Dixon & Jones v Irvine

[1995] QCA 71

IN THE COURT OF APPEAL	[1995] QCA 071
SUPREME COURT OF QUEENSLAND

C.A. No. 535 of 1994.

Brisbane

[Dixon & Jones v. Irvine]

R DIXON and D P JONES

v.

SAMUEL ANDREW IRVINE

(Applicant)

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Macrossan C.J.
Pincus J.A.

Byrne J.

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Judgment delivered 27/03/1995

Judgment of the Court

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APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED.
THE ORDERS MADE BELOW TO BE VARIED BY ORDERING THAT NO
CONVICTION BE RECORDED IN RESPECT OF THE CHARGES OF UNLAWFULLY
PRODUCING A DANGEROUS DRUG AND UNLAWFULLY HAVING IN
POSSESSION A DANGEROUS DRUG.

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CATCHWORDS:  CRIMINAL LAW - Sentence - production and possession of cannabis - whether conviction should have been recorded - mature-aged man - first offence other than minor traffic offences.

Counsel:The applicant appeared on his own behalf.

Mr P F Rutledge for the respondent.

Solicitors:The applicant appeared on his own behalf.
Director of Prosecutions for the respondent.
Hearing date:24 March 1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/03/1995

The applicant was convicted in a Magistrates Court on 26 November 1994 of three drug offences: that on 26 November 1994 at Brisbane he unlawfully produced cannabis sativa, that on the same date he unlawfully had possession of that drug and, lastly, that he unlawfully had possession of a pipe used in connection with smoking a dangerous drug. The applicant was fined $900, $250 and $150 respectively for these offences. The application for leave to appeal against sentence relates only to the first two of them; the other is the subject of an appeal to the District Court.

The information we have concerning the circumstances of the offences as placed before the magistrate is not extensive. Pursuant to a warrant police raided the applicant's home at Jamboree Heights. When they arrived he told them that he had about 20 marijuana plants. The police found what they said were about 23 such plants of varying heights up to about 2 ft. There were also found a container with some seeds in it and another container in which was found some green leafy material. The pipe was used to smoke marijuana and, according to the applicant's statement to the police, the plants were for growing marijuana for his own use.

The prosecutor, who has supplied information to this Court, was unable to tell us what the applicant said to the magistrate. The applicant's account placed before this Court is, however, much the same as that which was before the magistrate; the applicant adds that the container with leaf in it had about 2 grams of that substance, that the area in which the plants were grown was about 2 ft by 1 ft. and that the raid took place at midnight. The applicant says that the police were polite and friendly and expressed some surprise "that they were not apprehending a major drugs ring"; presumably, it was an expectation of finding a more serious state of affairs than they in fact discovered which prompted a raid by a number of police officers - about 10, the applicant says - at such a time.

The applicant says the fines were too heavy, but does not press that submission; perhaps it was brought about by an estimate which he said the police gave him of their likely amount being a considerably lower level. There is no reason to interfere with the fines. A more difficult point is the question of recording of a conviction. The bench charge sheet in respect of each of the offences with which this Court is concerned notes "defendant convicted and fined...", and this is the recording of which he complains.

The applicant is 53 years of age and has no convictions, according to the information placed before the magistrate. He was candid enough to inform us that he has committed some very minor traffic offences, of which he gave us some details.

The case is one in which, according to the applicant, his future in the computer industry may be affected by having convictions recorded. The fines imposed were not especially light and it would seem unfortunate if, in addition, the applicant were to suffer further punishment of rather unpredictable magnitude as a result of convictions having been recorded. We accept that the applicant is subject to a risk of being damaged in the way of exercise of his occupation, in future, if the convictions remain on record.

There is now a number of Court of Appeal cases in which the recording a conviction in respect of relatively minor marijuana offences has been considered. Those which relate to sentences imposed after 27 November 1992 (when the more material parts of the Penalties and Sentences Act 1992 came into force)are more pertinent than the earlier decisions. Among those to which Mr Rutledge, for the Crown, has helpfully drawn our attention are Graydon v. Dickson (C.A. No. 36 of 1993, 15 March 1993), Devine v. Shannon (C.A. No. 115 of 1993, 2 June 1993), Wheeler v. Francis (C.A. No. 89 of 1994, 14 June 1994), Castles v. Backhouse (C.A. No. 76 of 1994, 16 June 1994), Andjelkovic (C.A. No. 182 of 1993, 12 July 1993), and Taylor (C.A. No. 359 of 1994, 26 October 1994). In Castles v. Backhouse there was a conviction for supply as well as possession and in Wheeler v. Francis the amount of cannabis was 110 grams.

A distinct practice of declining to record convictions, where the offender has committed a minor offence or minor offences relating to marijuana, is discernible. That is applied to persons with no significant prior convictions and the case to be now discussed shows that in special circumstances even offenders who have committed prior offences may be considered to merit the advantage of not having a conviction recorded. It is notable that most of the cases of this kind - relatively minor drug offences involving people with no significant criminal record - relate to young offenders. In Devine v. Fullalove (unreported, 6 August 1993) the applicant was middle-aged; she was a person with a disability which confined her to a wheelchair, but it was not stated whether the disability was temporary or permanent. She had two convictions for dishonesty, and had been given a bond for possession of small amounts of cannabis and associated items - a set of scales and packaging material; a conviction was recorded below. Macrossan CJ pointed out that the age of the applicant "should not be regarded as disqualifying her from being sentenced without recording a conviction". His Honour referred to the advantage of some consistency in treatment of drug offenders and went on:

"It should be possible to achieve this without too much difficulty in cases simply of possession of marijuana where the quantities are not great and the offender has no previous drug convictions and has a generally good, even if not impeccable, character. In these cases it will often be desirable to record no conviction."

The application was granted and the appeal allowed and it was ordered that no conviction be recorded.

The case (Devine v. Fullalove) seems broadly comparable with the present, in relation to the age of the applicant and the strength of the circumstances bearing upon the propriety of recording a conviction. The principal differences between the two cases are that here there was some production going on, albeit it on a very small scale and for the applicant's own use and that this applicant is in substance a first offender, whereas the applicant Fullalove had two convictions for dishonesty in her record.

With all respect to the very experienced magistrate who determined the matter below, it is difficult to agree that the case was one which warranted the recording of convictions, having regard to the criteria set out in s. 12(2) of the Penalties & Sentences Act 1992. The fines imposed were at a substantial level; the applicant has been subjected to a midnight visitation by a number of members of the police service and that was no doubt an upsetting experience, despite the exemplary behaviour of the police. It does not appear to be necessary, in the interests of deterrence or for any other purpose, to add to the adverse effects of the applicant's breaches of the law the chance that he may in future find it difficult to gain employment, or even lose employment, because of the recording of the convictions in question.

The applicant is a man who has reached the age of 53 years without having been convicted of anything other than trivial offences; we think he should not have had these two convictions for relatively minor cannabis convictions, both relating to his own use of cannabis, recorded against him. The application will be granted and the appeal allowed. The orders made below will be varied by ordering that no conviction be recorded in respect of the charges of unlawfully producing a dangerous drug and unlawfully having in possession a dangerous drug.