R v Christodoulou

Case [2019] QCA 233

SUPREME COURT OF QUEENSLAND

CITATION:

R v Christodoulou [2019] QCA 233

PARTIES:

R
v
CHRISTODOULOU, Jim
(applicant)

FILE NO/S:

CA No 239 of 2019
DC No 123 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg – Date of Sentence: 11 September 2019 (Everson DCJ)

DELIVERED ON:

29 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2019

JUDGES:

Fraser and Morrison and Philippides JJA

ORDER:

The application should be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced on a plea of guilty to one count of possession of a dangerous drug, being cannabis, in excess of 500 grams – where, after a contested sentence, the applicant was sentenced to nine months imprisonment with parole after serving three months – where the applicant was 59 at the time of offending and sentence with no relevant criminal history, and no criminal history in Queensland – where, at sentence, the applicant disputed that he possessed the cannabis for a commercial purpose – where the trial judge found that he did, and sentenced him on the basis that, while he plead guilty, he “did not accept the inevitable finding of commerciality” – whether the sentence is manifestly excessive

R v Barratt[2014] QCA 227, considered
R v Crook[2012] QCA 305, considered
R v Smith[2005] QCA 398, considered

COUNSEL:

S Lynch for the applicant
D Balic for the respondent

SOLICITORS:

Messenger Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Philippides JA and the order proposed by her Honour.

  2. MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.

  3. PHILIPPIDES JA:  The applicant was sentenced on 11 September 2019 on his plea of guilty to one count of possession of a dangerous drug in excess of 500 grams.  After a contested sentence, he was sentenced to nine months imprisonment with a parole release date of 11 December 2019, after serving three months.

  4. The applicant, who was 59 at the time of the offending and sentence, applies for leave to appeal against his sentence on the ground that the sentence is manifestly excessive in all the circumstances.

  5. The other grounds of appeal contended that there was specific error resulting in the sentencing discretion miscarrying because the sentencing judge:

    (a)erred in finding that there was a commercial element to the possession, having regard to the fact that the applicant gave sworn evidence and lack of other indicia of commerciality;

    (b)placed excessive weight on the fact that the applicant did not accept the allegation of commerciality and therefore lacked remorse; and

    (c)placed insufficient weight on the Crown’s submission that the appropriate sentence extended up to 12 months imprisonment wholly suspended for two years.

  6. These grounds of specific error were not pressed…

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Details
AGLC
R v Christodoulou [2019] QCA 233
Case
[2019] QCA 233
Decision Date

CaseChat Overview and Summary

In R v Christodoulou, the applicant appealed against his sentence imposed following a guilty plea to possession of a dangerous drug, being cannabis, in excess of 500 grams. The appeal centred on the contention that the sentence was manifestly excessive. The applicant was sentenced to nine months imprisonment with parole after serving three months. He was 59 years old at the time of the offence, with no prior criminal history in Queensland, and no relevant criminal history. The applicant disputed that he possessed the cannabis for a commercial purpose, but the trial judge found otherwise, sentencing him on the basis that, while he pleaded guilty, he did not accept the finding of commerciality.

The legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered this by examining the sentencing principles relevant to the case and comparing the sentence with those imposed in similar cases. The applicant submitted that a sentence of six to 12 months wholly suspended or with immediate parole was more appropriate. The court examined previous cases where similar offences had been committed, noting the differences in circumstances and the sentences imposed. It found that the sentence in the present case was proportionate and within the proper exercise of the sentencing discretion, considering the nature and quantity of the drug involved, the packaging, and the presence of additional items such as scales and cash.

The court concluded that the sentence was not manifestly excessive. It rejected the applicant’s contention that a wholly or partially suspended sentence was more appropriate. The court emphasised that the question was not whether another sentence might properly have been imposed, but whether the sentence imposed was outside the proper exercise of the sentencing discretion. The appeal against the sentence was accordingly dismissed.

Orders

Orders of the court

The application should be refused.

Background

Background to the litigation

It was submitted that the sentence that ought to be imposed if the sentence is found to be manifestly excessive is one of six to 12 months wholly suspended or with immediate parole.Background On 11 December 2018, a search warrant was executed at the applicant’s residence where he lived with his sister and her child. The applicant was not at home but his partner was present and directed police officers to the applicant’s bedroom. In the bedroom cupboard police located containers containing cannabis having a total weight of 1.422 kilograms as follows:(a)two vacuum sealed bags of cannabis containing 426 and 416 grams respectively;(b)a box containing cannabis in the amount of 172 grams;(c)a container of cannabis in the amount of 96 grams;(d)a container of cannabis in the amount of 4 grams;(e)12 clip seal bags containing cannabis in the amounts of 64, 54, 43, 42, 39, 13, 13, 12, 6, 6, 1 and 1 grams; and(f)loose cannabis and stems in the amount of 14 grams. In the same cupboard, officers also located two sets of digital scales and a bag containing a number of unused clip seal bags and a plastic pill bottle containing $2,340 in $5 notes, bundled with rubber bands. The value of the seized cannabis would be at between $5,000 and $12,000 if sold by the pound. The applicant declined to participate in a record of interview with police. At the sentencing hearing, the applicant disputed the prosecution’s allegation that the cannabis was possessed for a commercial purpose. In respect of that contention, the prosecution relied upon the quantity of the drug found, the way the drug was packaged into both wholesale purchase amounts (pounds) and commonly sold amounts (quarter and half ounces etc), the presence of the digital scales, unused clip seal bags and the unexplained cash.Applicant’s evidence The applicant’s evidence was that he bought three pounds of cannabis for $2,500 per pound that he paid for from money inherited from his mother. He said he had been using cannabis for 20 years after fracturing his back in a horse riding accident to ease back pain and to sleep better. He smoked it, rubbed oil made from the plant on his back and consumed a “rice grain” of the oil every night. He gave evidence of the cooking process used to recover the oil and identified a photo said to depict a bottle of the oil. He said that about two ounces of cannabis produced “about a centimetre square or something like that” of oil and he sometimes mixed it with food products. The applicant said the 426 gram and 416 gram bags were sold to him as pound lots and they were unchanged. He also would break down the bags into smaller lots to work out amounts to cook[1] and put some in small bags to take camping. He purchased the bags from “Woolies”. He said of the three sets of scales, he thought two did not work. He used the one that did for making the oil. He explained the presence of the bundle of $5 notes as a compulsory form of saving by putting aside $5 notes given to him in change over a three to four year period. He denied ever selling cannabis.[1]AB at 21.10-19.

Evidence

Evidence Before The Court

At the sentencing hearing, the applicant disputed the prosecution’s allegation that the cannabis was possessed for a commercial purpose. In respect of that contention, the prosecution relied upon the quantity of the drug found, the way the drug was packaged into both wholesale purchase amounts (pounds) and commonly sold amounts (quarter and half ounces etc), the presence of the digital scales, unused clip seal bags and the unexplained cash.Applicant’s evidence The applicant’s evidence was that he bought three pounds of cannabis for $2,500 per pound that he paid for from money inherited from his mother. He said he had been using cannabis for 20 years after fracturing his back in a horse riding accident to ease back pain and to sleep better. He smoked it, rubbed oil made from the plant on his back and consumed a “rice grain” of the oil every night. He gave evidence of the cooking process used to recover the oil and identified a photo said to depict a bottle of the oil. He said that about two ounces of cannabis produced “about a centimetre square or something like that” of oil and he sometimes mixed it with food products. The applicant said the 426 gram and 416 gram bags were sold to him as pound lots and they were unchanged. He also would break down the bags into smaller lots to work out amounts to cook[1] and put some in small bags to take camping. He purchased the bags from “Woolies”. He said of the three sets of scales, he thought two did not work. He used the one that did for making the oil. He explained the presence of the bundle of $5 notes as a compulsory form of saving by putting aside $5 notes given to him in change over a three to four year period. He denied ever selling cannabis.[1]AB at 21.10-19. In cross examination, the applicant said of the money inherited from his mother that he put most towards his house, which he was making mortgage payments on, and denied he used it to buy drugs. He maintained that the $2,340 in $5 notes located by police were stored in the same wardrobe with the cannabis because “everything” was stored in there. He denied the $5 notes were given to purchasers in change and that the cannabis had been bought for a commercial purpose. He accepted he would use the same rubber bands to keep the money together that he used for the cannabis. He accepted that if he had bought three pounds of cannabis and was using two pounds a day he would have had possession of less cannabis than the quantity located but could not say where the rest of the cannabis came from. He accepted that ounce, half ounce and quarter ounce reflected the amounts that cannabis is sold in and it was just a coincidence that these were the amounts he cooked with. He said he would use about an ounce to make butter.Sentencing judge’s findings and sentencing remarks At sentence, the prosecution initially submitted “a sentence of 12 months imprisonment to be suspended wholly for two years” as being within range given the early plea but also accepted that a period of actual imprisonment was in range. The submission made on behalf of the applicant was that, if a finding of a commercial purpose was made, the appropriate sentence was one of nine months imprisonment wholly suspended for 18 months to two years.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was submitted that the manifest excessiveness of the sentence was evident when regard was had to the comparable sentences. The applicant’s case was not in the same category as Barratt which involved a commercial enterprise where the defendant had travelled to purchase the cannabis for sale.Consideration of decisions There were three decisions referred to the sentencing judge. The sentence imposed in the present case was half of that upheld in Barratt, which concerned a plea to possession of well over 3 kilograms of cannabis where it was conceded that the cannabis was for a commercial purpose. The sentence of 18 months suspended after six months was imposed in circumstances where the offender undertook a round journey to purchase the cannabis which was described as “a significant undertaking”, and where the offender had a prior criminal history of two minor possession offences for which no convictions were recorded. The sentence in Barratt also required consideration of mental health issues suffered by the offender which was not a factor in the present case. As the sentencing judge observed, Crook,which concerned a plea to possession of 1.173 kilograms of cannabis and one count of supplying cannabis to another for which concurrent sentences of six months imprisonment wholly suspended for nine months were imposed against a background of a previous history of production, was not a pertinent comparative given that it was not disputed that there was no evidence of commerciality. In R v Smith,[4] the applicant pleaded guilty to a charge of possessing cannabis in excess of 500 grams and was sentenced on appeal to 12 months imprisonment wholly suspended for two years and 80 hours community service. He had no criminal history and was one of three persons who entered into an arrangement to purchase 10 pounds of cannabis (4.53 kilograms). The sentence imposed on appeal had regard to parity issues arising from the partially suspended sentence imposed on a co-offender with a prior substantial criminal history who offended during the currency of a suspended term of imprisonment and who received a lesser sentence than that imposed in Smith at first instance.[4][2005] QCA 398. Counsel for the applicant also referred to cases concerning the production of cannabis where sentences of imprisonment were imposed not requiring a custodial component to be served. Those authorities are also of limited assistance. A further matter to which the sentencing judge was entitled to have regard was his finding that the applicant’s disputation of the commerciality of the possession was lacking in credibility and veracity and called into question the extent to which the plea reflected remorse as well as cooperation. The difficulty in the contention advanced by the applicant that actual imprisonment was not required to be imposed is that the question for consideration by this Court is not whether another sentence may properly have been imposed but whether the sentence in fact imposed was not within the proper exercise of the sentencing discretion.