Gillies v White
[2005] TASSC 7
•3 March 2005
[2005] TASSC 7
CITATION: Gillies v White [2005] TASSC 7
PARTIES: GILLIES, Tameika Maree
v
WHITE, Sergeant Graeme Ross White
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 37/2004
DELIVERED ON: 3 March 2005
DELIVERED AT: Launceston
HEARING DATE/S: 16 February 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Orders and convictions – Sentencing – Imprisonment – First offenders – Sentence of imprisonment for selling cannabis – Whether manifestly excessive.
Aust Dig Magistrates [152]
REPRESENTATION:
Counsel:
Applicant: E G J Hughes
Respondent: J P Ransom
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment ID Number: [2005] TASSC 7
Number of paragraphs: 16
Serial No 7/2005
File No LCA 37/2004
TAMEIKA MAREE GILLIES v SERGEANT GRAHAM ROSS WHITE
REASONS FOR JUDGMENT CRAWFORD J
3 March 2005
The applicant moved the Court to review a sentence imposed by a magistrate on 3 December 2004 on the ground that it was manifestly excessive.
On 2 December 2004 she pleaded guilty to a charge of selling a controlled plant or its products between 1 December 2003 and 25 May 2004, contrary to the Misuse of Drugs Act 2001, s27, and to a charge of using a controlled plant or its products on 26 May 2004, contrary to that Act, s25. On 3 December 2004 she was sentenced to six months' imprisonment from 2 December but four months of the term was suspended on condition that she commit no further offence under the Act for a period of three years.
On 26 May 2004, armed with a search warrant, police searched a unit in West Launceston in the presence of the applicant and a male. She produced a small and unusable quantity of cannabis from a table. The police located a set of scales, a notebook and a bag of pre-sealed plastic bags.
On being interviewed, the applicant stated that the last time she had used cannabis was that morning at the unit. She admitted to selling cannabis, stating that she had done so for approximately six months, the most recent sale being on the day of the search when she sold two bags, each containing 1.8 grams of cannabis, for $25. It is not clear whether the $25 was the price for each bag or for both. She said that she sold 1½ to 2 ounces of cannabis each week, that she paid about $250 for an ounce, and that she "made" about $250 a week. She agreed that she "made" $6,000 in total from sales of cannabis over the previous six months. Her counsel conceded to me that she was sentenced upon the basis of having made a $6,000 profit over that period of time. She had used the notebook as a "tick book" in relation to sales.
She was 18 years old at the time, with no record of offending. Her counsel said that she was educated to Year 12 and had been casually employed for about three years at Woolworths earning amounts varying between $60 and $200 each fortnight. In addition she received a youth allowance of $324 each fortnight. She had also performed some unpaid work for experience and had worked on "a volunteer basis" in a primary school's library. She claimed to be interested in "childcare". She had been a netball umpire. Her counsel made the point that a conviction was likely to limit her future employment opportunities. Reliance was placed on her "full and frank admission" and plea of "guilty at the earliest appropriate opportunity". He also claimed that she had shown "general remorse", without further explanation. It was submitted that the offences were out of character for her.
Her explanation for the offences was as follows. She first tried cannabis when at high school, but did not enjoy it and so did not then become a user. According to her counsel, early in 2004 a change in prescription medication caused her to suffer nausea. Somewhat mysteriously her counsel said: "As a consequence of that the symptom of nausea was assisted by her using cannabis, so she started smoking cannabis to assist her with the nausea." Presumably she must have been using cannabis to learn that it relieved her symptoms. Counsel continued: "Her circle of friends that she was associating with included other cannabis users, or persons that were using cannabis. The sale of cannabis was only ever to persons who had already been using cannabis. She did not introduce anyone to cannabis. She did not seek out persons to sell cannabis to. They were simply people who were already in her circle of friends that she was associating with."
The maximum prescribed penalty for selling a controlled plant or a controlled plant product was a fine not exceeding $10,000 or imprisonment for a term not exceeding four years. For using the maximum penalty was a fine not exceeding $5,000 or imprisonment for a term not exceeding two years. I note that the last mentioned penalties are to be found in s25 which prohibits possession as well as use of a controlled plant or its product.
In comments on passing sentence the learned magistrate said:
"I don't know what possessed you to embark upon this very foolish behaviour. It's quite apparent that you were making a considerable amount of money out of it over the period. ... I note that this was a systematic approach to selling this product or substance which involved the keeping of some records in relation to who the people were that you were selling it to. And it was put to me by your counsel that you didn't know just how much you were making, and it's obviously that you reflected upon it as you were doing it and you were quite content with your return. There's a persistent act of selling over a six month period. I take into account what your counsel says as to your personal circumstances and how these offences took place. I note that you have no prior offences. In all the circumstances I need to impose upon you a penalty which reflects the seriousness of these offences and I think in all circumstances a term of imprisonment is called for."
At the outset of the hearing of the motion to review, the applicant's counsel asked me to have regard to the fact that on 7 December 2004, which was after the date upon which the applicant was sentenced, the male who was present with her when the search was conducted was sentenced by the same magistrate, for selling a controlled plant and for using a controlled plant, to perform 126 hours of community service. Counsel did not seek to put before me any of the factual circumstances upon the basis of which the male was sentenced. Without knowing what they were it is impossible to judge whether the applicant might have a justifiable sense of grievance over her sentence being more severe than that of the male. I add that the only ground of the motion to review is manifest excessiveness in her sentence and that in all the circumstances it is inappropriate for this Court to pay any regard to the other sentence.
Counsel for the applicant relied for support on the following matters in the course of his submission that the sentence was manifestly excessive:
· the applicant had committed no prior offences;
· a conviction would harm her employment prospects;
· there is a good chance for her rehabilitation;
· she was youthful at the time of the offence, aged 18 years;
· she cooperated with the police and made admissions; and
· she pleaded guilty at an early stage.
Counsel submitted that in view of those matters, a sentence of actual imprisonment was manifestly excessive and should not have been imposed. Reliance was placed on the following comments of Everett J in Turner v McKenna [1983] Tas R 219 at 223:
"Clearly, a prime consideration is the duty of a court to enforce the legislative policy expressed in the Poisons Act 1971 to deter possession, use and commercial dealing in respect of prohibited drugs. But that does not mean that imprisonment should be considered as virtually the inevitable consequence of breaches of the provisions of the Poisons Act 1971. The public interest has many manifestations, not the least of which in the context of this appeal is the development of the applicant as a responsible and law-abiding citizen. The just balancing of all material considerations which reflect diverse, and at times conflicting, elements of the public interest must, in my view, be carried out completely comprehensively and without any preconceived judgment in respect of what the ultimate result of such balancing should be."
I respectfully agree with those views and in particular that one of the tasks of the learned magistrate was the just balancing of all material considerations, which included the matters raised by counsel.
Charges of selling drugs come in many different forms. Sometimes only one act of selling is involved. In other cases, as here, a single charge may encompass many acts of selling. Sometimes the quantity of the drug sold is low. In other cases it is considerable. The kind of drug sold is also a material consideration.
There is plainly no doubt that if the applicant had made only a small number of sales a sentence of actual imprisonment would not have been justified. However, the number of sales made by her were relatively considerable, particularly if she was selling scam bags for $25 each and made a profit of $6,000 over a six month period. Further, her offending only stopped when the police intervened.
I have reviewed sentences imposed by judges of this Court for selling cannabis and have taken account of the fact that the charge in this case was for an offence under the Misuse of Drugs Act and not under the much older Poisons Act 1971 for which a different scale of penalties applies. I have concluded that, in general, given the young age and previous good record of the applicant in particular, it is unlikely that a judge would have imposed actual imprisonment. I would not have done so. What has troubled me most is whether, nevertheless, the sentence was a valid exercise of the sentencing discretion, even if it may have been on the high side of an acceptable range, or whether it was so severe as to fall within the description of manifest excessiveness.
With some hesitation I have eventually concluded that it was manifestly excessive for a young first offender in the circumstances of the case. It is a case that is very close to the borderline but ultimately I have reached that conclusion. It is in the public interest that the applicant be given a chance and I do not regard her offence as serious enough to warrant actual imprisonment having regard to her age and antecedents. Accordingly, the sentence will be set aside. I will hear further from counsel before imposing a fresh sentence.
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