R v Post

[1995] QCA 609

COURT OF APPEAL

[1995] QCA 609

FITZGERALD P McPHERSON JA THOMAS J

CA No 329 of 1995
THE QUEEN
v.

FRANCIS GORDON POST Applicant

BRISBANE
..DATE 21/11/95
211195 T4/JB M/T C0A95/359
THE PRESIDENT: This is an application for leave to appeal
against a sentence imposed in the Supreme Court in Brisbane on
26 July 1995. The applicant pleaded guilty to one count of
trafficking in a dangerous drug, cannabis sativa, and one count
of possession of the same drug, for which he was sentenced to
four years imprisonment cumulative on current sentences with a
recommendation that he be considered for parole on 31 March
2004.

At the time that he committed the offences, the subject of the present application for leave to appeal, the applicant was serving a 13 year sentence for armed robbery with a full-time discharge date of 9 January 2012 and an eligibility for release on parole not earlier than 31 March 2002. The applicant was sentenced on this occasion following an early plea to an ex officio indictment and there was no evidence of past trafficking beyond the admissions which the applicant made when he was apprehended.

The offences occurred while the applicant was an inmate of Barellan Correctional Centre. Staff at the centre found 150 grams of cannabis packaged into six or seven bags inside a shoe box which was placed in the suspended ceiling of the baby changing room in the reception area of the prison. The package was replaced and a police officer hid in the roof near it. The applicant was one of the inmates entrusted with cleaning the area and he entered the room and retrieved the package. The policeman did not show himself but radioed for assistance. The applicant heard the police approaching and concealed the drugs in a nearby bin.

211195 T4/JB M/T C0A95/359
However, the drugs were found and the applicant confessed. He
admitted selling the drug over a period of six to eight weeks
and said that he sometimes broke the quantities in the bags
found on this occasion into smaller quantities. It was his
intention to sell what he had, when he was apprehended, for $200
a bag. He had accepted cash which he was not permitted to have
within the prison and also being paid by payments made into his
TAB account. On his story he had made only between $1,000 and
$2,000 and the weight of the marijuana which he had already sold
would have been no more than 300 grams.

The applicant stated that the money was intended to assist his wife with rent and living expenses and he described his wife as having suffered a nervous breakdown and is also suffering severe depression associated with family difficulties. It was not disputed before the sentencing Judge that the applicant's sentence should be cumulative upon the sentence which he was serving at the time when he committed these offences and plainly that concession was correctly made.

The applicant is 40 years of age and has been a persistent offender for the last 24 years. He has an appalling criminal history involving serious offences which include rape, armed robbery and a number of break and enter offences. I do not propose to set it out in detail, but it is clear that he has spent his life, since he was in his teens, committing offences, many of them very serious.

The sentencing Judge had regard to the applicant's early plea to an ex officio indictment and also his cooperation with police 211195 T4/JB M/T C0A95/359

and observed that these would be mitigating features which would attract an early recommendation for parole but for the gravity of the offences and the applicant's appalling criminal history.

His Honour described the applicant's conduct as outrageous and brazen conduct within the gaol and noted that drugs were a problem within prison and saying that the Court must demonstrate those who traffic in gaol must suffer substantially raised penalties.

Counsel for the applicant submitted that the sentence imposed was manifestly excessive and that a sentence of three years imprisonment with an early recommendation for parole would have been appropriate. It was submitted that his motivation was to financially assist his wife because of her health problems, her mental health problems. It was also submitted for the applicant that the only evidence against him in relation to the trafficking offence consisted of his admissions and the submission was made that he had undergone rehabilitation while in gaol and that the offence had only occurred over a relatively brief period and only involved a small amount of drugs, at least according to the applicant's story.

In my opinion, it is impossible to say in this case that the applicant has been sentenced to an excessively harsh penalty. It is proper to take into account the early plea, the cooperation and the plea to the ex officio indictment, despite his appalling criminal history, but I am by no means satisfied that a heavier sentence would not have been appropriate if he had not, in fact, cooperated and pleaded. I agree with the remarks made by the sentencing Judge that the applicant has an 211195 T4/JB M/T C0A95/359

appalling criminal history, that his conduct was outrageous and brazen, and that it was right for His Honour to take into account the serious problems associated with the presence of drugs in gaol and the fact that the applicant had been caught trafficking. I would refuse the application.

McPHERSON JA: I agree.

THOMAS J: I agree.

THE PRESIDENT: The application is refused.

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