Neale v Commissioner of Police
[2020] QDC 233
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- Unreported Judgment
- Neale v Commissioner of Police[2020] QDC 233
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Neale v Commissioner of Police[2020] QDC 233
Neale v Commissioner of Police[2020] QDC 233
DISTRICT COURT OF QUEENSLAND
CITATION: | Neale v Commissioner of Police [2020] QDC 233 |
PARTIES: | LAUREN DEBRA NEALE (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | D58 of 2020 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court, Southport |
DELIVERED ON: | 21 August 2020 |
DELIVERED AT: | Southport |
HEARING DATE: | 31 July 2020 |
JUDGE: | McGinness DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL – s 222 Justices Act 1886 – appeal against sentence – possession of dangerous drugs – forgery and uttering – whether Magistrate made an error of law or fact – whether terms of imprisonment imposed manifestly excessive Penalties and Sentences Act 1992, Section 9 Justices Act (Qld) 1886, Sections 222, 223 House v R (1936) 55 CLR 499 Markarian v The Queen (2005) 228 CLR 371 R v Callow [2017] QCA 304 R v Chinmaya [2009] QCA 227 R v Donaci [2018] QCA 226 R v Lawley [2007] QCA 243 R v Warren [2014] QCA 175 Wong v The Queen (2001) 207 CLR 584 |
COUNSEL: | G Elmore for the Appellant A Baker-Smith (solicitor) for the Respondent |
SOLICITORS: | Ashkan Tai for the Appellant Office of the Director of Public Prosecutions for the Respondent |
Introduction
- [1]On 18 February 2020, the appellant was sentenced on an agreed statement of facts for the following offences:
Charge | Offence | Date of Offence | Penalty Imposed |
SOUT-MAG-00014517/19 | |||
1 | Possession of a dangerous drug in excess of 2 grams (methylamphetamine) | 18.07.2019 | 3 months imprisonment suspended forthwith for an operational period of 2 years |
2, 4 - 7 | Possession of a dangerous drug | 18.07.2019 | 2 years probation Conviction recorded |
8 | Possession of a thing for use in the commission of a drug offence | 18/07/2019 | 2 years probation Conviction recorded |
9 | Possession of utensils or pipes | 18/07/2019
| 2 years probation Conviction recorded
|
11 | Unlawful possession of weapons | 18/07/2019 | 2 years probation Conviction recorded |
SOUT-MAG-00023155/19 | |||
1 | Breach of bail | 06/11/2019 | 2 years probation Conviction recorded |
2 | Forgery | 13/11/2019 | 3 months imprisonment suspended forthwith for an operational period of 2 years |
3 | Utter forged document | 13/11/2019 | 3 months imprisonment suspended forthwith for an operational period of 2 years |
MAG-00018490200 | |||
1 | Driving while a relevant drug is present in blood or saliva | 22/01/2020 | 2 years probation, disqualified from holding or obtaining a driver licence for 4 months Conviction recorded |
- [2]The appellant appeals against the sentences imposed for the charge of possession of a dangerous drug in excess of two grams, and the two forgery and uttering offences. The appeal is on the basis that the sentences imposed were, in all the circumstances, manifestly excessive. The appellant does not appeal the recording of convictions.
- [3]Pursuant to s 223 of the Justices Act (Qld) 1886, subject to leave being given to adduce additional evidence, an appeal under s 222 is by way of a hearing on the evidence given in the proceedings before the Magistrate. In an appeal by way of rehearing, the powers of the Appellate Court are exercisable only where it can be demonstrated, having regard to all of the evidence before the Appellate Court, the order that is the subject of the appeal is the subject of some legal, factual or discretionary error.
- [4]Relevantly, s 222(1)(c) of the Justices Act (Qld) 1886 provides that on an appeal against sentence, the appeal is on the ground that the punishment or penalty imposed is excessive or inadequate. The appeal is by way of rehearing of the original evidence given in the proceeding. Insofar as this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 505 apply.
- [5]It is not a sufficient basis for the Appellate Court to intervene where the court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. There is an obligation on appeal courts to respect the role assigned to those who have the “difficult task of balancing competing considerations of deterrence, protection of the community, denunciation of crime and vindication of victims’ rights on the one hand, and rehabilitation and compassion on the other”.[1] In other words, a mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for allowing an appeal. In the recent Court of Appeal decision of R v Callow[2] Morrison J reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:[3]
“Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.”
Factual basis of sentence
- [6]The facts upon which the appellant was sentenced were set out in an agreed statement of facts that was tendered by the prosecution at the sentence hearing (but not given an exhibit number).
- [7]To summarise, on 18 July 2019, a search warrant was executed at the appellant’s address. Detectives located a number of clip seal bags and a small glass jar containing a total of 13.89 grams of methylamphetamine with a purity of 6.347 grams. They also located smaller amounts of other drugs including 5 tablets containing Methylenedioxymethamphetamine (‘MDMA’), a test tube containing GHB, two sachets of Sildenafil, 9 tablets of Diazepam, a small amount of Cannabis, as well as electronic scales, utensils, and a taser.
- [8]The appellant was arrested and taken to the Southport Watch House where she was formally charged. The appellant entered into a bail undertaking with the condition that she report each Wednesday, commencing on 24 July 2019.
- [9]On 6 November 2019, the appellant failed to report to Coomera Police Station as per the conditions of her bail. On 13 November 2019, the appellant attended the Coomera station to report. The appellant provided a doctor’s certificate which explained that her failure to report on 6 November 2019 was because she was sick. Police made enquiries with the medical clinic listed on the appellant’s doctor’s certificate and confirmed that the certificate was false and had not been completed by the treating doctor. (These offences committed in breach of bail).
- [10]On 22 January 2020, the appellant was pulled over by police and subjected to a roadside drug test which returned a positive result. She was subsequently taken to Nerang Police station for a secondary drug test. The appellant admitted she had used methamphetamine two days earlier. The second drug test confirmed there was amphetamine present in the appellant’s saliva. The appellant was subsequently given a Notice of Suspension and a Notice to Appear in the Southport Magistrates Court on 7 February 2020. (These offences committed in breach of bail)
Defence submissions at sentence
- [11]The appellant was aged 30 and 31 at the time of the commission of the offences. She was 31 years of age at the date of sentence. She had a criminal history including two entries for possession of dangerous drugs. On the first occasion in 2015, she was placed on a recognisance order for a period of nine months with a condition she attend a drug diversion. In 2017, she was fined $600. The appellant also had two prior convictions for driving under the influence of alcohol in 2008.
- [12]The defence informed the Magistrate that when the complainant attended school she was school captain. She worked on the student council and in student unions fighting for the rights of students. At the time of the hearing, the appellant was working as a sex therapist and was also in a dance group. The court was told she worked with trauma victims and people who have had negative sexual experiences. She assisted them to deal with past issues and how to move forward.
- [13]The appellant first used Methamphetamine in 2015 and had used drugs intermittently since then. She returned to the illegal use of drugs after some family and financial troubles.
- [14]It was submitted on the appellant’s behalf that all of the drugs found in her possession on 18 July 2019, including the substantial amount of 6.347 grams of pure Methylamphetamine, were for personal use due to her drug addiction.
- [15]The defence tendered character references,[4] a drug screen test from 14 February 2020,[5] a completion of a QTOP Program,[6] and a Mental Health Plan.[7] It was submitted that, notwithstanding her serious drug problem, the appellant was considered by those she knew not only in a professional capacity, but also on a personal level, as someone of good character who had demonstrated remorse. She was a person with honesty and integrity.
- [16]The defence submitted that the forgery and uttering offences occurred due to the appellant’s significant drug problem. In her drug deluded state, she created a false medical certificate and drove with drugs in her system whilst on bail for other offences. The defence submitted that, notwithstanding the significant quantity of different drugs, it was appropriate to impose a lengthy probation order with an additional condition that she submit to drug testing.
- [17]It was submitted the appellant would have significant difficulty performing community service due to the loss of her licence; however, a community service order in the range of 40 to 60 hours was appropriate as an extra level of punishment.
Prosecution’s submissions
- [18]The prosecution submitted that suspended terms of imprisonment should be imposed for the charge of possession of dangerous drugs in excess of two grams and a probation order in relation to the other offences.
- [19]The prosecution and defence did not provide any comparable Court of Appeal decisions to assist the court.
Magistrate’s reasons
- [20]The Magistrate had regard to the appellant’s pleas of guilty which he stated would be reflected in a reduction of penalty. He stated the appellant was not a youthful offender and was old enough to know better. He considered the most serious offences to be the charge of unlawful possession of 6.347 grams of pure Methylamphetamine, and the forgery and uttering of the fake medical certificate for the purposes of explaining her failure to report to police in contravention of her bail conditions. The Magistrate took into account that the quantities found in respect of each of the other drugs were small, but also that there was a significant variety of drugs found in the appellant’s possession. The Magistrate accepted the appellant had a drug problem. He had regard to the character references, her two prior drink driving convictions, and two prior convictions for possession of drugs. He noted that when the appellant was first convicted of possession of dangerous drugs, she was given the opportunity to take part in drug diversion. The Magistrate considered the offences of forgery and uttering to be very serious:
“These Courts, and the police, need to be able to rely upon medical certificates to make judgments, to exercise judgments, discretions. They influence decision making. We need to be able – everyone, the whole of the community – needs to be able to rely upon the veracity of a doctor’s medical certificate. And if that cannot be held in place, then people will not trust a medical certificate in future, when they are presented to police for reporting or in Courts, for not appearing in Court. So you have threatened the integrity of that system that the community relies upon. It may also make some doctors reticent or reluctant to provide medical certificates in some situations.”[8]
- [21]The Magistrate took into account the appellant had attended a drug traffic offender program. He considered the appellant was clearly intelligent and capable, and therefore she had no excuse not to learn from prior offending. He had regard to the appellant’s recent clean drug test result, and that the appellant had a mental health plan. He noted the appellant had not yet attended any mental health counselling sessions. The Magistrate had regard to all of the appellant's other personal circumstances, both past and present, including the details of her employment.
- [22]The Magistrate determined it was appropriate to impose a probation order with special conditions on some of the offences; however, regarded the most serious drug offence and the forgery and uttering offences as too serious to warrant community based orders.
Appellant’s submissions
- [23]The appellant submits the Magistrate failed to have regard to s 9(2)(a)(i) of the Penalties and Sentences Act 1992 which provides that, in sentencing an offender, the court must have regard to the principle that a sentence of imprisonment should only be imposed as a last resort. The appellant submits that applying that principle to the appellant’s circumstances, including her antecedents and the nature of the offending, the sentences imposed for the drug offence and the forgery and uttering offences were unjust or unreasonable in all the circumstances. The appellant submits that she was sentenced on the basis the drugs were for personal use and she had a significant drug problem. The forgery and uttering offences occurred in circumstances where the appellant felt she would encounter less trouble if she forged a doctor’s certificate rather than presenting to a police station drug affected. The appellant pleaded guilty, had undertaken steps towards rehabilitation, and had no history of forgery or uttering offences.
- [24]The appellant submits that the maximum penalty for forgery and uttering offences was three years’ imprisonment. The appellant submits the following factors reflect that the terms of imprisonment imposed were manifestly excessive:
- The appellant had limited criminal history for drug possession and no history of a like nature for forgery and uttering.
- The forgery and uttering offences were not serious examples of that type of offending.
- The possession of the drugs was for personal use.
- The principles established under s 9(2)(a) of the Penalties and Sentences Act referred to above.
- The appellant’s prospects of rehabilitation.
- [25]The appellant submits that the appeal be allowed and the appellant be resentenced to two years’ probation with a conviction recorded for the drug offence and forgery and uttering offences.
Respondent’s submissions
- [26]The respondent submits the Magistrate did not err in imposing wholly suspended periods of imprisonment for the three offences. He took into account references provided by the appellant, the fact she had a serious drug issue, and the steps the appellant had made towards rehabilitation as well as her criminal history.[9]
- [27]The prosecution submits the Magistrate did not err by imposing a period of imprisonment instead of a community based order when regard is had to a number of comparable decisions of the Court of Appeal. The prosecution submits the comparable decisions show that generally a term of imprisonment with immediate parole is within range for these offences. In respect of the sentence for the drug offence, the respondent relied on the cases of R v Chinmaya [2009] QCA 227, R v Warren [2014] QCA 175 and R v Donaci [2018] QCA 226.
- [28]The respondent submits that the forgery and uttering offences were serious due to the need for the courts and the police to be able to trust in the provision of medical certificates. This was also noted by the Magistrate.[10] Those offences were aggravated by the appellant being subject to bail for the drug offences at the time of offending. The respondent did not rely on any comparable decisions; however, submitted that the appellant has failed to show any error in the exercise of the magistrate’s discretion when regard is had to the totality of the appellant’s offending.
Summary of comparable decisions
R v Shivanada Chinmaya
- [29]The applicant pleaded guilty to one count of possession of Methylamphetamine and one count of possession of MDMA with a circumstance of aggravation that the quantity of MDMA exceeded two grams. At that time MDMA was a schedule 2 drug. It is now a Schedule 1 drug. The applicant was originally sentenced to concurrent terms of 12 months imprisonment with a parole release date set after he had served three months of the sentences.
- [30]Police conducted a search of the appellant’s house and located .111 grams of pure Methylamphetamine. They also located 25 ecstasy tablets containing 1.672 grams of MDMA and a further bag of 88 tablets containing 6.027 grams of pure MDMA in another room. The applicant’s plea of guilty in respect of the 88 tablets was on the basis he did not know the tablets were present in the house. He recalled an occasion some time previously where a batch of MDMA tablets jointly purchased by the occupants of the house, which included the applicant, had gone missing. The sentencing Judge accepted it was likely the applicant did not have knowledge of the presence of the tablets. The plea was accepted on the basis that the applicant was in control of the premises where the drugs were found and was able to show that he neither knew nor had reason to suspect the drugs were in that place. The applicant was sentenced on the basis that there was no commercial purpose to his possession.
- [31]He was 28 years of age and had no prior convictions for drug offences. He had minimal criminal history for possessing a knife in a public place 10 years previously and two public nuisance offences. He was given small fines on each offence. The applicant was in employment and had diligently undertaken treatment with a psychologist to rehabilitate and it was reported he had met the objectives of this treatment.
- [32]On appeal, the applicant submitted no conviction should have been recorded and no actual custody imposed. The Court of Appeal determined that the requirement of a deterrent sentence was sufficiently met by the imposition of a sentence of 12 months imprisonment with immediate release, having regard to the applicant’s rehabilitation. Fraser JA (the other judges agreeing,) concluded at [28]-[29]:
“Despite the material suggesting that the applicant’s offending was out of character, I concluded that a conviction should be recorded in view of the applicant’s relatively mature age when he committed the offences, the fact that he did have the criminal history I have described, and the facts that he possessed some schedule 1 drug and a significant quantity of schedule 2 drug.
Accordingly, giving properly significant weight also to rehabilitation, I concluded that the applicant was appropriately punished by confirming the conviction and the head sentence imposed by the learned sentencing judge but ordering immediate release on parole”.[11]
- [33]The prosecution submits that the present matter is more serious than that of Chinmaya. The quantity of drugs is comparable; however, Chinmaya had no prior history of drug offending and was sentenced on the basis that he was an owner of the premises where the drugs were found.
R v Shane Matthew Warren
- [34]The applicant was sentenced to 18 months imprisonment with immediate parole for possession of Methylamphetamine in excess of the schedule amount. There was a factual contest as to commerciality. The sentencing Judge found there was no commercial purpose to the possession.
- [35]The applicant was found in possession of three bags of Methylamphetamine in his car. There was 2.183 grams of pure Methylamphetamine in total. The applicant was 42 years of age at the time of offending and 44 at sentence. He had prior convictions for drug offences but had never been sentenced to terms of imprisonment. The Court of Appeal refused the application for leave to appeal and concluded that the order for immediate release on parole adequately allowed for the mitigating factors and that a term of lengthy imprisonment was open.
- [36]The respondent submits that the present case is more serious because the amount of Methylamphetamine in the appellant’s possession was almost three times the amount as in Warren’s case. The respondent further submits that the appellant’s offending was aggravated due to the large number of other charges for which she was being sentenced.
R v Robert Donaci
- [37]The applicant was sentenced to 18 months imprisonment with immediate parole for possession of MDMA, and 50 hours of community service for possession of Methylamphetamine. Police searched the applicant’s car and discovered approximately four grams of powder containing 2.726 grams of pure MDMA and .058 grams of Methylamphetamine powder.
- [38]The applicant was sentenced on the basis the drugs were for his personal use. He was 36 years at the time of offending and had a serious criminal history, including prior convictions for trafficking and possession of MDMA in Victoria. More recently, he had convictions for possession of dangerous drugs in Queensland less than one month before the present offending.
- [39]The Court of Appeal refused the application for leave to appeal. The prosecution concedes Donaci had a far more serious criminal history; however, he was only found in possession of 2.726 grams of pure MDMA.
Consideration
- [40]It is clear on the material that the Magistrate had regard to all of the factors relied on by the appellant in her favour. The Magistrate accepted the drugs were for personal use and had regard to the character references, the drug analysis certificate, and the rehabilitation the appellant had undertaken and intended to undertake in the future.
- [41]The appellant’s main contention is that, having regard to s 9(2)(a) of the Penalties and Sentences Act 1992, imprisonment should only be imposed as a last resort. Therefore, it is submitted, the Magistrate should not have imposed terms of imprisonment, and for that reason, the sentence was manifestly excessive.
- [42]The comparable decisions relied upon by the respondent clearly indicate that possession of MDMA over the schedule amount, even in the absence of significant prior criminal history, can result in the imposition of terms of imprisonment because of the serious nature of the offence.[12]
- [43]Each of the comparable Court of Appeal decisions referred to above supports the conclusion that, although imprisonment should only be imposed as a last resort, considerations such as the serious nature of an offence and a person’s antecedents may result in a term of imprisonment being imposed, even for first time offenders.
- [44]The appellant was not a youthful first offender. She had been convicted twice previously of drug offences and had been given the benefit of a drug diversion order. It was within the proper exercise of the magistrate’s discretion to impose a term of imprisonment to reflect the serious nature of the offences and the principles of personal and general deterrence, but order the sentences be suspended forthwith to allow for the mitigating factors personal to the appellant.
- [45]The forgery and uttering offences were of a serious nature. The offences were premeditated in circumstances where the character of the offending was similar in character to an offence of attempting to pervert the course of justice.
- [46]Whilst he does not expressly say so, in my view, it can be readily inferred from an analysis of the Magistrate’s reasons that he turned his mind to the relevant considerations under ss 9(1) and (2) of the Penalties and Sentences Act, including the principles in s 9(2)(a) which state that imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.
- [47]The appellant has failed to persuade this court that the Magistrate acted on a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, or mistook the facts[13]. The sentences imposed are not outside the permissible range of sentence in this case, in other words I am not persuaded it was excessive. I consider the appellant has failed to persuade the court that the Magistrate erred in imposing the sentences he did.
- [48]The appeal is dismissed.
Footnotes
[1] R v Lawley [2007] QCA 243 at [18].
[2] [2017] QCA 304 at [36].
[3] (2005) 228 CLR 357 at 371 [27].
[4] Exhibits 6 and 7.
[5] Exhibit 9.
[6] Exhibit 11.
[7] Exhibit 10.
[8] Transcript of Sentence Decision p 2, ll. 39-47.
[9] Transcript of Sentence Decision p 2, ll. 18-20, p 3, ll. 1-3, p 4, ll. 30-34.
[10] Transcript of Sentence Decision p 2, ll. 9-12.
[11] R v Chinmaya [2009] QCA 227, 7 at [28]-[29].
[12] Penalties and Sentences Act 1999 (Qld) s 9(2)(c).
[13] Wong v The Queen (2001) 207 CLR 584 at 605 [58].