Chivers v Rannard

[1993] QCA 518

IN THE COURT OF APPEAL [1993] QCA 518

SUPREME COURT OF QUEENSLAND	C.A. No. 245 of 1993
Brisbane [Chivers v. Rannard]

W.P. CHIVERS

v.

RODNEY FRANCIS RANNARD (Applicant)

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DAVIES J.A.
PINCUS J.A.

MOYNIHAN S.J.A.

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J udgment delivered 14/12/1993

REASONS FOR JUDGMENT - THE COURT
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT THAT THE SENTENCES OF NINE MONTHS' IMPRISONMENT IMPOSED ON EACH OF THE FIRST SIX CHARGES ARE SET ASIDE AND SENTENCES OF SIX MONTHS' IMPRISONMENT ARE SUBSTITUTED IN EACH CASE. THE OTHER SENTENCES THE SUBJECT OF THIS APPLICATION ARE CONFIRMED.

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CATCHWORDS: CRIMINAL LAW - SENTENCE - DRUG OFFENCES - Applicant sentenced to 9 months for supplying cannabis sativa - Whether manifestly excessive - 28 years of age, no previous convictions, suffered from Crohn's disease - Immediate confession, pleaded guilty at earliest possible stage, assisted police in identifying suppliers

- Whether magistrate failed to reduce sentence for guilty plea and co-operation - Part of significant commercial operation - 6 months substituted

Counsel:	Mr P. Rutledge for the Respondent
Mr A. Rafter for the Applicant
Solicitors:	Director of Prosecutions for the Respondent
Legal Aid office for the Applicant

Date(s) of Hearing: 13 August 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 245 of 1993
Brisbane
Before	Mr Justice Davies Mr Justice Pincus Mr Justice Moynihan

[Chivers v. Rannard]

W.P. CHIVERS

v.

RODNEY FRANCIS RANNARD (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/12/1993

The applicant was convicted on 8 July 1993 upon ten charges: six of supplying a dangerous drug, namely cannabis sativa; one of possession of tainted property, namely money, a sum of $75.00; one of possession of aluminium foils; one of possession of a dangerous drug, namely cannabis sativa; and one of possession of utensils, namely a water pipe and a cone. On each of the first six charges of supply the applicant was sentenced to nine months' imprisonment. On the charge of possession of tainted property he was sentenced to three months' imprisonment. On the charge of possession of the aluminium foils he was sentenced to two months' imprisonment. On the charge of possession of cannabis he was sentenced to six months' imprisonment. And on the charge of possession of utensils he was sentenced to two months' imprisonment. All sentences were to be served concurrently. He seeks leave to appeal against all except the last of these sentences which, not being an indictable offence, cannot properly be the subject of this application.

The applicant is 28 years of age, having been born on 16 June
1965. He has no previous convictions of any kind.

On the afternoon of 6 April 1993 the police conducted a search of the applicant's residence in Cairns. They located in his bedroom nine foils of cannabis which the applicant later admitted he intended to supply to other persons; $120.00 in currency of which the applicant admitted $75.00 was from the sale of cannabis; four pieces of foil which the applicant admitted were to place cannabis in for the purpose of sale; and a small plastic container containing two grams of cannabis which the applicant said was for his own use. When interviewed by the police the applicant admitted to selling foils of cannabis over the preceding two months. He said that he had been receiving the foils from two separate persons to sell and in return he received free marijuana to smoke himself. He admitted to selling three foils of cannabis earlier that day to three separate persons for $25.00 a foil. He also admitted to selling two foils to another person the previous day for $50.00. He estimated that over the preceding two or three months he had sold 100 to 200 foils usually receiving $25.00 each. He passed all of this money on to his suppliers, the only benefit to him being in the form of marijuana for his own use. It was said on his behalf to the learned sentencing magistrate that the marijuana was sold by him only to a close circle of friends.

In addition to confessing as he did the full extent of his activities, the applicant pleaded guilty. In sentencing him, the magistrate refused to give him any credit for his guilty plea, apparently because it was not a prompt plea. The matter first came before the court on 7 April 1993 but the applicant did not plead guilty until 8 July 1993 when he was sentenced. However, there appears to have been a explanation for this: the applicant was suffering from Crohn's Disease from which he was incapacitated for a substantial part of the period between those two dates and consequently unable to appear at all. The magistrate apparently failed to have regard to this. In our view he should have reduced the sentence which he otherwise intended to impose because of that plea.

Moreover, in addition to his prompt and full confession it appears that the applicant cooperated with the police to the extent of advising them of the first names of his two suppliers and showing them the house in which one of them lived and the caravan park where the other lived. His Worship does not appear to have appreciated this because he said, in sentencing the applicant, that he had not apparently assisted the police as to the people with whom he was involved.

Because of the learned magistrate's errors in failing to reduce the sentence for the plea of guilty and in failing to appreciate that the applicant had assisted the police as to the people with whom he was involved, we think that the exercise of his sentencing discretion miscarried and that consequently this Court is free to impose whatever sentence it considers appropriate in the circumstances.

Against the applicant it must be said that the offences of supplying cannabis sativa were serious ones. Without suppliers such as the applicant producers and dealers would not have the ready market which they have. The number of sales admitted to by the appellant over the preceding two or three months (100 to 200 foils) makes us sceptical of his assertion that he sold only to a close circle of friends. In any case he was plainly part of a significant commercial operation. And because the applicant was paid for his services in the form of cannabis for his own use it is wrong to say, as his counsel submitted to us, that he derived no financial benefit from his part in the operation. Moreover it is notorious that offences of this kind are prevalent in Cairns, a matter which the magistrate no doubt had in mind.

We have already mentioned in the applicant's favour his immediate confession to the police, his plea of guilty and his assistance in identifying his suppliers. In addition, the magistrate was told that the applicant smoked the drug himself in order to relieve symptoms of pain from the disease which he suffers. And, as we mentioned earlier, the applicant has no prior convictions of any kind.

Notwithstanding the absence of any prior convictions, we think that the commercial nature of the appellant's operation justified the imposition of a term of imprisonment. However, in view of the absence of prior convictions, the appellant's plea of guilty and his cooperation with the police we think that a sentence of nine months is excessive and that an appropriate sentence would be six months' imprisonment. We would therefore grant the application, allow the appeal, set aside the sentence of nine months for each of the first six charges and substitute in each case a sentence of six months. We would not interfere with the other sentences imposed.