R v Donnelly

COURT OF APPEAL [1992] QCA 322

MACROSSAN CJ MCPHERSON JA PINCUS JA

CA No 96 of 1992

THE QUEEN

GLYNIS DONNELLY

(Appellant)

BRISBANE

..DATE 15/7/92

JUDGMENT his reasons first.

PINCUS JA: The applicant was convicted on 27 February 1992 in obtained a search warrant and located the spoon which had on it a white crystallised powder. This spoon was on top of the

the Magistrates Court at Redcliffe of two offences, one of
possession of a dangerous drug and another of possession of a
utensil, namely a spoon. The drug was methylamphetamine.
wardrobe. The applicant told the police that she put it there
and had forgotten about it.

In a subsequent interview the applicant said that she used amphetamines about once a month and that she knew it was unlawful to do so. She was subsequently arrested.

In respect of the spoon the applicant told the police that she used it to mix the amphetamines in water so the remaining solution could be drawn into a syringe and then administered intravenously. A certificate has been produced which confirms

the presence on the spoon of a residual substance, amount
unstated, described as methylamphetamine and ephedrine. The
applicant, who was 34 years of age, was convicted and fined in
respect of each of the offences; $500 as to the drug and $240
as to the spoon.

Her previous criminal history consisted in a conviction in the Gosford Magistrates Court which is said to be one charge of smoking Indian hemp, namely $50, and another of administering a drug of addiction, in respect of which the sentence was deferred. I also notice that before Judge Botting on 17

January 1992 the applicant was charged with an offence of stealing which the Judge described as trivial and he did not record a conviction. It does not seem to me that that bears upon the present matter.

The counsel who appeared for the applicant, Mr Alcorn, was
unable to give us any precise information as to the range of
usual penalties imposed in the Magistrates Court in respect of
offences of this sort and Mr Rutledge for the Crown wasn't
able to do so either. It is a little unfortunate that we are
asked to deal with the matter, as it seems to me, in the
absence of any precise figures of that kind because it is
obviously desirable that there be a degree of uniformity, or
at least consistency, in sentencing in respect of drug and
other offences. For my part then, I confide I have to say to
the circumstances of this particular case, as set out in the
affidavits explaining what was placed before the Magistrate
regarding the personal circumstances of the applicant, who is

described as effectively a full-time wife and mother, having

three children to support to which she contributes, that she

is a person apparently in fairly poor circumstances and it

seems clear that the fines imposed would be a substantial
burden to her.

Mr Alcorn submitted that the applicant should not have been convicted. I am of the opinion that that submission should be rejected. I see nothing wrong with the Magistrate's action in convicting her.

The aspect of the matter which has troubled me somewhat is the spoon is excessive and it should be reduced to $20. I would, therefore, allow the appeal to that extent.

fine in relation to the spoon. $240 for possession of what
appears to be an ordinary spoon, distinguished by nothing
other than its history, may seem to some to be a little
excessive, particularly when one has regard to the fact that
in addition to the $240, the applicant has been fined $500 in
respect of possession of presumably a tiny quantity of
methylamphetamines. Although my mind has fluctuated somewhat,

THE CHIEF JUSTICE: I agree.

McPHERSON JA: I also agree.

THE CHIEF JUSTICE: The order of the Court will then be that
the application for leave is allowed and the appeal granted to
the extent of setting aside the fine of $240 imposed in
respect of the second offence, the spoon, and substituting a

fine of $20.

_____

In the case of R v Donnelly, the applicant, Glynis Donnelly, appealed against her conviction and sentence in the Magistrates Court at Redcliffe. Donnelly was found guilty of two offences: possession of a dangerous drug, specifically methylamphetamine, and possession of a utensil, namely a spoon, which was found to contain a residual substance of methylamphetamine and ephedrine. The Court of Appeal was tasked with determining whether the conviction was appropriate and whether the sentence imposed was excessive, particularly in light of the applicant's personal circumstances and the lack of data regarding typical penalties for such offences. The Court of Appeal found that while the conviction was justified, the fine for the possession of the spoon was excessive and should be reduced. The appeal was allowed in part, with the fine for the spoon being reduced from $240 to $20.

The primary legal issues addressed by the Court of Appeal were the appropriateness of the conviction and the adequacy of the sentence imposed by the Magistrates Court. The Court had to consider whether the evidence presented was sufficient to support the conviction and whether the sentence, particularly the fine for the possession of the spoon, was disproportionate given the circumstances of the applicant. The Court also had to address the lack of data on typical penalties for such offences, which made it challenging to assess the proportionality of the sentence.

The Court of Appeal found that the conviction was justified based on the evidence presented. The applicant admitted to using amphetamines and to knowing that it was unlawful to do so. The presence of the drug and the spoon, along with the residual substance on the spoon, supported the conviction. However, the Court was concerned about the excessive nature of the fine imposed for the possession of the spoon. Given the applicant's role as a full-time wife and mother with three children, the Court considered the fines to be a substantial burden. The Court concluded that the fine for the possession of the spoon was disproportionate and should be reduced to a more reasonable amount. The Court of Appeal allowed the appeal to the extent of reducing the fine from $240 to $20.

The final orders of the Court of Appeal were that the appeal was allowed in part. The conviction of the applicant was upheld, but the fine of $240 imposed in respect of the possession of the spoon was set aside and substituted with a fine of $20. The Court emphasised the importance of proportionality and consistency in sentencing for drug and other offences, highlighting the need for more precise data on typical penalties to ensure uniformity in sentencing practices.

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