R v Crook[2012] QCA 305

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The application for leave to appeal against sentence should be refused for the reasons given by Applegarth J.

[2] HOLMES JA:  I agree with the reasons of Applegarth J and the order he proposes.

[3] APPLEGARTH J:  The applicant pleaded guilty on 18 May 2012 to one count of possessing the dangerous drug cannabis in a quantity that exceeded 500 grams, and one count that he unlawfully supplied cannabis to another person.  On each count he was sentenced to a period of six months imprisonment, wholly suspended for an operational period of nine months.  No further penalty was imposed in respect of a summary offence that on 22 September 2010 he had in his possession a mobile phone that had been used in connection with the supply of a dangerous drug.

[4] The applicant seeks leave to appeal against the sentences imposed for the indictable offences on the grounds that each sentence was manifestly excessive.

[5] On 22 September 2010 police conducting routine patrols noticed the applicant’s vehicle parked illegally at Snapper Rocks at Coolangatta.  At the request of police the applicant opened the boot of his car, and the police detected a strong smell of cannabis.  The applicant claimed that the garbage bags in the boot were just household rubbish.  However, police opened one of them and observed cannabis that had been recently harvested.  The applicant was arrested and asked if he had anything else to declare.  He told police that there was a bag of marijuana under the spare wheel and that he had three joints in his pocket.

[6] The sentencing judge was told that an analyst certificate indicated that the material seized was cannabis and that it had a total weight of 1.173 kilograms.  This was not disputed.  The analyst certificate was not tendered so as to inform the Court of the separate weight of the recently harvested cannabis, the contents of the bag that was found under the spare wheel and the three joints.

[7] Police seized the applicant’s mobile telephone which contained four text messages from his girlfriend relating to the requested supply of cannabis.  That gave rise to the supply charge. 

[8] The applicant was aged 31 at the time of these offences, and aged 33 at the date he was sentenced.  On 14 August 2007 he had been sentenced in the Southport Magistrates Court on counts that included producing and possessing cannabis.  Those offences arose after a search warrant was executed on his home and a hydroponic set-up was detected with 36 cannabis plants approximately a metre high.  He was sentenced to a period of probation of two years and fined $1,500. 

[9] The applicant completed Year 10 before undertaking an apprenticeship as a pastry cook.  He started smoking marijuana when he was about 18.  He was able to kick the habit for some time, including the period that he was on probation.  However, he was unable to overcome his habit.

[10] By the time he came to be sentenced on 18 May 2012 his addiction was in remission and he had taken steps to address it.  The applicant completed a six week Drug Education and Relapse Prevention Program, “Back in Control”, in late 2010.  Urine drug screens for various dates in late 2011 and early 2012 were negative. 

[11] At the time he came to be sentenced he was in full-time employment as a baker.  He also served as a volunteer for an animal refuge on the Sunshine Coast.  His employer spoke highly of his qualities as an employee.  A long-term friend said that after the applicant had completed the “Back in Control Program” and had seen a psychologist, he had a positive outlook and was sorry for his actions.

[12] The prosecution accepted that his pleas constituted early pleas of guilty.

[13] Upon sentence the prosecution submitted that the cannabis seized was of a considerable quantity, but there was no evidence of commerciality.  Due to the applicant’s prior convictions for drug offences and the quantity of cannabis involved, the prosecution submitted that the applicant had exposed himself to a sentence of imprisonment of between 12 and 18 months and that, having regard to the mitigating circumstances, it would be open to wholly suspend that sentence.

[14] Counsel who appeared for the applicant at the sentence submitted that because there was no commercial element, and because the applicant had taken many positive steps towards his rehabilitation, a substantial fine or a community-based order was within range.  Reference was made to R v Meid.[1]  Her Honour expressed the concern that this case was more serious than Meid, who did not have a prior history.  During submissions the sentencing judge observed that she could not see the point of putting the applicant on probation or community service because he had undertaken his own rehabilitation and was working. 

[15] In her sentencing remarks, the learned sentencing judge accepted that although the amount of cannabis was well over the amount stated in Schedule 3 of the Drugs Misuse Act, it was for the applicant’s personal use, and this was why a period of actual custody was not being imposed.  Her Honour also accepted that the supply charge related to supplying the applicant’s partner, as opposed to commercial supply, and for that reason actual custody was not being imposed.  Her Honour identified the problem associated with the applicant’s prior history for production, and that he was given the benefit of probation at that time.  However, the steps taken to overcome the applicant’s addiction, the fact that he was in good employment and undertaking community work and his early plea of guilty were taken into account. 

[16] On the hearing of his application for leave to appeal the applicant submitted that the sentences were manifestly excessive.

[17] Comparable decisions relating to possession or production of cannabis for personal use recognise that a wide variety of sentences may be imposed, ranging from fines with or without a conviction being recorded, to entirely suspended sentences, community service orders and orders for probation, through to sentences in which periods of actual custody are required to be served.  Commonly found in cases involving fines, entirely suspended sentences or community-based orders is a plea of guilty and the absence of prior convictions for drugs.  Depending upon all of the circumstances, including the quantity of drugs or the size of production, non-custodial sentences are often imposed on first time offenders.[2]  The position may be otherwise where the applicant has a criminal history, even in the absence of a commercial element.[3]

[18] R v Meid[4] was a case in which the applicant for an extension of time was convicted on one count of possessing 586 grams of cannabis.  She admitted having shared some of the cannabis that she brought into Queensland with other people.  That sharing was the basis of three counts of supply.  She was fined a total of $1,100.  The application to the Court of Appeal was for an extension of time, apparently in relation to an application to have the fines waived or revoked on the grounds of diminished responsibility.  The application was dismissed.  The applicant in that case was 40 years of age and had no previous convictions.  The fact that a fine was imposed does not establish that the only appropriate sentence for the applicant in this case was a fine or non-custodial order.  In any event, the quantity in the present applicant’s possession was more and he has a previous drug conviction. 

[19] In R v Doraho,[5] the applicant pleaded guilty to possessing cannabis that had a total weight of 582.4 grams.  He was sentenced to six months imprisonment without earlier release on parole.  He had a significant criminal history including previous convictions on drug offences.  The drugs in his possession were intended for his personal use.  The sentencing judge concluded that the applicant’s history of offences of drug misuse required a sentence of six months of actual custody to be imposed.  Chesterman JA (with whom McMurdo P and Fraser JA agreed) observed that without the applicant’s prior criminal history he “may well not have been sentenced to actual imprisonment despite the large amount of cannabis found in his possession.”[6]  However, he had not learned from past leniency to give up his cannabis use.  A submission that the sentence was manifestly excessive was rejected.  It was conceded on behalf of the applicant in that case that a term of imprisonment was within range.  Chesterman JA noted that the maximum penalty was 20 years imprisonment and concluded that the sentence imposed of six months actual custody by way of response to the offence, and the pattern of offending, was “sensible and appropriate”.[7]

[20] The applicant in this matter has a less serious prior criminal history than the applicant in Doraho.  Still, the fact that he has a prior criminal history for production and possession of cannabis, and the fact that the quantity found in his possession exceeded one kilogram made a sentence of six months imprisonment, wholly suspended, one which was within the range of sentences that might have been imposed. 

[21] The fact that another sentence, such as a substantial fine coupled with community service, may also have been in range does not establish that the sentences imposed were manifestly excessive.  It was open to the learned sentencing judge to conclude that a sentence of six months imprisonment on each count was appropriate to reflect the need for personal and general deterrence, notwithstanding the applicant’s steps towards rehabilitation.  The applicant’s age did not entitle him to the leniency extended to young offenders with no prior criminal history.  The course taken by the learned sentencing judge in wholly suspending the sentences reflected the applicant’s early pleas of guilty and the steps taken towards his rehabilitation.

[22] The sentences imposed were appropriate in all the circumstances.  They certainly were not manifestly excessive.

[23] The applicant also submitted that he should have been placed on probation so as to give him a structure and a program to which he could comply.  However the evidence and submissions made to the learned sentencing judge did not suggest that the applicant needed such supervision.  On the contrary, they indicated that the applicant had advanced his own rehabilitation after “a real wakeup call”, was in secure employment and had overcome his addiction to cannabis.  The psychologist’s report stated that the applicant had taken steps to ensure that he remained in remission.  On the basis of the material before her Honour, the sentences were appropriate.

[24] I would refuse the application for leave to appeal against sentence.