R v Chinmaya [2009] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION: R v Chinmaya [2009] QCA 227

PARTIES: R v CHINMAYA, Shivananda (applicant)

FILE NO/S: CA No 121 of 2009 / SC No 25 of 2009

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Cairns

DELIVERED ON: Orders delivered ex tempore on 17 July 2009 / Reasons delivered on 7 August 2009

DELIVERED AT: Brisbane

HEARING DATE: 17 July 2009

JUDGES: McMurdo P, Fraser JA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Delivered ex tempore on 17 July 2009

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of possession of methylamphetamine and one count of possession of MDMA in excess of two grams – where applicant sentenced to concurrent terms of 12 months imprisonment, with parole after three months – where applicant was sentenced on the basis that he had the drugs in his ‘possession’ under s 57(c) Drugs Misuse Act 1986 (Qld) – where sentencing judge sentenced the applicant on the basis that he had used methylamphetamine whilst working as a security officer – whether the sentencing judge erred in sentencing the applicant on this basis – whether sentence manifestly excessive / Drugs Misuse Act 1986 (Qld), s 129(1)(c) / R v Holmes [2008] QCA 259, cited / R v Kitson [2008] QCA 86, cited / R v Nguyen and Truong [1995] 2 Qd R 285; [1994] QCA 389, followed / R v Phan [2008] 2 Qd R 485, [2008] QCA 258, cited / R v Sartori [2006] QCA 284, distinguished / Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59, considered

COUNSEL: C Heaton for the applicant / P F Rutledge for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Qld) for the respondent

McMURDO P: I agree with Fraser JA.

FRASER JA: On 26 May 2009 the applicant was convicted on his pleas of guilty of possession of the dangerous drug methylamphetamine and possession of the dangerous drug 3,4-methylenedioxymethamphetamine (“MDMA”) with a circumstance of aggravation that the quantity of that dangerous drug exceeded 2.0 grams. The learned sentencing judge recorded convictions and sentenced the applicant to concurrent terms of imprisonment of 12 months, with a parole release date on 26 August 2009 after he had served three months of those terms.

The applicant was granted bail after he had served two days of that sentence in custody.

On 17 July 2009 this Court granted the applicant’s application for leave to appeal, allowed his appeal, varied his sentence by ordering that he be released on parole immediately, and otherwise confirmed the sentence. The Court made the consequential order that the applicant be required to report to a probation and parole officer as required under the Corrective Services Act 2006 (Qld) between 9am – 5pm on that day or on the next business day. The Court noted that if he failed to do so he would be unlawfully at large and that the applicant’s legal representatives had undertaken to inform the applicant of his obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Qld).

These are my reasons for concurring in those orders.

The sentence

When sentencing the applicant, the learned sentencing judge observed that the applicant's offending had come to the knowledge of police officers on 11 December 2007 when they conducted a search of the residence where the applicant was then living with a number of other people. In the course of that search police officers found, in a cupboard in the bedroom occupied by the applicant, five separate clip-seal bags containing a total weight of powder of 4.78 grams which included 0.111 grams of the schedule 1 dangerous drug methylamphetamine (speed). In the same cupboard in various locations and bags police officers found 25 ecstasy tablets in total weighing about 6.8 grams and containing 1.672 grams of the schedule 2 dangerous drug MDMA.¹ In a cupboard in an adjacent bedroom police found a plastic container containing a clip-seal bag which held 88 tablets weighing 23.8 grams in total and containing 6.027 grams of pure MDMA.

The sentencing judge observed that the applicant's plea of guilty in respect of the 88 tablets in the second bedroom caused some difficulty because of the applicant's claim that he did not know that those tablets were present in the plastic container in that room.

The evidence about this was unusual. The applicant’s girlfriend had previously occupied the second bedroom but she had vacated it much earlier. Police officers agreed in cross-examination at the committal hearing that women's shoes were found in the cupboard in which they found the 88 tablets; at that time the room was apparently unoccupied and undergoing some renovation; the plastic container contained residue of a female person's cosmetic; it and the plastic bags inside it were covered in dust; and there was no evidence of the applicant's fingerprints on either receptacle. When police asked the applicant whether he might have forgotten the tablets when he vacated that second bedroom, the applicant replied, "That many, no".

In submissions at the sentence hearing, defence counsel conveyed the applicant's instructions that he recalled that there had been an occasion before the police raid in which a batch of ecstasy tablets jointly purchased by the occupants of the house (including the applicant) for their own use had "gone missing". The applicant did not assert that the tablets found by police were "definitely" the tablets that had gone missing. He was away when the tablets went missing. He came home to a party and the tablets could not be found. This caused dissension within the group evidently because of suspicions that one of them had taken the tablets, although the applicant thought it more likely that the tablets had been misplaced or lost. The prosecutor did not seek any finding which contradicted those submissions but argued that the applicant had not displaced "a presumption of knowledge".

The sentencing judge accepted that the independent evidence made it clear that it was likely that the applicant did not have knowledge of the presence of the 88 ecstasy tablets. His Honour accepted the plea of guilty on the basis, advanced by defence counsel, that the applicant was in control of the premises where the drugs were found and was unable to show that he then neither knew nor had reason to suspect that the drugs were in that place. On those facts the effect of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) was that the drugs were in the applicant's possession for the purposes of the offence.

The sentencing judge referred to the following matters. The applicant frankly admitted that he had over the years become a user of drugs to an increasing degree. After having completed Year 12 the applicant undertook TAFE courses and had a good work record since then, having always been in employment. He was involved in his own business as a removalist as well as being involved in security work. He held a security operator's licence. The applicant had worked at street level, working for nightclubs and at events including the Olympic Games. References tendered on his behalf suggested that he was respected. However after trying one ecstasy tablet his usage increased over the years and he became associated with other users to the extent that he joined with them in buying the drug in bulk. The sentencing judge observed that this "might explain the number of tablets in the house, who knows…", but it showed that the applicant lived in an environment "where drugs were purchased in large quantities, and apparently consumed in large quantities and shared out amongst people in the group." The sentencing judge took that into account when looking at the effect of the applicant being in control of an area where the 88 tablets were found.

The sentencing judge then said that:

"As to the methylamphetamine, I am satisfied that that was for personal use. I do not limit myself in finding that your possession of ecstasy tablets was entirely for personal use. I regard your offending as serious, particularly insofar as it involves the use of methylamphetamine, a schedule 1 drug, by a person who had responsibilities for the security of others. I regard offending of that kind as being quite serious, and it is those facts generally, despite the respect in which you are held amongst your peers, which requires that I sentence you to a term of imprisonment."

His Honour concluded that the applicant should spend some time in actual custody even though his past criminal record (committing a public nuisance and being in possession of a weapon in a public place) did not include any involvement in drugs.

Application for leave to appeal

The grounds of the application for leave to appeal against sentence were that the sentence imposed was manifestly excessive and that the sentencing judge erred in the weight he attached to the offence of unlawful possession of the dangerous drug methylamphetamine.

I concluded that the second ground was established. In requiring the applicant to serve three months in actual custody the learned sentencing judge attributed particular significance to the conclusion that the applicant had used the schedule 1 drug methylamphetamine whilst he was employed as a security officer. At the hearing of the application the respondent's senior counsel frankly and properly conceded that the learned sentencing judge had erred in sentencing on that basis. When the applicant was first interviewed by police he told them that he had no knowledge of the methylamphetamine. At the sentence hearing there was no suggestion that the applicant had used methylamphetamine and there was no challenge to the applicant’s assertion that the very small quantity of methylamphetamine found in his bedroom was not his. He said that it had been left there by a person who had visited his room. The material did not suggest that the applicant's possession of another person’s very small amount of methylamphetamine had in any way affected the proper discharge of the applicant’s responsibilities as a security employee. The only relevant evidence on this topic was in the form of very favourable references which included statements to the effect that the applicant was a respected and liked employee and that these offences were out of character.

Accordingly this Court was obliged to exercise the sentencing discretion afresh.

Circumstances of the offences

In relation to the methylamphetamine the applicant fell to be sentenced on the footing that he possessed, by having under control in his bedroom, a very small amount of that drug owned by another person who had left it there during a visit to his room. The applicant was to be sentenced on the basis that he had possession of the 25 ecstasy tablets found in his own room, for his own personal use. He had bought those tablets on two separate occasions, paying a couple of hundred dollars for them.

The sentencing judge rejected the prosecutor’s submission that the applicant should be deemed to have had knowledge of the presence of the 88 ecstasy tablets in the second bedroom. In that respect, in R v Nguyen & Truong² this Court concluded that the statutory conclusion of possession by virtue of the evidentiary provision in s 57(c) (now s 129(1)(c)) of the Drugs Misuse Act 1986 (Qld) did not involve the statutory attribution of actual knowledge: the Court held that where a person who was an occupier or concerned in management or control in terms of the provision was unable to show that he or she neither knew nor had reason to suspect that the drug was in or on the relevant place then, for the purposes of sentencing, it was necessary for the sentencing judge to come to his or her own conclusion upon the properly available material about the state of the offender's knowledge and the degree of his or her involvement and culpability.

In Tabe v The Queen³ Callinan and Heydon JJ said in relation to the operation of s 57(c) that knowledge “…is not only to be presumed, it is also to be conclusively presumed unless the accused demonstrate[s] absence of knowledge, or, of reason to suspect”.⁴ However Tabe v The Queen was not a decision which directly concerned either the operation of s 57(c) or its effect in sentencing. Gleeson CJ, the other member of the majority, analysed the issues in a way that did not involve any conclusion whether s 57(c) operated to deem the accused to know that he or she possessed dangerous drugs.⁵ Furthermore, whilst the analysis by Hayne J⁶with which McHugh J agreed, arguably supports the view that where s 57(c) operated it imputed knowledge to the accused, Hayne and McHugh JJ were in dissent and Hayne J had earlier held that s 57(c) was irrelevant to the issues in that case.⁷

The respondent did not seek any reconsideration of the authority of R v Nguyen & Truong in its application in sentencing. That decision has since been followed on numerous occasions⁸ and it remains binding upon sentencing courts. That being so, the material before the sentencing judge amply justified his Honour’s decision to reject the prosecutor’s submission that, for the purposes of arriving at a just sentence, the applicant should be deemed to have had knowledge of the presence of the 88 ecstasy tablets in the second bedroom. In my respectful opinion, on the facts which I summarized earlier the appropriate inferences were that the applicant and others jointly purchased the 88 ecstasy tablets for their personal use, someone other than the applicant mislaid them, and for quite a long time before the police found the tablets the applicant did not know that they were in the house.

The applicant's personal circumstances

The applicant was 28 years old at the time of the offences and he is now 30 years old. His most serious conviction, for possessing a knife in a public place on 20 July 1999, attracted a small fine and no conviction was recorded. That conviction is now 10 years old. He was also given small fines for public nuisance offences in 2006 and 2008. He had never been imprisoned. He had no prior convictions for drug offences.

The applicant has quite favourable references, as I have mentioned. He has been in continuous employment and since his offending was discovered he has voluntarily sought to rehabilitate himself. He told a psychologist that he had abstained from drug use and he sought assistance from that psychologist. He was diligent in attending and it was reported that he had met the objectives of his treatment. The applicant therefore presented as a person with good prospects for a full rehabilitation.

At a committal hearing in October 2008 the applicant pleaded guilty to the possession of drugs but not to the circumstance of aggravation. There was a committal hearing which was narrowly confined to the circumstances concerning the 88 tablets, after which the applicant accepted that he was unable to displace the evidentiary onus under s 129(1)(c) of the Drugs Misuse Act 1986. He was therefore entitled to some credit for his plea of guilty.

Discussion

The applicant submitted that no conviction should be recorded and that no actual custody should be imposed. His counsel emphasised the material suggesting that the offences were out of character, the adverse effect upon the applicant of the recording of a conviction, and the evidence suggesting that the applicant had voluntarily sought to rehabilitate himself. The respondent emphasised the facts that the applicant possessed a significant quantity of drugs, amounting in total to thousands of dollars worth, and that he was at the time working as a security officer. Those features of the case called for a deterrent sentence.

In the view I took it was of critical significance that there was no suggestion of any commercial purpose in the applicant's possession of the drugs. The inference that otherwise might have been available from the number of ecstasy tablets possessed by the applicant, that there was a commercial element in his possession, was displaced by the unusual facts I have discussed. The joint purchase of so much of the drug itself aggravated the applicant’s criminality, but the facts that the applicant did not possess the ecstasy tablets for any commercial purpose, that he did not know that they remained in the house until the police found them, and that he had no prior conviction of any drug offence justified substantial moderation in the sentence.

We were referred to R v Sartori [2006] QCA 284, in which the Court concluded that a sentence of 18 months imprisonment suspended after five months was not manifestly excessive, but there was a commercial element in that offender’s otherwise very similar offences and he had a significant criminal record involving repeated drug offences. In other decisions cited to the Court concerning possession offences where no commercial element was involved, sentences of imprisonment between six and twelve months were imposed and the offender was required to serve some months in actual custody; but those offenders had more significant criminal histories, notably including relevant drug convictions: R v Woods [2004] QCA 204, R v Christie [2000] QCA 165, R v Kennedy [2000] QCA 140 and R v Brooker [2002] QCA 101.

I do not suggest that such a criminal record is the only circumstance that might justify a sentence involving some substantial period in actual custody for similar possession offences where there is no commercial element in an offender’s possession of schedule 1 and schedule 2 drugs. In R v Kitson [2008] QCA 86 I said, with the concurrence of Fryberg and Lyons JJ, that it must not be overlooked that methylamphetamine is notoriously dangerous in effects on those who use it and that, in addition to rehabilitation, deterrence is an important aim in sentencing. Deterrence is, of course, also a very relevant sentencing consideration for the offence of possessing a large quantity of a schedule 2 drug. I adhere to my observation, with which Muir JA and Philippides J concurred, in R v Holmes [2008] QCA 259 at [22] that:

“[t]he Courts cannot fail to be aware of the scourge of dangerous drugs, particularly in hotels and nightclubs and particularly by people who might labour under the misconception that they do not risk serious harm to themselves by using those drugs. Denouncing that conduct, deterring offenders and others from engaging in it and protecting the community remain important factors in these cases. Those who possess these drugs and those who sell them must know that they risk being sentenced to a term of imprisonment in appropriate cases.”

On the facts here, where there was no commercial element in the applicant’s possession of the drugs and where rehabilitation loomed large as an important factor in the exercise of the sentencing discretion, I considered that the requirement for a deterrent sentence was sufficiently met by recording a conviction and imposing a head sentence of twelve months’ imprisonment. The evidence suggested that recording a conviction might have particularly severe consequences for the applicant in that it might preclude him from working in his chosen occupation as a security officer, although that is of course a matter for the relevant licensing authority. 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.

WILSON J: I concurred in the orders made on 17 July 2009.

The facts put before the sentencing judge were regrettably somewhat muddled - which was perhaps a reflection of the applicant's lifestyle and his use of illicit drugs.

On analysis, it was tolerably clear –

that the 25 ecstasy tablets found in the first bedroom were the applicant's; he had purchased them on two separate occasions for his own use;

that he was deemed to be in possession of the 88 ecstasy tablets in the second bedroom because he was in control of the premises where they were found, and he was unable to show (on the balance of probabilities) that he neither knew nor had reason to suspect that they were there:⁹ it was on that basis that he pleaded guilty to their possession;

that the sentencing judge was nevertheless satisfied that he did not have actual knowledge of the presence of the 88 ecstasy tablets.

There is a tension, if not inconsistency, between the second and third of these matters, but as Fraser JA has explained in paragraphs [18] and [19] of his reasons for judgment, the sentencing judge proceeded consistently with the decision of this Court in R v Nguyen & Truong¹⁰ in rejecting the prosecutor's submission that in sentencing the applicant he should deem him to have had knowledge of their presence. This is not the occasion to reconsider the correctness of that decision, although observations by members of the High Court in Tabe v The Queen¹¹ cast some doubt upon it.

There was no evidence to support the sentencing judge's finding that the small quantity of methylamphetamine found in the first bedroom was for the applicant's personal use; his Honour erred further in attributing particular significance to the applicant's use of that drug whilst employed as a security officer.

In the circumstances the sentencing discretion miscarried, and the applicant stood to be resentenced by this Court. I respectfully agree with Fraser JA's discussion of the matters relevant to this Court's exercise of the discretion.

Footnotes

1. MDMA has since been changed to a schedule 1 drug: Drugs Misuse Amendment Act 2008 (Qld), s 40, effective 1 June 2008. ↩

2. [1995] 2 Qd R 285 per Macrossan CJ at 286 and per Pincus JA at 288; and cf per Ambrose J at 295-296. ↩

3. (2005) 225 CLR 418 at [146]. ↩

4. See also at [139] – [140], where Callinan and Heydon JJ adopted Wilson J’s analysis in He Kaw Teh v The Queen (1985) 157 CLR 523 at 557-558. ↩

5. (2005) 225 CLR 418 at [16] – [24]. ↩

6. (2005) 225 CLR 418 at [96] – [105]. ↩

7. (2005) 225 CLR 418 at [86] – [87]. ↩

8. See, for example, R v Phan [2008] 2 Qd R 485 at [22] – [27], [33] – [35]. ↩

9. See 129(1)(c) of the Drugs Misuse Act 1986 (Qld). ↩

10. [1995] 2 Qd R 285. ↩

11. (2005) 225 CLR 418 at [139]-[140]; [146]. ↩