R v Hile

[1994] QCA 404

[1994] QCA 404

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA MACKENZIE J

CA No 264 of 1994
THE QUEEN
v.

DAMIAN WILLIAM HILE Applicant

BRISBANE
..DATE 23/08/94
THE CHIEF JUSTICE: I shall ask Mr Justice McPherson to
deliver his reasons first.

McPHERSON JA: This is an application for leave to appeal against a sentence imposed in the Magistrates Court at Toowoomba for the offence of being in possession of a dangerous drug. The sentence imposed was that the applicant be fined $3,000 in default six months' imprisonment. He was allowed four months to pay.

The appeal is directed primarily if not solely to the fine or its amount. The applicant is a man aged 30 years. He attended a good school and seems to have had a reasonable start in life. He has worked at a variety of occupations and a variety of places over a period of time. Unfortunately none of the occupations or employment in which he has engaged have lasted more than 18 months or so. A reason for this may well be that he suffers from a psychiatric problem known as bipolar affective disorder, more commonly known as manic depression. He is under treatment for that condition and is currently on medication which helps to stable his illness.

There is, however, a not insubstantial record of criminal offences in which the applicant has been involved. Most of them are offences of possession of a prohibited plant or of utensils with which to use or smoke that plant. The history may be summarised in the following terms; that is to say, that he has had nine appearances in the Magistrates Court involving convictions for three counts of possession of dangerous drugs, five counts of possession of a pipe, five counts of wilful destruction, two counts of stealing, one break enter and steal, an assault occasioning bodily harm, and a dangerous driving offence.

In 1988, he was sentenced to 12 months' imprisonment, of which six months of that term was related to a conviction for possession of dangerous drugs. So far as the record of convictions go, there has been no further offence of what might be described as the more serious kind since October 1988. Put shortly, his only conviction since that date was in 1992 for driving a motor vehicle whilst having a blood alcohol content of .14 per cent, and also speeding.

The problem of sentencing an individual with a background and history of that kind is not inconsiderable. The applicant has, as I have noted, already undergone a period of six months' imprisonment for an offence of this kind. He has nevertheless persisted in continuing with the offence, explaining that he uses the drug as a relaxant. When confronted with circumstances like that, the options open to the Magistrate presumably were a further sentence of a term of imprisonment or community service or the fine which he imposed.

So far as the latter is concerned, if the fine is not paid the applicant will of course be liable to the default penalty of imprisonment for six months. That penalty does not seem excessive in view of the earlier period of imprisonment that was imposed in respect of a similar offence some years ago.

Alternatively, it would be open to him to apply under the Penalties and Sentences Act for a commutation of the fine into some form of community service. We were taken by Mrs Clare to the relevant provisions in that regard, and the result is that there seems to be no reason why, if the applicant is unable to pay the fine or all of it, he may not make a successful application for a fine option order in terms of the statutory provisions.

That means that the fine that was imposed was a sentencing option that was fairly open to the Magistrate and one which did not foreclose the options which the applicant has of satisfying the penalty in one or more other forms than that of paying the fine. So far as the amount of the fine is concerned, it is a little difficult, sitting here, to judge whether $3,000 is a large or small amount for the individual concerned. There is no evidence before us as to what his financial position is, although we know that he does work part-time and he may have access to other income.

When all these matters are considered, it seems to me that it
is difficult to say either that the fine was a penalty of the
wrong kind to impose in these circumstances, or that the
amount of it at $3,000 is so excessive that we ought to set it
aside and either reduce it or impose some other form of
punishment appropriate to the particular case.
Having said that, it follows that I am unable to see in the
material before us any proper basis on which we could
interfere with the sentence that was imposed by the
Magistrate. I would accordingly refuse the application.

THE CHIEF JUSTICE: I agree.

MacKENZIE J: I agree.

THE CHIEF JUSTICE: The application is refused.

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