Kersland v Commissioner of Police
[2010] QDC 532
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- Unreported Judgment
- Kersland v Commissioner of Police[2010] QDC 532
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Kersland v Commissioner of Police[2010] QDC 532
Kersland v Commissioner of Police[2010] QDC 532
DISTRICT COURT OF QUEENSLAND
CITATION: | Kersland v Commissioner of Police [2010] QDC 532 |
PARTIES: | KEVIN GRANT KERSLAND Appellant v COMMISSIONER OF POLICE Respondent |
FILE NO: | 91/10 |
DIVISION: | Appellate |
PROCEEDING: | Appeal from sentence |
ORIGINATING COURT: | Beenleigh |
DELIVERED ON: | 21 December 2010 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 21 December 2010 |
JUDGE: | Dearden DCJ |
ORDER: | Appeal allowed – sentence set aside – resentenced to a period of 18 months probation in respect of each charge to be served concurrently – no conviction recorded. |
CATCHWORDS: | CRIMINAL LAW – POSSESSION OF DANGEROUS DRUG and POSSESSION OF AN UTENSIL – APPEAL AGAINST SENTENCE – APPEAL ALLOWED – failing to take into account plea of guilty under s. 13 of the Penalties and Sentences Act 1992 (Qld) – appellant resentenced. |
LEGISLATION: | Penalties and Sentences Act 1992 (Qld), s. 13 |
CASES: | Campbell v The Queensland Police Service [2008] QDC 233 R v Eveleigh [2009] QCA 257 |
COUNSEL: | Mr Smith for the appellant Mr Power for the respondent |
SOLICITORS: | Fisher Dore Lawyers for the appellant Director of Public Prosecutions for the respondent |
Introduction
- [1]HIS HONOUR: This is an appeal by the appellant Kevin Grant Kersland in respect of the sentence imposed by the learned Magistrate at Beenleigh on 23 April 2010 in respect of two charges of possession of a dangerous drug and one charge of possession of an utensil. The proceedings before the learned Magistrate proceeded in very short compass.
- [2]The appellant was represented by a duty lawyer, no doubt operating under a considerable pressure of time. The relevant facts were outlined briefly by the Prosecutor to the effect that a search of the appellant's premises at his family home on 25 May 2009 indicated a residue of crystal in a capsule in a beside table drawer. A clear plastic container with 1.2 grams of green leafy material was located, and a glass smoking pipe with a cone piece and a plastic pipe with a cone piece were located on top of the beside table.
- [3]The clip seal plastic bag, the capsules and the pipes were tested. The pipes had been clearly used to smoke cannabis, revealing traces of tetrahydrocannabinol and cannabinol. The capsule was found to contain dimethyl phenyl-thylamine drug, and the relevant certificate was tendered to the learned Magistrate. The quantities, it is accepted, were very small.
- [4]The duty lawyer made an extraordinarily brief submission and the Magistrate's sentencing remarks were, if anything, even briefer. I'll quote them for the record:
"That will be one penalty for the three offences. You'll be convicted and fined the sum of $1,200. It is referred to SPER for payment. A conviction is recorded."
- [5]The primary ground for appeal pursued by Mr Smith, who appears for the appellant, is that the learned Magistrate failed to comply with section 13 of the Penalties and Sentences Act in relation to taking the appellant's plea of guilty into account. The sentencing remarks in the decision of Campbell v the Queensland Police Service [2008] QDC 233, as quoted by Rackemann DCJ in that case, were in fact significantly longer than the sentencing remarks by the learned Magistrate in this appeal before me. Rackemann DCJ said:
"Even allowing for the pressure of time under which Magistrates must operate, those sentencing remarks were unfortunately, and inappropriately, brief. In particular, his Honour made no statement as to whether the guilty plea was taken into account or not and if so, how it was taken into account in determining the sentence imposed."
- [6]Even though I accept that the decision in R v Eveleigh [2009] QCA 257 indicates, in effect, that an appellate court can infer that the plea of guilty was taken into account, it's a situation in this appeal, in my view, where it was a matter that was easily remedied (the learned sentencing Magistrate merely had to say "I take your plea of guilty into account in settling on an appropriate penalty") and the learned Magistrate failed to do so. It's by no means clear, given the relatively minor amounts of drugs involved, that the plea of guilty was taken into account. Accordingly, I find that the learned sentencing Magistrate fell into error and it falls, then, to this Court to resentence the appellant.
- [7]In that respect, I gave leave to the appellant to file and rely on affidavits of himself, Kevin Grant Kersland; of his mother Sylvia Jean Kersland; of Bruce Henry, a registered migration agent; and a letter from Dr Samuel Minge, clinical psychologist who has conducted psychological sessions focused on drug use. In the light of that material, balanced against the submissions from Mr Power in which I permitted him to place on the record for the respondent a significantly high degree of detail in respect of the defendant's previous drug criminal history than had been placed before the sentencing Magistrate, ultimately I consider that an appropriate penalty which gives the appellant an opportunity to change his behaviour is the penalty which should be imposed, if he consents to the orders that I intend to make.
- [8]I note in passing that it's uncontested, that the nature of the appellant's most recent offences (when I say most recent, those for which he was sentenced most recently, although they are chronologically the latest of the offences) are such that it could not be said that they deserved either nominal or no punishment. Clearly, in my view it's the opposite; they are serious matters. They reveal effectively the latest steps in a series of offences which reflect an ongoing involvement with drugs which - as the appellant perhaps reluctantly but inevitably has come to understand - may, among other things, prevent him from remaining as a resident in Australia where he has lived since the age of two and might, were he to return to New Zealand - or travel anywhere overseas - prevent him from returning to Australia. As Mr Smith has indicated in his submissions, that realisation that he may not be able to remain in and perhaps in time become an Australian citizen is a situation which the appellant now appreciates quite acutely.
- [9]In all of the circumstances, then, the orders are as follows:
"(1)appeal granted;
(2)subject to the appellant's consent, which I will query in a minute, the penalty of a fine of $1200 and convictions recorded are set aside.
- [10]I will offer the appellant an option which still requires his consent.
- [11]Mr Kersland, can you stand up, please? Mr Kersland, the position you find yourself in today, can I tell you, is a very, very lucky position. There are not many people who get a second opportunity; and particularly not with the level of offending that you've accumulated in your relatively young age. I intend to give you, if you agree with it, an opportunity today. I'll give you the opportunity. Because if you breach the order I offer you, then you will be resentenced, and you have probably reached the stage where if the breach is serious enough, you might well go to gaol. In other words, you've run out of your options. On the other hand, if you take advantage of the option that I'm going to give you then, as Mr Smith has said on your behalf, it gives you an opportunity to remain a contributing member of the Australian community subject, of course, always to any views that the immigration authorities may take about your criminal history and the one set of convictions that it currently contains.
- [12]These are the conditions of three probation orders that I intend to offer you, which are concurrent. The requirements are:
That you must not commit another offence during the period of the order, which will be 18 months in each case;
You must report to an authorised Corrective Services officer at Beenleigh within two business days of the date of this order - you may just make it today;
You must take part in counselling and satisfactorily attend other programs as directed by the Court or an authorised Corrective Services officer during the period of the order;
You must notify an authorised Corrective Services officer of every change of your place of residence or employment within two business days after the change happens;
You must not leave or stay out of Queensland without the permission of an authorised Corrective Services officer. That, of course means if you wish to return to New Zealand prior to the end of your probation period, you must get consent - for that matter to go anywhere outside of Queensland;
You must comply with every reasonable direction of an authorised Corrective Services officer.
- [13]And these are the two special conditions that have a specific sting in them:
Firstly, you must submit to such medical, psychiatric or psychological treatment and/or programs and/or counselling in respect of drug and alcohol abuse, or any other matters considered relevant by your authorised Corrective Services officer;
And a further special that you shall abstain from the consumption, inhalation or administration of a dangerous drug as defined in the Drugs Misuse Act 1986 or other illicit substances while subject to this order (without lawful excuse) and undergo drug tracing (including urine analysis testing) as required by an authorised Corrective Services officer, and any positive test results shall be deemed a contravention of the order.
- [14]I need to tell you, also, that the order may be amended or revoked on application by you or an authorised Corrective Services officer or the Director of Public Prosecutions. Now, do you understand all of those conditions?
- [15]DEFENDANT: Yes.
- [16]BENCH: Are you prepared to consent to them?
- [17]DEFENDANT: Yes, your Honour.
- [18]BENCH: Thank you very much for that. That will be three probation orders in those terms in respect of each of the three offences, two possession of drugs, one possession of utensils.
- [19]The final thing I'm going to do is that I'm going to order, in the exercise of my discretion, now, that no convictions be recorded in respect of the three matters.
- [20]That is an absolute last opportunity, Mr Kersland. If you are foolish enough to breach your probation orders, if you are even more foolish enough to consume any form of illegal drugs and you get caught, then the entire exercise today will have been wasted - it will be flushed down the toilet, effectively - and a very real risk on a resentence is that you could go to gaol as well, of course, as having convictions recorded. Despite your family connections with Queensland, you might well find yourself deported. Now, that would be a tragedy, of course, but it would be a decision that you would have brought on yourself if you don't ensure that as of today, you look at what's important and you decide that drug use is no longer to be part of your life, and the issues that tie you to family, to community, to a job and to a future here in Australia are more important than the use or misuse of drugs.