R v Gienzendanner

COURT OF APPEAL [1992] QCA 182

PINCUS JA DAVIES JA McPHERSON JA

CA NO 73 OF 1992

THE QUEEN

DENNY RHETT GIENZENDANNE	Applicant
BRISBANE ... DATE 12/6/92

JUDGMENT
DAVIES JA: The applicant in this case was convicted on 11
February 1992, in the Magistrates Court in Townsville of
possession of a dangerous drug, namely cannabis sativa on 24
January 1992.

He is 18 years of age, having been born on 31 July 1973. He was sentenced by the Magistrate to a fine of $250. The circumstances of the offence were that the applicant, together with two friends Gary and Corry, were found in possession of a foil containing a small amount of marijuana. The applicant's story was that he'd found the marijuana by the roadside, he'd picked it up, all three had decided to smoke the drug, and his two friends fashioned an implement for the purpose of smoking it.

All there offenders cooperated with the police fully, none, including the present applicant had any previous convictions of any kind, and it appears fair to say that it was a single impetuous, perhaps reckless, episode for which they have, each of them, demonstrated remorse.

The other co-offender, or at least one of them, was additionally discharged pursuant to s.675A of the Criminal Code upon being of good behaviour for six months with a $300 recognisance to secure that. There seems, in my view, to be no material difference between the circumstances of the case with respect to this applicant, and those with respect to his co-offenders, notwithstanding that the Magistrate who sentenced the applicant seemed to see some difference. Certainly on the facts before us there was no material difference. I would therefore grant leave, allow the application and discharge the applicant conditionally upon his being of good behaviour for six months with a $300 recognisance.

PINCUS JA: I agree.

McPHERSON JA: I agree.
DAVIES JA: The order will be as I have indicated.

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CaseChat Overview and Summary

The appeal in this matter was brought by Denny Rhett Gienzendanner, who was convicted of possession of a dangerous drug, namely cannabis sativa, by the Magistrates Court in Townsville. The conviction was dated 11 February 1992, with the offence occurring on 24 January 1992. The applicant, who is 18 years old, was sentenced to a fine of $250. The case revolved around the possession of a small amount of marijuana, which the applicant claimed to have found by the roadside, picked up, and subsequently decided to smoke with two friends. The friends fashioned an implement for smoking the drug, and all three cooperated fully with the police. The applicant and his co-offenders had no previous convictions, and it was considered a single, impetuous act for which they had all demonstrated remorse.

The central legal issue before the Court of Appeal was whether the applicant's sentence was appropriate given the circumstances of the offence and his cooperation with the police. The Court of Appeal had to consider whether the magistrate's imposition of a fine was disproportionate compared to the sentences given to the co-offenders, one of whom was discharged under section 675A of the Criminal Code. The Court also needed to determine if the applicant's circumstances were materially different from those of his co-offenders to warrant a different sentence.

The Court of Appeal found that there was no material difference between the circumstances of the applicant and his co-offenders, despite the magistrate's apparent perception of a difference. The Court concluded that the applicant's sentence was disproportionate and granted leave to appeal, allowing the application and discharging the applicant conditionally upon his being of good behaviour for six months with a $300 recognisance. The reasoning of the Court was based on the impetuous nature of the offence, the applicant's cooperation with the police, and the lack of previous convictions for all involved. The judges, Pincus JA, Davies JA, and McPherson JA, all agreed with the outcome. The order was to discharge the applicant conditionally, as previously stated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established