R v Ingram [1996] QCA 13

Court of Appeal (Qld)|1996-02-13|Before: Fitzgerald P, McPherson J, Mackenzie J

This is an application for leave to appeal against sentences imposed in the Magistrate's Court, Cairns. The applicant submits that the penalties imposed are manifestly excessive and that the Magistrate erred in recording convictions. The offences and penalties imposed are as follows:-

(a)possession of cannabis - fined $1020 (converted to 170 hours community service).

(c)producing a dangerous drug (cannabis) - fined $1020 (converted to 170 hours community service).

(e)possession of 2 pipes - 60 hours community service.

The last mentioned offence is a summary offence and cannot be dealt with in these proceedings. An appeal to the District Court is current in respect of it. After conversion of the fines to community service, the aggregate of community service is 460 hours.

The circumstances of the matter are that 3 days before her arrest the applicant won a trifecta of $1,400 at the TAB. With part of that sum she purchased 3 ounces of cannabis for her own use and broke it up into three packages of 1 ounce and some foils. The charge of possession of cannabis related to these items and the charge of producing the dangerous drug was based on the definition of "produce" in s.4 of the Drugs Misuse Act which includes "package". It was not suggested that the cannabis was other than for personal use. The LSD was one half tab said to be worth $15.

The applicant is a single mother with a 9 year old daughter. She receives supporting parents pension supplemented by income from part time casual work as a room attendant at a motel. She had also recently received a grant from the Australian Arts Council to start a musical group in Cairns. The prosecution was advised of pleas of guilty once a decision was taken not to proceed with a charge of supplying a dangerous drug. It was not suggested that the plea was not timely. She had no previous convictions.

It was conceded by counsel for the applicant that probation for the LSD charge was appropriate, but it was submitted that the penalties for the other offences were manifestly excessive, amounting in total to fines of $2,040 and 120 hours community service in the first instance and 460 hours community service when converted pursuant to fine option orders.

The court was referred to several authorities in connection with other aspects of the appeal.

However they provide examples of the level of penalty imposed in other cases. The fines imposed in the present case are significantly higher than any imposed in those authorities insofar as they are comparable. Further, the two offences for which fines were imposed are closely related. The mere act of repackaging the cannabis in respect of which the possession charge was laid led to the charge of producing the drug. Viewed in this way fines totalling $2,040 or 340 hours community service are manifestly excessive penalties. The penalty of 60 hours community service for possession of scales could not, standing alone, be said to be manifestly excessive, but when considered as a component of the total punishment imposed by way of community service, it leads to an excessive punishment for the conduct involved. In the circumstances, it is appropriate to make a single community service order of 80 hours duration in respect of all these offences (s.107(1) Penalties and Sentences Act).

It was further submitted that the recording of convictions was inappropriate in the circumstances. There is a well established practice that a conviction need not be recorded where the offender who has no previous convictions has committed minor cannabis offences. The issue in this case is whether similar consideration should be extended to this applicant where a small quantity of the hallucinogic drug LSD, a First Schedule drug, was found in her possession. In support of this argument it was submitted that drug convictions may impair her future prospects of travelling overseas with the musical group she intended to form. However this was put only in a general way, without the precision of the material relied on in Condoleon (1993) 69 A Crim R 573 and even lacking the degree of detail, which was criticised, of the material in Jennings v. Carrigan (CA No. 266 of 1994; 21/9/1994).

The Magistrate thought that it was appropriate to take into account the fact that, in addition to cannabis, the applicant had possession of the First Schedule drug LSD in deciding whether to record convictions. In our view it was not outside the bounds of a proper exercise of discretion for him to have recorded convictions on that basis, notwithstanding that the quantity was small. No reason has been demonstrated for disturbing that exercise of his discretion. We would order that leave be granted to appeal. In respect of the offences of possession of cannabis, producing the dangerous drug cannabis and possession of scales, the penalty imposed by the Magistrate be set aside and in lieu thereof, pursuant to s.107(1) of the Penalties and Sentences Act one order that the applicant perform 80 hours community service be substituted, and that in all other respects the appeal be dismissed.

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