Gough v Baker

[1995] QCA 375

COURT OF APPEAL

[1995] QCA 375

DAVIES JA
MOYNIHAN J

FRYBERG J

CA No 200 of 1995

B.W. GOUGH	Respondent
v.
BRETT ANTHONY BAKER	Applicant
BRISBANE ..DATE 31/07/95
JUDGMENT

1

DAVIES JA: The applicant was convicted in the Magistrates Court on 27 April this year of possession of a dangerous drug, namely amphetamine and possession of a dangerous drug namely cannabis sativa.

In respect of each of those offences he was sentenced to two months' imprisonment, the second cumulative on the first and each of them cumulative upon sentences imposed on the same day on each of two charges of driving whilst disqualified, for each of which he was sentenced to four months' imprisonment, the second cumulative on the first. The result was a total for all of these offences of 12 months' imprisonment.

The applicant seeks leave to appeal only against the sentences imposed for possession of amphetamine and possession of cannabis sativa but in considering the adequacy of those sentences it will be necessary to consider whether the totality of the sentences in consequence of them being cumulative, was manifestly excessive.

The first of the driving offences was committed on 9 January this year and the second on 22 March this year. On the second of those occasions he also gave a false name to the police, for which he was convicted on 27 April 1995, but no further sentence was imposed for that offence.

The applicant has a very bad criminal record with more than 50 convictions over a period of about 17 years. Many of these resulted in gaol sentences, the longest term of imprisonment being one of three and a half years for robbery in company. There are also a large number of non-custodial orders and not surprisingly, he has been in breach of recognisance orders and parole and probation orders on a number of occasions.

The subject offences and the first of the disqualified driving offences were committed whilst the applicant was on probation.

He has been sentenced to imprisonment for drug offences on several occasions including one of 12 months' imprisonment. He has been previously sentenced on a number of occasions in
respect of offences of driving without a licence and driving
whilst disqualified.

There can be no doubt that the learned sentencing Magistrate was entitled to impose sentences for the drug offences which were cumulative upon those imposed for the disqualified

driving offences. The former were of a quite different

character from the latter and committed at a different time.

He was also entitled to make the sentence in respect of one of
the disqualified driving offences cumulative on the other
though that is not relevant to the present application because
those sentences are not the subject of it. It is arguable
that in this application, imposing a sentence in respect of
one of the drug offences cumulatively upon that imposed in
respect of the other, was not an appropriate way of
sentencing.
It would have been better, in my view, had the learned
sentencing Magistrate imposed a sentence appropriate to the
overall criminality of these offences in respect of the major
offence, that is possession of amphetamine, and imposed a
concurrent shorter sentence in respect of the other possession
offence.

However, that question does not arise in the present case if the totality of the sentences imposed for these offences, having regard to the fact that they were imposed cumulatively upon the disqualified driving offence, was not manifestly excessive.

The applicant pleaded guilty to the disqualified driving offences and to the offence of possession of cannabis sativa.

He pleaded not guilty to the offence of possession of

amphetamine and was convicted after a summary trial. The
circumstances with respect to the drug offences were as
follows:

On 4 September 1994 the police executed a raid on the applicant's premises. When they first knocked at the door they saw the applicant take three plastic bags from the pocket of his jeans and give them to his girlfriend who secreted them on her person.

When they entered the house they located foil containing cannabis sativa and a pipe. The applicant admitted to owning both. They then searched the applicant's girlfriend and recovered the three bags which were later found to contain amphetamine.

The applicant continued to deny knowledge of the existence of these, including in his summary trial. He thus plainly had no remorse for his conduct in that respect.

Having regard to comparable sentences for offences of this kind, the learned sentencing Magistrate was, in my view, entitled to sentence the applicant to a term of four months' imprisonment for the offence of possession of amphetamine particularly when one has regard to his very bad criminal record which includes, as I have said, previous drug offences.

Nor in my view did the learned sentencing Magistrate err in making that sentence cumulative upon the earlier sentences for disqualified driving. Nor in my view was the totality of the sentences, the subject of this application, outside the range of a sound discretionary judgment by reason of being imposed cumulatively upon those imposed for disqualified driving.

In my opinion the application should therefore be refused.

MOYNIHAN J: I agree.

FRYBERG J: I also agree.

DAVIES JA: The application is refused.

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