R v Condoleon

[1993] QCA 272

IN THE COURT OF APPEAL [1993] QCA 272

SUPREME COURT OF QUEENSLAND

C.A. No. 127 of 1993

Brisbane
[R v. Condoleon]

BETWEEN

T H E Q U E E N
v.
KATHERINE CONDOLEON

Applicant
_______________________________________________________________

Macrossan C.J.
Pincus J.A.

Lee J.

_______________________________________________________________
Judgment delivered 4 August 1993
Joint reasons of Macrossan C.J. and Pincus J.A., separate
reasons of Lee J. All concurring as to the order made.
_______________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED. ORDERS OF THE PRIMARY JUDGE SET ASIDE, IN LIEU THEREOF NO CONVICTION RECORDED.

_______________________________________________________________

CATCHWORDS:  CRIMINAL LAW - supply of a dangerous drug (marijuana) to a minor - whether sentence manifestly excessive - whether applicant induced a minor to take drugs - matters to be taken into account under s.12(2) of the

Penalties and Sentences Act (1992).

Counsel:	Ms K. Wenck for the applicant. Mr W. Clark for the respondent.
Solicitors:	Legal Aid Office for the applicant.
Director of Prosecutions for the respondent.
Hearing Date:	16 July 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 127 of 1993

Brisbane

Before Macrossan C.J.
Pincus J.A.
Lee J.

[R v. Condoleon]

T H E Q U E E N
v.
KATHERINE CONDOLEON

Applicant

JOINT JUDGMENT OF MACROSSAN C.J. AND PINCUS J.A.

Judgment delivered 04/08/1993

This is an application for leave to appeal against sentence. The applicant was convicted, on her pleas of guilty, of 12 counts relating to cannabis sativa - 9 of supplying to a minor and 3 of possession. The learned primary judge ordered that she be imprisoned on each of the 9 counts of supplying a dangerous drug to 18 months imprisonment and, on the other three counts, 3 months imprisonment. There was a recommendation for parole after having served three months imprisonment.

The applicant's criminal history was that she was convicted of common assault in 1992 and ordered to perform 40 hours community service; no conviction was recorded on that occasion.

No evidence was called below, but the prosecutor and defence counsel each gave an account of the circumstances of the offences; the two accounts differed in some respects.

The three offences of possession of cannabis sativa require no lengthy analysis. Each offence related to possession of a small quantity of the drug and it appears from the prosecutor's address to the trial judge that each of the three amounts of marijuana found was less than a gram in weight.

The supply offences had in common that each involved supply to a female acquaintance of the applicant: in six instances the person supplied was a 15 year old student and in the other three a 17 year old student. The applicant was 21 years of age when the offences were committed.

The nine supply offences occurred in varying circumstances and it is unnecessary for the purposes of these reasons to set those out in full; some detail however, is needed. In eight instances the applicant supplied marijuana for consumption at a residence, either that of her parents, or that of one of the two persons to whom it was supplied, or that of another friend. The amount of marijuana used on those occasions varied from a single joint to four cones - in each case, apparently, shared. Two of the counts in this category involved the variation that the applicant was paid money by the girl in question to buy marijuana; subsequently the applicant supplied marijuana which the two shared. The other instances of supply were, it appears, gratuitous and presumably induced by friendship or at least acquaintanceship.

The remaining count (count 2) was in our view the most serious instance. According to the prosecution the applicant drove to the high school attended by the 15 year old girl and parked next to the school oval. At the applicant's invitation the 15 year old girl and another girl drove away from the school and a joint of marijuana was lit and passed around. This is the incident which gives the most substance to the motion that the applicant was a drug supplier "preying" on younger girls; that suggestion was not, it must be said, made before us.

During the hearing below the question was raised whether the two girls we have mentioned - the 15 year old and 17 year old - used cannabis before they met the applicant. The prosecutor said that it "might not be unfair to suggest that they were not entirely innocent in that regard". The defence submissions went considerably further.

Counsel for the defendant informed the judge that on his instructions the two girls were quite familiar with the smoking of marijuana before engaging in that activity with the applicant. One of the girls (the 17 year old) had her own source of supply and on a number of occasions supplied the applicant. As to the payment of money we have mentioned, the defence asserted that one sum, a sum of $5, was paid at the suggestion of the payer so that she could share in the use of marijuana the applicant had. Counsel for the applicant also said that at relevant times the applicant had suffered from a condition of depression and that was supported by a psychiatric certificate which, however, noted that the condition had responded to treatment. The applicant, through her counsel, expressed regret for her conduct, attributing it to "terribly bad judgment", and informed his Honour that she intended to keep away from having anything to do with drugs.

The applicant, it was said, lived with her parents at the time of sentence. She had been, counsel said, in the past involved in the sport of judo, had been a Queensland champion in her division and had represented Australia. At the time she appeared below she was in training, intending to attend the State championships. She was not then in employment but had applied for work. The judge was shown medals and trophies which she had won in her sport.

His Honour, in his remarks on sentence, accepted that the applicant "previously knew the two girls" and that "they had previously become interested in marijuana". His Honour also accepted that throughout the relevant period the applicant was depressed. His Honour expressed the view that being older than the two girls, and seen by them as an adult, the applicant's conduct had "undoubtedly enhanced their view as to the acceptability of the drug, the acceptability of it becoming part of their lifestyle". His Honour described the applicant as having "betrayed the obligation which all adults, even young adults, have to protect children, especially teenagers who are easily led".

The principal ground upon which the learned primary judge acted was, as it appears to us, the necessity of ordering what his Honour described as "salutary punishment" to protect young people against conduct of this kind.

Counsel referred us to a decision of this Court in Mills (unreported, 11 November 1992) which appears to us to be one in which the circumstances were comparable in seriousness, on the whole, to those in the present case. There were only three offences, but the applicant there was a grower of marijuana, in a small way, and had well over half a kilogram of marijuana in his possession, made up into 27 bags of about an ounce each. Mills used to supply marijuana to his friends who would "give him $20 or $30 for the drug that he left with them" and on occasions would also supply him with other favours. He was 29 years of age and a first offender.

Mills had been sentenced below to six months imprisonment for possession and three months (concurrent) for supply; he was given a good behaviour bond in relation to a count of production. Mills was 29 years of age and that places him in an age group different from the present applicant; she was 21 when she committed the offences. The amount involved in Mills' case was substantial. He committed fewer offences but production was involved and what seems to have been a small business of supplying friends for reward. Although Mills was not said to have supplied any persons as young as 15 or 17, it is our opinion that the present case should not have been treated in any way substantially different from the result of Mills. There

the sentences imposed were set aside and the applicant was

ordered to carry out 120 hours community service.

One may readily sympathise with the primary judge's view that young people should be protected from older persons who so behave as to give them the impression that marijuana use is acceptable conduct. The present case would have a very different aspect if the Crown had set out to show that the applicant introduced the two young people to the drug or forced it on them; that was not alleged, and as we have pointed out, the defence stated and the judge accepted that before the offences were committed the two young people were already interested in marijuana. The extent to which they used the drug, apart from their contacts with the applicant, does not appear. But there was not, in our respectful opinion, any good reason to sentence on the basis that the applicant's conduct had necessarily made a marked difference in their attitude towards the use of marijuana. It should not be forgotten that the defence said that one of the two young girls had herself supplied the applicant,on occasions.

We were informed that the applicant was granted bail after she served about a month of her sentence. We have formed the view that having regard to the principle of s. 9(2)(a)(i) of the Penalties and Sentences Act 1992, that imprisonment should be imposed only as a last resort, the offences were not of sufficient seriousness to warrant sending a young woman to prison for the first time, and some other punishment should have

been imposed. But for the fact that the applicant has now
spent a month in prison we would have been of opinion that the
applicant should be required to perform a substantial amount of
community service and would have had in mind 150 hours. In the

circumstances, however, it appears to us that the sentence

should simply be set aside.

There remains the question whether a conviction should be recorded. The learned primary judge exercised his discretion against the applicant under s. 12, but it is necessary to reconsider the matter since the offences, although quite serious, were not in our opinion shown to be of that order of gravity in which the primary judge placed them. It was said, in effect, to the primary judge that a conviction for drug offences might affect the applicant's prospects of again competing in sport overseas. We would think that to be so and we are also of the view that on the facts placed before the Court below, such a conviction - indeed any conviction - could affect her prospects of again obtaining employment; she has had, it appears, satisfactory employment in the past. The Penalties and Sentences Act requires that these matters be taken into account in determining whether a conviction be recorded.

It may be useful to reiterate the principal grounds on which, in our opinion, the Court should take a more lenient view of the offences than that taken below: the youth of the offender, that she has no previous recorded convictions, her psychiatric condition at relevant times, her remorse including a plea of guilty, and, most importantly, that there was no sufficient reason to think that the instances of supply by the applicant caused the two younger girls to take up the use of marijuana, or substantially altered their behaviour in regard to that drug.

We would grant the application, allow the appeal and, having regard to the imprisonment already served, set aside the primary judge's orders and direct in lieu that no conviction be recorded.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 127 of 1993

Brisbane

Before The Chief Justice

Pincus JA.
Lee J.

[R. v. Condoleon]

The relevant facts surrounding the offences and the circumstances of the applicant are set out in the reasons of Macrossan CJ and Pincus JA. No conviction was recorded with respect to the prior conviction of the applicant for common assault on 11th February 1992 by virtue of the operation of s. 252 of the Corrective Services Act 1988 which then provided that a conviction for an offence in respect of which (inter alia) a community service order is made shall be deemed not to be a conviction for any purpose except in relation to the five matters set out in paras. (d) to (h) inclusive of that section. The appellant was there ordered to perform 40 hours community service. Under the Penalties and Sentencing Act 1992 ("the Act"), which removed (inter alia) s. 252 of the above Act, a discretion is now conferred whether or not to record a conviction in a wide variety of cases including a case where a community service order is made: s. 100. In the instant case, the learned sentencing judge imposed a term of 18 months imprisonment with a recommendation for early parole after 3 months. His Honour stated that in the exercise of the discretion under s. 12 of the Act, a conviction was recorded. This was necessary by virtue of s. 152 which provides that a term of imprisonment may be imposed only if a conviction is recorded. Because of the removal of s. 252 of the Corrective Services Act 1988, the requirement in s. 252(h) to the effect that a conviction in respect of which a community service order is made, shall be deemed not to be a conviction for any purpose except in proceedings against the offender for a subsequent offence, is no longer applicable. Section 12(5) of the Act now gives a discretion to disregard a conviction that was ordered not to be recorded, but it cannot be said that the court, in ordering community service on 11th February 1992, ordered that the conviction in question be not recorded. That was merely the effect of s. 252 of that Act. Section 204 and particularly s. 204(2) or Reg. 17 made pursuant to s. 205 of the Act do not refer to such a situation. The consequence appears to be that for the purposes of s. 9(4) of the Act which requires special consideration to be given to a person under the age of 25 years who has not been previously convicted, the applicant cannot be regarded as a person who has not previously been convicted. This would appear to follow from the definition of "conviction" in s. 4 of the Act. She was accordingly not a first offender. In any event, the prior offence was obviously not of a very serious kind so as to warrant a sentence of imprisonment with respect to the current offences.	Judgment delivered 04/08/1993 agree that the offences were not of sufficient seriousness to warrant sending the applicant to prison for the first time. I agree that the sentence as imposed should be set aside. I consider that in view of the nature of the offences, the applicant should have been ordered to put something substantial back into the community by performing the maximum of 240 hours community service provided for by s. 103(2) of the Act. However, because of the time she has served in prison under the sentence, I agree with the order proposed by Macrossan CJ and Pincus JA viz. that the sentence should be set aside.
As stated above, the recording of a conviction was necessary because of the term of imprisonment imposed: s. 152. Had a community service order then been made in lieu of the term of imprisonment, the Act provided a discretion whether or not to order that a conviction be recorded: ss. 12, 100, unlike the situation which previously applied because of the operation of the former s. 252 of the Corrective Services Act 1988. That section was a statutory recognition of the fact that where a
probation or community service order was appropriate, a conviction was not formally to be regarded as such except for limited purposes. The discretion is now at large.
For the reasons stated by Macrossan CJ and Pincus JA, I agree that in the circumstances of this case, a conviction should not be recorded.
I would grant the application, allow the appeal, and set aside the sentence imposed including the recording of the conviction.

THE QUEEN

v.

KATHERINE CONDOLEON

(Applicant)

REASONS FOR JUDGMENT - W.C. LEE J.