Chant v Crellin[1999] QDC 389

CHAMBERS

APPELLATE JURISDICTION

JUDGE HOLMES ADCJ

and

IPSWICH

DATE 22/10/99

JUDGMENT

HER HONOUR: The appellant in this case appeals against a fine which was imposed on him in an amount of $1300 in respect of one charge of production of a dangerous drug, one charge of possession of a dangerous drug, unlawful possession of a firearm and failing to secure a firearm.

It appears that eight plants were found on his premises. Of those one was capable of being considered seriously under cultivation. It was 180 centimetres tall. He also had three grams of cannabis. The rifles were old articles which had long been in his possession. The appeal is premised on a number of bases. It is said that the sentence is manifestly excessive because the sentencing Magistrate failed to take into account the appellant's financial situation - he was on unemployment benefit and had three defendant children; his medical condition - he had suffered from arthritis and pain and was also on medication for depression. He had also pleaded guilty and had co-operated with the authorities. I should say in respect of the medical condition that it was related to the possession in that the cannabis was used to alleviate his pain.

Mr Rashleigh for the appellant has drawn my attention to the decision of Mr Justice Demack in Queen v. Anthony George Bulley, unreported, given on 8 February 1999. In that case His Honour had discharged the accused without conviction unconditionally because of a number of features, one of which was the use of marijuana for chronic pain which would have prevented Mr Bulley working - Mr Bulley was an invalid pensioner; because he was financially disadvantaged and unable to pay a fine; and because a suspended sentence was liable to create an intolerable burden, as he described it, given that Mr Bulley's pain was such as to carry the risk that he might revert to marijuana at any stage.

The present case is not entirely on all fours with the Bulley case in that the appellant here is not so incapacitated as to be on an invalid pension. He is in fact receiving unemployment benefits and it seems that in submissions during sentence his solicitor recognised the possibility of his applying for a fine option order, and indeed advocated in the first instance discharge on a bond, but in the second instance the imposition of a fine.

It does seem to me that the Magistrate might in all the circumstances have taken Bulley's case into account in imposing some other penalty than a substantial fine. However, I do not think that it can be said that the imposition of such a fine is outside the sentencing range in the case. It is clear enough from the comparatives which have been furnished by the Crown that a fine of $1300 for possession and cultivation, together with the firearms offences, is not outside the usual range and given that it was possible for the appellant to seek to have instead community service imposed by way of a fine option order, the imposition of a fine was not as onerous as it might otherwise have been.

Although I might have reached a different view as to the appropriate penalty, I cannot say for the purposes of the appeal that the penalty which was imposed is outside the acceptable range and hence am unable to say that it was manifestly excessive. Accordingly, I dismiss the appeal.

...

HER HONOUR: This was an appeal which was in my view soundly based in that a number of features of the sentencing process which at least cause concern were identified and as I have said myself, a different approach might have been taken to it although at the end of the day it is not possible to say that the sentence was manifestly excessive. Given that feature, together with the possible futility of any order in any event, I am not inclined to order costs.