Taylor v Brady[2007] QDC 357

[2007] QDC 357

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE NEWTON

No 1140 of 2007

BRISBANE 

DATE 12/11/2007

ORDER

HIS HONOUR: This an appeal by Adam James Taylor in respect of a sentence imposed by the Magistrates Court at Toowoomba on 29 March 2007. Mr Taylor on that date pleaded guilty to a number of charges, namely one charge of possession of a dangerous drug on the 18th of December 2006, one charge of stealing on the 17th of December 2006, one charge of possessing a pipe used in connection with smoking a dangerous drug on the 17th of December 2006 and two counts of failing to appear on the 24th of January 2007 and the 12th of March 2007 respectively.

He was sentenced to six months' imprisonment for the charge of possessing a dangerous drug, one months' imprisonment for the stealing charge and one months' imprisonment for the charge of possessing a pipe. Those sentences were made concurrent. A further one months' imprisonment was imposed in respect of each of the charges under the Bail Act. Those sentences were cumulative with each other and also cumulative with the sentences imposed with respect to the other matters. The effective head sentence was therefore one of eight months' imprisonment. The Magistrate declared a period of pre-sentence custody from the 14th of March to the 29th of March 2007, a total of 15 days, as part of the sentence. The parole release date was fixed by the Magistrate at 13 November 2007.

This appeal concerns the sentence of six months' imprisonment imposed for the charge of possession of a dangerous drug. It is said by Mr Taylor that this sentence is manifestly excessive.

Ms Gilbert, who appears on the behalf of the appellant, has noted in her submissions that an early plea of guilty was entered by the appellant before the Magistrate and further that the amount of the drug was very small. In fact, I am told that the amount was 1 gram of cannabis sativa. It seems to be accepted by all that the possession of this quantity of cannabis was for Mr Taylor's personal use. Ms Gilbert acknowledges in her submissions that to a considerable extent, the outcome of this appeal is somewhat academic in that the appellant is due for release tomorrow.

Ms Balic for the respondent asks this Court to focus not on the sentence imposed with respect to the possession of a dangerous drug, but rather to look at the overall picture, including the sentences imposed for the other offences together with the criminal history of the appellant. Ms Balic concedes that the amount of the drug found in the possession of Mr Taylor is indeed a very small amount and further concedes that the drug was for the appellant's personal use.

When one looks at the criminal history of Mr Taylor, one is struck immediately by its length and also by the number of matters that relate specifically to drug offences of this ilk. It seems to me in general terms that the Courts have done everything possible in terms of options provided by the legislation to encourage Mr Taylor to deal in a positive way with what would appear to be undoubtedly an addiction on his part.

Community service, fines, suspended sentences, intensive correction orders, probation and orders by way of intensive drug rehabilitation, have all been attempted without conspicuous success. There can be no doubt that Mr Taylor has a lengthy and a relatively serious criminal history which the Magistrate was undoubtedly entitled to have regard to in imposing sentence in this case.

So, if one accepts the invitation of the advocate for the respondent and removes the focus from the specific offence under appeal to concentrate more broadly on the criminal history of Mr Taylor, indeed one is hard-pressed to come to a conclusion that the sentence imposed was indeed manifestly excessive. The difficulty with that approach though, it seems to me, is this, that a bad criminal history should not be used by a Court to increase a sentence imposed in respect of a particular, discrete and specific offence. It seems to me that a criminal history of this nature has the effect simply of denying to Mr Taylor any degree of leniency that might otherwise be extended to him on the basis of a limited criminal history or even no criminal history at all.

There is some force in Ms Balic's submissions that the Magistrate could have gone about the structuring of his sentence in a different way to reflect the undoubted seriousness of the breaches of the Bail Act and by so doing, to have come up with something similar to the orders actually made in terms of the overall effect of the sentences.

I accept that the sentence in this matter could have been better structured by the Magistrate, but it seems to me that an order of six months' imprisonment imposed in respect of a charge of possessing one gram of cannabis for personal use is manifestly excessive. Indeed, I note that Ms Balic has not attempted to refer to any decisions of any Court where such a sentence for a very small amount of cannabis for personal use has hitherto been imposed.

In the circumstances, I am minded to allow the appeal and to vacate the order imposed by the Magistrate with respect to possession of a dangerous drug and in lieu thereof to order that Mr Taylor be imprisoned for that offence for a period of four months. The parole release date is fixed at 28 September 2007, that date being designed to reflect the erroneous declaration made in respect of the pre-sentence custody.