R v Holmes [2008] QCA 259

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where the applicant was convicted on his pleas of guilty of one count of possession of a dangerous drug, three counts of supplying a dangerous drug, and a summary count of possession of money suspected of being the proceeds of selling a dangerous drug - where the applicant was sentenced to 12 months imprisonment to be served by way of an intensive correction order - where the applicant was a youthful first time offender - where the applicant had several mitigating factors in his favour - where but for the applicant's confessions it was unlikely that he would have been charged with two of the supplying charges - where the applicant had demonstrated remorse, had undergone rehabilitation and had good prospects of continued rehabilitation - where the recording of a conviction may have posed a genuine threat to the applicant's future employment prospects - whether in the circumstances the sentence was manifestly excessive

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - ASSISTANCE TO AUTHORITIES AND CO-OPERATION - where the applicant's cooperation with the authorities significantly expanded the extent of his liabilities - whether the sentence imposed afforded the applicant sufficient leniency so as to reflect the extent of his cooperation

Penalties and Sentences Act 1992 (Qld), s 12, s 95

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, followed

R v Brown; ex parte Attorney-General of Queensland [1994] 2 Qd R 182; [1993] QCA 271, cited

R v Cay Gersch & Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited

R v Kennedy [2000] QCA 140, cited

R v Ndizeye [2006] QCA 537, cited

R v PW [2005] QCA 177, referred to

R v Richardson [1997] QCA 161, discussed

R v Sartori [2006] QCA 284, distinguished

R v Wallace [2008] QCA 135, cited

Director of Public Prosecutions (Queensland) for the respondent

**[1] MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

[2] FRASER JA: On 6 May 2008 the applicant was convicted on his own pleas of guilty of one count of possession of the dangerous drug known as MDMA or ecstasy, three counts of supplying that dangerous drug, and a summary count of possession of money suspected of being the proceeds of selling the drug.

[3] For each of the indictable offences the applicant was sentenced to 12 months imprisonment to be served by way of an intensive correction order. No further punishment was imposed for the summary offence. The applicant seeks leave to appeal against sentence.

[4] The offences came to light when, in the early hours of 17 March 2007 at the Calamvale Tavern, a complaint was made to a security officer that someone had become sick as a result of taking an ecstasy tablet sold by the applicant. The applicant was confronted by the security officer. The applicant first denied having sold drugs but then he produced a clip-seal bag containing four tablets. (An analyst's certificate subsequently established the nature of the drug but did not quantify it.) The applicant also admitted to the security officer that he had sold two or three tablets that night.

[5] When the police arrived the applicant initially claimed that the tablets in the

clip-seal bag were for his personal use and he denied selling any, but he then admitted in a recorded interview that he had bought seven tablets from someone at the Fringe Bar in Fortitude Valley for $30 each. He also admitted having sold one tablet to a female at the Calamvale Hotel (count 2), one tablet to a friend of his before setting out to that hotel (count 3) and two tablets to a friend the week before (count 4). The applicant sold the drugs for the same price that he had paid for them. He did not profit from the sales.

[6] The applicant told police that he had supplied the drugs because he was easily persuaded and had trouble saying no to people; he'd been using ecstasy for a few months; what he had done was stupid and he regretted it.

[7] There was a full hand-up committal hearing. Once the applicant was committed for trial he indicated that he would plead guilty. When the indictment was presented the matter was listed for sentence.

[8] The applicant is an apprentice electrician. He was 19 years of age when he committed these offences and 20 years of age when he was sentenced. He had no previous convictions. He had a good employment history. Very favourable references attested to his otherwise good character and conduct and his potential. The applicant's remorse was clearly expressed in a letter tendered at the hearing, which he prepared without assistance from his lawyers. He described himself as embarrassed and remorseful. He displayed insight into the dangerousness of using ecstasy and other drugs and the consequences of his offending for himself and others.

[9] Those references and a psychologist's report tendered at the sentence hearing demonstrated that the applicant was likely to have been vulnerable at the time of his offences as a result of the effect upon him of recent traumatic events in his life: his mother's diagnosis with Lymphoma, the death of a close neighbour, the earlier death of a close school friend, and the failure of a business in which the applicant worked as an apprentice. By the time of the sentence hearing, the applicant's mother was in remission from her cancer. His family, with whom he was living, was very supportive. The applicant had not used any drug since the offences. He had continued working in his apprenticeship, which he hoped to complete in June this year. The applicant wished to pursue a plan he had developed with a friend of furthering his career as an electrician by registering a company under the Queensland Building Services Authority Act 1991 (Qld) for that purpose once the applicant had completed his apprenticeship.

[10] The prosecutor submitted that a sentence of imprisonment in the order of 12 months was appropriate and that because the applicant was a youthful first offender that might be ordered to be served by way of an intensive correction order.

[11] It was submitted for the applicant that an appropriate sentence was probation or community service, or both, with no conviction recorded. In that respect it was submitted that the recording of a conviction (which inevitably must accompany an intensive correction order) might adversely affect the applicant's planned future career as an electrician, because that required him to obtain a supervisor's licence under the Queensland Building Services Authority Act 1991 (Qld). That submission was supported by reference to the relevant statutory provision and by reference to the application form, which enquired whether there had been any convictions in the last 10 years.

[12] The sentencing judge referred to the circumstances of the offences which I have summarised. He referred also to the known dangers of ecstasy tablets, the common misconception that it is simply a "party drug" which can be taken without fear of ill-effects, and that there were documented cases of people dying and becoming seriously ill from taking ecstasy.

[13] The sentencing judge also referred to "a lot of mitigating circumstances" in the applicant's favour: the applicant's cooperation with the authorities, his early pleas, his young age, the absence of any previous convictions, and his good employment history. The judge observed that a number of favourable references "speak well of your potential". The applicant was genuinely remorseful for his offending.

[14] In rejecting the submission that no convictions should be recorded, the sentencing judge referred to the following matters: it was not known how important the recording of a conviction would be in the context of the proposed application to the Queensland Building Services Authority; supplying the drug made it a much more serious business than simply possessing it - supplying it risked damaging others in a way that was much more heinous; and it was necessary to mark the community's disapproval of that conduct, particularly in hotels or at dance parties.

[15] The applicant contends that the sentences were manifestly excessive, particularly because a term of imprisonment was imposed. The applicant's counsel submitted that in the particular circumstances of this case, probation or community service should have been ordered and no convictions should have been recorded.

[16] The applicant's counsel cited a number of cases in which sentencing judges did not record convictions for offences involving the supply of dangerous drugs, including schedule 1 drugs. (Although MDMA is now a schedule 1 drug, it was a schedule 2 drug at the time of the applicant's offending.) The respondent's counsel cited cases in which offenders with no or limited criminal histories and favourable mitigating circumstances were sentenced to intensive correction orders, or partially suspended sentences, for possession of this drug for commercial purposes and even for merely personal use. The respondent's counsel also referred to R v Sartori [2006] QCA 284, but that was a much more serious case: it is not of assistance here.

[17] It was not submitted that the circumstances in any of those decisions were especially similar to those here or that any relevant sentencing pattern emerges from them. It is not necessary to analyse those decisions. The sentencing options in particular cases of this character no doubt include a variety of sentences, including sentences similar to those made here and more lenient sentences.

[18] The applicant's counsel submits that convictions did not necessarily have to be recorded, particularly because the drug involved was a schedule 2 drug, the applicant was a very young man with no previous convictions, and the offences were out of character for him. That submission is supported by R v Cay Gersch & Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, but whether or not there was any error in the sentencing judge's discretion is of course a different question.

[19] The applicant's counsel also relied upon R v Richardson [1997] QCA 161. Richardson pleaded guilty to possessing and supplying cannabis and to possessing and supplying amphetamine. He had supplied cannabis and amphetamines to his workmates for some five months in exchange for free cannabis and amphetamines for his own use. A magistrate recorded convictions and sentenced the offender to imprisonment for six months to be suspended after two months with an operative period of two years. This Court allowed an appeal and instead imposed an order that the offender perform community service of 160 hours, that he be placed on probation for a period of 12 months, and that no convictions be recorded.

[20] The Court there took into account many mitigating factors similar to those upon which the applicant relies: admissions to police, effect upon career, good work history, lack of previous convictions, that it was not shown that the applicant had introduced anyone to the drug, absence of financial reward, an early plea of guilty, and the fact that if convictions were not recorded Richardson might be permitted to remain in the navy where he had served for six years, but if the record stood he inevitably would be discharged from the navy.

[21] The respondent referred to the statement in R v Kennedy [2000] QCA 140 that Richardson involved an appeal from a sentence imposed in the Magistrates Court where the maximum penalty was imprisonment for two years, but that point does not seem to have been important in Richardson itself. Richardson volunteered his offending to police after a search had failed to find any incriminating evidence. That is not the case here, but on the other hand Richardson's offending was much more extensive than that of the applicant, who also volunteered admissions. Richardson's naming of his supplier was significant and stood very much to his credit, whereas it is not suggested that the applicant named his supplier; but then the record does not reveal whether or not he was asked or able to do so. Although there are those points of distinction, Richardson is a comparable decision.

[22] The 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. Nevertheless, a sentence as lenient as that contended for by the applicant was within the sentencing discretion in the unusual circumstances of this case.

[23] Whether or not there was any error in the exercise of the sentencing discretion such as to justify this Court in re-sentencing the applicant is a different question. The applicant's counsel, however, submitted that the sentencing judge failed to afford the necessary significance to the circumstance that counts 3 and 4 were founded on the applicant's voluntary confession of offences that were otherwise unknown to the authorities. The principle invoked is that an offender who confesses to crimes not known to the authorities should generally be treated even more leniently than an offender who confesses to crimes known to the authorities: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46.

[24] The applicant was entitled to a degree of consideration which adequately recognised that his cooperation significantly expanded the extent of his liabilities: R v Wallace [2008] QCA 135, at p 5. The sentencing judge did refer to the applicant's cooperation with the authorities. His Honour said that "you cooperated in an interview with police at the time and admitted buying and selling the drug on occasions other than that for which you had been apprehended". Later, after referring to the applicant's letter, the sentencing judge said that he accepted that the applicant was genuinely remorseful. However his Honour did not advert to the significant fact that the applicant's admissions brought to light offences for which he was sentenced that otherwise would likely never have been discovered.

[25] In R v PW [2005] QCA 177, an offender similarly volunteered that he had engaged in other offences not known to police. The sentencing judge there also expressly took into account the applicant's cooperation with the administration of justice. Although the facts of that case otherwise bear no resemblance to the facts here, the following passage in the judgment of Keane JA is apposite:**

"In this case there was an unusually high level of co-operation on the applicant's part with the authorities, including his voluntary disclosure. That is indicative of real remorse and justifies the view that the applicant has shown a determination to control his behaviour. His co-operation involving his voluntary disclosures is relevant, not merely to the moderating of the sentence which is otherwise appropriate, because of the savings to the administration of justice, but also to the importance of the consideration of deterrence rather than the prospects of rehabilitation.

In AB v The Queen [1999] HCA 46 at [113]; [1999] HCA 46; (1999) 198 CLR 111 at 155, Justice Hayne said:

"An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known. Leniency is extended to both offenders for various reasons. By confessing, an offender may exhibit remorse or contrition. An offender who pleads guilty saves the community the cost of a trial. In some kinds of case, particularly offences involving young persons, the offender's plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished. And the offender who confesses to what was an unknown crime may properly be said to merit special leniency. That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of guilt; such a confession will often be seen as exhibiting remorse and contrition."

**[26] The learned sentencing judge did not recognise the dual relevance of the applicant's special cooperation with the authorities and the special leniency which that level of cooperation is said to merit. His voluntary confession is a compelling indication that special leniency in the interests of what appear to be substantial prospects of rehabilitation is called for in this case. In my opinion, while some weight was afforded to the cooperation shown, his Honour erred in failing to appreciate the dual relevance of the applicant's cooperation with the authorities.

[27] Bearing that in mind in the context of the other matters favourable to the applicant discussed earlier, in my respectful opinion the sentence imposed here did not sufficiently recognise the importance of the applicant's voluntary admissions of two of the three most serious offences for which he was sentenced, particularly in relation to the importance of rehabilitation as opposed to deterrence. I conclude that the applicant has made out his contention that the sentencing judge erred by not affording that "special leniency" which the applicant's level of cooperation with the authorities merited.

[28] It is therefore necessary for this Court to exercise the sentencing discretion afresh.

[29] Having regard to the mitigating circumstances discussed above, I would accept the submission for the applicant that probation, rather than a term of imprisonment, is an appropriate response to the applicant's offending. The applicant has now served some three months of the intensive correction order. Taking that into account, I would accept the submission made on his behalf that the appropriate sentence is one of two years probation.

[30] If such an order is made, this Court must also consider whether or not it should exercise the discretion to order that no convictions be recorded. For that purpose, s 12(2) of the Penalties and Sentences Act 1992 (Qld) requires reference to all the circumstances, expressly including the nature of the offence, the offender's character and age, and the impact that recording a conviction will have on the offender's economic or social wellbeing or chances of finding employment. All of these features must be considered with no bias in favour of any of them, although the particular circumstances might lead to one or other in fact having greater weight: R v Brown; ex parte Attorney-General of Queensland [1993] QCA 271; [1994] 2 Qd R 182 at 185; [1993] QCA 271, R v Briese; ex parte Attorney-General of Queensland [1997] QCA 10; [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467 at [40].

[31] In light of the applicant's plan to further his career as an electrician, the view is open that recording a conviction will impact on the applicant's "chances" of finding employment within the meaning of s 12(2), because the evidence shows that a recorded conviction might count against him in his necessary application for a supervisor's licence: see the discussion in R v Ndizeye [2006] QCA 537 at [16] - [19], per Jerrard JA. On the evidence here, that would be inappropriate. It is to be avoided in the interests of the applicant's rehabilitation, a factor which has particular significance here for the reasons given earlier.

[32] As the sentencing judge observed, supplying the drug is a much more serious business than simply possessing it. The relevance of this consideration is emphasised by the fact that the applicant engaged in that offensive conduct on three separate occasions. Furthermore, even where personal deterrence is not significant, general deterrence remains a significant consideration for offending of this character.

[33] On the other hand, the offending occurred over a quite brief time span, it seems likely to have been contributed to, at least in part, by the effect upon the applicant of the traumatic events identified earlier, it was out of character, the applicant did not profit by his offences, he cooperated with the authorities, he admitted offences that otherwise probably would not have come to light, and he very quickly demonstrated his remorse and his determination to rehabilitate himself.

[34] On balance, I consider that it is appropriate to order that no convictions be recorded.

1. That the application for leave to appeal against sentence be granted.

2. That the appeal be allowed and the orders made below be set aside.

3. That in their stead and subject to the applicant agreeing to the order being made after the explanation to him required by s 95 of the Penalties and Sentences Act 1992 (Qld):

(a) The applicant be sentenced to probation for two years, such order to contain the conditions in s 93 of that Act.

(b) The applicant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge.

[36] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with the reasons of his Honour and with the proposed orders.