R v Donnelly

[1992] QCA 322

COURT OF APPEAL [1992] QCA 322

MACROSSAN CJ MCPHERSON JA PINCUS JA

CA No 96 of 1992

THE QUEEN

v.

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.

_____