Russell v The Commissioner of Police [2016] QDC 102

"If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate."

Section 225, subsection (1) of the Justices Act provides that:

"On the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just."

[3] In Teelow v The Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, Muir JA held at [4]:

"It is a normal attribute of an appeal by way of rehearing that 'the powers of the appellate Court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.'"

[4] Section 223, subsection (1) of the Justices Act provides that the appeal is to be by way of rehearing on the evidence, given in the proceedings below.

[5] The appellant submits the fine imposed was manifestly excessive. He submits he never handled, sold or distributed cannabis and had no criminal history. He fully cooperated with the Police. He submits the fine ought be somewhere in the range of $300 to $500, although did not challenge the proposition that $1,000 was within the range today.

[6] The respondent submits the fine imposed was not manifestly excessive and was within sentencing discretion. It submits the maximum penalty which might have been imposed was three years' imprisonment, and the maximum fine was $11,780. It is further submitted it can be inferred the magistrate took into account the plea of guilty by the non-recording of a conviction and, further, even though there may have been an error in failing to take into account s 48 of the Penalties and Sentences Act, it might be considered the reference to SPER sufficiently deals with that point.

[7] In this case, the appellant had no criminal history. The Police, in November 2013, commenced Operation Lima Quiz, which targeted drug traffickers in Airlie Beach and the Whitsunday area. During the deployment, a Covert Police Officer made contact with a number of persons of interest, purchased drugs from those persons and had meetings with persons of interest to identify further targets. A controlled operation commenced in July 2014. There were telephone intercepts of Leon Craymore's phone, who was a significant drug trafficker. A number of customers were in contact with him.

[8] There were 32 calls of interest between the appellant and Craymore. It was alleged by the Prosecution that in those calls there was an arrangement made to source drugs. That was challenged by the defence solicitor in her submissions. She submitted that the only involvement with drugs was the last occasion. The magistrate did not resolve that dispute. He should have. I think an error occurred there. An inference most favourable to the defence ought to have been drawn. In any event, the charge pleaded that the offence occurred on the 25 January 2015.

[9] Turning to that call, there was an intercept which evidenced the appellant contacting Craymore, telling him he did not want any more, but he had a few mates who probably would want to get some. That call would tend to indicate perhaps one other call, at least, concerning drugs if that was to be accepted. Craymore said he could come over in the afternoon or tomorrow. The appellant agreed for Craymore to supply his mates at 6 pm that night, but he would not be there and mentioned his uncle was looking after something.

[10] It was clear the appellant was arranging for the supply of cannabis to his mates, and Craymore agreed to supply it. The gravamen of the offence was him arranging to get some cannabis for some friends. It's not clear whether that was ultimately supplied. On the 11 August 2015, the appellant attended the Whitsunday Police Station and told Police he believed the call was from when he met a group of backpackers who asked for cannabis, and he rang Craymore because he knew he could supply it. He was fully cooperative with the Police.

[11] The defence solicitor informed the magistrate the appellant was 35 and from the local area. He was a qualified chef. He did four years at TAFE. He worked overseas and came back to Australia. He was very dedicated to the job and was proactive in getting work. He'd worked on the Gold Coast for a while and went to work in the mines. He was in a relationship and lived in a stable environment. There was a period in his life where he used cannabis and struggled with it, but was off drugs at the time. The cannabis was not for him. It was for another party. There was no commercial gain for him. He knew Craymore through his school. The contact previously was not all to do with drugs, because they used to go jet skiing together.

[12] The appellant was very cooperative with the police and attended the police station when asked. There was a very early plea of guilty. There was absolutely no history of drug charges. He'd overcome his drug problems and was looking forward to being productive in the next few years. Good character references were tendered, which showed the offence was out of character. It was submitted in light of the very early plea of guilty no conviction should be recorded. No quantum of fine was submitted for. Perhaps it should have been.

[13] The Magistrate noted the appellant was a person of good character, that he'd been mixed up in drugs and, hopefully, he was out of it now. He said the charge of supplying drugs normally resulted in a term of imprisonment, but he had no previous convictions, cooperated with the police and there was no monetary gain to himself. He arranged for drugs to be supplied to friends. In view of his lack of previous charges, full cooperation and the circumstances of how the offence arose, a prison term would not be imposed, but a substantial fine of $2,400 was imposed without the recording of a conviction. This fine was referred to SPER.

[14] Section 13 of the Penalties and Sentences Act requires a plea of guilty to be taken into account. The Magistrate made no specific reference to the plea of guilty. On the other hand, by reference to R v Safi [2015] QCA 13, the Crown submits it can be readily inferred the magistrate took it into account, particularly bearing in mind no conviction was recorded. In the circumstances, I'm not satisfied that the Magistrate failed to take it into account. He should have referred to it in his sentencing remarks, but I think it can be inferred he did take it into account.

[15] The second error alleged relates to the finding concerning the phone calls. As I said earlier, findings should have been made in that regard, although perhaps the error there is immaterial in the sense that even though the appellant's solicitor submitted none of the previous phone calls were to do with drugs, at one stage of her submissions earlier, she said that not all of the calls were to do with drugs, and, indeed, the prosecution had submitted that in the final phone call, the appellant said he did not want any more.

[16] So in my view, any error in that regard could be regarded as immaterial, but at the least, I think it can be said that many of these other phone calls did not necessarily involve discussions concerning drugs.

[17] Finally is the s 48 issue. Section 48 of the Penalties and Sentences Act requires the Court, when deciding to fine an offender, to take into account as far as practicable:

"...the financial circumstances of the offender and the nature of the burden that payment of the fine will be on the offender."

[18] In my respectful view, the magistrate failed to take into account those matters. In my view, there has been an error which is not immaterial, and in those circumstances, I consider there should be a resentencing here.

[19] Turning to the comparable decisions, in R v McNee, Jones J, 3 December 2009, an offender was fined $3,500 for the supply and possession of cannabis. He acted as the courier for the supply of cannabis and was intercepted in possession of 2.27kg of cannabis. I consider that case to be more serious than the instant one. In R v Lumsden, Lyons, J, 23 February 2009, the offender was sentenced to a fine of $2,400 for the supply of a Schedule 1 drug without a conviction being recorded. I consider that to be more serious than the instant case.

[20] In Hurley v Elliott [2006] QCA 165, the appellant was convicted of possessing cannabis, possessing a water pipe, possessing scales and possessing property obtained from supplying a drug, i.e. $52.80. He was fined $2,000. Bags of cannabis were found together with a water pipe, cash and scales. In that case, he had a number of prior convictions, with fines of up to $1,500 imposed. I consider that case to be more serious than the instant one.

[21] In R v Meid [2006] QCA 124, the appellant was fined $1,100 for one count of possessing cannabis in excess of 500g, three counts of supplying cannabis and one count of possession of a pipe. It was accepted she grew cannabis for her own use in Victoria and brought 586g to Queensland and shared it with others. I consider that case to be more serious than the instant case.

[22] In Dixon & Jones v Irvine [1995] QCA 71, total fines of $1,300 but no convictions were imposed on a man who pleaded guilty to producing cannabis, possessing the drug and possessing a pipe. He was 53 without criminal convictions. There were 23 plants involved. I consider that more serious than the instant case.

[23] I do bear in mind, of course, that some of those cases are relatively dated. Taking into account the plea of guilty and reducing the sentence because of that, taking into account the matters mentioned in s 9, subsection (1) and subsection (2) of the Penalties and Sentences Act, taking into account the submissions and bearing in mind the good prospects of rehabilitation for the appellant, in my opinion, the appropriate penalty in this case is a fine of $1,000.

[24] I particularly note this matter was a case of arranging the supply of a Schedule 2 drug to others without commercial gain, in which it was unclear whether there was an actual supply. I also consider that the magistrate erred in determining that usually prison would be imposed. I think that statement fettered his discretion somewhat.

[25] In the circumstances, therefore, my orders are:

2. The sentence imposed in the Magistrates Court of Proserpine is varied to the extent that the fine of $2,500 is set aside and, in lieu thereof, a fine of $1,000 is imposed.