Holt v Geertsma

[1993] QCA 103

[1993] QCA 103

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 360 of 1992

Brisbane

[Holt v. Geertsma]

A.J. HOLT

- and -

WILLIAM LUTE GEERTSMA

Applicant

The President
Mr Justice McPherson

Mr Justice Derrington

Judgment delivered 26/03/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW IS SET ASIDE. IN LIEU THEREOF, ORDER THAT THE APPLICANT PERFORM UNPAID COMMUNITY SERVICE FOR A PERIOD OF 100 HOURS AND THAT NO CONVICTION BE ORDERED.

CATCHWORDS: CRIMINAL LAW - SENTENCE - 18 year old University student with no previous convictions pleaded guilty to possession of dangerous drug (cannibas sativa) - 100 hours community service ordered - no conviction recorded - s.9 Drugs Misuse Act 1986

Counsel:	Mr A. Glynn for the applicant Ms L. Clare for the Crown
Solicitors:	Messrs. Bennett and Philp for the applicant Director of Prosecutions for the Crown
Hearing Date(s):	18/03/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 360 of 1992

Brisbane
Before The President

Mr Justice McPherson

Mr Justice Derrington

[Holt v. Geertsma]

A.J. HOLT

- and -

WILLIAM LUTE GEERTSMA

Applicant

Reasons for Judgment - The Court

Judgment delivered 26/03/93

This is an application for leave to appeal against sentence in respect of a conviction for an offence against section 9 of the Drugs Misuse Act 1986 which was recorded in the Magistrates Court at Ipswich on 25 November 1992. The applicant, who was found guilty of the possession of a dangerous drug, namely cannibas sativa, was fined $475 and, in default, sentenced to imprisonment for sixteen days.

Police executed a search warrant at the applicant's residence on 24 November 1992 and found marijuana seeds, jiffy pots, plastic bags, two pipes and alfoil. The applicant admitted that the marijuana seeds were his, the pipes were used by him to smoke marijuana, the alfoil was used to make the pipes and the bags were used to separate the seeds. There was no suggestion that the material was for a commercial purpose or other than for the applicant's own use. There was no evidence that the seeds were in a condition in which they could be cultivated and used to produce further cannibas sativa.

The applicant is eighteen years of age, born on 3rd September 1974, and is studying for a bachelor of Business Management at the Queensland University of Technology. He has no previous convictions and pleaded guilty at the earliest opportunity. It was not submitted for the respondent, Director of Prosecutions, that a community based order was not an appropriate option which was available to the Magistrate in this case.

On a number of occasions, this Court has indicated that, in a case such as this, a proper exercise of discretion involves not recording a conviction: see, for example, Strutt (Court of Appeal No. 174 of 1992, unreported judgment delivered 17 July 1992); and Dickson (Court of Appeal No.36 of 1993, unreported judgment delivered 15 March 1993). The consequences of recording a conviction upon the applicant's future, including his career and prospects of overseas travel, are so great that such a step is not warranted for this first offence. This is especially so since a conviction is effectively a conviction on indictment.
The consequences of an order for unpaid community service have been explained to the applicant and he has agreed to such an order up to the permissible maximum and to comply with the order. A period of one hundred hours of community service would, in all the circumstances, be appropriate.

Accordingly, the application for leave to appeal is granted, the appeal is allowed and the sentence imposed below is set aside. In lieu thereof, it is ordered that the applicant perform unpaid community service for a period of one hundred hours and that no conviction be recorded.