Beveridge v The Commissioner of Police [2016] QDC 8

DISTRICT COURT OF QUEENSLAND CITATION: Beveridge v The Commissioner of Police [2016] QDC 8 PARTIES: BLAKE JUSTIN BEVERIDGE (the appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: D91/15 DIVISION: Crime PROCEEDING: Appeal ORIGINATING COURT: Ipswich Magistrates Court DELIVERED ON: 5 February 2016 DELIVERED AT: Ipswich HEARING DATE: 29 January 2016 JUDGE: Bradley DCJ ORDER: The appeal is allowed and a sentence of six months’ imprisonment to be released on parole after serving 17 days is substituted for each count of supplying a dangerous drug and 12 months’ probation is substituted for each of the possession of a dangerous drug offences. The orders made with respect to each of the other offences is not disturbed. CATCHWORDS: CRIMINAL LAW-APPEAL- where the appellant was convicted of 14 drug related offences on three separate occasions- whether the sentence imposed was manifestly excessive when taking into account the appellants age, relevant criminal history, and lack of previous community based orders imposed. COUNSEL: S Kissick for the appellant R Reid for the respondent SOLICITORS: Legal Aid Office Queensland for the appellant Office of the Director of Public Prosecutions for the respondent -- 1 of 6 -- 2 Facts [1] On 19 October 2015 the appellant pleaded guilty to 14 drug related offences arising out of three separate police investigations. [2] The first five offences arose when police executed a search warrant on 3 January 2015 at a residence and located a clip seal bag and timber bowl containing 9.3 grams of cannabis; a taser; a coffee grinder; a water pipe and cone piece and a set of digital scales. The appellant was charged with offences arising out of the possession of these items. [3] On 5 February 2015 police executed a search warrant at another resident at Booval and located and seized an Apple iPhone 4S. As a result of an analysis of the phone a number of text messages were located originating from the appellant. The messages indicated the appellant supplied cannabis to the owner of the phone on 20, 27, 28 and 31 January and on 1 and 5 February 2015. This evidence formed the basis of six charges of supplying a dangerous drug to which the appellant pleaded guilty. [4] Finally, on 23 February 2015 police executed a search warrant at an Ipswich motel. The appellant was present. 30.47 grams of cannabis was located along with a homemade water pipe, a set of digital scales and a pair of scissors. This formed the basis of the final three charges to which the defendant pleaded guilty. At the conclusion of the search the appellant voluntarily attended the police station and took part in a recorded interview. The appellant was told about the text messages and he admitted that he had supplied cannabis to the recipient of the messages. He stated that he was the “the middle man” and organised cannabis for other people before delivering it and then returning with the cash. The appellant told police he did that so that he could purchase cheaper cannabis to fund his own habit. [5] The appellant was on bail for the offences committed on 3 January when he committed the subsequent offences. [6] Upon his pleas of guilty the appellant was sentenced to a head sentence of 12 months’ imprisonment for each of the supplying of a dangerous drug charges with parole release fixed at 23 November 2015. He was sentenced to concurrent terms of six months’ imprisonment for the two charges of possessing a dangerous drug, again with parole release fixed at 23 November 2015. For other offences he was convicted but not further punished. Grounds of appeal [7] The appellant appeals against the sentence on the basis that it was manifestly excessive and that there was a clearly demonstrable error in the exercise of the magistrate’s discretion. The appellant was granted appeal bail on 5 November 2015. He has therefore served 17 days’ imprisonment pursuant to the sentence imposed on 19 October 2015. Appellant’s antecedents [8] The appellant was 21 years of age at the time of the commission of each of the offences but had just turned 22 at the time of sentence. [9] The appellant has a reasonably significant criminal history for someone of his age. There are three entries for convictions in the Children’s Court, but none involving -- 2 of 6 -- 3 drug related offences. In the Children’s Court he received a reprimand, a six month good behaviour bond and probation for four months. As an adult he has been convicted of breaching a domestic violence order, wilful damage, contravening a direction, failure to appear in accordance with his bail undertaking and commit public nuisance. More relevantly, he has a conviction on 30 November 2012 for producing dangerous drugs and for contravening a direction for which he was fined a total of $600. A conviction on 23 September 2014 for possessing dangerous drugs, possessing anything used in the commission of a drug offence, possession of a utensil or pipe, and unlawful possession of a weapon resulted in him being fined a total of $750. Finally, on 6 February 2015 he was convicted of possession of a dangerous drug on 12 January 2015 and was fined $300. The appellant has not been sentenced to any community based orders in the Magistrates Court and all of his previous drug offending has been met with fines. Submissions before the sentencing magistrate [10] In the Magistrates Court a letter written by the appellant’s sister (who was present in court) was tendered on behalf of the appellant. That letter attests to the appellant’s unstable and somewhat prejudiced upbringing, particularly during his teenage years, and his struggle with illegal drugs, particularly after the breakdown of his relationship with the mother of his children. The letter notes however that the appellant had recently been given the care of two of his children by the Department of Child Safety and it attests to the appellant’s desire to undergo rehabilitation. [11] The prosecution drew the sentencing magistrate’s attention to “the need for a punitive aspect”,denunciation, general and personal deterrence, and the commercial nature of the supply of the cannabis. It was noted that the commission of further offences on bail was an aggravating feature and reference was made in particular to the authorities of R v Doraho [2011] QCA 29 and R v Crook [2012] QCA 305. [12] On the appellant’s behalf submissions were made to the sentencing magistrate emphasising his youth, the fact he had only been sentenced to fines in the past and had not had the benefit of a community based order and was “potentially someone suitable for rehabilitation”. Comparable authorities [13] Doraho pleaded guilty in the Supreme Court to possessing more than 500 grams of the dangerous drug cannabis sativa. He was sentenced to six months’ imprisonment without early release on parole. Doraho had been found to be in possession of 582.4 grams of cannabis in a Brisbane hotel room. Doraho had a significant criminal history for drug related and other offences and had been previously given 12 months’ probation for the offences of supplying, producing and possessing dangerous drugs. He had been sentenced to four months’ imprisonment wholly suspended for an operational period of two years for supplying dangerous drugs and within that operational period he was convicted of possessing dangerous drugs and utensils for which he was given terms of imprisonment but released immediately on parole. The offences for which he was before the Supreme Court were committed during the operational period of the suspended sentence and two months after the expiration of his parole. He was 24 years of age at the time of the offence and 25 when sentenced. -- 3 of 6 -- 4 [14] The Court of Appeal in Doraho found that the sentence of six months’ imprisonment was not manifestly excessive in circumstances where Doraho had not taken advantage of past community based orders including suspended sentences and parole. [15] In Crook the offender, who was 31 when he committed the offences of possessing cannabis in excess of 500 grams and supplying cannabis to another, was sentenced on each count to six months’ imprisonment, wholly suspended for an operational period of nine months. [16] The amount of cannabis involved in Crook was 1.173 kilograms. The applicant had previous convictions for producing and possessing cannabis involving 36 cannabis plants, for which he was sentenced to two years’ probation and fined $1500. He had been addicted to cannabis, but at the time of sentence was in remission and had taken steps to address his habit and was in full time employment. [17] In Crook’s case there was no evidence of commerciality. Despite the fact that a substantial fine coupled with community service may have been in range, the sentence imposed was held to have not been manifestly excessive. Sentencing remarks [18] In his sentencing remarks, the sentencing magistrate in this case noted that the appellant had “been given a number of chances now”. He noted that the supply of the cannabis was for a commercial purpose but that “the reasons you do it don’t in my mind provide any particular mitigation. The reasons you do it are secondary to the fact that you’re supplying drugs to someone else.” He noted that the supplying of the drugs whilst he was on bail was a “significant aggravating feature of the conduct”. [19] The sentencing magistrate found that Doraho was a comparable sentence: “That offender was much the same age as you had a criminal history much the same as yours besides the fact that intervention type orders involving probation had been made at an earlier time where in your case for reasons I don’t either understand – and I’ve not been enlightened about you’ve been simply dealt with fines for repeated drug offending rather than some sort of intervention taking place – an order being made for that to occur.” [20] The sentencing magistrate took into account the appellant’s pleas of guilty, his age and “the fact that you’ve been dealt with very leniently in the past for repeated drug offending and have not it seems learnt the – got the message that those sentences were designed to deliver”. [21] The sentencing magistrate was of the view that personal deterrence warranted a period of actual imprisonment followed by a significant period of time being supervised on parole. Sentencing guidelines [22] Section 9(1) of the Penalties and Sentences Act 1992 reads as follows: “(1) The only purposes for which sentences may be imposed on an offender are – -- 4 of 6 -- 5 (a) to punish the offender to an extent or in a way that is just in all the circumstances; or (b) to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or (c) to deter the offender or other persons from committing the same or a similar offence; or (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or (e) to protect the Queensland community from the offender; or (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e). [23] With respect to the effect of an offender’s criminal history on sentencing is concerned s 9(10) provides: “In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the conviction.” [24] However section 9(11) provides: “Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.” Arguments [25] It is argued on behalf of the appellant that the sentencing magistrate erred in overstating the relevance and seriousness of the appellant’s criminal history and in relying on the authority of Doraho. Further, that he failed to give any or any proper consideration to the prospects of rehabilitation of the youthful appellant. It is argued that when dealing with a 21 year old offender with a drug problem and a very minor history particular emphasis should have been given to the imposition of a just punishment and the rehabilitation of the offender. [26] It is argued that Doraho had a much more serious criminal history and importantly had been offered opportunities by way of wholly suspended terms of imprisonment and immediate parole in the past and Doraho’s failure to comply with such sentences justified the imposition of a term of actual imprisonment. -- 5 of 6 -- 6 [27] It is argued that the sentencing magistrate failed to give any consideration to the reasons for the appellant’s offending particularly that he was a drug user who acted as a middle man so as to receive his own cannabis at a discounted rate. [28] The respondent argued that the offences were serious and the six supply offences were commercial. The appellant’s criminal history was lengthy considering his age and suggested persistent but low-level offending. There would be limited utility in a community based order having regard to the appellant’s persistent offending while subject to bail. He had not been deterred by previous convictions. Consideration [29] There are clearly many points of distinction between the circumstances of the appellant in this case and that of Doraho. The appellant in this case is younger than Doraho and has never been sentenced to penalties that might have assisted in addressing his addiction to cannabis. The appellant’s age, criminal history and the facts referred to in the letter from his sister all indicate that there are real prospects of his rehabilitation and the magistrate failed to give sufficient weight to that factor. [30] The sentencing magistrate therefore placed too much weight on the appellant’s previous convictions and the relatively minor nature of them, and placed insufficient weight on the prospects of the appellant’s rehabilitation. The sentencing magistrate also incorrectly relied on Doraho as a comparable sentence in this matter. [31] The serious nature of the offences and the significant aggravating feature of the appellant continuing to offend with respect to drugs whilst on bail for drug offences1 supports a head sentence of imprisonment for the offences of supplying a dangerous drug with parole release after the time he has already served and probation for the other more serious drug offences. [32] The appeal is allowed and a sentence of six months’ imprisonment to be released on parole after serving 17 days is substituted for each count of supplying a dangerous drug.A period of 12 months’ probation is substituted for each of the possession of a dangerous drug offences; probation is conditional upon the appellant attending upon the Ipswich Probation and Parole office by 4PM today. I order that the 17 days served by the appellant in custody be declared as time already served, I state the days are as between 19 October 2015 and 5 November 2015.The orders made with respect to each of the other offences is not disturbed. 1 See R v Richards [1981] 2 NSWLR 464; R v Timoti [2003] QCA 96 -- 6 of 6 --