Willich v Queensland Police Service
[2017] QDC 300
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- Willich v Queensland Police Service[2017] QDC 300
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Willich v Queensland Police Service[2017] QDC 300
Willich v Queensland Police Service[2017] QDC 300
DISTRICT COURT OF QUEENSLAND
CITATION: | Willich v Queensland Police Service [2017] QDC 300 |
PARTIES: | PHILIP RAYMOND WILLICH (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: 137/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 11 December 2017 |
DELIVERED AT: | Cairns |
HEARING DATE: | 23 November 2017 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction on guilty plea – appeal against sentence – common assault – deprivation of liberty – unlawful possession of weapons – short firearms in public – producing dangerous drugs – possessing dangerous drugs – possess utensils or pipes – prohibited explosives – explosives – breach of bail – mode of hearing of appeal – whether the cumulative term of imprisonment for the weapons offence was an error of law and resulted in manifestly excessive sentence – whether sentence of more than 12 months imprisonment for the common assault and deprivation of liberty was excessive in the circumstances – whether a conviction ought be recorded for drug offence. Legislation Criminal Code 1899 (Qld), ss 16, 335. Bail Act 1980 (Qld), s 29. Drugs Misuse Act 1986 (Qld), ss 8, 9 10. Explosives Act 1999 (Qld), s 11. Justices Act 1886 (Qld), s 222, s 223(1) & 227. Penalties and Sentences Act 1992 (Qld), ss 9, 156. Weapons Act 1990 (Qld), s 50. Cases House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Pearce v. The Queen (1998) 194 CLR 610 R v Boggs [2014] QCA 31 R v Bowditch [2014] QCA 157 R v Elhusseini [1988] 2 Qd R 442 R v Gordon; Ex parte A-G [1975] Qd R 301 R v Jackson [2011] QCA 103 R v James (Unreported 7/12/2012, QDC, Farr SC DCJ) R v Lidbetter [2009] QCA 6 R v Lui [2009] QCA 366 R v R and S; ex parte Attorney-General [1999] QCA 181 Rv Tricklebank [1994] 1 Qd R 330 R v Wong (2001) 207 CLR 584 |
COUNSEL: | P Feeney of counsel for the Appellant G Meoli prosecutor for the Respondent |
SOLICITORS: | Richardson & Eckersley Lawyers for the Appellant The Office of Director of Public Prosecutions for the respondent |
- [1]On 12 July 2017 the appellant was convicted and sentenced to an effective 3 years imprisonment with a minimum of 12 months to serve before being released on parole in relation to 7 charges in the Magistrates Court held in Cairns. He now appeals his sentence.
- [2]Both parties provided outlines of argument, and made further submissions at, and after the hearing of the appeal, which I have considered.
Background
- [3]After unsuccessfully trying to order a pizza by telephone, the appellant went to the pizza store, coaxed the manager outside and berated him, before demanding he apologise on his knees while pointing a gun to his head.
- [4]On 12 July 2017 the appellant was convicted, on his own plea of guilty, of:
- Common assault;
- Deprivation of liberty;
- Unlawful possession of weapons category D/H/R weapon – short firearm in public;
- Producing dangerous drugs;
- Possessing dangerous drugs;
- Possess utensils or pipes etc for use;
- Offence in relation to unauthorised and prohibited explosives;
- Unlawful possession of weapons; and
- Breach of bail condition.
- [5]The material facts relied upon by the prosecution, and accepted by the defence, were tendered in a written form (Exhibit 1). The court proceeded on the following facts in respect of the more serious offending, being the common assault, deprivation of liberty and weapons offence:
The victim in the matter is a 25 year old male who is employed at Domino’s Pizza Smithfield, located at Campus Shopping Centre, intersection of McGregor Road and Captain Cook Highway, Smithfield.
At approximately 7.30 pm on the 21st of October 2015 the victim was performing his duties at his place of employment when he fielded a telephone order from a male person requesting a pizza to be delivered. The caller ID system identified this caller as ‘Phil’ of 2 Mooney Court Smithfield. This was clarified by the complainant.
The victim and caller then had a conversation pertaining to a pizza order which became increasingly hostile due to the caller demanding to be given a deal provided for by a coupon which he couldn’t quote the necessary code for. The call was eventually terminated by the victim after the caller’s language and demeanour deteriorated into an irrational barrage of abuse and obscenities.
Approximately 15 minutes later the victim observed a male person (the deft) at the counter of the shop and approached him to inquire if he had been served. The male was friendly and polite, stating that he was waiting for a pizza under the name Bob. The victim subsequently made inquiries, ascertained that the pizza would be ready in a couple of minutes and informed the male who still appeared happy. The victim soon after handed the man his pizza and accepted his payment, after which the male asked if he could have a quiet word outside as he wished to discuss something but didn’t want to make a fuss. The victim then walked outside with the male and engaged him in conversation as he walked towards the walkway that runs between shops a short distance away from the Domino’s restaurant.
During this conversation the man initially stated something like “I think you owe me an apology.” The victim didn’t know what the male was referring to so asked him to elaborate after which the male became increasingly aggressive and familiar to the victim as he said things like “Your job’s not that hard, you’re fucking useless and need to learn some respect.” At that stage the victim recognised the voice and speaking mannerisms of this male to be the same as the male with whom he had had the altercation over the phone and said “If you’re Phil from the phone earlier, this conversation is over and I’m going back inside.”
After some further brief conversation the victim observed that the male had produced a black coloured handgun which he described as similar to Police issued guns but more square on the edges. As the male produced the gun he said words to the effect of “You don’t want to fuck with me. I’m a fucking bad arse.” The male then racked the gun but sliding the top component backwards and forwards before pushing the gun into the side of the victim’s head and demanding that he apologise. The victim immediately said that he was sorry however this failed to appease the man who then stated “Get on your fucking knees and apologise.” The victim then dropped to his knees and repeatedly apologised in a loud and animated voice in the hope of attracting attention. The male continued to make assorted threats and abuse the victim whilst pointing the gun to emphasise his words and pushing it back to the victim’s head whenever he moved or looked away. During this time the victim observed that the male’s finger remained on the gun’s trigger and he believed that he was going to be shot in the head and killed.
The [victim] was unable to get away from the offender as whenever he moved as if to consider getting away the offender would use the weapon in a threatening manner to stop him.
After this continued for some time, the attention of the male was broken by a small child who appeared from a neighbouring shop, as well as some passers-by. The male then tucked the gun into the back of his pants and said something like “You’re a fucking lucky little cunt, you better fucking watch yourself.” The male then walked away up the walkway towards the central parking area of the complex and the victim returned to Domino’s where he contacted Police who subsequently attended.
- [6]Those facts were shared by the common assault, deprivation of liberty and weapons offences, with some context but little distinction between the offences made during the oral submissions.
- [7]The various offences attracted the following maximum (and minimum) penalties;
- Common assault – maximum 3 years imprisonment;[1]
- Deprivation of liberty – maximum 3 years imprisonment;[2]
- Unlawful possession of weapons category D/H/R weapon – short firearm in public (pistol) – maximum 300 penalty units or 7 years imprisonment, with minimum 12 months to be wholly served in a corrective services facility;[3]
- Producing dangerous drugs - maximum 15 years imprisonment;[4]
- Possessing dangerous drugs – maximum 15 years imprisonment;[5]
- Possess utensils or pipes etc for use – maximum 2 years imprisonment;[6]
- Offence in relation to unauthorised and prohibited explosives – maximum 400 penalty units or 6 months imprisonment;[7]
- Unlawful possession of weapons (cross bow) – maximum 100 penalty units or 2 years imprisonment;[8] and
- Breach of bail condition – maximum 40 penalty units or 2 years imprisonment.[9]
- [8]Notably, the possession of weapons category D/H/R weapon offence carries a minimum penalty of 12 months imprisonment, to be served wholly in a corrective services facility.[10] The learned magistrate considered that “firearm offence should carry the sentence on its own to reflect the seriousness of simply carrying a firearm in public”,[11] and imposed on a cumulative term.
- [9]The learned magistrate sentenced the appellant to 12 months imprisonment for the weapons offence and 2 years imprisonment for each of the common assault and deprivation of liberty. The sentences of 2 years imprisonment were ordered to be served concurrently with each other, but cumulative with the sentence for the weapons offence. The appellant was convicted and not further punished for the remainder of the offences.
- [10]The result was that the appellant was sentenced to a period of 3 years imprisonment with a released date set after serving 12 months imprisonment.
Grounds of Appeal
- [11]The appellant appeals against the sentence in reliance on the grounds that it was manifestly excessive because:
- The term of imprisonment for the weapons offence was cumulative on the terms of imprisonment ordered for the other offences;
- A sentence of more than 12 months imprisonment for the common assault and deprivation of liberty is excessive in the circumstances; and
- The learned magistrate recorded convictions in relation to the drug offences.
Mode of Appeal
- [12]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Section 222(1) relevantly provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
- [13]Pursuant to section 223 of the Justices Act 1886 (Qld), the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- [14]This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[12]
- [15]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [16]
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- [17]The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Cumulative Sentence
- [18]The appellant argues that the learned magistrate erred by ordering that the term of imprisonment for the pistol weapons offence be served cumulatively with the terms of imprisonment ordered for the other offences.
- [19]Section 156(1) of the Penalties and Sentences Act 1992 (Qld) allows that a term of imprisonment may be directed to start from the end of a period of imprisonment the offender has been sentenced to serve.[15] This provides the Court with discretion to order a cumulative sentence of imprisonment in any particular case.
- [20]In determining whether to order cumulative terms of imprisonment for multiple offences, it was observed in R v Bowditch[16] that:
“Generally, judges adopt one of two approaches. They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending so as to avoid the possible unintended complications and consequences, which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes. On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle … Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts.”
- [21]The appellant contends that the effect of the cumulative sentence imposed by the learned magistrate in this case, offends against s 16 of the Criminal Code, which provides:
Person not to be twice punished for same offence
“A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”
- [22]The critical words in the provision are “the same act or omission”.
- [23]InRv Gordon; Ex parte A-G,[17] ES WilliamsJ considered that the proper test is whether “the same wrongful act or omission which previously resulted in conviction and punishment was the central theme, the focal point or the basic act or omission in the later offence charged” and that “Each set of situations should be considered on their own particular “acts or omissions”. In the same case, Hanger CJ focused on ‘punishable acts or omissions’,[18] saying that the punishable act of being in charge of a motor vehicle while under the influence of liquor was not the same as the punishable act of dangerous driving causing grievous bodily harm with which the offender in that case was subsequently charged. This approach seems to be preferred in later cases.[19]
- [24]The appellant contends that the cumulative sentences were not appropriate where there had been a finding that “the assault and the deprivation of liberty were facilitated by the use of a weapon, a short firearm.” That finding must be considered in the context of the offences charged and their underlying facts.
- [25]It is the prerogative of the prosecution to decide the nature of the charges that reflect the whole criminality of the accused, and ordinarily all offences arising out of the one event or series of events will be preferred and dealt with at the same time.[20]Here the appellant was charged with three serious offences arising from one continuous incident, namely (1) common assault, (2) deprivation of liberty and (3) possession of a weapon in public place.
- [26]
- [27]During the hearing, the prosecution relied upon the same dissertation of facts for each offence of (1) common assault (2) deprivation of liberty and (3) the pistol weapon offence. In that way, the written schedule of facts (Exhibit 1) conflated and confused the facts, and provided no clear distinction between those offences. This also manifested itself when the prosecutor sought to identify the most serious offending, and thereby mischaracterised the pistol weapon offence saying:
“Just in relation to these matters, the most serious charge in relation to these nine, I would submit, is the unlawful possession of the Category H Weapon. It was in a public place, and it was used to commit an indictable offence, your Honour. This is all contained in the sentencing schedule that has been provided to your Honour.”
- [28]Here the appellant was charged with the offence of possession (not the use) of the Category H weapon which carries a maximum penalty of 300 penalty units or 7 years imprisonment, and a minimum penalty of 12 months imprisonment, to be served wholly in a corrective services facility.[23] This is to be distinguished from the more serious offence (apparently relied upon by the prosecutor) of unlawfully possessing a firearm and uses the firearm to commit an indictable offence, which attracts a higher minimum penalty of 18 months imprisonment served wholly in a corrective services facility.[24] Whilst this more serious charge was apparently open on the facts, the charged weapon offence was confined to the appellant’s general possession of the pistol in public, as distinct from its particular use by pointing that pistol at the complainant’s head being part of the separate charges of common assault and deprivation of liberty offending.
- [29]Once that distinction is made, it seems to me that the punishable act of being possession of the pistol in public was not the same as the punishable act of its use as part of the conduct constituting the common assault and deprivation of liberty. Therefore, a cumulative sentence for the weapons offence was available without the consequence of double punishment. In contrast, the conduct and use of the pistol in the later offending of common assault and deprivation of liberty involves significant factual commonality and overlap, and concurrent sentences were warranted.
- [30]After ordering that the mandatory imprisonment of 12 months for the weapon’s offence would be served cumulatively with the other offences, learned magistrate explained:
“Now., I have structured the sentence that way as … it is my opinion that the forearm offence should carry the sentence on its own to reflect the seriousness of simply carrying a firearm in public, let alone using one as the defendant did after he took it into the shop. So the full sentence is three years. There will be a parole release date after serving 12 months. Parole release date will be the 12th of July 2018.”
- [31]Considered in its proper context, I am satisfied that the learned magistrate’s cumulative sentencing order did not offend against s 16 of the Criminal Code. The appellant’s first appeal ground will fail in that regard, however, the issue remains whether the learned magistrate’s resultant head sentence of 3 years is manifestly excessive.
Manifestly Excessive
- [32]The appellant also argues that the sentence was manifestly excessive because the effective 3 years imprisonment as a result of the cumulative order, and the imposition of 2 years imprisonment for the common assault and deprivation of liberty offending, cast the sentence outside the permissible range.
- [33]The respondent concedes that the overall head sentence is a severe penalty but otherwise argued that the sentence fell within the proper range.
- [34]
“It is of no consequence whether a cumulative or concurrent sentence was imposed if the total effective sentence is within the proper range. This is especially so where the offences are associated and are in effect an aggravating feature of the principle offence.”
- [35]Even so, appellate intervention is not justified simply because the result is markedly different from other sentences imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the court concludes that there must have been some misapplication of principle.[26] It is not enough the sentence is severe, as Chesterman JA said in R v Jackson:[27]
“To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.”
- [36]The nature and circumstances of the offending have proved to be uncommon, as is evident from scarcity of comparative cases.
- [37]In R v Lui [2009] QCA 366 the Court of Appeal did not disturb the 12 month concurrent sentences for two counts of unlawful assaults against separate complainants. The 33 year old applicant ran towards the first complainant whilst holding a 30 cm kitchen knife. He shouted abuse and demanded that the complainant leave ‘private property’. He then grabbed the complainant on one shoulder, held the knife to his chest and shouted at him. Another person got between them, but the appellant ripped the complainant’s shirt and bruised his shoulder whilst continuing to wave the knife. In the second count did not involve the knife, instead the appellant came up behind the second complaint and thumped her on the back and should causing her to stumble but not fall.
- [38]In R v Lidbetter [2009] QCA 6 the applicant successfully appealed his sentence of 18 months imprisonment for offences of going armed in public so as to cause fear, deprivation of liberty, common assault and willful exposure. The applicant flagged down a car and accused the driver of doing burn outs the night before. He held to the complainant's neck while yelling at the complainant about the burn outs. The complainant was a complete stranger and wrongly accused. Associates of the applicant disarm the applicant, and the complainant drove off. The applicant later exposed himself when police conducted a search.
- [39]R v James (Unreported 7/12/2012, QDC, Farr SC DCJ) involved one count of common assault and one count of deprivation of liberty. The 30 year old defendant pointed a replica gun at the pregnant complaint over 3 to 6 hours. The Judge imposed concurrent sentences of 12 months and 18 months respectively.
- [40]In R v Boggs [2014] QCA 31, the Court of Appeal upheld sentences of 30 months suspended after 15 months for 3 years for armed robbery committed by the 31 year old defendant with two co-offenders.
- [41]On my analysis these cases are too few and too disparate to define an indicative sentencing range or even expose a discernable sentencing pattern for the appellant’s offending. At best, they provide examples of particular aspects of the case here, but the facts are readily distinguishable and involve different offences, different levels of seriousness, different weapons, and variable public exposure.
- [42]The appellant had the pistol concealed while he waited for some time and lured the employee out of the shop into a public walkway. He became more agitated and aggressive in his manner and conversation, which escalated to abuse. He produced the pistol and waived it around, whilst asserting that“You don’t want to fuck with me. I’m a fucking bad arse.” He racked the gun pushed it into the side of the complainant’s head and demanded an apology. Not satisfied with the apology given, he demanded him to “Get on your fucking knees and apologise.” The complainant complied, yet the appellant continued his threatening and abusive manner with his finger on the pistol trigger. The further escalation was interrupted presence of a child and other pedestrians in the area.
- [43]The nature and seriousness of the offending on the 21 October 2015 is self-evident. It was planned, calculated, gratuitous, and unprovoked. He was armed with, and used, the pistol in the offending. He demonstrated determined conduct against the complainant by luring and isolating him from the shop, making demands and threats, and forcing him into capitulated mercy with the gun to his head. He recklessly disregarded the interests of public safety and others in the vicinity.
- [44]The complainant’s statement described these events as “the most frightening incident of my life” resulting in Post Traumatic Stress Disorder. He was unable to return to work and has received a reduced income with workers’ compensation. He has and continues to receive psychological treatment. For the a few months the complaint experienced paranoias, nightmares and hypervigilance. His personal relationships have also suffered.
- [45]The appellant was a mature man who was 4 days off his 42nd birthday when he offended, and was 43 at sentence. At that time, he was also facing drug charges, other weapons and ammunition charges, and a breach of bail offence.
- [46]The appellant had not offended before these events. His criminal history comprised a single breach of bail condition following this offending.
- [47]The appellant’s personal, relationship, family, education and work circumstances were the subject of submissions and psychiatric reports tendered at the sentence. The appellant’s general practitioner initially referred him to the reporting psychiatrist about 10 months after the offending. The appellant was diagnosed with Major Depressive Disorder with Anxiety, non melancholic type and recurrent, and comorbid chronic moderate to severe Alcohol Abuse, as defined in the Diagnostic and Statistical Manual of Mental Disorders. His personality traits did not qualify as a Personality Disorder. The appellant also presented with past alcohol and illicit drug abuse, and continued alcohol misuse. Subsequent investigations corroborated the appellant’s reports of abstinence of marijuana by the time of sentence. He has suffered various medical complaints for which he received appropriate pharmaceutical treatment.
- [48]By the time of his sentence, the appellant had received appropriate pharmaceutical and therapeutic treatment, including engaging in weekly programs for alcohol, anger and distress management. The appellant demonstrated good prospects of rehabilitation or treatment to cause him to behave in an acceptable way to the community. His risk of reoffending was reduced, and further consolidated by alcohol detoxification and rehabilitation to abstinence.
- [49]The appellant had demonstrated remorse and an appreciation for the impact of his offending on the complainant. Character references were also tendered to demonstrated his otherwise good character, and work ethic.
- [50]In my view, the learned magistrate correctly identified the seriousness of the pistol weapon offence, as well as the common assault and deprivation of liberty offences as the most serious examples of those offences.[28]So much is evident from the nature and gravity of the offending involving the possession of a weapon in public and its intentional use in conjunction with the other offending, the serious impact on the victim and the personal circumstances, antecedents and health of the appellant.
- [51]Having regard to the whole of the nature and circumstances of the offences, and the appellant’s antecedents and remorse, it seems to me that an effective head sentence of 3 years imprisonment with parole after 12 months was within the permissible range. The learned magistrate clearly explained the method and his reasons for reaching that outcome. The concurrent sentences of 2 years for the common assault and deprivation of liberty seem just and appropriate for very serious examples of such offending. Further, the tariff and effect of the cumulative sentence of 12 months (being the minimum to be wholly served in a corrective services facility) for the weapon’s offence, was sufficiently moderated to deal with the punishable acts subject of that charge, and also reflects the totality of all the offending. The learned magistrate also took account of the drug charges, other weapons and ammunition charges, and a breach of bail offence.
- [52]For these reasons, in my respectful view, the overall effect of the sentences does not result in double punishment for the same conduct; is not unreasonable or plainly unjust; and are not manifestly excessive.
Recorded Conviction
- [53]The appellant further contends that convictions should not have been recorded, and instead a moderate fine ought to have been imposed, in relation to the drug offences, being:
Charge 4 - Producing dangerous drugs - maximum 15 years imprisonment;[29]
Charge 5 - Possessing dangerous drugs – maximum 15 years imprisonment;[30]
Charge 6 - Possess utensils or pipes etc for use – maximum 2 years imprisonment;[31]
- [54]For these offences, and the other minor offences (charges 7, 8 and 9), the learned magistrate accepted that these offences were not related to the more serious offences in Charges 1, 2 and 3. The learned magistrate permissibly took them into account bearing in mind the effective sentence, and ordered that the appellant be convicted but not further punished for those minor offences. In that way, it was appropriate that the appellant was not additionally fined.
- [55]In relation to the recording convictions, the learned magistrate said:
“There has been a submission that convictions should not be recorded with respect to the drug offences. That might have been the case had they been dealt with on their own in isolation. However, the reality is that … the defendant has now been convicted of serious criminal offences. There is nothing in particular been raised that show that the convictions for the drug offences will interfere with his work. Certainly they could interfere with his social wellbeing, but overall the offending is serious enough to record convictions on all charges.”
- [56]It seems to me that His Honour misdirected himself by conflating the overall offending considering the matter against the background of the serious criminal convictions just imposed.
- [57]A court has the discretion to record or not record a conviction in accordance with the Penalties and Sentences Act 1992 (Qld).[32] Pursuant s 12(2) of the Act, in considering whether or not to record a conviction, the court must have regard to all the circumstances of the case including:
- the nature of the offence;
- the offender’s character and age;
- the impact that recording a conviction will have offender’s: economic or social wellbeing; or chances of finding employment.
- [58]In relation to the production charge, the defendant grew two cannabis plants along a boundary fence of his residence. One plant was about 80 cm high. The possession charges resulted from him having an unknown quantity of cannabis in a tin and a brass pipe that had been used. These are very minor offences this type, and was distinctly different and separate to the other offences subject of his sentence.
- [59]The appellant was almost 42 years old with significant physical and mental health problems. The offending was consistent with this history including his past chronic illicit substance abuse. Subsequent investigations corroborated the appellant’s reports of abstinence of marijuana by the time of sentence. He had no criminal history.
- [60]At sentence, his solicitor submitted that… “you honour could consider not recording a conviction respect to the drug charges on the basis that it may affect his travel.”
- [61]The evidence did not disclose any aspiration or requirement for the appellant to travel for pleasure or otherwise. There was no history of travel, except to regional, remote and island communities in Queensland. He worked in the building and construction industry for over 30 years. His experience extends residential work, commercial, industrial and infrastructure work. There is no evidence to support any impact of drug convictions on his work, social and economic wellbeing.
- [62]Even though the learned magistrate seemed to have regard to some extraneous matters in relation to whether to record a conviction, in the end, I would not come to a different conclusion. In my separate and independent consideration of the issue, I conclude that convictions ought be recorded for the drug offences.
Order
- [63]For these reasons, I confirm the decision of the trial magistrate and order that the appeal be dismissed.
Footnotes
[1]Criminal Code Act 1899 (Qld), s 335.
[2]Criminal Code Act 1899 (Qld), s 355.
[3] Weapons Act 1990 (Qld), ss 50(1)(c)(i) & (d)(iii).
[4]Drugs Misuse Act 1986 (Qld), s 8.
[5]Drugs Misuse Act 1986 (Qld), s 9.
[6]Drugs Misuse Act 1986 (Qld), s 10(2)(a).
[7]Explosives Act 1999 (Qld), s 11(1).
[8]Weapons Act 1990 (Qld), s 50(1).
[9]Bail Act 1980 (Qld), s 29(1).
[10]Weapons Act 1990 (Qld), s 50(1)(d)(iii).
[11]Decision T3/44.
[12]House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
[13]House v The King (1936) 55 CLR 499, 504, 505.
[14]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).
[15]Penalties and Sentences Act 1992 (Qld), s 156(1).
[16]R v Bowditch [2014] QCA 157.
[17]R v Gordon; Ex parte A-G [1975] Qd R 301, 323.
[18]R v Gordon; Ex parte A-G [1975] Qd R 301, 306-306.
[19]R v Tricklebank [1994] 1 Qd R 330; RvDibble; Ex parte Attorney-General (Qld) [2013] QCA 8.
[20]Pearce v The Queen (1998) 194 CLR 610.
[21]De Simoni v The Queen (1981) 147 CLR 383.
[22]Criminal Code, s 16; R v Elhusseini [1988] 2 Qd R 442, 455; R v R and S; ex parte Attorney-General [2000] 2 Qd R 413.
[23]Weapons Act 1990 (Qld), s 50(1)(d)(iii).
[24]Weapons Act 1990 (Qld), s 50(1)(d)(i).
[25]R v R and S; ex parte Attorney-General [1999] QCA 181, [19] referring to Kellerman v Pecko [1998] 1 Qd R 419.
[26]R v Wong (2001) 207 CLR 584, [57]-[59].
[27]R v Jackson [2011] QCA 103, [25].
[28]Decision, T2/11- 38; T2/11- 38 and T3/44.
[29]Drugs Misuse Act 1986 (Qld), s 8.
[30]Drugs Misuse Act 1986 (Qld), s 9.
[31]Drugs Misuse Act 1986 (Qld), s 10(2)(a).
[32]Penalties and Sentences Act 1992 (Qld), s 12(1).