Court of Appeal (Qld)|1994-09-21|Before: Pincus J, Mackenzie J

Jennings v Carrigan [1994] QCA 371 (21 September 1994)

THE COURT OF APPEAL [1994] QCA 371

I have read the reasons prepared by Pincus J.A. and Mackenzie J. where the principal issues which have to be weighed in this case are set out. In the end, very relevant features are that the amount of the drug in possession was not large and that it was for the personal use of the applicant and his companions.

Even though more than five years had passed since the applicant's previous drug conviction, it being for a minor offence, I am persuaded that it is not possible in accordance with the policy of this Court as presently expressed to declare that the recording of a conviction in this case involved an excessive penalty justifying the Court's interference. The Court is not, of course, called upon to affirm that the recording of a conviction should necessarily have been made in this case. The matter remained in the discretion of the magistrate.

Consistency of approach, if it can be achieved, is generally desirable and it is a relevant consideration that a recent pronouncement has been made by the Court in the area which we are presently considering: R v. Qualischefski C.A. No. 139 of 1994, unreported judgment delivered 12/8/94. It is noted that in that case the subsequent drug conviction was only a little over 2½ years after the first. As a separate matter, it has been recognised that some prior criminal history not involving drugs will not necessarily result in a subsequent minor drug conviction being recorded: Fullalove (1993) A.Crim R 486, and Condoleon (1993) 69 A Crim R, 573.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND MACKENZIE J.

This is an application for leave to appeal against sentence. The applicant, who was 31 years of age, pleaded guilty in the Magistrates Court to possession of cannabis sativa, a dangerous drug. A conviction was recorded and he was fined $300.00. The application relates only to the recording of a conviction.

On Sunday 5 June 1994 the applicant had a pipe in his possession, containing marijuana, and it was that possession which was the subject of the charge. He told the police that he had, prior to their arrival, intended to use the pipe.

Eight years ago the applicant was convicted of driving a motor vehicle whilst his blood alcohol content was 0.8 percent, and 5 years ago he committed an offence of possession of a dangerous drug. As to the latter, the applicant was dealt with under a provision which has been repealed, s. 657A of the Criminal Code; that is, no conviction was recorded and the applicant was discharged conditionally upon his entering into a recognisance to be of good behaviour.

It was submitted before the magistrate on the applicant's behalf that the marijuana of which he was possessed was exclusively for his own use and that of a co-accused; that he had in mind becoming a licensee in the hotel industry and in the gaming industry; that a conviction would represent a bar to obtaining either licence; and that he had represented Australia internationally in water polo on three occasions "and wished to do so again in the future". As to the water polo, it was further submitted that a conviction for a drug offence would restrict his entry into certain countries.

Before this Court it was submitted on behalf of the respondent, and appears to us to be correct, that under the relevant legislation, namely the Liquor Act 1912 and the _Gaming Machine A_ct 1991, the recording of a conviction of the present kind would not be disqualifying. The only specific disadvantage raised on behalf of the applicant which requires consideration is future representation in international water polo contests.

In the principal judgment in Qualischefski (C.A. No. 139 of 1994, 12 August 1994, unreported), there was considered the recording of a conviction in the Magistrates Court in circumstances which resemble the present, in that there the applicant was convicted of possession of a dangerous drug and possession of a pipe for use in connection with smoking it. As here, the applicant had been previously convicted of a similar offence.

In Qualischefski no conviction had been recorded with respect to the first offence, but a conviction was recorded in respect of the second group of offences, which involved possession of 6.5 grams of cannabis sativa and 0.211 grams of tetrahydrocannabinol. In the reasons one finds the following sentence:

"However, unless a policy is to be introduced that ordinarily good citizens, or at least those who will lose their jobs as a result of a conviction, are not to have a conviction recorded in respect of a second offence of possession of cannabis sativa, there is no justification for interfering with the sentence imposed by the magistrate, which was within the range of his sentencing discretion".

In that case the applicant was 28 years old and according to the reasons "the recording of the convictions is likely to cost him his job, and his career, social position and lifestyle will all be adversely affected".

As illustrations of cases in which people with previous convictions had no conviction recorded in respect of cannabis offences, we were referred to Fullalove (1993) 68 A.Crim R. 486 and Condoleon (1993) 69 A.Crim R. 573. In the former case Macrossan CJ said (489):

"It will be of general advantage in the administration of justice if some degree of consistency can be established in the treatment of drug offenders. It should be possible to achieve this without too much difficulty in cases simply of possession of marijuana where the quantities are not great and the offender has no previous drug convictions and has a generally good, even if not impeccable, character. In these cases it will often be desirable to record no conviction".

That statement was referred to in Ohlson (C.A. No. 255 of 1994, 26 August 1994, unreported), an application by a co-accused of the present applicant.

The circumstances of the applicant in such cases as these may vary in a number of ways: with respect to the age of the applicant, his or her criminal record, the effect of the recording of a conviction on the applicant's prospects, and the seriousness of the drug offence or offences in question. For this reason it is not possible to lay down a general rule which will govern all such matters. Further, it must be kept in mind that this Court has not the function of dealing with sentence applications as if they were being considered at first instance; a question which always arises is whether this Court may properly interfere with the exercise of the discretion, as to recording or declining to record the conviction, of the court below. We do not necessarily have to decide what we would have done with the matter had it come before us for sentence, at first instance.

In favour of the applicant there was the assertion that he had previously represented Australia in water polo and wished to do so again; it was not said that he expected to do so or was likely to do so, nor was there any detail to add substance to that part of the applicant's case. The other bases put forward on which it might have been held that the applicant would suffer special disadvantage from the recording of a conviction turn out to be insupportable; that circumstance does not increase one's confidence in the accuracy and completeness of what was submitted below about sporting representation. It has to be said in the applicant's favour that the present offence appears to be of a minor nature, as was the first drug offence, and further, that the first drug offence was committed some 5 years ago. Nevertheless, it is our opinion that the Court would not be justified in setting aside the result of the exercise of the magistrate's discretion; the facts were such that the decision was a marginal one, in which rational arguments could be put forward in support of recording a conviction, as well as in favour of the opposite course.

We are of opinion that, in general, this Court would not interfere with a magistrate's decision to record a conviction in respect of an offence of possession of cannabis, or the means of using it, where the applicant has previously had the benefit of having no conviction recorded for a similar offence; we are inclined to the view that adoption of this practice will at least produce a measure of consistency, in such cases, at the appellate level.

Jennings v Carrigan [1994] QCA 371

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Judgment (21 paragraphs)

Jennings v Carrigan [1994] QCA 371 (21 September 1994)

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