Roll v QPS[2015] QDC 296

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 23 July 2015 in the Magistrates Court at Ipswich, the appellant pleaded guilty to two charges under the Drugs Misuse Act 1986. Firstly, that between 1 May 2015 and 2 July 2015 he unlawfully produced a dangerous drug, namely cannabis; and secondly, that on 2 July 2015 he unlawfully had in his possession things, namely a set of digital scales and an electric grinder, that he had used in connection with the smoking of a dangerous drug.

2. [2]
   On each charge the appellant was convicted and sentenced to two months imprisonment, wholly suspended for an operational period of three years.

3. [3]
   Those sentences are appealed against on the ground that they are manifestly excessive.

Facts

4. [4]
   The facts placed before the magistrate were that police executed a search warrant at the appellant’s Thorn Street, Ipswich address at about 7pm on 2 July 2015. The appellant was asked if there was anything he wished to declare and he indicated a small potted plant sitting on the kitchen bench. The plant had been placed underneath a light source and had a stake positioned in the pot to guide the plant in its growth. The appellant stated that the cannabis belonged to him and that he had grown it from a seed that he had found approximately two months earlier. He told police that he planted the seed in a pot and left it out on the veranda to grow but brought it inside and placed it underneath an artificial light source as it was growing poorly. He said that he had been caring for it, including fertilizing it, for approximately two weeks.

5. [5]
   An electric coffee grinder was found on top of the fridge and a set of digital scales in the bedroom. The appellant told police he had previously used the coffee grinder to chop up cannabis before he smoked it and had used the scales to weigh cannabis after he bought it “to make sure he wasn’t getting ripped off”.

Appellant’s antecedents

6. [6]
   The appellant is 32 years of age and has a criminal history dating back to 1997 when he was 14. His history as a juvenile includes a conviction for attempted robbery in 1999 and a number of offences of dishonesty.

7. [7]
   As an adult he has convictions for a number of summary offences and offences of dishonesty, up until 2003, for which he received fines, community service and probation.

8. [8]
   In 2004 the appellant was convicted in the Supreme Court of producing a dangerous drug for which he was sentenced to 12 months imprisonment to be served by way of an intensive correction order. It appears he completed that order without breach and his next conviction was not until 2007.

9. [9]
   Between 2007 and 2012 the appellant was convicted of breaching a domestic violence order, wilful destruction, public nuisance, assault occasioning bodily harm, possession of a utensil and enter premises and commit an indictable offence. For each of those offences he was punished with fines or community service.

10. [10]
    The appellant’s most recent conviction was on 24 March 2014 when he was fined $300 for possession of a dangerous drug and possession of a utensil.

11. [11]
    The appellant’s traffic history was also apparently before the magistrate.^[1]It included a number of speeding offences and a conviction for driving with a blood alcohol concentration of 0.119 in 2006.

12. [12]
    The magistrate was told that the appellant is in a de facto relationship. He has two children from a previous relationship and his partner was due to have their baby. He is unemployed and in receipt of a disability support pension as a result of a back injury. The cannabis was for his own personal use.

13. [13]
    It was submitted by the appellant’s solicitor that a fine or a community based order would be an appropriate penalty.

Magistrate’s sentencing remarks

14. [14]
    The magistrate referred to the penalty imposed on the appellant in the Supreme Court in 2004 as “a sentence of imprisonment” and noted that that should have acted to deter the appellant from reoffending in a similar way.

15. [15]
    The magistrate noted that:

It may be a small amount of cannabis and there may be some period of time between offending but ultimately if people do not respond to the deterrent effect, or lack thereof, of the penalties that are imposed then something has got to be done to give them the message and serve as a deterrent… with your history you should well and truly have changed your behaviour by now so I am going to impose a penalty that is going to hang around for a while and if you breach it then there will be a serious consequence. A fine is not appropriate in my view and in regard to your history regardless of the amount cannabis involved. And self-evidently you are unsuitable for a community based order so that leaves one option in my view and I am satisfied that is the only appropriate option.

Appellant’s argument

16. [16]
    The appellant points out that his pleas of guilty were particularly early ones: only 21 days after being charged, and on his first appearance in court. But nothing in the magistrate’s sentencing remarks indicates that his pleas of guilty were taken into account in any way.

17. [17]
    The appellant submits that the sentencing magistrate placed too much emphasis on the appellant’s criminal history and, particularly, his conviction in the Supreme Court in 2004 (some 11 years prior to the commission of these offences) and thereby imposed a sentence disproportionate to the offences.

18. [18]
    The sentencing magistrate’s remarks indicate that he did not believe fines to be deterrent penalties to persons in the appellant’s economic situation.

Respondent’s argument

19. [19]
    The respondent points out that the maximum penalty for producing a dangerous drug is 15 years imprisonment. I note that section 13 of the Drugs Misuse Act provides that where proceedings for such an offence are taken summarily, as here, the maximum penalty is three years imprisonment.

20. [20]
    Although the sentencing magistrate did not expressly acknowledge the appellant’s pleas of guilty, the respondent argues that “it is unlikely that there would have been a misapprehension on the part of the sentencing magistrate as to the nature of the proceedings before him”.

21. [21]
    The appellant’s criminal history, particularly his conviction for producing a dangerous drug in 2004, his regular offending since then and the factor of personal deterrence, were all relevant considerations.

22. [22]
    The sentencing magistrate was entitled to consider that a fine would not have the desired deterrent effect given the appellant’s inability or limited ability to pay one.

Relevant provisions of the Penalties and Sentences Act 1992

23. [23]
    The sentencing guidelines which are of particular relevance in this case are to be found in s 9 of the Penalties and Sentences Act 1992. Section 9(1) provides that:-

The only purposes for which sentences may be imposed on an offender are-

1. (a)
   to punish the offender to an extent or in a way that is just in all the circumstances; or

1. (b)
   to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

1. (c)
   to deter the offender or other persons from committing the same or a similar offence; or

1. (d)
   to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

1. (e)
   to protect the Queensland community from the offender; or

1. (f)
   a combination of two or more of the purposes mentioned in paragraphs (a) to (e).

24. [24]
    As to the effect on the sentence of the appellant’s previous convictions, regard must be had to subsections (10) and (11) of section 9 which read:-

10. (10)
    In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to—

1. (a)
   the nature of the previous conviction and its relevance to the current offence; and

1. (b)
   the time that has elapsed since the conviction.

10. (11)
    Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.

25. [25]
    Section 13 of the Penalties and Sentences Act provides as follows:-

13 Guilty plea to be taken into account

1. (1)
   In imposing a sentence on an offender who has pleaded guilty to an offence, a court—

1. (a)
   must take the guilty plea into account; and

1. (b)
   may reduce the sentence that it would have imposed had the offender not pleaded guilty.

1. (2)
   A reduction under subsection (1)(b) may be made having regard to the time at which the offender—

1. (a)
   pleaded guilty; or

1. (b)
   informed the relevant law enforcement agency of his or her intention to plead guilty.

1. (3)
   When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

1. (4)
   A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court—

1. (a)
   that fact; and

1. (b)
   its reasons for not reducing the sentence.

1. (5)
   A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made. (emphasis added)

Consideration

26. [26]
    The effect that previous criminal convictions should have on a sentence has been considered in the Queensland Court of Appeal in R v CBG [2013] QCA 44 and R v McCusker [2015] QCA 179. In CBG Atkinson J, with whom White and Gotterson JJA agreed, outlined the relevant principles as follows:-

[30] The applicant submitted that the purposes for which a sentence may be imposed are set out in s 9 of Penalties and Sentences Act 1992 (Qld) (“PSA”). A cardinal principle of sentencing in s 9(1)(a) is that a sentence should only result in punishment that is just in all the circumstances. Relevantly, the applicant submitted, a sentence should be proportionate to the gravity of the offence and should not be increased beyond what is proportionate to the crime merely in order to extend the period of protection of society from the risk of recidivism on the part of the offender. Whilst the antecedent criminal history is relevant in determining whether retribution, deterrence or protection of society might indicate that a more severe penalty is warranted, it could not be used to impose a fresh penalty for past offences.

[31] The applicant’s authority for this clearly correct proposition is R v Aston (No 2) [1991] 1 Qd R 375 at 380-381 where the Court of Criminal Appeal adopted the sentencing approach referred to by the High Court in Veen v The Queen No 2 (1988) 164 CLR 465 at 476 and held:

‘The majority judgment in Veen No 2 makes clear that the principle of proportionality (that the sentence should be proportionate to the gravity of the offence) applies in Australia. Additionally a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender or to act as a deterrent to others who might contemplate committing the same offence (164 CLR at 472). However, it is permissible to have regard to the protection of society as one of the factors amongst others in the exercise of the sentencing discretion.’

[32] Cooper J, who wrote the leading judgment in R v Aston (No 2) referred with approval to what had been said in Veen [No 2] about the use which could be made of an offender’s criminal history at 477-478:

‘… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to the prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.’

27. [27]
    Those principles were confirmed by McMeekin J in McCusker ^[2].

28. [28]
    The Queensland Court of Appeal has recently considered the effect of non-compliance by a sentencing judge with the obligation imposed in s 13(3) of the Penalties and Sentences Act 1992. In R v Safi [2015] QCA 13 at paragraph 16, Fraser JA said:

I accept that the obligation imposed by s 13(3) is important. Where leniency is afforded on account of a plea of guilty, a statement to that effect serves the particularly important purpose of informing offenders of that fact. The publicity given to such statements encourages guilty offenders to plead guilty, thereby saving victims and witnesses of offences the trauma, disruption, and expense which may be involved in giving evidence and it saves the State the expense of prosecuting offences. Where it is evident that the guilty plea was in fact taken into account, however, those considerations will not necessarily justify the Court in reviewing a sentence merely because the sentencing judge did not clearly state that the plea was taken into account.

29. [29]
    In that case Fraser JA stated that non-compliance with s 13(3) may not always require a review of the sentence, but that non-compliance would cause an appeal court to examine the sentence closely since “it will not clearly appear that the court has in fact taken the plea into account.”

30. [30]
    In R v Taki [2015] QCA 60 Morrison JA said:

Applying Safi, I am unable to detect in the reasons given by the learned primary judge how the plea of guilty was taken into account. Whilst Her Honour mentions it, it is not apparent to me how that was done, if it was done at all. ^[3]

31. [31]
    In his brief sentencing remarks in this case the sentencing magistrate makes no mention at all of the appellant’s pleas of guilty let alone how they were taken into account by him. In fact the biggest emphasis in the sentencing remarks is on the appellant’s previous convictions, particularly his convictions in the Supreme Court in 2004, and his recidivism. It cannot therefore be inferred that the sentencing magistrate did comply with s 13 of the Penalties and Sentences Act.

32. [32]
    The sentencing magistrate’s remarks do reveal an over-emphasis on the appellant’s criminal history and an apparent overlooking of his co-operation with the police, the minor nature of the two offences and the lengthy period of time since he had been convicted of a serious drug offence.

33. [33]
    For these reasons I am satisfied that the sentencing process was affected by error and that the sentences should be set aside and the sentencing discretion exercised afresh.

Conclusion

34. [34]
    Having regard to the nature of the offences, the appellant’s co-operation with the police, the very early pleas of guilty, the appellant’s criminal history and his personal circumstances, a fine would be an appropriate penalty for both of the offences.

35. [35]
    Section 48 of the Penalties and Sentences Act provides in subsection (1):

If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account –

1. (a)
   the financial circumstances of the offender; and

1. (b)
   the nature of the burden that payment of the fine will be on the offender.

Bearing those matters in mind, a single fine for both of the offences of $500 should be imposed.

36. [36]
    The appeal is allowed. The penalties imposed by the sentencing magistrate are set aside and the appellant is convicted and fined $500 for both offences, which fine is referred to the State Penalties Enforcement Register and a conviction is recorded for each offence.