R v Ali[2023] QCA 207

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Buss AJA.
2. [2]
   BUSS AJA:  The applicant has applied for leave to appeal against sentence.
3. [3]
   The applicant was convicted, on his pleas of guilty, of 10 offences.
4. [4]
   Each of counts 1 to 8 inclusive alleged that on a different specified date between 10 December 2021 and 31 January 2022 the applicant unlawfully supplied a dangerous drug, namely cannabis, to another person, contrary to s 6(1)(f) of the Drugs Misuse Act 1986 (Qld).
5. [5]
   Count 9 alleged that on 22 February 2022 the applicant unlawfully had possession of a dangerous drug, namely cannabis, and that the quantity of the dangerous drug exceeded 500 grams, contrary to s 9(1)(c) of the Drugs Misuse Act.
6. [6]
   Count 10 alleged that on 22 February 2022 the applicant unlawfully possessed a category H weapon, contrary to s 50(1)(c)(i) of the Weapons Act 1990 (Qld).
7. [7]
   The maximum penalty for each of counts 1 to 8 inclusive is 15 years’ imprisonment.  The maximum penalty for count 9 is 20 years’ imprisonment.  The maximum penalty for count 10 is seven years’ imprisonment or 300 penalty units.
8. [8]
   On 26 April 2023, Burnett DCJ imposed the following sentences:

   1. on count 1, 12 months’ imprisonment, suspended forthwith, with an operational period of two years six months;
   2. on each of counts 2 to 9, nine months’ imprisonment, suspended forthwith, with an operational period of 18 months; and
   3. on count 10, 18 months’ probation, with a special requirement for monthly random drug testing.
9. [9]
   His Honour recorded a conviction on each count.  His Honour was bound to record a conviction on counts 1 to 9 inclusive because a court may order that a term of imprisonment be suspended only if it records a conviction.  See s 143 of the Penalties and Sentences Act 1992 (Qld).  His Honour recorded a conviction on count 10 in exercise of the discretion conferred by s 12(1) of the Penalties and Sentences Act.
10. [10]
    At the hearing of the applicant’s application for leave to appeal the Court granted the applicant leave to amend his notice of appeal to raise three grounds of appeal.
11. [11]
    Ground 1 alleges, in essence, that the sentencing judge erred in considering whether or not to record a conviction for each count by failing to take into account the impact that recording a conviction will have on the applicant’s chances of finding employment.
12. [12]
    Ground 2 alleges, in essence, that the sentencing judge made an error of fact in finding that the offending was “obviously highly profitable”.
13. [13]
    Ground 3 alleges, in essence, that the sentencing judge’s decision to impose suspended terms of imprisonment and to record convictions was unreasonable or plainly unjust.
14. [14]
    I would dismiss the application for leave to appeal against sentence.  My reasons are as follows.

The facts and circumstances of the offences

15. [15]
    The facts and circumstances of the offences are set out in a statement of facts tendered at the sentencing hearing before his Honour.  The facts and circumstances recounted in the statement, with some minor corrections, were agreed by the Crown and the applicant.
16. [16]
    On 22 February 2022, police executed a search warrant at the applicant’s house.  The applicant was not present.  During the search, police located the following items in the applicant’s bedroom:

    1. a vacuum sealed bag containing 455 grams of cannabis in a black Adidas brand bag;
    2. a plastic bag containing 429 grams of loose cannabis in the black Adidas brand bag;
    3. a metal container containing two cannabis seeds which weighed less than one gram;
    4. a shortened lever-action rifle (category H) in the black Adidas brand bag; and
    5. $5,050 in Australian currency inside a black lock-box in the black Adidas brand bag.
17. [17]
    Police located an additional 11 grams of loose cannabis in the applicant’s bedroom and in a garage on the property.  An additional clip seal bag was found in the garage which contained cannabis seeds weighing about one gram.
18. [18]
    On 22 February 2022, police located the applicant.  He voluntarily attended at a police station and participated in an interview in respect of other matters.  Police seized the applicant’s mobile telephone.  He gave police the PIN code.  The applicant told police that they would locate evidence of cannabis supply on his telephone.  He also told police that he did not know anything about the black Adidas brand bag or its contents.
19. [19]
    Police reviewed the applicant’s mobile telephone.  The review showed that the applicant was involved in supplying cannabis to associates.
20. [20]
    Later on 22 February 2022, the applicant participated in another interview with police in which he admitted having supplied cannabis to associates.  However, he declined to elaborate upon the details of each supply.
21. [21]
    Counts 1 to 8 inclusive were based upon information obtained by police from their review of the applicant’s mobile telephone.
22. [22]
    On 10 December 2021, the applicant contacted ‘BC’ via Facebook messenger to enquire if he was “still moving buds”.  BC replied “Yeah bro how much qp” to which the applicant said “1400 I can do you bro. All strain too I have some shit from the Russians coming in”.  The Crown alleged that the applicant conducted acts preparatory to the supply of a quarter pound (114 grams) of cannabis for $1,400 (count 1).
23. [23]
    On 11 December 2021, the applicant contacted ‘AN’ via Facebook messenger to enquire if her mate needed ‘buds’.  AN told the applicant she would let him know when she needed it and asked what strain he was selling.  The applicant told AN “... yeah I’ll always have strains for cheap”.  The Crown alleged that the applicant conducted acts preparatory to the supply of cannabis (count 2).
24. [24]
    On 15 December 2021, ‘DJ’ contacted the applicant to enquire if he could source a ‘q’ off him. The applicant replied “Yeah bro. I’ll weigh her up now just lmk [sic] when you’ve got cash out and stuff”.  The Crown alleged that the applicant conducted acts preparatory to the supply of a quarter ounce (7 grams) of cannabis (count 3).
25. [25]
    On 24 December 2021, the applicant was contacted by ‘VJ’ via Facebook messenger to enquire if he could purchase a ‘q’ for $120 from him.  The applicant replied “Yeah bro I just gotta check how much I have left”.  The Crown alleged that the applicant conducted acts preparatory to the supply of a quarter ounce (7 grams) of cannabis for $120 (count 4).
26. [26]
    On 8 January 2022, the applicant was contacted by ‘WB’ via Facebook messenger to enquire if he could purchase a ‘stick’ [for] ‘50’.  The applicant replied “Yeah bro. Can do a 50 if you want”.  The Crown alleged that the applicant conducted acts preparatory to the supply of three grams of cannabis for $50 (count 5).
27. [27]
    On 12 January 2022, the applicant was contacted by ‘BM’ via Facebook messenger to enquire if he could purchase a ‘q’ from him to which the applicant said he could sort it out after work.  BM asked the applicant “Does after 5 work for u bro and is it still 100 for a q?” to which the applicant replied “Yeah that’s Alsweet [sic]”.  The Crown alleged that the applicant supplied a quarter ounce (7 grams) of cannabis to Bishop for $100 (count 6).
28. [28]
    On 22 January 2022, the applicant was contacted by ‘KK’ via Facebook messenger to enquire if he could purchase a ‘50’, to which the applicant replied “Yeah bro”.  The Crown alleged that the applicant conducted acts preparatory to the supply of three grams of cannabis for $50 (count 7).
29. [29]
    On 30 January 2022, the applicant was contacted by ‘WJ’ via Facebook messenger to enquire if he could purchase a ‘50’, to which the applicant replied the next day “Can this arvo.”  The Crown alleged that the applicant conducted acts preparatory to the supply of three grams of cannabis for $50 (count 8).
30. [30]
    The Crown proceeded on the basis that the conduct in counts 1 to 5 inclusive, 7 and 8 were acts preparatory to the supply of cannabis as it was not apparent whether the supplies went ahead.
31. [31]
    The total weight of the loose cannabis and the cannabis seeds found by police in the applicant’s bedroom and in the garage was about 897 grams (count 9).  The Crown alleged that the applicant possessed the cannabis for a commercial purpose.
32. [32]
    The shortened lever-action rifle (category H) located in the black Adidas brand bag was the subject of count 10.

The applicant’s personal circumstances and antecedents

33. [33]
    The applicant was born on 10 April 2002.  He was aged 19 at the time of the offending and was aged 21 when sentenced.
34. [34]
    The applicant was born in Ipswich and grew up in Brassall.  Initially, he lived with both of his parents, but they separated when he was aged 6 or 7.  The applicant lived at home until about July 2022.  He then began to live with his partner.  At the time of sentencing the applicant and his partner had been together for about five years and had an eight month old daughter.  There is no history of domestic violence in the applicant’s relationship with his partner.
35. [35]
    The applicant left school midway through Year 10.  Later, he completed Year 10 at another school.  At the age of 15 the applicant commenced school-based trade training.  At the time of sentencing the applicant was a trainee with JBS Australia Dinmore Processing (JBS).  The traineeship involved the applicant working at a meatworks.  At the time of sentencing the applicant had completed about two-thirds of the two year traineeship.
36. [36]
    The information before the sentencing judge included a written reference from Joshua Roll, the Human Resource Coordinator for JBS.  Mr Roll said that he had known the applicant as a friend and a work colleague for about one year.  Mr Roll was of the opinion that the applicant was a person of “very good moral character”.  His experience was that the applicant operated “with integrity and sincerity”.  The applicant was a hard working and dedicated employee who was liked by all of his colleagues.  Mr Roll was aware of the pending charges against the applicant.
37. [37]
    The applicant has a history of cannabis use.  His use of the drug has been cyclical in nature.  The applicant’s general medical practitioner has prescribed Mirtazapine for the applicant to manage his anxiety and to facilitate his sleep.  The applicant has occasionally “self-medicated” for these conditions with cannabis.
38. [38]
    Prior to his sentencing on 26 April 2023, the applicant had been on bail for about 15 months.  The conditions of bail included a curfew and reporting to police three days per week.  The applicant complied with his obligations under the bail order.
39. [39]
    The applicant had committed one previous offence.  On 27 March 2021, he had committed a public nuisance.  The applicant was fined $250.  No conviction was recorded.

The prosecutor’s submissions to the sentencing judge

40. [40]
    The prosecutor submitted to the sentencing judge that:

    1. The applicant had entered early pleas of guilty.
    2. General deterrence and denunciation of the applicant’s criminal conduct were significant sentencing considerations.
    3. Although the applicant had not previously engaged in similar offending, “a term of probation attached to … count 10 … may still support [the applicant] in his ongoing rehabilitation into the community, especially having regard to the nature of the offences”.  The applicant had struggled with substance misuse (notably cannabis) in the past.
    4. A sentence of 12 months’ imprisonment for counts 1 to 9, wholly suspended having regard to the applicant’s youth, early pleas and otherwise favourable antecedents, would be an appropriate exercise of the sentencing discretion.  In addition, his Honour “might achieve a period of supervision through a lengthy period of probation for count 10, perhaps in the order of two years”.
    5. If his Honour was minded to impose probation for all of the offences it would certainly be within his Honour’s discretion to record a conviction for the offending.  The offending was very serious.  It involved commercial drug offending.
    6. It was apparent from Mr Roll’s written reference that the applicant “does have prospects of work going forward”.  Nevertheless, the recording of “a conviction would reflect the seriousness of this offending” despite the applicant’s youth.

Defence counsel’s submissions to the sentencing judge

41. [41]
    Defence counsel submitted to the sentencing judge that:

    1. The applicant was a very young man and a first offender, apart from the public nuisance offence, which was irrelevant for present purposes.
    2. The applicant’s youth required that rehabilitation be a significant and dominant sentencing consideration.
    3. The applicant should be treated with the leniency that can be afforded to young men who have prospects of rehabilitation.
    4. The applicant had completed two-thirds of his traineeship with JBS “no doubt with a view to many different and varied types of employment in the future”, and consequently the applicant should be “afforded the opportunity for there to be no conviction recorded”.
    5. There was “nothing in this offending that would suggest that the community needs to be warned or be made aware of [the applicant]”.  The applicant was not “free of drugs entirely”.  His drug use was cyclical.  He had “the protection of [random drug] tests at work”.  The applicant was committed “to ultimately being entirely cannabis free”.
    6. The applicant was in a very supportive relationship with his partner.  They were both committed to raising their young daughter together.  The applicant was the primary breadwinner for the family.  He had very good support from his mother and step-father.
    7. There was no doubt that the applicant’s drug offences were “commercial”.  Nevertheless, the offending was occasioned by his use of drugs.  Upon the applicant ceasing to use cannabis entirely he would be very unlikely to reoffend.
    8. The Court should impose a term of probation for the offences without recording convictions.
    9. If the applicant was sentenced to a term of probation and no conviction was recorded “one of the … really important checks … is that if he was to reoffend – which ultimately … is very unlikely” then upon resentencing a conviction must be recorded.
    10. The applicant accepted, of course, that he had possession of the weapon the subject of count 10.  However, it was not suggested by the Crown that the weapon was being held for any purpose.  In particular, there was no suggestion that the applicant was “preparing to engage in some sort of public violence”.

The sentencing judge’s sentencing remarks

42. [42]
    The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending and the applicant’s personal circumstances and antecedents.
43. [43]
    In addition, his Honour made these findings and observations:

    1. The applicant has had an issue with cannabis.
    2. The applicant entered early pleas of guilty.  He has no prior criminal history.  The applicant is youthful.  He has complied with his bail conditions while on bail.  The applicant has sought actively to address the underlying issues that resulted in his use of cannabis; in particular, by seeking medical treatment.  He has family support.  The applicant is currently the breadwinner for his family.  His prospects of rehabilitation are good.
    3. However, the applicant’s possession and supply of cannabis was for a commercial purpose.  There were two concerning features.  First, the amount of money in the applicant’s possession when the police executed the search warrant.  It was “a significant sum of money for a man who otherwise has rather limited means”.  Secondly, and perhaps more concerningly, the applicant’s possession of the shortened lever-action rifle.
    4. The association of firearms and drugs is a matter of grave concern.  The applicant’s conduct must be denounced strongly.
    5. His Honour would have been persuaded by defence counsel’s submissions as to the sentencing outcome (in particular, the imposition of a term of probation for all of the offences without recording convictions), but for the involvement of the weapon.
    6. The facts of the case were “far too serious” for a conviction not to be recorded.  A shortened lever-action rifle is a significant weapon.  The association of the weapon with the drugs and the money involved in the applicant’s offending “occasions great concern and calls … for an element of community protection to be reflected in the [sentencing outcome] to dissuade [the applicant] from engaging in this sort of behaviour again”.
    7. The offending occurred over a number of months and was “obviously highly profitable”.
    8. However, since the offending occurred, the applicant had taken on other responsibilities and was to be encouraged in pursuing those responsibilities rather than his previous criminal behaviour.  The success of the applicant’s traineeship, his stable relationship with his partner and the responsibilities associated with their child “feature strongly in [the applicant’s] prospects of rehabilitation”.  For that reason, his Honour proposed “to put in place a regime that sees [the applicant] walk from Court today subject to probation for a period of time and then subject to a suspended sentence hanging over [the applicant] for a further period to assist [him] in taking onboard and putting into practice the lessons introduced in the course of rehabilitation”.
    9. The convictions could “[i]n time” be the subject of an application for a spent conviction order, but for present purposes his Honour was not satisfied that “a conviction will … have a detrimental effect on [the applicant’s] economic or social wellbeing”.  His Honour said that there was nothing in the material before him to suggest that a conviction will have that effect.  His Honour concluded that “[t]he other factors … outweigh the benefit to [the applicant] and the community, in particular, of there being no conviction recorded and the sentence being structured accordingly”.
    10. The sentence for count 1 would be suspended forthwith for an operational period of two years six months and during that period the applicant would undertake 18 months’ probation.  The purpose of the probation order was to assist the applicant in his rehabilitation.  His Honour said that “a lengthier rather than a shorter time” on probation would assist the applicant’s rehabilitation.  His Honour noted that it was a challenging time for the applicant, as a young person, “to be a parent and parenting is not easy”, that the applicant’s parenting role would “introduce its own stressors” and that would, in turn, “perhaps see [the applicant] seeking to self-medicate".  The conditions of the order would include that the applicant be randomly tested for drugs during the period of probation.
    11. The sentences of suspended imprisonment would begin on the date of sentencing (that is, on 26 April 2023).

Section 12 of the Penalties and Sentences Act

44. [44]
    Section 12 of the Penalties and Sentences Act provides, relevantly:

1. A court may exercise a discretion to record or not record a conviction as provided by this Act.

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

1. the nature of the offence; and

2. the offender’s character and age; and

3. the impact that recording a conviction will have on the offender’s—

1. economic or social wellbeing; or

2. chances of finding employment.

3. Except as otherwise expressly provided by this or another Act—

1. a conviction without recording the conviction is taken not to be a conviction for any purpose; and

2. the conviction must not be entered in any records except—

1. in the records of the court before which the offender was convicted; and

2. in the offender’s criminal history but only for the purposes of subsection (4)(b).

(3A) Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.

The submissions of counsel for the applicant

45. [45]
    As to ground 1, counsel for the applicant submitted that the sentencing judge’s approach to the exercise of the discretion conferred by s 12(1) of the Penalties and Sentences Act was erroneous.
46. [46]
    It was submitted that his Honour failed to make an express finding in relation to the impact that recording a conviction will have on the applicant’s chances of finding employment and consequently his Honour failed to have regard to the mandatory relevant consideration specified in s 12(2)(c)(ii).
47. [47]
    Counsel argued that, having regard to the leniency ordinarily afforded to teenage offenders with promising prospects of rehabilitation, the principal factor specified in s 12(2) which favoured the recording of a conviction was the nature of the offence: s 12(2)(a).  The applicant’s character and age pointed against the recording of a conviction: s 12(2)(b).  The absence of any impact that recording a conviction will have on the applicant’s economic or social wellbeing favoured the recording of a conviction: s 12(2)(c)(i).  However, the impact that recording a conviction will have on the applicant’s chances of finding employment (a factor in respect of which his Honour failed to make an express finding) pointed against the recording of a conviction: s 12(2)(c)(ii).
48. [48]
    It was submitted that his Honour should have appreciated that s 12(2)(c)(ii) pointed against the recording of a conviction because the recording of a conviction will impact the applicant’s chances of finding employment.
49. [49]
    Counsel argued that a conviction for the type of offending the subject of count 10 will inevitably damage an offender’s future employment prospects.
50. [50]
    Counsel accepted that it is well established that merely identifying a possible detrimental impact on future employment prospects will usually be insufficient, of itself, to warrant the positive exercise of the discretion to order that a conviction should not be recorded.  See R v Bain [1997] QCA 35 (p 3); R v Van Le [2003] QCA 256 (p 5); R v Cay [2005] QCA 467; (2005) 158 A Crim R 488 [45].
51. [51]
    However, counsel referred to and relied upon these observations of Keane JA in Cay:

One complaint that is advanced by the appellant is that there was no specific identification of any employment option open to any of the respondents which might be hampered by the recording of a conviction. But the existence of a criminal record is, as a general rule, likely to impair a person’s employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement.  Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to “the impact that recording a conviction will have on the offender’s chances of finding employment” (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender’s prospects of obtaining employment with a particular employer or even in a particular field of endeavour [43].

…

The point to be made here is that the very nature of some offences means that the recording of a conviction will inevitably damage an offender’s future employment prospects and, therefore, his or her prospects of rehabilitation. It is for this reason that, for example, a court might be quicker to record a conviction for offences that might only be relevant to certain employers, such as dangerous driving, than for offences that would concern all potential employers, such as fraud or stealing as a servant. Armed robbery, with its connotations of personal violence, falls squarely into the latter category. Of course, it may be accepted that simply to point to a possible detrimental impact on future employment prospects will usually be insufficient, of itself, to warrant the positive exercise of the discretion to order that a conviction should not be recorded. It does not follow that the learned sentencing judge erred by taking into account “the fact that the recording of a conviction may adversely impact upon [the respondent’s] prospects of obtaining employment in the future or obtaining different employment” [45]. (footnotes omitted) (underlining added)

52. [52]
    Counsel also referred to and relied upon these observations of Mackenzie J in Cay [75]:

In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable. (underlining added)

53. [53]
    It was submitted that, in the present case, his Honour’s approach to s 12(2) (in particular, his Honour’s approach to s 12(2)(c)(ii)) was attended by error.  The error required this Court to intervene and resentence the applicant on count 10.  It was submitted that “on balance” a conviction should not be recorded.
54. [54]
    Some of the submissions by counsel for the applicant on ground 1 appeared to complain about the recording of convictions for counts 1 to 9 inclusive.  However, as I have mentioned, his Honour imposed sentences of suspended imprisonment for those counts and a court may order that a term of imprisonment be suspended only if it records a conviction.  See s 143 of the Penalties and Sentences Act.  Section 12(2) did not apply to the sentences imposed by his Honour for counts 1 to 9 inclusive.  The applicant’s challenge on the basis of manifest excess to the sentences imposed for counts 1 to 9 inclusive arises for consideration in the context of ground 3.
55. [55]
    As to ground 2, counsel for the applicant submitted that the sentencing judge erred in his assessment of the objective seriousness of the offending and consequently his Honour imposed an “excessive penalty”.
56. [56]
    Counsel acknowledged that the applicant’s offending on the cannabis counts was aggravated by the applicant’s possession and supply of cannabis being for a commercial purpose and by the presence of the firearm alongside the cannabis.
57. [57]
    However, it was submitted that his Honour made a material error of fact in concluding that the offending was “obviously highly profitable”.  According to counsel, that finding was not open on the information before his Honour.  The erroneous finding was material in “aggravation of penalty”.
58. [58]
    Counsel accepted that the applicant’s possession of the $5,050 cash found inside the black lock-box in the black Adidas brand bag was relevant in assessing the nature or seriousness of the offending, especially in relation to count 9.  However, it was argued that the applicant’s possession of the cash did not provide any evidence of profit.  There was no evidence that the offending was profitable.  An inference to that effect did not arise from the surrounding facts and circumstances.  The prosecutor did not make a submission to that effect.
59. [59]
    Counsel noted that it is well established that if the commercial possession or supply of drugs is profitable then the profitability is an aggravating factor in the sentencing process.  Counsel referred to R v Holmes [2008] QCA 259 [33] and R v Kleimeyer [2018] QCA 9 p 4.
60. [60]
    It was submitted that the applicant’s offending involving the possession and supply of cannabis was at the lower end of the range of seriousness in view of the quantities in question.  The applicant was not sentenced for trafficking.
61. [61]
    As to ground 3, counsel for the applicant submitted that the sentences of imprisonment imposed on the applicant were unreasonable or plainly unjust.  Further, his Honour’s decision to record convictions on each count was unreasonable or plainly unjust.
62. [62]
    Counsel submitted, in the alternative, that if the Court does not accept that the imposition of sentences of imprisonment was manifestly excessive then the operational period of two years six months for count 1 was unreasonable or plainly unjust.  Counsel referred in support of that proposition to the “unusually onerous probation order” imposed for count 10.  It was submitted that the probation order was “unusually onerous” because the applicant had been on bail for about 15 months before he was sentenced, the conditions of bail included a curfew and reporting to police three days per week and the period of probation was 18 months.
63. [63]
    Counsel argued that the sentences of imprisonment and the recording of convictions were manifestly excessive “on account of the special leniency the applicant is entitled to as a teenage offender”.  Rehabilitation should have been a dominant sentencing consideration.
64. [64]
    It was submitted that the applicant’s cooperation with the authorities was significant.  The applicant had been on bail for about 15 months before he was sentenced and during that time he had complied with a curfew and reported to police three days per week.  When he was sentenced the applicant was receiving medical treatment for the issues that had caused him to self-medicate with cannabis.  He had promising prospects of rehabilitation and favourable antecedents.
65. [65]
    According to counsel, the presence of the firearm alongside the cannabis properly aggravated the sentencing outcome, but not to the degree that imprisonment was within the sound exercise of the sentencing discretion.
66. [66]
    It was submitted that, given the applicant’s favourable prospects for rehabilitation, terms of imprisonment were not required to satisfy the sentencing considerations of personal deterrence, denunciation and protection of the community.  Further, the offending was not so grave as to require the imposition of imprisonment or the recording of convictions.
67. [67]
    Counsel referred to the facts and circumstances and the sentencing outcomes in a number of cases including Holmes, R v Crook [2012] QCA 305, Kleimeyer and R v Christodoulou [2019] QCA 233.
68. [68]
    As to resentencing, in the event the appeal were to be allowed, counsel argued that this Court should resentence the applicant to probation for a period between 18 months and two years on all counts.  The probation order could be coupled with an order for community service or a fine.  No convictions should be recorded.

The submissions of counsel for the Crown

69. [69]
    Counsel for the Crown submitted that the sentencing judge did not err as asserted by the applicant.  The sentences imposed by his Honour were within the appropriate range for the offending.

The merits of ground 1

70. [70]
    In R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, Macrossan CJ explained the proper approach to the exercise of the discretion conferred by s 12 of the Penalties and Sentences Act as follows:

Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court.  The opening words of s. 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances.  In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another.  They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight.

See also R v Sanders [2007] QCA 165 [12] (McMurdo P, Jerrard JA and Philippides J).

71. [71]
    The discretion conferred on a sentencing court by s 12 must not be considered in isolation from the particular sentencing option that the court is considering.  Further, the sentencing options available to the court must not be considered in isolation from whether a conviction should be recorded or not.  The combined effect of the orders must be evaluated before the court decides upon the appropriateness of a proposed sentence.  If the proposed sentence is inappropriate the court should not impose the sentence and should consider another option or combination of options.  See R v Briese; Ex-parte Attorney-General [1998] 1 Qd R 487, 489-490 (Thomas and White JJ); R v LAL [2018] QCA 179 [83]-[85] (Ryan J; Sofronoff P and Crow J agreeing).
72. [72]
    Section 12(2) provides, relevantly, that in considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including “the impact that recording a conviction will have on the offender’s … economic or social wellbeing” (para (c)(i)) or “chances of finding employment” (para (c)(ii)).
73. [73]
    In Cay, de Jersey CJ commented in relation to s  12(2)(c)(ii) that defence counsel “should properly inform the court of the offender’s interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardize a particular avenue of employment” [8].
74. [74]
    In Cay, Keane JA said, in essence, in relation to s 12(2)(c):

    1. The existence of a criminal record is, as a general rule, likely to impair a person’s prospects of employment [43].
    2. It is not essential to the sound exercise of the discretion under s 12 that specific employment opportunities be identified that will be lost to an offender if a conviction is recorded [43].
    3. Although specific employment opportunities should usually be identified if the discretion under s 12 is to be exercised favourably to an offender, the identification of such opportunities is not a precondition to a favourable exercise of the discretion [43].
    4. The nature of some offences will inevitably damage an offender’s future prospects of employment if a conviction is recorded [45].  His Honour elaborated [45]:

It is for this reason that, for example, a court might be quicker to record a conviction for offences that might only be relevant to certain employers, such as dangerous driving, than for offences that would concern all potential employers, such as fraud or stealing as a servant.  Armed robbery, with its connotations of personal violence, falls squarely into the latter category.  Of course, it may be accepted that simply to point to a possible detrimental impact on future employment prospects will usually be insufficient, of itself, to warrant the positive exercise of the discretion to order that a conviction should not be recorded.

75. [75]
    In Cay, Mackenzie J noted that the authorities as to the proper approach to s 12(2)(c) “are not always easy to reconcile” [72].  His Honour said that the case before the court was not a suitable vehicle for detailed analysis of how s 12(2) should be applied [77].  Nevertheless, his Honour made these observations about s 12(2)(c) [74]-[75]:

Section 12(2)(c) speaks of the impact a conviction “will” have on the offender’s economic or social wellbeing or chances of finding employment. This involves an element of predicting the future. Ordinarily, the word “will” in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction. The notion of impact on the offender’s “chances of finding employment” is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future.

In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable.

See also R v BCO [2013] QCA 328; [2016] 1 Qd R 290 [22], where Mullins J (Margaret McMurdo P and Morrison JA agreeing) cited that passage with approval.

76. [76]
    Although the sound exercise of the discretion conferred by s 12 does not require the identification of specific employment opportunities that will be lost to an offender if a conviction is recorded (Cay [43]), the absence of any information or the provision of vague information about the prospective impact that the recording of a conviction will have on the offender’s future employment will ordinarily result in diminished weight being given to the consideration specified in s 12(2)(c)(ii).  See R v Mitchell-Herden [2023] QCA 39 (pp 4-5) (Henry J; Mullins P and Gotterson AJA agreeing).
77. [77]
    In R v Kelley [2018] QCA 18, this Court allowed the applicant’s appeal against sentence, except as to the recording of conviction.  Morrison JA (Sofronoff P relevantly agreeing and Philippides JA agreeing) said that the applicant had committed a serious offence (one of domestic violence carried out in breach of a court order) and to not record a conviction would call for “exceptional circumstances” which were not present [54].  His Honour considered that there were a number of reasons why the prospects of the applicant’s employment “in the mines” could be put to one side for the purposes of s 12(2).  His Honour explained [55]-[57]:

First, the desire or intention to do so was expressed vaguely, and in any event was dependent upon his father retiring.  Nothing was said as to the likelihood of that or when that might be.  There was evidence that the father and [the applicant] continued to run the family smash repair business, and no suggestion that the business would not continue into the future.

Secondly, if that was to be seriously pressed then some evidentiary foundation should have been laid, at least better than it was.  Whilst it is not an essential requirement, a specific employment opportunity or opportunities should usually be identified if the discretion to not record a conviction is to be exercised in favour of an offender.  All that supported it was a reference from a Mr Stevens, who said: (i) he worked in the mines but not in what capacity; (ii) he thought he could get [the applicant] a position, but not what or with what prospects; and (iii) that a conviction would “hinder” the chances of obtaining “this type of job”, but not why, or that it would preclude such employment.

Thirdly, given the nature of [the applicant’s] continuing employment in the family business, the broader, non-specific impact of a conviction referred to in R v Cay; Gersch and Schell; Ex parte Attorney-General (Qld) does not have much weight. (footnotes omitted)

78. [78]
    In R v DBR [2019] QCA 218, this Court dismissed the applicant’s application for leave to appeal against sentence.  The applicant had pleaded guilty to one count of unlawful and indecent treatment of a child.  The applicant was aged 16 at the time of the offending and was aged 19 when sentenced.  The primary judge imposed probation for three years with a conviction being recorded.  Philippides JA (Fraser and Gotterson JJA agreeing) noted that the primary judge did not expressly refer in his sentencing remarks to the impact that recording a conviction would have on the applicant’s rehabilitation generally or on his chances of finding employment [40].  Her Honour also noted that the primary judge was not specifically addressed on or provided with any information in that respect [40].  Nevertheless, her Honour was satisfied that the primary judge was “clearly mindful of the different sentencing regime applicable because of the applicant’s age” [40].  Her Honour said in relation to the primary judge’s failure to mention in his sentencing remarks the impact that recording a conviction would have on the applicant’s rehabilitation generally or on his chances of finding employment [41]:

I do not consider that the failure to mention that aspect can be said to have caused the sentencing discretion to miscarry, such that the sentencing discretion should be exercised afresh.  If that view is incorrect, I would not exercise the sentence discretion so as not to record a conviction taking into account the circumstances of this case, including the prior sexual offending.

79. [79]
    In the present case, the relevant issue, in the context of ground 1, is whether the sentencing judge failed to have regard to the impact that recording a conviction for count 10 “will have on [the applicant’s] … chances of finding employment”, within s 12(2)(c)(ii) of the Penalties and Sentences Act, and, if so, whether that failure constituted a material error by his Honour in exercising the discretion under s 12 to record or not record a conviction for count 10.
80. [80]
    At the sentencing hearing before his Honour, defence counsel said that the applicant had completed two-thirds of his traineeship with JBS “no doubt with a view to many different and varied types of employment in the future”, and consequently the applicant should be “afforded the opportunity for there to be no conviction recorded”.  Defence counsel submitted that his Honour should impose a term of probation for count 10 (and the other offences) without recording a conviction.
81. [81]
    Defence counsel did not identify any specific employment opportunities that would be lost to the applicant if any convictions were recorded.
82. [82]
    It is true, as this Court has explained in a number of cases, that it is not essential to the sound exercise of the discretion under s 12 that specific or particular employment opportunities be identified that will be lost to an offender if a conviction is recorded.  The nature of an offence may be likely to damage an offender’s chances of finding employment generally or employment of a specific or particular kind if a conviction is recorded.  However, the failure to identify specific or particular employment opportunities that will be lost to an offender will ordinarily result in limited or diminished weight being given to the factor specified in s 12(2)(c)(ii).
83. [83]
    In the present case, the sentencing judge recounted in his sentencing remarks the circumstances of the applicant’s education and his training after leaving school.  His Honour noted that at the time of sentencing the applicant was on the traineeship with JBS.  His Honour also noted that Mr Roll had provided a character reference indicating that the applicant had been and was a very good employee who worked with integrity and sincerity.
84. [84]
    His Honour did not refer in his sentencing remarks to the impact that recording a conviction “will have” on the applicant’s “chances of finding employment”.
85. [85]
    However, there was no information or submission before the sentencing judge that recording a conviction “will have” a specific or particular impact on the applicant’s “chances of finding employment” generally or employment of a particular kind.  Indeed, the information that was before his Honour, namely Mr Roll’s written reference, stated that the applicant was a hardworking and dedicated employee who was liked by all of his colleagues.  When Mr Roll gave that reference he knew of the pending charges against the applicant.  The information from Mr Roll indicated that the applicant’s future employment with JBS was secure, notwithstanding the pending charges.
86. [86]
    The applicant was in possession of the shortened lever-action rifle, the subject of count 10, in connection with his drug dealing.  The prosecutor did not suggest at the sentencing hearing before his Honour that the applicant had ever discharged the rifle or threatened anyone with it.  Nevertheless, as his Honour pointed out, the applicant’s possession of the rifle in connection with his drug dealing was a serious feature of the applicant’s overall offending.
87. [87]
    In my opinion, the applicant’s possession of the rifle in connection with his drug dealing would be likely to affect detrimentally the applicant’s chances of finding employment with some prospective employers; notably employers who, unlike Mr Roll, were unacquainted with the good qualities the applicant had demonstrated while employed by JBS.
88. [88]
    I am satisfied that, in the circumstances, the sentencing judge made an error in failing to have regard to “the impact that recording a conviction will have on [the applicant’s] … chances of finding employment”, within s 12(2)(c)(ii).  However, I am of the opinion, for the following reasons, that in the circumstances his Honour’s failure to have regard to that mandatory relevant consideration was not a material error in that there was no reasonable possibility that the error might have affected the decision whether or not to record a conviction on count 10.  First, as his Honour rightly pointed out, the applicant’s possession of the rifle in connection with his drug dealing was a serious feature of the applicant’s overall offending.  Despite the applicant’s youth at the time of the offending, prospective employers of the applicant would have a legitimate interest in knowing that he had been convicted of possessing a firearm in connection with drug dealing.  Secondly, his Honour was bound to have regard to “all circumstances of the case”, within s 12(2), in considering whether or not to record a conviction on count 10.  All the circumstances of the case included the applicant’s offending on counts 1 to 9 inclusive and the sentencing outcome on those counts.  His Honour imposed a term of suspended imprisonment on each of those counts and, as I have mentioned, a court may order that a term of imprisonment be suspended only if it records a conviction.  See s 143 of the Penalties and Sentences Act.  As I will explain in considering ground 3, his Honour did not err in deciding to impose terms of suspended imprisonment for counts 1 to 9 inclusive.  Thirdly, the failure of the applicant to identify, at the sentencing hearing before his Honour, specific or particular employment opportunities that would be lost or even may possibly be lost to the applicant if a conviction was recorded on count 10 meant that very limited weight could be given to the factor specified in s 12(2)(c)(ii).
89. [89]
    In any event, even if the sentencing judge’s error as alleged in ground 1 was material, I am satisfied, for the reasons I will give in relation to ground 3, that no different sentence should have been imposed for count 10; in particular, his Honour was correct to have recorded a conviction.  See s 668E(3) of the Criminal Code.
90. [90]
    Ground 1 fails.
91. [91]
    As to ground 2, the sentencing judge said that the applicant’s offending was “obviously highly profitable”.
92. [92]
    That finding was made against the following background:

    1. The applicant had been dealing in cannabis for some time before he was arrested.
    2. When he was arrested the applicant was in possession of $5,050 cash.
    3. The $5,050 cash was the proceeds of the applicant’s dealing in cannabis.
    4. There was no suggestion at the sentencing hearing before his Honour that the $5,050 cash was not the applicant’s money.  For example, there was no suggestion that the applicant was obliged to pay any of the cash to someone who had supplied him with the cannabis he had sold.
    5. There was no evidence as to whether the whole or any lesser amount of the $5,050 cash was profit.
    6. The applicant was dealing in cannabis for a commercial purpose.
    7. The $5,050 cash was, as his Honour found, “a significant sum of money for a man who otherwise has rather limited means”.
93. [93]
    The sentencing judge’s finding, by inference, that the applicant’s offending was “obviously highly profitable” must be evaluated in the context of his Honour’s sentencing remarks as a whole and the information put before his Honour by the prosecutor and defence counsel.
94. [94]
    When the finding that the applicant’s offending was “obviously highly profitable” is evaluated in that context, it is apparent that:

    1. his Honour meant “highly profitable” from the applicant’s perspective having regard to the circumstances referred to at [92] above and the applicant’s personal circumstances and antecedents;
    2. his Honour’s focus was upon the amount of the cash; and
    3. his Honour did not find that the whole or any specific part of the $5,050 cash was profit from the applicant’s dealing in cannabis.
95. [95]
    I accept that a finding to the effect that the applicant’s drug dealing was profitable was an aggravating factor.
96. [96]
    However, I am satisfied that it was reasonably open to his Honour to make the impugned finding when the finding is understood as I have explained it at [94] above.  The inference drawn by his Honour was open to be made on the application of the criminal standard of proof.  No error is apparent.
97. [97]
    In any event, even if the sentencing judge made the error alleged in ground 2, I am satisfied, for the reasons I will give in relation to ground 3, that no different sentence should have been imposed for any of the counts.
98. [98]
    Ground 2 fails.
99. [99]
    As to ground 3, it is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender’s criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender’s personal circumstances and antecedents.
100. [100]
     Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.  See Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel and Bell JJ).  In the present case, the sentencing judge was obliged to sentence the applicant in accordance with the governing principles set out in Part 2 of the Penalties and Sentences Act.  This Court can intervene if the applicant demonstrates either an express or an implied material error.  Express error includes acting on a wrong principle (for example, mistaking the law or the facts or taking into account an irrelevant consideration).  Implied error arises where the sentencing outcome is so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred.  The discretion conferred on sentencing judges is, of course, of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion differently.  See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) and Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [62] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
101. [101]
     I have already referred to the facts and circumstances of the applicant’s offending and the maximum penalty for each offence.
102. [102]
     The applicant’s offending had a number of serious features including:

     1. Although the applicant was to be punished solely for the offences with which he was charged, the relevant context included the fact that the applicant was dealing in cannabis for some time.  The offences with which he was charged were not isolated aberrations.
     2. The applicant was dealing in cannabis for a commercial purpose.
     3. The applicant’s dealing was "highly profitable” from the applicant’s perspective in the sense I have explained at [94] above.
     4. To the extent that the applicant’s offending involved acts preparatory to the supply of cannabis, there was no suggestion that the applicant did not actually have the intention and the capacity to complete the transactions.
     5. The applicant’s possession of the firearm was a significant aggravating feature of his offending.
103. [103]
     There were, of course, mitigating factors, including the applicant’s youth at the time of the offending and when sentenced; the applicant’s early pleas of guilty; the absence of a relevant prior criminal record; the applicant’s compliance with his bail conditions while on bail; the applicant’s efforts to address the underlying issues that resulted in his use of cannabis; his family support; his favourable work history; and his good prospects of rehabilitation.
104. [104]
     I have considered the facts and circumstances and the sentencing outcomes in the prior cases referred to by counsel for the applicant.  In Holmes, the offender’s offending was objectively less serious than the offending in the present case and the mitigation available to the offender was more substantial than in the present case.  In each of Crook, Kleimeyer and Christodoulou, the offender was older than the present applicant, but the offender was not in possession of a weapon in connection with his drug offending.  The offenders in Crook and Kleimeyer were not in possession of any cash.  The objective seriousness of the offending in Crook was significantly less than in the present case.  The offender in Crook was sentenced for only one count of unlawfully supplying cannabis.  Although the offender in Crook was also sentenced for possession of an aggravated quantity of cannabis, the sentencing judge accepted that the cannabis was for his personal use.  The offender in Kleimeyer was sentenced for a greater number of supplies and for the supply of more than one kind of illicit drug, but he was not in possession of an aggravated quantity of an illicit drug.  Although the offender in Kleimeyer was in his late twenties and thirties at the time of the offending, he had no prior criminal record and, like the present applicant, had taken steps towards rehabilitation and was otherwise of good character.  The offender in Christodoulou was in possession of an aggravated quantity of cannabis (1.422 kg) for commercial purposes.  He also had possession of cash, but a lesser amount than the present applicant.  The offender in Christodoulou was sentenced to 9 months’ imprisonment with a parole release date after he had served 3 months.
105. [105]
     A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.  A range of sentences customarily imposed is a yardstick for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.
106. [106]
     I am not persuaded that the prior cases referred to by counsel for the applicant reveal that any of the sentences imposed on the applicant in the present case was manifestly excessive in any of the respects relied upon by the applicant in this application for leave to appeal.
107. [107]
     I am satisfied, after evaluating the sentence for each count from the perspective of:

     1. the facts and circumstances of the offence;
     2. the maximum penalty;
     3. the general pattern of sentencing for the offence; and
     4. all relevant sentencing principles and considerations, including the mitigating factors and the applicant’s personal circumstances and antecedents,

that the sentence for each count was open to the sentencing judge on a proper exercise of his discretion.

108. [108]
     His Honour was entitled to impose sentences of suspended imprisonment for each of counts 1 to 9 inclusive.  The length of each term and the operational period for each term were not unreasonable or plainly unjust.  It is true that the operational period of two years six months for count 1 was lengthy (having regard, in particular, to the applicant having been on bail for about 15 months before he was sentenced and to the onerous conditions of his bail), but the length of the operational period was not manifestly excessive in view of the applicant’s history of using cannabis and the connection between that use and his offending.
109. [109]
     I accept that the period of probation for count 10, namely 18 months, was also lengthy.  This was acknowledged in effect by the sentencing judge in stating that “a lengthier rather than a shorter time” on probation would assist the applicant’s rehabilitation, especially having regard to the stressors arising from the applicant’s role as a parent and the risk that those stressors may induce the applicant to resort again to self-medication.  His Honour was entitled to adopt the view that a lengthier period of probation would be of benefit to the applicant.
110. [110]
     In my opinion, it was appropriate, having regard to all the circumstances of the case, including:

     1. the nature of the offence charged in count 10;
     2. the applicant’s character and age at the time of the offending and when sentenced; and
     3. the impact that recording a conviction will have on the applicant’s economic or social wellbeing and his chances of finding employment,

to record a conviction on count 10.

111. [111]
     I have already recounted the facts and circumstances of the present case that are relevant to each of the factors specifically enumerated in s 12(2) of the Penalties and Sentences Act.  I consider that, when all of the facts and circumstances required to be considered in accordance with s 12(2) are evaluated and weighed, the sentencing judge’s decision to record a conviction on count 10 was correct.

Conclusion

112. [112]
     In my opinion, the application for leave to appeal against sentence should be dismissed.
113. [113]
     KELLY J:  I agree with the reasons of Buss AJA.