McGrath v Garrett[2013] QDC 312

DISTRICT  COURT OF QUEENSLAND

HIS HONOUR:   This is an appeal pursuant to section 222 of the Justices Act 1886 against a sentence imposed by a Magistrate sitting at Cairns on 16 May 2013.

The respondent pleaded guilty to three charges pursuant to the Drugs Misuse Act 1986, namely, producing a dangerous drug (cannabis), possessing a dangerous drug (cannabis) and possessing anything used in the commission of a crime defined in Part 2 thereof. He also pleaded guilty unrelated offending, namely, receiving tainted property pursuant to section 433(1) of the Criminal Code. In respect of the four charges, the learned Magistrate imposed one penalty, namely, a fine of $3,000 and declined to record convictions. In respect of the property the subject of the third charge, he made a forfeiture order. The appellant appeals on the grounds that “the sentence was manifestly inadequate in all of the circumstances” and that the learned Magistrate “erred in not recording a conviction”.

The offending was discovered when police executed a search warrant at the respondent’s residence on 9 January 2013 and discovered a sophisticated marijuana growing facility in a concealed part of the shed on his property. In the schedule of facts tendered at the sentencing hearing, it was described as a “sophisticated hydroponic cannabis laboratory”. It involved the use of lights, air conditioning, fans, irrigation equipment and a carbon dioxide cylinder.

It was conceded by the prosecution at the commencement of the hearing that despite the large number of plants located, there was about “seven kilos of usable material”. It was also specifically stated that “no elements of commerciality were alleged”. The other offending involved receiving tainted property belonging to Ergon Energy to the approximate value of $25,000 in circumstances where the respondent claimed that he was storing it for a friend in the concealed part of the shed. The respondent declined to name the friend. Much of the property was clearly marked as belonging to Ergon Energy. There was a significant amount and variety of property including tools and underground cables. It was ultimately all returned to its owner.

Medical evidence including a report from a psychiatrist, Dr Sundin was tendered on behalf of the respondent in the course of the hearing. She noted that the respondent had been a daily user of marijuana since the age of 17 and that he used it to treat the depression from which he had suffered. A report from his general practitioner Dr Reilly noted that the respondent was suffering “a significant mental illness” which he diagnosed as “a mood disorder – anxiety and depression” which was currently being treated with an antidepressant. Drug screen test results which showed the respondent to be free of illegal drugs were also tendered.

In passing sentence, the learned magistrate took into account the fact that the respondent had entered an extremely early plea of guilty, had cooperated with and made admissions to police, that there was no element of commerciality in respect of the three drug offences, and that he came before the court “with no criminal history of any nature whatsoever”. The learned Magistrate gave significant weight to the medical evidence before him. He noted the respondent’s excellent work history and the references tendered which attested to significant contributions made by the respondent to his community and the high esteem in which he was held.

Ultimately, after reviewing relevant authorities, the learned Magistrate concluded that considerations of personal and general deterrence warranted a substantial fine and he imposed one penalty, a fine of $3,000. The focus of the sentencing remarks of the learned Magistrate was the offending pursuant to the Drugs Misuse Act. The other charge was only mentioned briefly with the learned Magistrate noting that the respondent had not “got any benefit out of that property”. The learned Magistrate then proceeded to consider whether convictions should be recorded. He declined to do so having regard to the fact that the respondent had no criminal history, that he conducts a successful business in Cairns and the effect the recording of convictions may have on any other business the respondent may conduct in the future.

In the appellant’s outline of argument, it is submitted that the appellant was caught growing a significant amount of cannabis in a sophisticated way and found to have received tainted property of a significant value, justifying penalty of imprisonment for 12 months, wholly suspended. It is further submitted that the considerations in section 12 of the Penalties and Sentences Act 1992, in the absence of specific evidence of any impact upon the respondent’s economic or social wellbeing are such that convictions should have been recorded. In the respondent’s outline of argument, it is submitted that a review of the relevant authorities and the numerous mitigating circumstances advanced at first instance justified the sentence imposed by the learned Magistrate and his decision to decline to record convictions.

In approaching this appeal, I note that pursuant to section 223 of the Justices Act, such an appeal is by way of rehearing on the evidence given below and that pursuant to section 225 my powers are extremely broad. I note the respect which needs to be shown for the decision of the learned Magistrate pursuant to the principles explained by the High Court in House v R^[1]. Relevantly, if the learned Magistrate has acted upon a wrong principle, his determination should be reviewed and I may exercise my own sentencing discretion in substitution for his.

Section 49 of the Penalties and Sentences Act provides, inter alia:

“(1) If an offender is found guilty (including being guilty on a plea of guilty) of 2 or more offences –

1. (a)
   that are founded on the same facts;  or
2. (b)
   that form, or are part of, a series of offences of the same or a   similar kind;

the court may impose a single fine for all the offences.” 

The four offences the subject of this appeal were not founded on the same facts and they do not form, nor are they part of, a series of offences of the same or similar kind. The three charges relating to the Drugs Misuse Act fall within both categories, but the charge of receiving tainted property falls within neither category.

It therefore follows that the learned Magistrate has acted upon a wrong principle, erring at law in imposing one fine for all of the offending. I therefore allow the appeal. It falls to me to sentence the respondent on the evidence given before the learned Magistrate. Having regard to the respondent’s early plea of guilty, the numerous mitigating factors which have already been canvassed above and the comparative decisions before me, particularly the unreported single judge decisions of R v Blennerhasst^[2] and R v Shelton^[3], a fine of $3,000 is an appropriate sentence for the drug offending constituting the first three charges. I also order the property the subject of charge 3 be forfeited.

So far as charge 4 is concerned, this was a serious offence, even in the absence of evidence of a direct benefit to the respondent. The amount of the property and its value of approximately $25,000 warrants a sentence reflective of both personal and general deterrence. Even allowing for the respondent’s early plea of guilty, his lack of any criminal history, his good work history and his high standing in the community, a further substantial fine is appropriate in respect of this unrelated charge. I convict the respondent and fine him $2,000 in respect of the fourth charge. I refer both fines to the State Penalties Enforcement Registry for enforcement.

I now turn to consider whether convictions should be recorded. In this regard, I need to consider the matters set out in section 12 of the Penalties and Sentences Act. The first matter for my consideration is the nature of the offences. All the offences are very serious. The next matter is the offender’s character and age. In this regard, I note that he is someone with a successful marine engineering business who is highly regarded in his community and currently 49 years of age with no previous criminal history. The final matter I must consider is the impact recording a conviction will have on the respondent’s economic or social wellbeing, or chances of finding employment. In this regard, I note that both the respondent and his business enjoy an excellent reputation. He is, on the medical evidence before me, well on the way to rehabilitating himself and  I am of the view that recording convictions may jeopardise his rehabilitation by damaging him financially now or in the future. I therefore decline to record convictions.

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