R v Hennessy

[1995] QCA 171

IN THE COURT OF APPEAL [1995] QCA 171

SUPREME COURT OF QUEENSLAND

C.A. No. 470 of 1994

Brisbane

[R. v. Hennessy]

THE QUEEN
v.
BRIDEE HENNESSY

Applicant

Fitzgerald P.
Davies J.A.

Byrne J.

Judgment delivered 12/05/1995
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED; APPEAL ALLOWED; SET ASIDE THE SENTENCE IMPOSED AND IN LIEU, ORDER THAT THE APPLICANT BE FINED $500 TO BE PAID WITHIN SIX

M	ONTHS; IN DEFAULT, TWO MONTHS IMPRISONMENT.
CATCHWORDS:	CRIMINAL LAW - SENTENCE; possession of heroin in small quantity.
Counsel:	Mr. R. Collins for the applicant Mr. J. Fraser for the respondent
Solicitors:	Legal Aid Office for the applicant

Queensland Director of Public Prosecutions for the

respondent

Hearing Date: 21 March 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 12th day of May 1995

The applicant pleaded guilty in the Magistrates Court at Cairns on 7 November 1994 to possession of heroin. The conviction was not recorded but the applicant was fined $1,500 to be paid within six months, in default two months imprisonment. She had committed the offence only a few days before. She seeks leave to appeal against that sentence.

The applicant was 19 years of age at the time of commission of the offence and the sentence. She had no previous convictions of any kind.

The amount of heroin found in her possession was very
small; less than 1 gram of which less than 15% was pure heroin.

She had bought it for her own use. Her solicitor said on her

behalf on sentence that she had not tried it before.

The applicant was unemployed at the time but intended to embark on a university career in New South Wales. She co- operated with the police and indicated promptly her intention of pleading guilty.

Neither counsel before this Court was able to provide any comparable cases or any other indications of the appropriate sentencing range and although the Court adjourned the matter to enable that to be done nothing relevant was produced. Apparently no records of sentencing are kept in the Magistrates Court where offences of this kind are ordinarily dealt with.

Notwithstanding that the offence of possession of heroin for personal use, however small in quantity, must be viewed more seriously than possession of cannabis for that purpose, our impression was that a fine of $1,500 for this offence, having regard to the personal factors referred to above, was so high as to be outside the appropriate range. This impression has been confirmed by a search of the sentencing database maintained by the Judicial Commission of New South Wales. That revealed five cases in which sentences had been imposed for possession of approximately one gram of heroin. Two of them resulted in community service orders. A third resulted in a non-custodial sentence which has no direct parallel here and two resulted in fines. In one of those the offender, in the 30-40 age group, who had prior convictions but not of the same kind, was fined $500. In the other the offender, in the 20-30 age group, who had no prior convictions, was fined $350 and obliged to enter into a recognisance. Both had pleaded guilty. These cases, though of some assistance, are by no means conclusive.

We are satisfied on the whole that the sentence imposed here was manifestly excessive and that an appropriate sentence would have been one of $500, to be paid within six months; in default two months imprisonment. We would therefore grant the application, allow the appeal, set aside the sentence imposed and impose an order in those terms.