Court of Appeal (Qld)|2000-05-08|Before: Murdo P, Pherson JA, Douglas J

The applicant was sentenced in respect of the possession of methylamphetamine with a circumstance of aggravation to eighteen months imprisonment, and in respect of the possession of a dangerous drug, cannabis, to three months imprisonment, concurrent with each other but cumulative upon an effective 11 month sentence imposed in the Bundaberg Magistrates Court on 18 June 1999 for other drug offences and for the breach of a suspended sentence.

The applicant, who is 25 years old, had an extensive drug-related criminal history commencing on 18 February 1993, with convictions and fines for possession of a dangerous drug and possession of a pipe. In October that year he was also convicted and sentenced to six months imprisonment and lesser concurrent sentences in respect of supplying a dangerous drug to another, possession of a thing used in connection with the commission of a crime, possession of a dangerous drug (cannabis), possession of a dangerous drug (amphetamine), and possession of a dangerous drug (lysergide). On 4 February 1994 he was sentenced to 80 hours community service for stealing. On 14 October 1994 he was sentenced to five months imprisonment, suspended for two years, for possession of a dangerous drug and to one month imprisonment, suspended for two years, for possession of a pipe.

He did not come to the attention of police again until late 1997, when he was convicted of two counts of possessing dangerous drugs and possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986. He was sentenced to a total of eight months imprisonment fully suspended for three years. In December 1998 he was given a fine option order in respect of a traffic offence but that order was revoked on 4 June 1999 as he had completed none of the 29 hours community service.

On 18 June 1999 he was convicted of possessing a dangerous drug, possession of property suspected of having been used in connection with a dangerous drug, breach of bail, possessing dangerous drug, breach of the earlier order to suspended sentence. He was ordered to serve the eight months suspended sentence and was, as has been mentioned, given, in effect, a three month cumulative sentence in respect of the other charges, making an effective 11 month sentence.

The facts of the offence the subject of this application, which only relates to the sentence of 18 months imposed for the possession of the methylamphetamine, are as follows. On 1 December 1998 the applicant was travelling alone in his car when he was pulled over by police. He threw a 46 gram bag of cannabis out of the car. In his glove box 2.8 grams of methylamphetamine was located, almost 50 per cent above the schedule 2 Drugs Misuse Act 1986 limit. The learned sentencing Judge noted in the course of argument that its high level of purity suggested it had not been cut and was very close in the chain to the producer. This was not disputed by the applicant. Empty Clipseal bags were also located in the car. When the applicant got out of the car his trousers were undone and they fell down. The applicant declined to be interviewed. He pleaded guilty, as has been mentioned, only after the trial had commenced and he had obtained an unfavourable ruling of law.

The Prosecutor submitted at sentence that the offence constituted a serious possession and warranted a sentence in the range of 18 months to two years imprisonment. The applicant's counsel, Mr Farrell, who appeared both at sentence and on this appeal, submitted that the applicant had gone to trial on the legal point only on his advice. The applicant did not dispute the facts.

The applicant is the sole carer of a little girl from a former relationship which ceased in 1996. Whilst the applicant has been in custody his 43 year old mother has been caring for the child. The applicant was a very small man and had had a "terrible time in prison" and lived in daily fear of being sexually assaulted.

The cannabis, it was submitted, was for the applicant's own use. This was not contested by the prosecution and was accepted by her Honour.

At sentence Mr Farrell submitted that the amphetamine was left in the glove box by a friend of the applicant. The friend had used some of it on his way to a party the day before. He had no intention of cutting the amphetamine or selling it as it did not belong to him. The prosecution submitted the amphetamines belonged to the applicant.

The applicant gave evidence consistent with his counsel's submissions. He named the owner of the amphetamines as Michael Nichols. He denied undoing his trousers to remove the methylamphetamine and place it in the glove box; his pants were tight so he kept the top button undone. If he had been seen to lean over towards the glove box it was only to rub marijuana fragments off the seat and carpet. He knew nothing about the Clipseal bags in the glove box but Michael often had Clipseal bags. He agreed that Clipseal bags are used to carry methylamphetamine. He declined during cross-examination to answer further questions in relation to some scales which were found in the car, claiming privilege.

Her Honour was satisfied that the methylamphetamine, which was of a very high purity and could require cutting, up to five times before use, did belong to the applicant and not to his friend. The Judge rejected the applicant's evidence. Her Honour was clearly entitled to make those findings on the evidence. Having found the applicant to be a discreditable witness, the fact that the methylamphetamine was found in the glove box of his car in those circumstances entitled her Honour to conclude the methylamphetamine belonged to the applicant. The applicant does not submit to the contrary.

Her Honour has expressed no view about the intended purpose of possession of this drug. The prosecution did not submit the drug was to be used for a commercial purpose. The applicant was sentenced on the basis that he was in possession of a quantity of high-grade methylamphetamine for his own use.

The applicant submits the sentence was manifestly excessive in the circumstances.

A cumulative sentence was appropriate in this case, which constituted a serious breach of a suspended sentence imposed for similar offences. In addition, the offence occurred whilst the applicant was on bail for similar offences. He has a significant prior criminal history for like offences and is now 25 years of age. As has been noted, he has been to prison on previous occasions for drug-related offences.

Although he pleaded guilty he does not have the additional benefit of an early plea of guilty or any particular remorse. Taking into account all these matters, the sentence was within the range, although perhaps at the higher end of it.

R v Pettigrew, 364 of 1995, delivered 4 October 1995. In that case, Pettigrew was sentenced to 18 months' imprisonment for possession of amphetamine and possession of money, which was cumulative upon other sentences he was then serving. The amount of methylamphetamine involved in that case was 3.368 grams. Pettigrew had a worse criminal history which included not only drug offences but also offences of dishonesty and violence.

In R v Kennedy, 23 of 2000, delivered 14 April 2000, Kennedy who was 28 years old was sentenced to 18 months' imprisonment in respect of possession of 7.147 grams of methylamphetamine. Kennedy had four prior convictions for drug-related offences but had not been sentenced in the past to a term of imprisonment. Like this applicant, he was a sole parent of a young child. He had a good employment history. The sentence of 18 months' imprisonment was not interfered with by this Court.

Whilst Kennedy involved a greater amount of methylamphetamine, this applicant had a worse criminal history with the particularly aggravating circumstances that the offence involved a breach of a suspended sentence and occurred whilst on bail, for like offences.

Those cases demonstrate that whilst this sentence was at the high end of the range, it was nevertheless within it and not manifestly excessive.

I should mention another matter before disposing of this application. Mr Farrell submitted that the learned sentencing Judge edited her sentencing remarks in a substantive way, implying that the effect of that was to render the grounds of appeal less cogent.

The practice in Queensland has long been for the Court Reporting Bureau not to issue unedited sentencing remarks without the permission of the sentencing Judge. Sentencing remarks, as with other extempore judgments, are routinely edited, not to change the substance of the reasoning in the decision but to tidy up the expression of those reasons, which is seldom as gracefully worded as a Judge might wish.

That practice is entirely proper: see the discussion of this topic in Judicial Ethics in Australia, the Honourable Justice Thomas AM, Second Edition LBC Information Services 1997 at pages 47 to 49.

Editing of sentencing remarks or extempore judgments generally is in a completely different category to the revising of a Judge's direction to the jury where it is essential that the appellant and the Appeal Court have access to the precise direction given by the Judge to the jury.

This Court was able to obtain from the State Reporting Bureau the uncorrected sentencing remarks made by her Honour. They demonstrate that there has been no substantive change to those sentencing remarks in their correction.

The complaint by Mr Farrell, once this was pointed out to him, was withdrawn. In the circumstances, it was a serious allegation which should not have been made so lightly. That matter in the end has no relevance to the outcome of this appeal which I have dealt with on its merits.

I would refuse the application for leave to appeal against sentence.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.

THE QUEEN v DONOVAN KIMBAL CHRISTIE [2000] QCA 165 (8 May 2000)

THE QUEEN v DONOVAN KIMBAL CHRISTIE [2000] QCA 165

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THE QUEEN v DONOVAN KIMBAL CHRISTIE [2000] QCA 165 (8 May 2000)