_R v Dolan_

Court of Appeal (Qld)|2008-03-05|Before: McMurdo P, Fraser JA and Mullins J, Separate reasons, for judgment of each member of the Court, McMurdo P and Fraser JA concurring as, to the orders made, Mullins J dissenting, in part

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant, Nicholas Anthony Dolan, pleaded guilty on 14 December 2007 to one count of trafficking in cannabis sativa, count 1; possessing cannabis sativa, count 2; and possessing a sum of money knowingly obtained from trafficking in a dangerous drug, count 3. He was convicted and sentenced to two years imprisonment, suspended after serving four months, with an operational period of three years. It follows that he is presently due for release on 14 April 2008.

He seeks leave to appeal against his sentence, contending in his application that it was manifestly excessive and that the learned sentencing judge erred in failing to specify what count the sentence related to.

Although Mr Dolan appears self-represented today by telephone from the Correctional Centre at which he is incarcerated, his Counsel at sentence, Mr P E Smith, has prepared, pro bono, a written outline of submissions. Mr Smith also emphasises that the judge erred in failing to give sufficient weight to the rehabilitative efforts and prospects of Mr Dolan and the detrimental impact of a custodial sentence on these matters.

The circumstances surrounding the offences are as follows. On 5 September 2006, police executed a search warrant on Mr Dolan's Wynnum home. Mr Dolan directed police to a large clip-seal bag of green leaf material; a set of scales and a number of other containers and clip-seal bags of green leaf material; a container of small green seeds; a coffee grinder with green residue; two plastic water pipes; scissors with green residue on the blades and $6,590 cash in a wardrobe; two glass pipes and a brass coloured metal cone. The green leaf material was later found to weigh 169.5 grams and was analysed as cannabis sativa. The green seeds were also analysed as cannabis sativa and weighed one gram. The possession of those drugs constituted count 2.

Tetrahydrocannabinol and cannabinol were each detected on the pipes, grinder, metal cone and scissors and tetrahydrocannabinol was detected on the electronic scales. Mr Dolan voluntarily participated in an interview with police. Count 1, the trafficking charge was based solely on the admissions he subsequently made. The two glass pipes and small containers of cannabis belonged to others. He admitted that he used the scissors, grinder and scales to chop up the cannabis and package it for sale.

He has been smoking cannabis daily for about a year but he denied addiction to the drug. He sold cannabis a couple of times a day since he stopped work about six weeks earlier. He had about 20 customers. He made about $200 to $300 a week profit. He used the money for daily living expenses. Only $2,000 of the cash located by the police was related to the sale of cannabis and the remainder was his work termination pay and payment from a flatmate for rent and bills.

Mr Dolan was 23 years old at the time of the offence and 25 at sentence. He had no previous convictions. He was, however, placed on a good behaviour bond on 9 July 2007 for the offences of possessing utensils or pipes and possessing property suspected of having been used in connection with the commission of a drug offence. Those offences were part of the present offending.

The Prosecutor submitted that Mr Dolan's conduct left open a sentence of actual imprisonment, referring to R v Vellacot [1997] QCA 223; CA No 125 of 1997, 17 June 1997, and R v Gault [2006] QCA 316; CA No 212 of 2006, 28 August 2006. She did not submit that a period of actual custody was necessarily required.

Mr Smith made the following submissions at sentence. Mr Dolan made full admissions to the offences, without which there would have been no case to answer on the trafficking offence. He pleaded guilty at an early time after a committal which proceeded wholly by hand-up statements. He was still a young man. He had conquered learning difficulties at school to become a qualified motor mechanic. He had a sound work history despite two shoulder reconstructions and a serious work injury. He began smoking cannabis in year 10 and had used it regularly since. When he lost his job he fell into debt because of his drug use. He commenced to sell cannabis to service his drug debt. At the time of the offence he was living away from home. He had now returned home to his family and cut ties with his former associates. Since the offences, he was himself assaulted and the family car destroyed by fire in June 2007; inferentially by Mr Dolan's former drug associates. He was working with his father as a roof plumber. He had voluntarily undergone counselling. Whilst a custodial sentence was generally imposed for trafficking, this was not mandatory. In support of that submission, Mr Smith referred to four single judge decisions where actual custody was not imposed for offences of trafficking. He submitted that because of Mr Dolan's youth, extensive co-operation, guilty pleas, limited period of offending and efforts at rehabilitation, a non-custodial sentence should be imposed.

Mr Smith tendered a letter from Mr Dolan's parents and siblings. The letter referred to Mr Dolan's genuine remorse and rehabilitative efforts and confirmed that he had the love and support of his family. Other references to like effect were also tendered. The Director of Nursing at the Wesley Mission confirmed Mr Dolan had undertaken six weeks of voluntary counselling.

The report of clinical psychologist, Anette Renneflott, was also tendered. She stated the following facts and opinion. The offences appear to have occurred at a time when Mr Dolan's life was out of control from mixing with the wrong crowd and using illicit drugs. He said he had been "scared straight". He desired to reorder his life and had attended a drug diversion course which he felt was useful. He was working full-time in the family business and was no longer associating with a drug-taking crowd. A sentence which would enable him to remain in the community would be beneficial to his continued rehabilitation.

Mr Smith also tendered urine drug screens taken on 16, 23 and 27 November and 4 December 2007. These all showed an absence of cannabinoids and other illicit drugs, although the last test was positive only for sympathomimetic amines, apparently consistent with commercial medication purchased over the counter.

The learned sentencing judge referred to the commercial aspect of the trafficking and rightly acknowledged the dangerous effects of cannabis. Cannabis can seriously, psychologically and mentally affect susceptible users.

After referring in general terms to the authorities, including the single judge decisions relied on by defence counsel, the judge concluded that in all the circumstances he had no option but to impose an actual term of imprisonment.

The judge did not impose individual sentences on each count, but imposed a single sentence. The ground of appeal that contends that this was an error is correct: see R v Crofts [1998] QCA 60; [1999] 1 Qd R 386. It is unfortunate that neither counsel at sentence brought this matter to the judge's attention. It could at that time easily have been corrected. Counsel have an obligation to bring such matters to the judge's attention so that they can be corrected in a timely way. It would be an abuse of process for counsel to deliberately allow such an error to go by at sentence in order to create an appellable point. Of course, there was no suggestion in the present case that the omission was anything other than an oversight by both counsel.

Nevertheless, the judge's failure to impose individual sentences on each count was an error tainting the exercise of the sentencing discretion and requiring this Court to re-exercise the discretion now: see R v Crofts [1991] 1 Qd R 386 at 387.

I note that this was not a case where a further concurrent penalty on counts 2 and 3 could not be imposed because of the sentence to be imposed on count 1, for fear of offending the principle against double jeopardy: compare Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

Before re-exercising the sentencing discretion, it is useful to briefly discuss the cases of Vellacott and Gault, relied on by the respondent to this appeal and the prosecution at sentence. Vellacott pleaded guilty by ex officio indictment to trafficking in cannabis and to supplying and possessing cannabis. He was sentenced to two years imprisonment, suspended after nine months, with an operational period of three years. He applied for leave to appeal. He had sold cannabis from the beginning of 1996 and until late August that year, when he was apprehended - an eight month period.

He sold the drug on a weekly or fortnightly basis, to five or six customers to provide money for his wedding. He co-operated with the police and pleaded guilty. He was about 35 years old, had no prior convictions and a good work history. This Court noted that as a general rule an offence of trafficking in cannabis will call for a sentence of imprisonment.

Although Vellacott was in business in a small way, he had supplied the drug on at least 80 occasions. This Court concluded that the sentence imposed was within range and the application was refused.

Gault pleaded guilty to trafficking in cannabis over a six month period and to some related summary offences. He was sentenced to two and a half years imprisonment, suspended after six months, with an operational period of three years. He co-operated with the authorities. He had very poor health. He suffered from morbid obesity, sleep apnoea, deep vein thrombosis, pulmonary hypertension, asthma, severe lower back pain, recurrent sebaceous cysts and depression.

The trafficking was said to be comparatively small in scale. He outlaid $10,000 and made a profit of at least $2,500. He was found in possession of 426 grams of cannabis. He made detailed admissions to police without which he could not have been prosecuted successfully for trafficking. This Court noted that such co-operation was certainly deserving of special leniency referring to AB v The Queen [1999] HCA 46; (1999) 198 CLR 111.

Gault was aged 49 and had no relevant criminal history. He was caring for his elderly parents. Favourable character references were tendered. He had ceased using cannabis about a year before his offending because it exacerbated his emphysema. He used the profits from selling cannabis to meet medical expenses, including the costs of running his oxygen machine. The sentencing judge took into account Gault's severe medical problems and that these would make actual custody harsher than for a healthy person.

There was, however, no evidence led at sentence to the effect that adequate medical facilities were not available for Gault's needs whilst in custody. This Court concluded that the suspension of the sentence after six months, whilst not generous, was fair and within a sound exercise of discretion.

The four single judge decisions to which Mr Smith referred at sentence and again in this application, all involved offenders who were apparently aged between 19 and 21, slightly younger than the 23 year old Mr Dolan. Mr Dolan's offending was at the lower end of seriousness for the offence of trafficking. As the primary judge rightly recognised however, trafficking in cannabis is serious in itself. The deleterious effects of cannabis are a blight on the lives of many of our young people and create a burden on society. Cannabis is by no means a harmless drug. Those who suggest it is are perpetrators of a dangerous urban myth.

The offence of trafficking warranted a custodial sentence in the range of the two years imposed. There were, however, many mitigating factors in Mr Dolan's case, necessitating early or immediate parole release or suspension. Mr Dolan co-operated with the authorities and without his admissions he could not have been charged with the offence of trafficking. He should be given full credit for this in the sentence imposed.

He was 23 at the time of the offences and still a young man. He had no prior convictions and a good work history. Importantly, he had made genuine, sustained and commendable efforts at rehabilitation since committing these offences.

There was a real risk that his rehabilitation might be jeopardised by a custodial sentence, especially a lengthy one. He pleaded guilty at an early stage, after a full hand-up committal.

Gault and Vellacott were, in my view, more serious examples of trafficking than the present offence. Their trafficking was purely for commercial gain, whereas Mr Dolan was himself a heavy user of cannabis, so that his trafficking was at least directly linked to his cannabis use, although he was also trafficking for profit. Dolan's period of trafficking was also over a shorter time period than that of Gault and Vellacott and Dolan was considerably younger than both of them.

The experienced sentencing judge observed that there was no option but to impose an actual term of imprisonment in the present case. No doubt those observations were limited to the judge's view of the present case in light of the competing exacerbating and mitigating circumstances. But in my view, the many mitigating factors to which I have referred, despite the seriousness of the offence of trafficking in cannabis, means that I would conclude that the preferable sentencing option was to grant immediate or early release on parole, rather than suspension, so that Mr Dolan's rehabilitative attempts could continue under strict supervision in the community.

In re-exercising the sentencing discretion, this Court must also now take notice of the time Mr Dolan has served in custody, a period of almost three months. These combined mitigating factors, in my view, warrant an order for immediate release on parole, although the two year term of imprisonment is entirely appropriate.

I would grant the application for leave to appeal, allow the appeal, set aside the sentence imposed and instead order that the applicant be sentenced on count 1 to two years imprisonment and on each of counts 2 and 3 to three months imprisonment.

I would further order that the date he be released on parole be fixed at today, 5 March 2008.

FRASER JA: The applicant was convicted on his own plea of guilty of the three offences described in the President's reasons: trafficking in cannabis, possession of cannabis and possession of money suspected of being derived from the sale of cannabis. The sentenced imposed by the learned sentencing Judge was in the following terms:

"I sentence you to two years imprisonment with a suspension after four months of that period to reflect the matters in your favour which are greater, I think, than in some other cases. The operational period will be three years."

In R v Crofts [1998] QCA 60; [1999] 1 Qd R 386, this Court said at page 387,

"It is necessary to impose separate terms of imprisonment for each offence. The Judge below imposed one sentence (of imprisonment) for all offences.

In the circumstances the sentencing discretion miscarried and the Court should now sentence the appellant."

The Court re-exercised the sentencing discretion afresh.

Mr Martin, who appeared for the respondent, submitted that the sentence imposed by the learned sentencing Judge here should be construed as amounting to a sentence for the first and most serious account of trafficking in cannabis and that, implicitly, it should be taken that no further penalty was imposed in relation to the second and third counts.

Even assuming, which I very much doubt, the legitimacy of construing the sentencing remarks and then applying that construction to the sentence, I would reject the submission that the sentence can be construed in the way proposed on behalf of the respondent. In the sentencing remarks his Honour commenced by referring to all three offences.

In my opinion it is clear, unfortunately, that the learned sentencing Judge did impose one sentence of imprisonment for all offences, with the result that the sentencing discretion has miscarried. It follows that this Court is obliged to exercise the sentencing discretion afresh and that the applicant must be resentenced unless, in the separate and independent exercise of this Court's discretion, the Court concludes that no different sentence should be passed.

In my opinion the sentence of imprisonment which was imposed below was appropriate for the reasons given by the President. In my opinion it would not have been appropriate for the sentencing Judge to have ordered immediate release on parole. However, for the reasons given by the learned President, I would order early release on parole.

Subject only to those remarks, I agree with what the President has said in her reasons for that order; and I agree with the orders proposed by her Honour.

MULLINS J: I agree with the President and Justice Fraser that there was an error in the sentencing, in that the sentencing Judge did not specify which count the sentence of imprisonment related to or did not impose separate sentences of imprisonment on each of the counts. It is therefore necessary for the applicant to be resentenced.

The President has referred to all the relevant factors that need to be taken into account on this sentencing. It is a matter of balancing the seriousness of the trafficking, which involved sales of small quantities of cannabis sativa to about 20 customers per week, for a profit of $200 to $300 per week, with the mitigating factors.

In exercising the sentencing discretion, I have reached the same conclusion as the sentencing Judge, that actual custody of four months before the sentence of two years for trafficking is suspended, or the applicant released on parole is appropriate. I therefore agree with the orders of the President and Justice Fraser, except in relation to the resentencing. On the resentencing I would impose a sentence of two years imprisonment, suspended after four months, for an operational period of three years in respect of count 1 and a sentence of three months imprisonment in respect of each of counts 2 and 3.

THE PRESIDENT: The orders are as I proposed. Mr Dolan, do you understand, by a majority decision, your appeal has been allowed and the order is that the date you be released on parole be fixed at today?

THE PRESIDENT: You must understand, you must report to a probation and parole officer on the day of your release or the next business day, otherwise you would be in breach of your parole order.

THE PRESIDENT: All right then. Thank you, well that's the end of the matter you can hang up now.

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