R v Fullalove [1993] QCA 276

Court of Appeal (Qld)|1993-08-06|Before: Pincus J, Lee J

This application for leave to appeal against sentence raises the contention that the order made by the magistrate for the recording of a conviction has resulted in a sentence which is excessive. The argument for the applicant raised no objection to the further part of the sentencing order which placed the applicant on a $500.00 bond to be of good behaviour for two years.

The applicant had been charged with two offences under the Drugs Misuse Act 1986 alleged to have been committed towards the end of January and in early February, 1993 at Cairns in premises of which she was the tenant. The first charge, which was one of permitting the premises to be used for the commission of a crime, namely unlawful possession of a dangerous drug, was dismissed by the magistrate. This charge related to the alleged smoking of cannabis by some person at those premises in the course of a party given some days before the date which was alleged for the commission of the second offence. The second offence charged the applicant with unlawful possession of a dangerous drug, cannabis sativa and on that charge she was found guilty and sentenced in the way which has been indicated.

Police officers, with the authorisation of a warrant, entered and searched the premises on the day of the second offence and discovered two small amounts of cannabis in containers on two shelves of a cupboard in the kitchen. The quantities of cannabis were established as being 3.1 grams and 2 grams respectively. There were also some other items in the cupboard which could be regarded as connected with the cannabis or its use, a set of scales and packaging materials.

The version given by the applicant to the police and introduced into evidence at the hearing below was that the cannabis was not her property. The implication was that it had been brought into the flat by someone else. There had been the party with a number of guests in attendance a couple of nights previously and on the day on which the search was conducted there was another woman in residence in addition to the applicant.

The magistrate, in convicting the applicant of possession of the cannabis, relied upon the extent to which s. 57(c) of the Drugs Misuse Act 1986 placed an evidentiary onus upon her. On the charge of possession the subsection had the effect of conclusively establishing that the drug was in the appellant's possession unless she satisfied the magistrate that she neither knew nor had reason to suspect that the drug was on her premises. She failed to do this to the magistrate's satisfaction, but it is important to note that the sentencing did not proceed on the basis that the quantity of cannabis involved was her property.

The applicant was a forty-nine year old woman with no previous drug convictions. She did have two convictions for what were described as unlawfully taking shop goods away in 1985 and stealing in 1986. In each case she had been placed on a recognisance to be of good behaviour. It seems that she had also failed to pay some parking fines in New South Wales.

The applicant was apparently disabled and confined to a wheelchair but whether or not her condition would permanently call for restriction of her movement to that extent was not established.

The magistrate was told that the applicant's financial circumstances were not good and he seems to have proceeded on that basis because he said that he did not consider it appropriate to impose monetary penalties. He added that there was nothing in her past history to indicate that a custodial sentence was in any way appropriate. These conclusions left it open to the magistrate to proceed in some different fashion, choosing from a range of options available under the Penalties and Sentences Act 1992 without necessarily recording a conviction. Under that Act an order for imprisonment excludes the possibility of proceeding without recording a conviction (see s. 152) but, generally speaking, other sentences do not.

Having given the indications already referred to, the magistrate said that in the particular circumstances probation was not appropriate. This conclusion was clearly open to him because of the applicant's age and personal situation and perhaps other reasons but it seems clear that it was not based on some particular seriousness in the circumstances of the offence which he saw as precluding the possibility since, in the end, he released the applicant on her own recognisance to be of good behaviour for two years.

Because the magistrate ordered a two year good behaviour period, utilising s. 32 for this purpose, he had a statutory discretion to exercise in deciding whether or not to order that a conviction be recorded: see s. 29. The condition which he imposed was that she appear for sentence at some future sittings of the Court if called upon within a period fixed at two years. Since the magistrate selected a period of two years, i.e. a period not longer than three years, it follows that he could have made an order to the same effect under s. 19 of the Act, in which case it was mandatory that a conviction not be recorded: see s. 16.

The magistrate did not explain why he considered that he should proceed under s. 32 nor why he should exercise his discretion to record a conviction. It seems he was asked by the appellant's solicitor, although not in entirely clear words, to proceed without recording a conviction.

Section 12 of the Act where it is applicable, as here, confers a discretion whether or not to record a conviction and I am of the view that the circumstances pointed quite strongly against deciding to record a conviction.

The applicant had no previous drug convictions or any other significant criminal history; the quantities of cannabis involved were small and were not shown to be her property or to have been introduced into her premises by her, her possession resulting from the operation of a statutory presumption. As her solicitor indicated with some degree of understatement, a conviction for drugs would not help her at all. In any future employment or positions she might apply for or if she sought to rent premises whether for business or residential purposes, a drugs conviction could be expected to operate in the usual fashion to her disadvantage.

Section 12 says that all of the circumstances must be considered, including the particular matters which are specified in that section. It should be emphasised that the drug here was cannabis rather than another drug of graver import, the charge was one of possession only and her "social well-being" as well as perhaps her "economic well-being", for reasons already indicated, could be assumed to receive a set-back from a recorded conviction for possession of drugs. Her age, forty-nine, should not be regarded as disqualifying her from being sentenced without recording a conviction. Since her case could be so clearly and adequately dealt with without recording a conviction, I consider that this aspect of the order below should be regarded as excessively severe.

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.

I would grant the application and allow the appeal setting aside the order for recording a conviction and ordering in lieu that no conviction be recorded. I would further order that the sentence otherwise imposed should stand.

This is an application for leave to appeal against sentence. The applicant was convicted in the Magistrates Court of having unlawfully had in her possession a dangerous drug, namely cannabis sativa. A conviction was recorded and she was placed on a $500 two year good behaviour bond. It was argued on her behalf that no conviction should have been recorded.

The applicant is 49 years of age. The circumstances relating to the offence are ascertainable from the record in some detail, since she pleaded not guilty; it should be mentioned that on another charge, that of permitting premises to be used for the commission of a crime defined in s. 9 of the Drugs Misuse Act 1986, the Magistrate found the applicant not guilty. In respect of the charge of possession it was shown that a search warrant was executed at the applicant's residence, in the course of which a bowl containing cannabis and a bag containing cannabis were located. The applicant's case before the Magistrate was based on evidence of a police interview with her; it appears she neither gave nor called evidence. The allegation was that she had had a party and that the material in question must have been left behind by guests. In convicting the applicant the Magistrate relied upon s. 57(c) of the Drugs Misuse Act and the presumption created by that provision. His Worship was influenced by evasiveness which he detected in the applicant's answers to police questions, and found that the applicant had not proved that she neither knew nor had reason to suspect that the cannabis was on her premises. The amounts involved were small; according to the analyst's certificate (Exhibit 2) the plastic bag had about 2 grams of material and the bowl about 3 grams.

The applicant's criminal history consists in substance of three entries. In 1985 she was given a bond, having been found to have unlawfully taken goods away, in 1986 she was convicted of stealing and again given a bond, and in 1989 she was convicted of some offences relating to prostitution and fined. The Magistrate in his reasons referred to the fact that submissions were made as to her inability to move about, but that there was no evidence of that. During his submissions counsel described her as being confined to a wheel chair, but no other details of her condition were stated.

As appears from a number of decisions of this Court, young people with no previous convictions who are convicted of having small quantities of cannabis in their possession should not ordinarily have a conviction recorded. Decisions of lower Courts where convictions have been recorded in such circumstances have been upset, particularly if the convicted person is for some specific reason likely to be affected in his or her career or employment by such a conviction. Here, one has, in my opinion, the bare fact of the quantity of cannabis being small; the applicant is middle-aged; she has some convictions; there is no suggestion that the additional conviction would affect her economic prospects; there was no plea of guilty. It is my opinion that it is impossible to say that what the Magistrate did was beyond the scope of a proper exercise of discretion. It may well be that in some circumstances persons convicted of being in possession of small quantities of cannabis, who have previous convictions and are of mature age, should not have a conviction recorded against them. But it appears to me impossible to conclude that there was anything in the facts of the present case to compel the Magistrate not to record a conviction.

This is an application for leave to appeal against a sentence imposed on 29th April 1993 following pleas of not guilty and a summary trial in the Magistrates Court at Cairns on one charge that between 27th January 1993 and 30th January 1993 the appellant permitted a flat she occupied to be used for the commission of an offence against s. 9 of the Drugs Misuse Act 1986 viz. possession of cannabis sativa, and on one charge of unlawful possession of cannabis sativa on 2nd February 1993. She was found not guilty of the first charge but found guilty of possession of cannabis sativa. She was placed on a two year good behaviour bond pursuant to s. 32 of the Penalties and Sentences Act 1992 ("the Act") and, in accordance with the discretion conferred on the court by ss. 12, 29 a conviction was recorded.

The sole ground of appeal is that in recording the conviction, the Stipendiary Magistrate erred in the exercise of his discretion pursuant to s. 12 and that the sentence was therefore excessive in all of the circumstances. It was submitted that the offence was such that the appellant should have been dealt with under s. 19(1)(b) which would achieve the same result as under s. 32, save that because of s. 16, an order under s. 19 could only be made if the court does not record a conviction. In the alternative it was submitted that an order should have been made under ss. 31, 32, without a conviction being recorded.

On arrival by the police on the day of the search pursuant to a search warrant, viz. 2nd February 1993, the applicant was seated in a wheelchair in her bedroom. When asked did she have drugs on the premises, she said that she did not. The police located a bowl of cannabis and a small bag of cannabis and other items in a kitchen cupboard after the doors were opened. The quantity of cannabis was small, viz. 3.1 grams and 2 grams. The containers were in clear view once the doors were opened. The cannabis was located on top of containers of pills or tablets of some kind which belonged to the applicant. She told police she ordinarily used them daily. However, she also said in the record of interview that she was too ill with a bladder infection and had been confined to bed for about three days following her birthday party and had not spent much time in the kitchen since then. The birthday party provided the circumstances for the first charge which was dismissed.

When asked by the police about the cannabis in the kitchen cupboard, she told the police that the cannabis and other articles were not her property. She did not know who owned them but said that she had friends who stayed in her flat. There was another female staying in the flat at the time. The police did not search that woman's belongings, but only the kitchen of the flat.

The applicant had a birthday some three days earlier. After visiting four night clubs and other establishments in the evening, when she consumed a considerable quantity of alcoholic liquor, she returned to her flat with various people she brought with her from one or more of those establishments to continue partying into the early hours of the next day. Her allegation was that the cannabis and other utensils must have been left there without her knowledge by others who had attended the party. She was quite drunk during the evening. As indicated above, she was ill for about three days thereafter and substantially confined to bed.

It was submitted on her behalf before the Stipendiary Magistrate that the applicant did not have an easy life and that "certainly here's a case that a conviction for drugs isn't going to serve her at all". It was also said that her financial circumstances were not very good. A good behaviour bond was asked for. There is nothing in the record to indicate that the Stipendiary Magistrate's attention was directed to any particular sections of the relatively new Act, or whether he was specifically asked not to record a conviction. The above statement is equivocal.

The Stipendiary Magistrate said that there was nothing to show that the applicant was the user of drugs, quite the reverse, and that it may well be that her good nature had been prevailed upon in the circumstances, and having regard to her condition. This was probably a reference to her confinement to a wheelchair, although the evidence does not clearly establish the full nature or extent of her physical incapacity. His Worship also considered that there was nothing in her history to indicate that a custodial sentence was appropriate. He also concluded that neither a monetary penalty nor a probation order was appropriate in the circumstances. His Worship concluded:

".. have regard to your condition and the evidence before me. You will be convicted and a conviction will be recorded. But you will be released on your own recognizance in the sum of $500. That recognizance will be conditional that you appear for sentence if called upon within the next two years and in the meantime you are required to keep the peace and be of good behaviour."

The appellant is 49 years of age. She has no prior convictions under the Drugs Misuse Act 1986 or under similar legislation elsewhere. She was convicted in Cairns on 18th June 1985 for unlawfully taking shop goods away. On 24th July 1986 she was convicted of stealing. In each case she was released on entering into a recognizance of $200 conditioned to be of good behaviour for one year. The offences were obviously not of a very serious kind. Counsel for the Crown informed the court that a third conviction appearing on her criminal history sheet was overturned on appeal which means that she has only two relevant past convictions.

This court has on a number of occasions held that young persons with no prior convictions and who had been convicted of having small quantities of cannabis in their (actual) possession, should not in general have a conviction recorded. In some of the cases, there has been material or submissions placed before the court to show that such persons are or are likely to be prejudiced in obtaining employment or that a recorded conviction might have an effect upon their economic or social well-being, or in other respects such as in obtaining a travel visa. In other cases, the court has inferred the likely or possible prejudice over a long period by virtue of the young age of the offender.

Section 12, which confers the discretion whether or not to record a conviction, prescribes various matters to which a court must have regard. They include all of the circumstances of the case and the following:

the nature of the offence; and
the offender's character and age; and

the impact that recording a conviction will have on the offender's -

There is nothing to indicate that more weight should be given to any one of these factors over any of the other factors. Nor is the question of age limited to young people. Whilst employment generally refers to paid employment whether full or parttime, there seems to be no reason why it should not also apply to persons engaged in voluntary charitable work. Relative weight of various factors depends upon the facts of each case. All of the circumstances must be taken into account including the specific matters referred to.

The first matter for consideration is the nature of the offence. This appears from the evidence and the findings by the Stipendiary Magistrate. Whilst not adopting the submissions of counsel for the applicant that the offence was a trivial one, it was clearly not the most serious kind of possession based as it was on the statutory presumption against a person who was not a user of the drug and who might have been prevailed upon by any one of a number of casual visitors to her home when she was intoxicated. She simply did not discharge the onus of proving the matters in s. 57(c) which, if established, would have resulted in a not guilty verdict. She was not a person who was a user and in actual possession as in some cases which have resulted in no conviction being recorded. These factors indicate that weight should be given to the nature of this offence and the circumstances under which it was committed.

The next consideration is the offender's character and age. She was 49 years of age, a factor which does not disentitle her to a consideration of the matters referred to in the subsection. Matters which a court may consider in determining an offender's character are set out in s. 11 of the Act. Section 11(a) provides that the court may consider the number, seriousness, date, relevance and nature of any previous convictions of the offender. The material shows that these offences were of a minor nature, and not in any way relevant to this charge. There were no references as to her character. On the other hand, there was no evidence that she was otherwise of bad character.

As to the matters contained in s. 12(2)(c), whilst it is always desirable that some specific material be placed before the court addressing the matters contained therein, it may clearly be inferred that a recorded conviction for possession of a dangerous drug in a rented premises may well have a future impact on her economic and social well-being, and particularly on her reputation as a tenant and her ability of readily obtaining suitable rental premises in the future. A recorded conviction is a permanent mark against her character and may be used in various ways in the future.

Unfortunately nothing appears in the record as to her actual financial position or her status, i.e. whether she was a pensioner or otherwise, or whether she was in employment of any kind or had prospects of employment, either paid or voluntary in the future, or how she spent her time. Nor does the record provide any indication as to the nature or extent of her physical disability, although the Stipendiary Magistrate had the advantage of seeing her in court. These are aspects which should have been addressed in submissions before the Stipendiary Magistrate if the applicant intended to rely upon the impact of a recorded conviction on chances of finding employment, although the court has on occasions inferred that there could be an impact on chances of finding employment, in the absence of specific evidence on the point.

In my opinion, the nature of the offence, the offender's character and age, and the impact that recording a conviction will probably have on her economic or social well-being, were factors which, when taken together, should have resulted in a conviction not being recorded. It seems to me that the exercise of the discretion miscarried in this particular case.

This conclusion is in my opinion supported by the submission of counsel for the applicant that the same effect as the order actually imposed (apart from the recording of the conviction) could have been achieved by an order made under s. 19 which is only possible if a conviction is not recorded.

It may be observed that Division 1 of Part III of the Act, of which s. 19 is a part, replaced s. 657A of the Criminal Code which dealt with "trivial offences", although s. 18, unlike the former s. 657A of the Criminal Code, no longer refers to the trivial nature of the offence as one of the several matters to which the court must now have regard in deciding whether or not an order should be made pursuant to s. 19. Section 18 provides that before making an order under s. 19, the court must have regard to:

the offender's character, age, health and mental condition; and
the nature of the offence; and

circumstances (if any) under which the offence was committed that make the offence less serious than what it would be if it had been committed under other circumstances; and

anything else to which the court considers it proper to have regard.

Paragraphs. (a), (c) and (d) are substantially the same as the provisions in the former s. 657A of the Criminal Code but the fact that sub-para. (b) now simply refers to the nature of the offence rather than to the "trivial nature of the offence" as previously applied, indicates that the court is now given a broader discretion to act pursuant to s. 19. It seems to me that the matters referred to in paras. (a), (b) and (c) of s. 18 point strongly to the fact that an appropriate order in this case should have been made under s. 19 of the Act with the result that no conviction can then be recorded.

Whilst s. 12(5) does not justify the non-recording of a conviction, but deals with the consequences which may flow when a conviction is ordered not to be recorded, the fact that a conviction is not recorded may be disregard by a later court sentencing the applicant for a subsequent offence. Alternatively, the later court may take it into account. The appellant would therefore have an incentive not to commit offences of any kind in the future.

In my opinion, the application should be granted and the appeal allowed. The order recording the conviction should be set aside and in lieu thereof it should be ordered that there be no conviction recorded. The balance of the order should remain.

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