R v Griffiths [2009] QCA 13

Director of Public Prosecutions (Queensland) for the respondents

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Muir JA.

[2] Having regard to the applicant's preservation of such a substantial quantity of the Schedule 1 drug methylamphetime, I do not consider that her personal circumstances, to which Muir JA refers, constrained the sentencing Judge not to require the applicant to serve a comparatively short term of actual incarceration. The need for general deterrence especially, justified the course taken by Her Honour, such that the penalty imposed should not in my view be regarded as manifestly excessive.

[4] MUIR JA: The applicant seeks leave to appeal against a sentence of 18 months imprisonment with a parole release date fixed at four months imposed in the Supreme Court after a plea of guilty for an offence of unlawful possession of methylamphetamine in a quantity exceeding two grams. The grounds of appeal are that: the sentence was manifestly excessive; insufficient weight was given to the circumstances of the applicant and to those of the offence; and too much weight was given to the activities of others and not enough to the applicant's fear and panic in explaining her actions.

[5] The applicant was born in April 1980 and was 26 at the time of the offence. She is the mother of two young children who, at the time of the offence, were being cared for by relatives. A psychologist, whose report was tendered at first instance, diagnosed the applicant as suffering from generalised anxiety and major depressive disorders. The psychologist was of the opinion that the applicant's " 'free floating anxiety' would compromise her ability to adaptively respond to the unexpected, such as finding a bag of drugs on her kitchen bench." She was of the opinion also that a custodial sentence would have a "profound" impact on the applicant, who would be at high risk of self harm and "complete systemic collapse" and "vulnerable to abuse and domination by others."

[6] The applicant was convicted in the District Court in January 2004 on counts of stealing, fraud, common assault, wilful damage, breach of bail conditions and leaving a hotel without payment. In 2005 and 2006 she had convictions for breach of probation orders and for breach of a community service order. In March 2007 she was convicted in the Magistrates Court of possession of dangerous drugs and of related possession offences. She was placed on a good behaviour bond and fined $150.

[7] On 20 February 2007 police officers, executing a search warrant at the house in which the applicant resided with her de facto spouse, asked if the applicant had anything to declare. She showed them a small quantity of cannabis and a water pipe. One of the police officers searched an area near the premises and located a plastic cylindrical container sealed with tape partially buried under a log. It contained 13 clip-seal bags, each weighing about 25 grams. The weight of all the matter in the bags was 335 grams and the total quantity of pure methylamphetamine was 53.371 grams. It was not disputed that the applicant had possession of a commercial quantity of the drug. Her thumb print was found on one of the bags.

[8] In an interview later on the day of the search, the applicant said that she had got up one morning to find bags on the kitchen bench containing a red substance which she believed to be "speed". She became angry with her de facto spouse, woke him up, and told him that there was "some shit" in the kitchen. When he ignored her, she put the materials in a plastic container, sealed it with tape and buried it in the place where it was located. She admitted telling her de facto what she had done.

[9] The street value of the drug was estimated to be in excess of $50,000. The learned Crown Prosecutor submitted at first instance that it was a reasonable inference that the drug had been brought into the premises by and belonged to the applicant's de facto spouse. It was explained on the applicant's behalf at first instance that when the applicant saw the drugs in the kitchen she panicked and removed them from the house, but didn't destroy them because of fear of reprisal from the owner of the drugs. She was afraid that she might share the fate of a woman whom she believed had been killed by drug dealers.

[10] It was submitted that the sentencing judge erred in the following respects; the judge's observation that it was "a critical element of this sentence" that the applicant was in possession of 53.37 grams of the drug disclosed that too much weight was given to the quantity of the drug and not enough to relevant circumstances, including the applicant's psychiatric condition; the severity of the sentence imposed demonstrated a failure to recognise that although there may have been a commercial quantity of the drug the applicant had no commercial purpose in her dealing with it and had no intention of possessing it; and moreover, the applicant was not aware of the actual quantity of the pure drug.

[11] There is nothing in the sentencing remarks which suggests that the sentencing judge did not act on the basis on which both prosecution and defence submissions were made, namely that the applicant had no intention of using the drug for a commercial purpose. She said, "I accept that there is not a submission from the Crown that you intended to use it, but you have facilitated the preservation of that commercial quantity of methylamphetamine, so it could be exploited by others." The statement was accurate.

[12] The applicant's counsel placed particular reliance on R v Tabe [2004] QCA 17 in which a 60 year old applicant with a reasonably extensive criminal history failed to obtain leave to appeal against a sentence of two years imprisonment imposed after a trial for possession of 13.845 grams of methylamphetamine. The applicant's 34 year old co-offender, who had no drug related convictions but some convictions for minor property offences, was sentenced to a 12 month intensive correction order after a plea of guilty. The co-offender's role, as the intermediary of the applicant, was to pick up the parcel containing the drug from the post office and give it to someone she met in a hotel. She thought the substance in the package was cannabis. The drug in Tabe was about one quarter of the weight of the drug in this case. The applicant was not shown to be aware of the true nature of the drug and the co-accused thought it was cannabis. It should be borne in mind also that the Court of Appeal was not required to consider the appropriateness of the sentence imposed on the co-accused.

[13] In R v Hesketh; ex parte A-G (Qld) [2004] QCA 116, Williams JA, with whose reasons the other members of the Court agreed, was of the view that "the broad range of imprisonment" for an offence of possession of methylamphetamine in a quantity of around 50 grams was from about two and a half to about four years. The applicant's sentence of 12 months imprisonment to be served by an intensive corrections order was set aside on appeal by the Attorney-General and a sentence of two and a half years imprisonment suspended after nine months was substituted. The applicant, who had pleaded guilty, was 39 at the time of the offence. She had four convictions for property offences, one conviction for supplying a dangerous drug and two convictions for possession. She was the sole carer of her five year old child and of her ill 75 year old mother. Significantly, there was held to be a commercial aspect to the applicant's possession. That is not the case with this applicant's possession. There were thus a number of features which, as the sentencing judge recognised, distinguished this case from Hesketh.

[14] In her sentencing remarks the learned primary judge placed emphasis on the large quantity of the drug, the nature of the drug, and the preservation of the drug by the applicant so that it was available for exploitation by others. She took into account the applicant's timely plea of guilty, her psychological condition and her co-operation, which did not extend to informing the police of the existence or location of the drug.

[15] The maximum penalty for the offence was 25 years. The quantity of the drug was large. The applicant's role in relation to the drug, although limited, went beyond that of passive awareness of the drug's presence. As the sentencing judge pointed out, the applicant took steps to preserve it and secreted it in a place from which it could be removed later. She informed the person, whom she understood to be its possessor, of its location.

[16] Whilst sympathising with the approach taken by the sentencing judge in her careful reasons, I have concluded, with some hesitation, that her Honour erred in failing to give any or any sufficient weight to:

(a) The fear of retribution or harm which motivated the applicant's precipitate actions in secreting the drug (which she came upon suddenly and unexpectedly) and which explained, at least in part, her failure to destroy the drug or inform the authorities of its existence;

(b) The influence of the applicant's psychiatric condition on her mental processes and actions;

(c) The absence of any intention to profit or any prospect of profit from possession of the drug;

(d) The unlikelihood of the applicant's re-offending, having regard to her terror of incarceration resulting from her psychiatric condition; and

(e) The likely mental and physical harm the applicant would suffer if incarcerated.

[17] These matters suggest to me that a sentence which does not include a term of actual custody will satisfy appropriately the requirements of personal and general deterrence.

[18] I would allow the application for leave to appeal and the appeal and order that the sentence under appeal be varied by substituting "11 November 2008", the date on which the applicant was granted bail, for "5 March 2009" as the applicant's parole release date.

[19] ATKINSON J: I agree with the reasons of Muir JA and with the orders proposed by his Honour.