Proud v O'Brien

[1992] QCA 305

COURT OF APPEAL [1992] QCA 305

MACROSSAN CJ
DAVIES JA

AMBROSE J

CA No 233 of 1992
N A PROUD
and

PETER JAMES O’BRIEN Applicant

BRISBANE

..DATE 09/09/92

JUDGMENT

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THE CHIEF JUSTICE: The applicant applies for leave to appeal against his sentences. They were imposed for production of a dangerous drug, possession of a pipe used in connection with a dangerous drug, and possession of a dangerous drug. In each case the relevant drug was cannabis. The fines imposed were $1,000 for production; $200 for possession of the pipe; and $500 for possession of the drug.

The Magistrate dealing with the matter concluded on the circumstances put before him that a fine option order was not appropriate; that is, in the circumstances of the applicant. He allowed times to pay, in each case three months, and made orders also for imprisonment in default of payment. The periods of imprisonment specified for default varied. Forty days was the highest period that was imposed in respect of non-payment of the largest fine for production.

It does not appear that the Magistrate had to deal with any matter which fell into a grand category. The police, acting on a search warrant, called at the applicant’s premises and found a tin containing a small quantity of cannabis and a bowl with some fragments of cannabis in it. They discovered 23 small cannabis seedlings in pots in the backyard, and they also saw a pipe which the applicant admitted having used to smoke cannabis in another part of the house.

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The applicant was a 33-year-old man with no previous convictions.
Also he was on an invalid pension at the time he was dealt with.
He was ordinarily a ceiling fixer but he had been off work for
three weeks with a back injury. It was accepted that the
applicant was unable to perform community service because of his
back injury, and it appeared, and the Magistrate sentenced on

this basis, that the applicant was growing the cannabis for his

own use.

We were referred to a number of previous cases for the assistance that consideration of the penalties imposed there might give us.

In each case consideration has to be given to individual circumstances, but, for example, one case to which our attention was drawn was the matter of The Queen v. Kennard, Court of Appeal No 141 of 1990, and it is true that the fines there imposed - or some of them - were somewhat less than those imposed in the present case. A $750 fine was imposed for the production of a dangerous drug, cannabis; $150 in respect of a utensil; and $400 in respect of the possession there involved.

We were told that the amount there was 295.7 grams. The case was one which was dealt with in the Appeal Court some two years ago.

That case, like others, is of assistance in enabling us to decide whether any disproportion appears in the present circumstances or whether, putting it more broadly, there is anything manifestly excessive in the sentences imposed in the

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present case.
We have looked at the fairly limited amount of information placed
before the sentencing Magistrate, this appearing in the
affidavits of the duty solicitor and a police officer, and having
considered that and having noted what the Magistrate has done in
the penalties he has imposed, I am not persuaded that there is
any reason shown to interfere in the present case and I would

refuse the application.

DAVIES JA: I agree.

AMBROSE J: I agree.

THE CHIEF JUSTICE: The application is refused.

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