Collishaw v Commissioner of Police [2016] QDC 257

DISTRICT COURT OF QUEENSLAND CITATION: Collishaw v Commissioner of Police [2016] QDC 257 PARTIES: AARON STEPHEN COLLISHAW (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 3/16 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: District Court at Maryborough DELIVERED ON: Ex tempore reasons given 9 September 2016 DELIVERED AT: Maryborough HEARING DATE: 9 September 2016 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed. 2. The sentence imposed in respect of the possession of dangerous drugs is set aside. 3. In lieu thereof I order that a conviction be recorded and the appellant be released under the supervision of an authorised corrective services officer for a period of 12 months and he must comply with the requirements of section 93(1) of the Penalties and Sentences Act 1992 (Q) and report by 5pm Monday 12 September 2016 to an authorised corrective services officer at Gympie. 4. The appeal is otherwise dismissed. CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – Possession of cannabis in excess of 500 grams- personal use- no commerciality alleged- no previous drug convictions- whether magistrate erred in imposing suspended sentence – whether sentence manifestly excessive. Justices Act 1886 (Q) ss 222, 223 R v Crook [2012] QCA 305 R v Doraho [2011] QCA 29 -- 1 of 7 -- 2 R v Holmes [2008] QCA 259 R v Jackson [2011] QCA 103 R v Lyle [2013] QCA 293 R v Meid [2006] QCA 124 R v Pratt [2008] QCA 402 Teelow v The Commissioner of Police [2009] 2 Qd R 489 COUNSEL: Mr J Willett for the appellant Mr G Webber for the respondent SOLICITORS: Suthers Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent HIS HONOUR: This is an appeal against the sentences imposed in the Magistrates Court at Maryborough on 23 February 2016. The appeal is pursuant to section 222 of the Justices Act 1886. Section 222(2)(c) of the Justices Act provides that where a defendant pleads guilty, then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate. Section 223(1) provides the appeal is to be by 5 way of rehearing on the evidence given in the proceedings before the justices. Although, with leave, further evidence may be tendered, as happened here. In Teelow v The Commissioner of Police [2009] 2 Qd R 489, it was held that, ordinarily, in an appeal by way of rehearing, it is necessary for the appellant to show that the order is the result of some legal, factual or discretionary error. 10 The appellant pleaded guilty to the following charges: (1) on 21 December 2015 at Araluen, Queensland, he unlawfully had possession of a dangerous drug, namely, cannabis, which exceeded the quantity specified in the schedule; (2) on 21 December 2015 at Araluen, he unlawfully had in his possession various things used in connection with the smoking of a 15 dangerous drug. He was convicted of each offence. On the possession of cannabis count, he was imprisoned for six months. This was suspended forthwith for an operational period of two years. He was fined the sum of $750 with respect to the other charge. 20 The Court was informed that a search warrant was executed on 21 December 2015 at the location where the defendant was living. He declared to the police he had about a pound of cannabis in the back room. They went there and found 454 grams of cannabis, another clip- seal bag with 29 grams, a plastic container with a clip-seal bag and a further 20 grams of 25 cannabis, and set of scales. A RezBlock dripper was also located. There were a large number of clip-seal bags also found in a cabinet, and a glass jar with five grams of finely powdered cannabis, and six grams scattered across a bar. There was a grinder, scales, a glass bowl, a glass water pipe and a pair of scissors. 30 He underwent an interview and made admissions at the Gympie Police Station. He said the cannabis was his and he smoked it every day. Rather than buying in small amounts, he bought a pound at a time which lasted him for some months. In relation to the smaller bags, they were left over from the cannabis he’d last bought. The powdered cannabis was used -- 2 of 7 -- 3 as it provided a greater high for him, and the six grams of cannabis on the bench was from leaf. The total weight was 514 grams. His criminal history was tendered. Now, the criminal history revealed that, in 2008, he had committed a public nuisance. No conviction was recorded and a fine of $100 was imposed. 5 In 2010, common assault, no conviction, $750 with $500 compensation. 2011, Gympie Magistrates Court, stealing, unlawful damage – $400, no conviction, restitution $85. The history also notes he was born on the 13 June 1990, thus, was 25 at the time of offending, and presently is 26. So it is fair to say that he had no previous drug convictions or any previously recorded convictions. His last offending occurred almost five years prior to the 10 present offences. The appellant’s solicitor tendered three references. I’ve had regard to exhibit 6. The Beds R Us reference states he was a very hard working, reliable worker and the referee was aware of the charges he was facing. There was an appointment made to go and see AODS. There 15 was a letter from Grace Smith who was in a permanent relationship with Aaron, stating that she was aware of the charges. When she first met him, he had no motivation, but there’d been a significant change over the period of his relationship. He has a licence, they had travelled overseas, they had lived in their current residence for two years, and they were saving for a house deposit. He’d made great efforts to combat his addiction to marijuana, 20 including attending and self-admitting himself to drug counselling and wanted to stop his smoking. The appellant’s solicitor submitted that the police had elected to deal with the matter summarily and no commerciality was alleged. He was educated to year 10 at Gympie. He 25 worked for Gympie Sand and Gravel then obtained a truck licence and worked there for three years, doing landscaping. He then worked at Nolan Meats at Gympie as a slaughterman, and then for a trawling business and then at his current job. So he had a good work history. He was in a long-term relationship with Ms Smith. They had plans to buy a property and of starting a family in the future. He knew he should not continue to smoke 30 cannabis. He started at the age of 16, having been introduced to the drug by his peers at school. He was taking steps to curb his addiction. It was submitted the history was dated and there were no like offences. It was an early plea. Some comparable decisions were referred to and it was ultimately submitted that a large monetary penalty should be imposed. 35 The Magistrate took into account the pleas of guilty and the fact they were early pleas. He took into account the nature and seriousness of the offence, the age and personal circumstances and the references. He mentioned the appointment. He took into account the Penalties and Sentences Act. Ultimately, he made an order for imprisonment and fully suspended it. 40 The appellant submits that the penalty here was manifestly excessive. It is submitted the Magistrate failed to give adequate weight to the mitigating circumstances in the plea of guilty. It is also submitted that the comparable decisions would lead onto the conclusion that the penalty is manifestly excessive. 45 The respondent, on the other hand, concedes that it might be thought the penalty is a high one, but ultimately relies on statements of principle in R v Jackson [2011] QCA 103. Even if the Court thinks it is high, that is not sufficient. It is submitted it is not manifestly excessive and the appeal should be dismissed. 50 -- 3 of 7 -- 4 I should also add, for completeness now, that without objection, I did receive an affidavit – exhibit 7 – which shows that the appellant has a clear urine test result dated 29 August 2016 which tends to corroborate the contentions made in the material that he wished to stay off the cannabis. 5 Now, I’ve considered the comparable decisions relied upon. I need to do that to determine whether the sentence was manifestly excessive. In R v Holmes [2008] QCA 259, the appellant pleaded guilty to one count of possessing MDMA, three counts of supplying MDMA and possessing money suspected to be the proceeds of selling drugs. The offences came to light at the Calamvale Tavern when a complaint was made to a security officer that 10 someone had become sick as a result of taking an ecstasy tablet. He was confronted. He denied having sold the drugs but then produced a bag with four tablets. He admitted to security officers that he had sold two or three tablets that night. He was interviewed by police and told police that the tablets in the bag were for his personal 15 use and denied selling any, but later admitted he’d bought seven tablets at the Fringe Bar for $30. He’d sold on of those to a female at the hotel, one tablet to a friend before going out and two tablets to a friend the week before. He did not profit from the sales. It was an early plea of guilty. He was 20. There were no previous convictions. He had a good employment history. A psychologist report was tendered. The Court of Appeal determined 20 that an ICO was too great, bearing in mind the admissions made by the applicant, and two years’ probation was imposed. Having regard to the impact a conviction would have on finding employment, it was determined a conviction should not be recorded. In R v Pratt [2008] QCA 402, the applicant pleaded guilty to one count of supplying a 25 dangerous drug and two counts of possessing a dangerous drug. The applicant was placed on 19 months’ probation with a special condition and ordered to perform community service. Convictions were recorded on both counts. The sentence appeal was only as to the recording of a conviction. She was 24 years of age at the time of offending and 25 at sentence. She had one previous conviction for breach of bail. There were no relevant 30 criminal convictions. It was an early plea. What happened in that case was a search warrant was executed on her address. She had a glass pipe. Police searched her handbag and found half a gram of cannabis, (count 3) in her jeans, and a plastic bag with methylamphetamine (count 2). She’d used the glass pipe to 35 smoke the ice or rock. She’d purchased that for herself and others in the past. She never profited. She last obtained rock for a friend a few weeks previously. Whenever a friend wanted the drug, each would put in $200 and they would buy a gram for 400. She bought rock for about five friends aged between 21 and 25. She’d become addicted to methamphetamine but had cut back. Count 1 was largely based on her admissions. 40 Ultimately, it was decided to regularise the sentence by reimposing 18 months’ probation with a special condition. But a conviction remained to be recorded on count 1, but not on counts 2 and 3. In R v Meid [2006] QCA 124, the applicant was convicted on one count of possession 45 cannabis and the quantity exceeding 500 grams, three counts of supplying cannabis to another, and one count of possessing a pipe used in connection with the consumption of cannabis. She was fined a total of $1100 and allowed six months to pay. Ultimately, the Court was not satisfied there were prospects of success and the application to extend time was dismissed. It was said the fines were not manifestly excessive. 50 -- 4 of 7 -- 5 In R v Lyle [2013] QCA 293, the applicant pleaded guilty to one count of producing a dangerous drug in excess of 500 grams and one count of possessing a thing used in connection with producing a dangerous drug in excess of 500 grams. He was originally sentenced to six months’ imprisonment with immediate release on parole. I consider the circumstances of Lyle to be more serious than the present case. A search warrant was 5 executed and a hydroponic setup was located with three large cannabis plants growing, with a total weight of 10.47 kilograms. They were well cared for. There were also five smaller cannabis plants growing in pots in the shed. The total cannabis weighed 14.77 kilograms with roots removed, including 3.3 kilograms of loose cannabis that was also located. 10 The applicant in that case was older. He was 34 at the time of the offences and 35 when sentenced. He had no prior convictions. He was married with two young children. He suffered from an addiction to cannabis for some time but had undergone counselling and had a negative urine test result. A number of comparable decisions were discussed. It was determined, at paragraph 19, the sentences were manifestly excessive, did not have 15 sufficient regard to the applicant’s mitigating factors, including the plea of guilty, lack of criminal history and efforts at rehabilitation. In the circumstances, the imposition of a fine of $3000 was appropriate on the production count with a conviction recorded. Then there’s the case of R v Crook [2012] QCA 305. In that case, the applicant pleaded 20 guilty not only to possessing cannabis exceeding 500 grams but one count of supply. He was sentenced to six months’ imprisonment, wholly suspended for an operational period of nine months. There was also another related charge: in that case, there was 1.173 kilograms; a mobile phone was seized which showed text messages from his girlfriend relating to the requested supply of cannabis. 25 He was 31, aged 33 at the time of sentence. On the 14th of August 2007 he had been sentenced to producing and possessing cannabis; that involved 36 plants. He was placed on probation for two years and fined $1500. He completed year 10; he started smoking cannabis when he was 18. He kicked the habit for some time whilst he was on probation 30 but was unable to overcome it; by the time of sentence the addiction was in remission. He’d completed a drug education program. Ultimately, at 17 it was noted that a wide range of sentences may be imposed. There was reference, also, to the case of R v Doraho [2011] QCA 29, where there was 35 possession of cannabis with 582.4 grams. The man was sentenced to six months’ imprisonment without early release. He had a significant drug history, including previous convictions on drug offences. The drugs were intended for his personal use. It was noted in the case of Crook that his age did not entitle him to the leniency extended to 40 young offenders with no prior history. I consider Crook to be a more serious case, bearing in mind the quantity involved and the supplies. Having considered the range of penalties discussed in the cases and bearing in mind the fact that the offender here was 25, the cannabis was for his own use, there were no counts of 45 supply and he had no previous convictions for drug offences, it is my view that the imposition of a custodial penalty in his circumstances, was manifestly excessive. It seems to me that if one is concerned with an amount just over the 500 grams solely for personal use without evidence of supplies, without drug convictions, it is more appropriate for the Court to consider large fines or community-based orders. 50 -- 5 of 7 -- 6 It seems clear to me, on the material, that the defendant was and has been trying to do something about his drug habit; it seems to me that, in this case, an appropriate course would have been to offer him probation. That certainly would have been an appropriate course now, bearing in mind section 9(2) of the Penalties and Sentences Act provides that a sentence of imprisonment is one of last resort and a sentence which leads on to stay in the 5 community is preferable; although, I add, of course, that section was not in its present terms when the magistrate dealt with the offender. In all of the circumstances, bearing in mind the matters mentioned in section 9 of the Penalties and Sentences Act so far as apply to this case; his lack of previous drug 10 convictions, his age, his stated desire to rehabilitate and his good employment history I propose to, subject to his consent, offer him 12 months’ probation. And you tell me he would consent to that, Mr Willett? MR WILLETT: He will, your Honour. 15 HIS HONOUR: Stand up. Now, I can only make this order with your consent. Listen carefully to the conditions. You must not commit another offence during the period of the order; you must report to an authorised Corrective Services officer at Gympie by 5 pm Monday. All right. 20 APPELLANT: Monday? Yeah. HIS HONOUR: Yes. If you don’t report, that’s a breach. All right. 25 APPELLANT: Yep. HIS HONOUR: You must report to and receive visits from an authorised Corrective Services officer as directed. You must take part in counselling and satisfactorily attend other programs as directed by the Court or an authorised Corrective Services officer during 30 the period of the order. You must notify an authorised Corrective Services officer of every change of your place of residence or employment within two business days after the change happens. You must not leave or stay out of Queensland without the permission of an authorised Corrective Services officer. You must comply with every reasonable direction of an authorised Corrective Services officer. It’s a temporary order. If you breach those 35 conditions, you can potentially get a jail term; do you understand that? APPELLANT: Yep. HIS HONOUR: The order may be amended or revoked on your application or the 40 application by the Crown or the department; do you understand that? If you became ill, for example, you could apply to amend the order. Having heard the terms of the order, do you agree with the Court making the order? APPELLANT: Yes, your Honour. 45 HIS HONOUR: And do you agree to comply with the order? APPELLANT: Yes, your Honour. 50 -- 6 of 7 -- 7 HIS HONOUR: The final issue is there’s no appeal against the recording of the conviction, is there? MR WILLETT: No, not in the circumstances. 5 HIS HONOUR: I think it’s appropriate here, in light of those previous chances he got, albeit five years prior. MR WILLETT: Yes. 10 HIS HONOUR: All right. And including the amount of cannabis involved in this case. MR WILLETT: Thank you. HIS HONOUR: All right. Well, my formal orders will then be as follows: (1) the appeal 15 is allowed, (2) I set aside the order made in respect of the possession of dangerous drugs charge; in lieu thereof, I order that a conviction be recorded and that he be released under the supervision of an authorised Corrective Services officer for a period of 12 months, and he must comply with the requirements set out in section 93 subsection (1) of the Penalties and Sentences Act 1992 and report by 5 pm Monday, 12 September 2016, to an authorised 20 Corrective Services officer at Gympie. I otherwise dismiss the appeal. Mr Willett, are there any further orders or reasons required? MR WILLETT: No, your Honour. This is a matter whereby costs are specifically excluded 25 under 232(4). HIS HONOUR: Yes. All right. But the fine still stays in place is the effect of my order. MR WILLETT: Yes. 30 HIS HONOUR: And is there a default period on that? MR WILLETT: There will be, your Honour; I don’t have it in front of me. 35 HIS HONOUR: But, anyway - - - MR WILLETT: My - - - HIS HONOUR: He’s paying that off? All right. 40 MR WILLETT: He’s paying it off, yes. HIS HONOUR: All right. That’s good. Mr Webber, any further reasons required? 45 MR WEBBER: No, your Honour. Thank you. HIS HONOUR: Thank you both for your assistance. Anything further? 50 ______________________ -- 7 of 7 --