R v Gair

The applicant, who had been trafficking in cannabis for about 22 months, appealed against his sentence on the grounds that it was manifestly excessive. The applicant had been involved in about 162 transactions with 21 customers, at both street level and wholesale quantities, before his house was searched by police and he was given a notice to appear. He pleaded guilty to a number of counts under the Drugs Misuse Act 1986 (Qld) including trafficking and possession of dangerous drugs. The sentence imposed on the applicant for the trafficking count was three years’ imprisonment, with a parole release date set at 8 January 2020 after serving nine months. The sentence imposed on the applicant for the possession of dangerous drugs was twelve months’ imprisonment, to be served concurrently. The applicant submitted that his efforts towards rehabilitation were such as to call for a lesser period to be served in custody.

The legal issue before the court was whether the sentences imposed upon the applicant were manifestly excessive. The court also considered whether the learned sentencing judge made an error in the exercise of the sentencing discretion by not taking into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing an offender to remain in the community is preferable. The applicant contended that the learned sentencing judge did not advert to that principle because his Honour did not refer to it, resulting in an error in the exercise of the sentencing discretion.

The court held that the sentences imposed on the applicant were not manifestly excessive. The court also held that the learned sentencing judge did not make an error in the exercise of the sentencing discretion by not taking into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing an offender to remain in the community is preferable. The court held that the learned sentencing judge had adverted to that principle and had taken it into account. The application for leave to appeal was refused.