying, producing and possessing dangerous drugs and possessing utensils in connection with the use of drugs and possessing property suspected of being the proceeds of an offence against the Drugs Misuse Act.  It is, obviously, the previous convictions for misusing drugs which are of particular relevance. 

[13] On 14 May 2002 the applicant was convicted of possessing dangerous drugs.  He was fined $300.  On 12 December 2006 he was convicted of supplying dangerous drugs, producing dangerous drugs and possessing dangerous drugs.  On each charge he was sentenced to 12 months’ probation.  Then on 12 August 2008 the applicant was convicted of supplying dangerous drugs and causing a dangerous substance to be carried by post.  On each charge he was sentenced to four months’ imprisonment wholly suspended with an operational period of two years.  Within that operational period, on 9 December 2008, he was convicted of possessing dangerous drugs and possessing utensils in connection with the possession of drugs.  Those convictions put him in breach of the suspended sentence imposed on 12 August 2008.  He was re-sentenced for the offences he had been dealt with on that date to a term of four months’ imprisonment and, as well, sentenced to four months’ imprisonment, to be served cumulatively, for the more recent charge of possessing dangerous drugs.  He was released immediately on parole. 

[14] The present offence was committed during the operational period of the suspended sentence imposed on 12 August 2008, and two months after the expiration of the applicant’s parole on 9 August 2009.  The breach of the suspended sentence did not require a further order because it had been activated on 9 December 2008, though the applicant had been immediately released on parole. 

[15] In passing sentence the learned judge noted that the applicant was at the time of his arrest, and earlier, a “heavy user” of cannabis and perhaps dependant on it.  His Honour accepted the submission that the drug was intended for the applicant’s personal use.  His Honour thought that the amount of the drug and the applicant’s prior convictions for supplying cannabis gave rise to a suspicion that he had bought the cannabis to re-sell some or all of it, but he could not be satisfied to the requisite standard that it was not intended for personal use.  He gave the applicant “the benefit of the doubt”. 

[16] His Honour rehearsed the applicant’s relevant criminal history and pointed out that within 10 months of being dealt with for drug offences in December 2008, which involved the breach of a suspended sentence imposed earlier for drug offences, he was “caught again with this large amount of the drug.”  The judge went on: 

“So you’ve had three chances and the time has come for those chances to stop.  Mr Curtin has said what could be said on your behalf, asking me to make an order for imprisonment but one that would keep you in the community.  That cannot happen.  If you keep offending the penalties must increase.  If you keep not taking advantage of the Courts giving you suspended sentences, then the only solution is that you’ll serve actual time in gaol.  That’s what will happen to you today. 

My orders will be that a conviction be recorded.  I sentence you to six months’ imprisonment. 

And there will be no parole release date in six months.  That’s the term of imprisonment that should be served … let there be no doubt about this – that he serve six months in actual custody.  And if I’m required to fix a parole release date within that time, it will be the 17th of May 2011.” 

[17] The applicant was 24 years old at the time of the offence and 25 when sentenced.  He had lived on Thursday Island where he worked as a deckhand and diver on cray fishing boats.  He had worked in that occupation since leaving school.  All of the offences, save for the last, were committed on Thursday Island. 

[18] The first ground of appeal is that the primary judge failed to give sufficient reasons for delaying the parole release date beyond the halfway point of the sentence.  Reliance was placed upon the judgment of Fraser JA in R v Kitson [2008] QCA 86 at [17] and [19].  His Honour said: 

“[17] First, in a case such as this, where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the midpoint of the head sentence is very unusual: cf R v Norton [2007] QCA 320 per Douglas J. So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it.