Adams v Commissioner of Police [2011] QDC 40

DISTRICT COURT OF QUEENSLAND CITATION: Adams v Commissioner of Police [2011] QDC 40 PARTIES: Shane Michael Adams (Appellant) v Commissioner of Police (Respondent) FILE NO/S: 129/2010 DIVISION: Appellant PROCEEDING: Appeal against sentence ORIGINATING COURT: Beenleigh DELIVERED ON: 8 April 2011 DELIVERED AT: Beenleigh HEARING DATE: 9 March 2011 JUDGE: Dearden DCJ ORDER: (1) Appeal granted. (2) Global fine of $2,000 set aside. (3) Substitute fines of $50 on each of the four charges subject to appeal, to be referred to the State Penalties Enforcement Registry. (4) No conviction recorded. CATCHWORDS: Appeal – Drugs Misuse Act offences – fine – manifestly excessive LEGISLATION: Drugs Misuse Act (1986) Qld Justices Act (1886) Qld ss. 222 and 223 CASES: Osgood v Queensland Police Service [2010] QCA 242 R v Fabre [2008] QCA 386 R v Kitson [2008] QCA 86 R v Woods [2004] QCA 204 Rowe v Kemper [2009] 1 Qd R 247 Stevenson v Yasso [2006] 2 Qd R 150 -- 1 of 5 -- 2 COUNSEL: Mr A Guest (solicitor) for the applicant Ms J Geary for the respondent SOLICITORS: Guest Lawyers, solicitors for the applicant Director of Public Prosecutions for the respondent Introduction [1] This is an appeal by the appellant, Shane Adams, who was fined $2,000 by the learned magistrate at Beenleigh on 6 July 2010, globally, in respect of the following four charges under the Drugs Misuse Act: (1) Possession of dangerous drugs (2) Possession of utensils or pipes (3) Possession of property suspected of being proceeds of an offence (4) Possession of property being used in connection with a commission of a drug offence. [2] No convictions were recorded in respect of the charges. No declaration was made in respect of the period spent in pre-sentence custody from 8 June 2010 until 6 July 2010 (approximately one month) by the appellant. [3] It is submitted on behalf of the appellant that the sentence was manifestly excessive. The Law [4] The appeal proceeds pursuant to Justices Act s.222. Having pleaded guilty to the offences, the only ground of appeal available to the appellant is that the penalty was “excessive”1 . [5] Pursuant to Justices Act s.223(1), “an appeal under section 222 is by way of rehearing on the evidence (“original evidence”) given in the proceeding before the justices.” Although there is provision for the District Court to give leave to adduce fresh, additional or substituted evidence,2 no such application was made in respect of this appeal. [6] An appeal by way of rehearing under Justices Act s.223 requires this court “to make [its] own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s views.” 3 1 Justices Act s.222(2)(c) 2 Justices Act s. 223(2). 3 Stevenson v Yasso [2006] 2 Qd R 150, 162 (per McMurdo P). See also Rowe v Kemper [2009] 1 Qd R 247 (per McMurdo P) para 5; Osgood v Queensland Police Service [2010] QCA 242 (per White JA) para 20-21. -- 2 of 5 -- 3 Facts [7] The appellant and a co-defendant, Rhett Matthews, were intercepted by police at about 2.00am on 7 June 2010 at Slacks Creek for the purpose of a random breath test. The appellant was the driver and Mr Matthews was in the front passenger seat. Both defendants appeared nervous and agitated. Initial checks on the vehicle registration indicated that the registration details were not correct. Police searched the vehicle, and the appellant and Mr Matthews. When the police asked Mr Matthews whether he wished to declare, he stated that he had a knife, which he revealed in a plastic sheath on his right hip. When asked if he had anything further to declare, he initially said “no” but when police said they intended to search him, the appellant said to Mr Matthews words to the effect “just tell them about it”, at which point Mr Matthews declared to police that he had a pistol in a holster on his right hip. [8] Both the appellant and Mr Matthews were handcuffed, the knife and firearm were removed from Mr Matthews. Police then cleared the firearm of five bullets in the magazine and conducted further searches of both the appellant and Mr Matthews. [9] The search of Mr Matthews located a sum of money concealed in the pocket of his jeans, in his underwear, and in his jacket pocket, along with a glass smoking pipe and a small clip seal bag containing a crystalline substance believed to be amphetamine, as well as an envelope containing an unknown white powder. A total of $10,100 was recovered from Mr Matthews. $50 notes were observed on the front passenger side of the vehicle driven by the appellant. It was then towed to a police station to be searched. [10] The appellant was arrested and transported to Logan Central Police Station. The police, on searching him, located $4,626.50 in the crutch of his underwear and a clip seal bag containing a white crystalline substance in his jeans pocket.4 [11] The appellant had a criminal history with offences at various dates between 30 January 1998 and 25 November 2009, for offences including disorderly manner, possession of dangerous drugs, public nuisance, an assault occasioning bodily harm, possession of utensils or pipes and unlawful possession of weapons. Fines had been imposed each occasion for each of those offences. [12] The learned magistrate took into account but did not declare the time served by the appellant (approximately one month). The learned sentencing magistrate noted that while the appellant did not have possession of the firearm, he was in company with Mr Matthews and knew that Mr Matthews had the firearm on his person. The learned sentencing magistrate also acknowledged that the appellant was the one who told Mr Matthews to make police aware of the fact that he was in possession of the weapons. [13] The learned magistrate noted that the appellant had pleaded guilty to a charge of possessing $4,626.50, for which he could offer no explanation as to how he had that in his possession, and further that during the police apprehension the appellant and Mr Matthews had attempted to conceal the cash. 4 Sentence Transcript pp. 1-2 – 1-4. -- 3 of 5 -- 4 [14] The learned magistrate concluded that the appellant’s culpability was not the same as Mr Matthews (who was sentenced to six months imprisonment wholly suspended) and instead the learned magistrate fined the appellant $2,000, having taken in to account the time served (one month) without a declaration as to time spent in custody being time served. The drugs, weapons, cash and mobile phone were all forfeited. No conviction was recorded in respect of the offences for which the appellant was sentenced.5 Argument on appeal [15] Mr Guest, who appeared for the appellant, presses the following matters in arguing that the sentence imposed (the global fine of $2,000), was manifestly excessive namely: (1) The appellant spent one month in pre-sentence custody prior to sentence. (2) The appellant pleaded guilty at an early opportunity. (3) The appellant did not put the prosecution to proof with respect to the identity of the drug he possessed. (4) The appellant counselled his co-defendant Mr Matthews to identify that he possessed a firearm. (5) The period of one month of actual custody was the equivalent of a three month head sentence (in total) for the four offences. In those circumstances, he submits that it was therefore “manifestly excessive” to fine the appellant the sum of $2,000 over and above the period spent in custody. [16] In response, Ms Geary, who appears on behalf of the respondent, argues that the appellant’s criminal history was “reasonably substantial” and included drugs, violence and street offences, and in those circumstances the appellant could not claim special leniency as a first offender. In addition, it was submitted that the appellant’s instructions to Mr Matthews to reveal the presence of the firearm indicated the appellant’s awareness that Mr Matthews had a concealed firearm on his person. It was also submitted that although the appellant had pleaded guilty (and therefore cooperated to an extent), there was no record of interview with police. [17] Ms Geary relies on the decisions in R v Woods [2004] QCA 204; R v Kitson [2008] QCA 86, and R v Fabre [2008] QCA 386. With respect, each of those matters involved (in part at least) the possession of substantial quantities of drugs (primarily methyl-amphetamine and/or amphetamine, and the sentences imposed are of little assistance in assessing whether the sentence in this current case is “manifestly excessive”. [18] In particular, the appellant in this appeal did not put the prosecution to proof as to the identity of the drug, and it can be inferred that the quantity was sufficiently small that it fell within the jurisdiction of the Magistrates Court. 5 Sentence Decisions Transcript pp. 3-6. -- 4 of 5 -- 5 Conclusion [19] Given the effective three month head sentence equivalent arising from the appellant’s undeclared period of one month in custody, it is my view that any additional punishment should have been relatively minimal. I conclude that the fine of $2,000 (effectively $500 per offence) was clearly “manifestly excessive” in the circumstances, even taking into account the appellant’s criminal history and the circumstances of his offending. [20] I consider therefore that the appeal should be granted and the appellant re- sentenced. The global fine of $2,000 in respect of the four charges the subject of the appeal, should be set aside, and instead a fine of $50 imposed on each of the four charges (a total of $200). The fines will be referred to the State Penalties Enforcement Registry (SPER) for recovery action. [21] Unsurprisingly, the appellant had no complaint in respect of the order by the learned magistrate that “no conviction be recorded” in respect of each of the four charges and that order remains (i.e. the appellant does not have convictions for any of the four charges the subject of this appeal). Orders 1. Appeal granted. 2. Set aside global fine of $2,000 (in respect of all four charges subject of the appeal). 3. Substitute fines of $50 on each of the four charges subject of the appeal. 4. Fines referred to the State Penalties Enforcement Registry (SPER) for recover action. 5. No conviction recorded. -- 5 of 5 --