Jesse Paul Kennedy v Commissioner of Police

[2023] QDC 190

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE LYNCH KC

No 821 of 2023

JESSE PAUL KENNEDY  Appellant

and

COMMISSIONER OF POLICE  Respondent

BRISBANE

3.04 PM, FRIDAY, 21 JULY 2023

DAY 1

RULING

Any rulings in this transcript may be extracted and revised by the presiding Judge.

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HIS HONOUR:   This is an appeal against sentence imposed in the Magistrates Court at Richlands on the 2^nd of August 2022.  The appellant pleaded guilty to a number of offences and was sentenced by Magistrate Shearer.  The offences included one of producing a dangerous drug, cannabis, on the 16^th of May 2022; one of possessing instructions about producing cannabis, an offence also on the 16^th of May 2022; one of possessing cannabis on the 16^th of May 2022; one of possessing a number of items used in connection with the commission of a crime of producing dangerous drugs, that offence also on the 16^th of May 2022, the items involved were those which were part of the production; an offence of possession of clip-seal bags and electric scales suspected of being used in connection with the commission of an offence, that offence also on the 16^th of May 2022; an offence of possessing three glass bongs, one metal smoking pipe with a brass cone and three grinders, a plastic container for use in connection with the smoking of a dangerous drug, that offence occurring on the 16^th of May 2022; an offence of possessing cannabis on the 28^th of May 2022; and an offence of possessing diazepam on the 28^th of May 2022. 

For those offences, the appellant was sentenced to a number or a combination of orders.  In particular, for the offence of producing the dangerous drug, he was sentenced to 12 months’ imprisonment to be served by way of an intensive correctional order with a conviction recorded.  For all of the other offences, he was sentenced to six months’ imprisonment wholly suspended for three years.  I make it plain that the sentencing magistrate made that order in respect of each of the remaining offences.  Convictions, obviously enough, were recorded for those offences as well.

The appeal is pursuant to section 222 of the Justices Act, which provides of course that the only ground of appeal in respect of penalty can be that the sentence imposed was excessive. In this case, a number of features are said to amount to errors or be specific errors of the magistrate, a combination of which resulted in there being a sentence imposed which was excessive in all of the circumstances. I note that the appeal against sentence is conceded by the respondent. It is at least useful to identify some of the sentencing remarks because this reveals something as to the specific errors alleged on the part of Magistrate Shearer. In the course of the sentencing remarks, Magistrate Shearer said:

Given the seriousness of some of your previous convictions, Mr Kennedy, as well as the seriousness of producing dangerous drugs in such a brazen fashion, nothing other than a sentence of imprisonment is an appropriate sentencing response.

Later, Magistrate Shearer said:

Because it’s clearly a sophisticated drug production set up with aluminium tubing out the windows, two hydroponic tents, plants growing in heat lamps, fans, exhaust fans, and all the rest of it.  So you’ve clearly gone to a significant amount of effort to set up that drug production apparatus.

In particular, it is argued that the sentencing magistrate placed over emphasis upon the criminal history of the appellant, and in conjunction with that did not recognise in the sentencing remarks any account taken of the appellant’s pleas of guilty or cooperation, and that ultimately when compared with sentences imposed in broadly similar cases, the sentences imposed by the magistrate in all of the circumstances here are clearly seen to be out of proportion to those other sentences, such that it is possible to conclude the sentences are simply excessive.

As regards the appellant’s criminal history, the appellant does have a criminal history, but not one for a multitude of drug offences.  The appellant had some convictions from the period of 2012 through to 2014, which included a limited number of drug related offences as well as some property crime, and saw him subject to good behaviour periods or probation orders.  In 2014, in respect of a number of property offences, the appellant was convicted, conviction was recorded, and fined a sum of $1200 and ordered to pay various amounts of restitution. 

The most significant entry on the appellant’s criminal history is from October 2015, after an appearance in the District Court where he pleaded guilty to an offence of robbery.  He was sentenced, in respect of that offence, to 12 months’ imprisonment with a parole release date after four months.  The circumstances of that offending are explained in the material before me, which includes the sentencing remarks of the sentencing Judge.  In that instance, the appellant entered a liquor store, pushed an attendant, and ran away with some items from the store.  It was hardly a serious example of the offence.

There are then no convictions on the appellant’s criminal history after October 2025 until March of 2022, this for an offence of possessing a dangerous drug and possession of a knife in a public place.  Those offences occurred in March of 2022, the appellant was fined the sum of $800 for those offences, and convictions were recorded.  That is the extent of the criminal history of the appellant which preceded his being dealt with for these offences in August of 2022.  And so the description of the magistrate, which as I have noted, included that the seriousness of some of the appellant’s previous convictions, the magistrate concluded, in conjunction with the brazen way in which he had produced cannabis, resulted in the conclusion that no sentence short of imprisonment was appropriate.

The offence of production of cannabis can of course be a serious offence, but the circumstances of the offence before the magistrate did not show it to be a serious example of that offence.  A search was conducted of the appellant’s residence, and a hydroponic production was discovered.  It had been set up in two tents which were in one of the bedrooms of the house.  It included various other equipment, including venting and fans to connect it to windows, but in all there were four plants under production.  What is also clear from all of the material, but which was not referred to at all by the sentencing magistrate, was that this was clearly a production for personal use and not in any sense a commercial operation.

Authority from the Court of Appeal of longstanding demonstrates that sentences for this sort of conduct vary greatly according to the particular circumstances of the case.  Large-scale commercial production of cannabis can result in significant jail terms; however, as is demonstrated in the cases relied upon by the appellant’s legal representatives, it extends in the case of small-scale productions for personal use to the imposition of a fine or probation.  In this instance, the submissions made on behalf of the appellant at first instance were that a probation order was appropriate.  In the submissions before me, it is conceded that such a result was an appropriate response. 

The summary offences also dealt with at the time of the sentencing - that is, apart from the offence of producing a dangerous drug - were also either associated with the production or relatively minor offences and are commonly dealt with by way of a fine.  None of them alone or in combination warranted the imposition of a sentence of imprisonment.  It is true the magistrate did not refer to the appellant’s pleas of guilty, although it was obvious he was aware of them because they were entered in response to the magistrate arraigning the appellant, but no recognition was made in the course of the sentencing remarks or otherwise of the appellant’s cooperation with investigating police.

The submissions on behalf of the appellant identified that he had made genuine efforts to deal with his drug use, which was clearly as a means of self-medication to deal with his mental health issues, no recognition was made in the course of the sentencing remarks of that effort towards rehabilitation.  In the circumstances, I am comfortably satisfied that the sentencing discretion miscarried. The reliance upon the criminal history as a basis to determine that only imprisonment was appropriate as a sentence for these relatively less serious offences was clearly misconceived.  And in light of the full circumstances of the offences and the circumstances of the appellant, it seems to me that a probation order was appropriate.

Initially, in submissions before me, it was submitted that I should fine the appellant.  I suggested as an alternative, given that he has almost completed the intensive correction order, that I not interfere with that sentence but simply convict and not further punish in respect of all the other offences.  Upon reflection, the appellant’s legal representative contends that that nevertheless would be leaving the appellant with a sentence which was excessive in all of the circumstances.  It seems to me I should accept that submission. The question then is what should happen.

The submission made on behalf of the appellant is that I should set aside that sentence and instead fine the appellant.  However, in those circumstances, it would seem to me, I would be twice punishing the appellant who has already substantially completed a sentence which I have acknowledged was excessive.  Given that the appellant is only a couple of weeks shy of completing the intensive corrections order, and I am obliged to have regard to the fact that he has done so in determining an appropriate penalty, it seems to me that the correct approach now would be to set aside the sentence in respect of all of the offences, and instead to order that the appellant is convicted and not further punished in respect of each of the offences.  I will however order that convictions be recorded for all of the offences. 

The formal order then is that the appeal against sentence in respect of each offence is allowed. The sentences imposed at first instance by Magistrate Shearer are set aside in each case.  Instead, I order for each offence the appellant is convicted and not further punished, and a conviction is recorded.  Is there any further order required?

MS LONG:   No.  Thank you, your Honour.

MS DEVEREAUX:   No.  Thank you, your Honour.

HIS HONOUR:   All right.  Thank you for your assistance.  We will adjourn.

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