Campbell v Queensland Police Service [2008] QDC 233

1-1 [2008] QDC 233 DISTRICT COURT CIVIL JURISDICTION JUDGE RACKEMANN No 288 of 2008 GERRARD PHILLIP CAMPBELL Appellant and QUEENSLAND POLICE SERVICE Respondent SOUTHPORT ..DATE 16/09/2008 ORDER -- 1 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against sentence and against the recording of a conviction. On the 30th of April 2008, in the Magistrate's Court at Southport, the appellant pleaded guilty to charges of producing dangerous drugs, possession of dangerous drugs and possession of utensils. The offences are related to marijuana. The learned Magistrate fined the appellant $5,000 and, in default, the matter was to be referred to SPER. The drugs and equipment were also ordered to be forfeited. There is no challenge to the order insofar as it relates to the forfeiture of the drugs and equipment. Although there is no reference, in the Magistrate's sentencing remarks, to the recording of a conviction, the endorsement on the bench charge sheet suggests that a conviction was recorded. The appeal is brought against both the imposition of the fine and the recording of a conviction. Insofar as the amount of the monetary fine is concerned, it was submitted both that the learned Magistrate fell into some particular error in the course of exercising the sentencing discretion and further, that the amount of the fine was manifestly excessive. Two of the bases upon which it had been submitted that the learned Magistrate fell into error were either not pursued or -- 2 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-3 ORDER 1 10 20 30 40 50 60 not pursued with any vigour in the appeal. They relate to the allegation that there was a denial of procedural fairness by the learned Magistrate effectively cutting off the solicitor who appeared at first instance. That is not something which was ultimately pursued upon the hearing of the appeal. The other matter related to his Honour's remarks, recorded on page 3 of the transcript, in which he described the appellant as being "into manufacturing drugs". The use of the expression "manufacturing" was unfortunate and inaccurate in relation to the facts before the Court upon which the charges were based. In the circumstances however, it is difficult to see that as anything more than a slip of the tongue. The factual basis was clearly before his Honour and there seems to be little prospect that his Honour would have mistook those facts or in fact sentenced on the basis that there was manufacturing, as opposed to a production, element to the offences. Ultimately, counsel for the appellant did not seek to persuade me to the contrary. A particular error which his Honour fell into, as the respondent concedes, is his Honour's failure to comply with section 13 of the Penalties and Sentences Act 1992, in relation to taking the appellant's guilty plea into account. Section 13 provides as follows: "13(1) In imposing a sentence on an offender who has pleaded guilty to an offence, a Court - (a) must take the guilty plea into account; and -- 3 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-4 ORDER 1 10 20 30 40 50 60 (b) may reduce the sentence that it would have imposed had the offender not pleaded guilty. (2) A reduction under subsection (1)(b) may be made having regard to the time at which the offender - (a) pleaded guilty; (b) informed the relevant law enforcement agency of his or her intention to plead guilty. (3) When imposing the sentence, the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed. (4) A Court that does not, under subsection (2) reduce the sentence imposed on an offender who pleaded guilty, must state in open Court - (a) that fact; (b) it's reasons for not reducing the sentence. (5) The sentence is not invalid merely because of the failure of the Court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal Court, if an appeal against sentence is made." In this case, his Honour's entire sentencing remarks were as follows: "Stand up, defendant. Someone with your age and your professional qualifications should know this is not the scene to be in. I've given you an opportunity, which you have declined to take, to assist you with drug abuse. -- 4 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-5 ORDER 1 10 20 30 40 50 60 In the circumstances you will be fined $5,000, default to SPER, and the drugs and equipment will be forfeited. Thank you." Even allowing for the pressure of time under which Magistrates must operate, those sentencing remarks were unfortunately and inappropriately brief. In particular, his Honour, made no statement as to whether the guilty plea was taken into account or not and if so how it was taken into account in determining the sentence imposed. Certainly, the level of the fine imposed, which the respondent conceded was "very high" and which, in truth, was manifestly excessive , for the reason which I will give shortly, shows no sign of the guilty plea having been taken into account appropriately if at all. In R v. Woods, 2004 QCA 204, the Court of Appeal at paragraph 10, observed that: "The necessity to take a guilty plea into account and state that it has been done and how it has been done, is an essential part of the transparency of the sentencing process." The Court of Appeal went on, in paragraph 11, to say: "As the requirements of section 13 of the Penalties and Sentences Act have not been complied with in this case, -- 5 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-6 ORDER 1 10 20 30 40 50 60 the sentencing discretion has miscarried so it falls to this Court to exercise the sentencing discretion afresh..." More recently in R v. Harris, Daubney J, with whom Holmes JA and Fraser JA agreed, said: "There is nothing in the sentencing judge's reasons to suggest that he took the applicant's plea of guilty into account, nor any indication that he reduced the sentence that otherwise would have been imposed. Indeed, it appears clear that the sentencing judge set a head sentence towards the top end of what he perceived to be the range and that there was no reduction either to the head sentence or by way earlier than usual release on parole. His Honour did not, with respect, observe the requirements of section 13(3) by stating that he took account of the guilty plea in determining the sentence imposed, nor did he give reasons for not reducing the sentence, as required by section 13(4). Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this State. It self-evidently provides for an accused to receive appropriate and tangible recognition in the sentencing process for the savings in time and cost to the Courts, the prosecuting authorities, and to publicly funded or community-based defence organisations which result from the entering of a plea of guilty or at least -- 6 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-7 ORDER 1 10 20 30 40 50 60 to be expressly told why such recognition is not being given in a particular case. The purposes of the Penalties and Sentences Act include the promotion of consistency of approach in sentencing offenders (see section 13(c)), providing sentencing principles that are to be applied by the Court (section 3(e)), and promoting public understanding of sentencing practices and procedures (section 3(g)). It is important for public confidence in the achievement of these purposes that the provisions of section 13 not be overlooked in the sentencing process. These miscarriages of the sentencing discretion compel a conclusion, in my view, that the application for leave to appeal against the sentence should be allowed." Ultimately, the respondent conceded that his Honour's approach to sentencing miscarried in this respect. In my view that is clearly so. It then falls to me to re-exercise the sentencing discretion. In determining what would an appropriate exercise of the sentencing discretion I was referred to a number of comparable decisions. Those decisions are also relevant in considering the separate ground of appeal, that is, that the fine which was imposed was manifestly excessive in the circumstances. The cases to which I was directed included R v. Adams 2003 QCA 22 and R v. Armstrong 2007 QCA 427. Each of those cases are, -- 7 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-8 ORDER 1 10 20 30 40 50 60 as the respondent ultimately conceded, more serious cases than the present and do not provide great guidance in relation to the appropriate exercise of the sentencing discretion in this case. Those which give some greater guidance are Proud v. O'Brien 1992 QCA 305; R v. McDonald 1994 QCA 569; Dickson and Jones v. Ervine 1995 QCA 71; R v. Grabovac (unreported Wilson J, 2nd of June 2008). ... The unsuccessful applicant for leave to appeal in Proud v. O'Brien was sentenced for the production of a dangerous drug, possession of a pipe used in connection with a dangerous drug and possession of a dangerous drug. The fines imposed were $1,000 for production, $200 for possession and $500 for possession, being a total of $1,700. Police acting on a search warrant had called at the applicant's premises and found a tin containing a small quantity of cannabis and a bowl with some fragments of cannabis in it. They discovered 23 small cannabis seedlings in pots in the backyard and they also saw a pipe, which the applicant admitted having used to smoke cannabis in another part of the house. The applicant was a 33 year old man with no previous convictions and was sentenced on the basis that the applicant was growing the cannabis for his own use. That case provides some guidance to the appropriate exercise of sentencing discretion in this case. In this case, the police also attended the appellant's premises to execute a search warrant. They invited the -- 8 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-9 ORDER 1 10 20 30 40 50 60 appellant to declare any dangerous goods which might be present and the appellant volunteered that there was cannabis and smoking utensil in an ensuite. The police located a bowl containing a small amount of green leafy material and a clip sealed bag containing green leafy material and a plastic water pipe with a cone. Police conducted a further search and located a Christmas cake tin containing clip sealed plastic bags containing green leafy material, in the kitchen pantry, a set of scales and two empty clip sealed plastic bags. Upon further searching, a Tupperware container was discovered which contained cigarette ends and a clip sealed plastic bag containing a small amount of green leafy material. Police then conducted an inspection of the backyard and located some 30 cannabis plants growing in containers around the yard. They also located an amount of green leafy material lying in a dog kennel at the rear of the yard. The appellant stated to the police that the plants were cannabis and that he planted the seeds to grow them for personal use. There was as total of 43 grams of green leafy material seized and the 30 plants came in at just under the 500 gram level. The appellant was cooperative with police and, as has already been noted, pleaded guilty. He was 32 years of age with one -- 9 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-10 ORDER 1 10 20 30 40 50 60 previous conviction, being for possession of utensils back in 1999. The facts of this case therefore are not greatly different from those in Proud v. O'Brien although it should be borne in mind that the applicant in Proud v. O'Brien had no previous convictions and that there has been a material increase in the monetary value of penalty units since the decision in that case. The case of R v. McDonald was, as the respondent conceded, a more serious case. The successful applicant for leave to appeal against sentence in that case, was convicted, on his own plea of guilty, of two charges, one of production and the other possession of a dangerous drug, namely cannabis. In particular he had 66 plants growing in a shed on a property. The plants ranged from some six centimetres to 75 centimetres in height. The number of plants was not small and the judgment records that it is perhaps a correct inference that steps may have been taken to conceal them. A sentence which imposed a fine of $4,000 and in default four months' imprisonment, was set aside on appeal on the basis that it was manifestly excessive. The fine was reduced to $2,000. It is difficult to see how one could conclude that the $5,000 fine imposed in this case is other than manifestly excessive when it is compared to R v. McDonald in which a fine of $4,000, in respect of what is conceded to a more serious case, was said to be manifestly excessive. That is so even when one -- 10 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-11 ORDER 1 10 20 30 40 50 60 has regard to the change in the monetary value of a penalty unit since the decision in that case. In Dixon and Jones v. Ervine, the applicant had been convicted in the Magistrate's Court of three drug offences, namely production and possession of cannabis and the possession of a pipe used in connection with smoking cannabis. The applicant had been fined $900, $250 and $150 respectively, making a total of $1300. Police had found 23 plants varying in heights of up to two foot and a container with some seeds and another container in which it was found some green leafy material. The applicant was 53 years of age with no previous convictions. The case is comparable although, as was submitted on behalf of the respondent, the subject case is perhaps a little more serious than that case, by reason of the quantity involved and the fact of a previous conviction in this case. In R v. Grabovac, a fine of $2,500 was imposed in relation to three offences, being for the production and possession of cannabis and the possession of a number of lamps and electric fans used in connection with the commission of the crime of producing a dangerous drug. The plea was treated as an early one. The offences were first offences committed by someone who had demonstrated efforts at rehabilitation - matters which do not apply to the appellant in this case. However, the amount involved was much greater with the plants being found to weigh in excess of three kilograms with the cut material -- 11 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-12 ORDER 1 10 20 30 40 50 60 weighing 179.7 grams and there was a greater element of sophistication involved in growing the plants hydroponically. When one has regard to those comparatives, it was apparent that a fine in the vicinity of $2,000 would represent an appropriate exercise of sentencing discretion and the respondent did not cavil with that. The respondent contended that the $5,000 imposed was perhaps also within the sentencing discretion, however in my view a review of the comparatives clearly suggests that the amount of $5,000 was manifestly excessive. Further, as I have already noted, the exercise of sentencing discretion had otherwise miscarried by reason of the Magistrate's failure to deal appropriately with the guilty plea. In the circumstances I propose to allow the appeal in relation to the amount of the fine and to instead impose a fine of $2,000 in respect of the three offences. In doing so I have taken account of the guilty plea and have reflected that in arriving at a level of fine which is less than that which would apply had there been no such plea. That leaves the question of the recording of a conviction. Section 12 of the Penalties and Sentences Act provides in part as follows: -- 12 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-13 ORDER 1 10 20 30 40 50 60 "12(1) A court may exercise a discretion to record or not record a conviction as provided by this Act. (2) In considering whether or not to record a conviction, a Court must have regard to all circumstances of the case, including - (a) the nature of the offence; (b) the offender's character and age; (c) the impact that the recording of a conviction will have on the offenders - (1) economic of social wellbeing; (2) chances of finding employment. ..." In the proceedings at first instance the Prosecutor had submitted that a conviction ought to be recorded. That submission had not been addressed by the solicitor who appeared on behalf of the appellant at first instance, prior to the learned Magistrate announcing his decision. That did not however, relieve the learned Magistrate of the obligation to appropriately determine whether or not to exercise the discretion to record or not to record a conviction. His Honour's sentencing remarks do not make any mention of whether a decision was made to record or not record a conviction, far less going to any of the factors which influenced the exercise of the discretion one way or the other. The only clue as to what was determined in that respect comes from the endorsement on the bench charge sheet -- 13 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-14 ORDER 1 10 20 30 40 50 60 which has been stamped with "Conviction recorded/not recorded" with the words "not recorded" drawn through. A similar situation confronted the Court of Appeal in The Queen v. Zimmerman 1996 QCA 376. It was pointed out that de Jersey J (as he then was), in the last paragraph of his reasons, counselled Magistrate's to make an express recording of the fact of whether or not a conviction was recorded in the annotation on the complaint sheet. That was done in this case. I do not read his Honour's remarks however, as suggesting that such a measure obviates the need to properly consider the exercise of the discretion and to expose the reasoning which led to the discretion being exercised one way or the other. Earlier de Jersey J. had remarked: "When I first read the Magistrate's reasons it appeared to me that he may have overlooked dealing specifically with the issue in the end whether or not a conviction was to be recorded. I say that because the matter had been quite expressly raised and discussed and was not subsequently addressed in the sentencing process. If it is not already the practice it should become the practice where a request is made that a conviction not be recorded that the judicial officer specifically advert to that in his subsequent decision when communicating that decision to the convicted person. In other words there -- 14 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-15 ORDER 1 10 20 30 40 50 60 should be a specific statement as to whether or not a conviction is to be recorded. That will avoid the sort of complication which has arisen in this case." While, in this case, the solicitor who appeared for the appellant at first instance did not make a specific request that a conviction not be recorded, the issue of whether to record a conviction or not had been raised by the prosecution and the learned Magistrate had not invited any submissions from the solicitor who appeared for the appellant in relation to that issue and did not, in his reasons, record the decision to exercise the discretion one way or the other or the reasons for doing so. A similar situation was also dealt with more recently by Judge Wall QC in Geragotelis v. Rethemburg 2007 QDC 322 where his Honour said: "In disposing of the matter the Magistrate said, 'I'm going to convict and fine you $400. In default of payment you will be ordered to serve four days' imprisonment.' No conviction was recorded at that time and one would have thought that none was, in fact, recorded under the provisions of section 12(3)(a) of the Penalties and Sentences Act applies. That provides, "Except as otherwise expressly provided by this or any other Act, a -- 15 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-16 ORDER 1 10 20 30 40 50 60 conviction without recording the conviction is taken not to be a conviction for any purpose." However, as is apparent from the bench charge sheet, the Magistrate at some stage in fact recorded a conviction. That is apparent from a stamp on the bench charge sheet which states 'Conviction record/not recorded' and the words 'not recorded' had been crossed out. The sentencing discretion clearly miscarried in relation to the recording of a conviction because the Magistrate did not mention to the parties that she intended to do that and in fact it appears to have been, in effect, secretly recorded. The fact that she intended to do is not mentioned at all in the transcript. Section 12(2) of the Penalties and Sentences Act is in the following terms... In the present case the Magistrate did not apparently have regard to any of these matters as she should have. It is not fair to a party to visit penal consequences on them without first giving them a chance to be heard. The sentencing discretion, therefore, miscarried in this respect also." -- 16 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-17 ORDER 1 10 20 30 40 50 60 Accepting that the sentencing discretion also miscarried in this case, it is necessary to exercise that discretion afresh. Counsel for the appellant emphasised that the nature of the offence was, in effect, a victimless crime involving cannabis for personal use and that the appellant's criminal history is relatively minor. On the other hand the previous conviction was in relation to a offence of a similar kind, that is, the possession of utensils. The offender is a mature person. He is self- employed and there is no real suggestion that the recording of a conviction would have an adverse impact upon then offender's economic or social wellbeing or chances of finding employment. I should have noted that I was informed that the previous conviction was one in respect of which the conviction was recorded. This is a case in which it would be open to exercise the discretion either way but, on balance, I am also be minded to order that a conviction be recorded, having regard to the matters to which I have referred. Accordingly, I will order that the sentence imposed at first instance be set aside and in lieu thereof that the appellant be fined the amount of $2,000 in respect of the offences and in default that the matter be referred to SPUR. The drugs and equipment will be forfeited and convictions will be recorded. -- 17 of 18 -- 16092008 D.1 T(2)12-19/CC(SPT) M/T SOUT16 (Rackemann DCJ) 1-18 ORDER 1 10 20 30 40 50 60 MR McNAB: Unfortunately, I'm precluded from seeking costs in this matter as they're indictable offences dealt with summarily and precluded under the Justices Act, your Honour. HIS HONOUR: Thank you. Have I appropriately dealt with it? I mean have I dealt with everything? MR McNAB: You have, your Honour. HIS HONOUR: Okay. Now, I notice that I haven't set a time for payment not - nor did the Magistrate at first instance. Should a time for payment be set? MR McNAB: There's two schools of thought, perhaps your Honour could make an order say for one month in the first instance and then SPER can send out their notices. HIS HONOUR: Yes. MR McNAB: I think that's now it normally works, your Honour. MS HUTCHINSON: That's acceptable, your Honour. HIS HONOUR: Yes. I will order that the appellant has one month to pay. MR McNAB: Thank you, your Honour. HIS HONOUR: Anything further or other? MR McNAB: Nothing----- MS HUTCHINSON: No. Thank you, your Honour. MR McNAB: -----your Honour. HIS HONOUR: Thank you. MR McNAB: Thank you, your Honour. ----- -- 18 of 18 --