SUPREME COURT OF QUEENSLAND
CITATION: R v Pratt [2008] QCA 402 PARTIES: R
v
PRATT, Belinda Evelyn
(applicant/appellant)FILE NO/S:
CA No 244 of 2008 SC No 474 of 2008
DIVISION: Court of Appeal PROCEEDING: Sentence Application ORIGINATING
COURT:Supreme Court at Brisbane DELIVERED ON: 12 December 2008 DELIVERED AT: Brisbane HEARING DATE: 21 November 2008 JUDGES: McMurdo P, Fraser JA and Chesterman J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders madeORDERS:
1. Application for leave to appeal granted 2. Appeal allowed 3. Sentence imposed at first instance set aside. 4. Instead, the applicant is sentenced to: (a) in respect of count 1:
(i) probation for 18 months on the terms and conditions set out in s 93(1) Penalties and Sentences Act 1992 (Qld) with a further condition that the applicant must submit to all such tests, examinations and assessments where and as often as an authorised corrective services officer may reasonably require for the purpose of ascertaining the presence of any dangerous drug (as that term is defined in the Drugs Misuse Act 1986 (Qld)) in the applicant's body; and
(ii) perform unpaid community services for 100 hours and comply with the requirements set out in s 103(1) Penalties and Sentences Act 1992 (Qld).
(b) in respect of each of counts 2 and 3, 6 months probation on the same terms and conditions as the probation order imposed on count 1.
5. A conviction is recorded on count 1. No convictions are recorded on counts 2 and 3.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – applicant pleaded guilty to one count of supplying, and two counts of possession of, a dangerous drug – applicant sentenced to 18 months probation with a special condition as to drug testing and 100 hours community service with conviction recorded – sentence not endorsed on indictment with respect to any particular count – failure to sentence individually on each count an error which causes the Court of Appeal to re- sentence – applicant 24 years old and studying for a nursing degree – supply count entirely based on the applicant's admissions to police – effect on applicant's future employment of convictions being recorded – Court of Appeal re-sentenced applicant to an effective sentence of 18 months probation with a conviction recorded on the supply count only Nursing Act 1992 (Qld), s 54(3A), s 54(3C), s 54(3D)
Penalties and Sentences Act 1992 (Qld), s 9, s 12(2)R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A
Crim R 488; [2005] QCA 467, applied
R v Crofts [1999] 1 Qd R 386; [1998] QCA 060, followed
R v Dolan [2008] QCA 41, followed
R v HAP [2008] QCA 137, followed
R v Mirza; ex parte A-G (Qld) [2008] QCA 23, cited
R v Richardson [1997] QCA 161, comparedCOUNSEL: R A East for the…
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Details
- AGLC
- R v Pratt [2008] QCA 402
- Case
- [2008] QCA 402
- Decision Date
CaseChat Overview and Summary
The case of R v. Pratt concerns the applicant who pleaded guilty to one count of supplying and two counts of possession of a dangerous drug. The applicant was sentenced to 18 months probation with a special condition as to drug testing and 100 hours of community service, with a conviction recorded for each count. However, the sentence was not endorsed on the indictment with respect to any particular count. The applicant appealed against the sentence, arguing that the failure to sentence individually on each count was an error that warranted interference by the Court of Appeal. The Court of Appeal agreed with the applicant and re-sentenced her to an effective sentence of 18 months probation with a conviction recorded only on the supply count.
The primary legal issue in this case was whether the failure to sentence the applicant individually on each count constituted an error that warranted the Court of Appeal's interference. The Court of Appeal noted that although there is a broad discretion under the Penalties and Sentences Act to record or not record a conviction, the court must consider the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s future. The Court of Appeal also noted that the applicant had supplied small quantities of methylamphetamine to adult friends and acquaintances who were already users, and that she had no relevant prior criminal history. The Court of Appeal concluded that the failure to sentence the applicant individually on each count was an error that warranted its interference.
In light of the above, the Court of Appeal re-sentenced the applicant to an effective sentence of 18 months probation with a conviction recorded only on the supply count. The Court of Appeal noted that the applicant's cooperation with the authorities and the fact that she supplied the drugs only in small quantities to adult friends and acquaintances who were already users were factors greatly in her favour. The Court of Appeal also noted that the recording of a conviction is likely to have some impact on the applicant's economic and social wellbeing and her chances of finding employment. However, the Court of Appeal concluded that the appropriate sentence in respect of the most serious of the three offences, that of supplying methylamphetamine, was 18 months probation with a conviction recorded only on the supply count.
The primary legal issue in this case was whether the failure to sentence the applicant individually on each count constituted an error that warranted the Court of Appeal's interference. The Court of Appeal noted that although there is a broad discretion under the Penalties and Sentences Act to record or not record a conviction, the court must consider the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s future. The Court of Appeal also noted that the applicant had supplied small quantities of methylamphetamine to adult friends and acquaintances who were already users, and that she had no relevant prior criminal history. The Court of Appeal concluded that the failure to sentence the applicant individually on each count was an error that warranted its interference.
In light of the above, the Court of Appeal re-sentenced the applicant to an effective sentence of 18 months probation with a conviction recorded only on the supply count. The Court of Appeal noted that the applicant's cooperation with the authorities and the fact that she supplied the drugs only in small quantities to adult friends and acquaintances who were already users were factors greatly in her favour. The Court of Appeal also noted that the recording of a conviction is likely to have some impact on the applicant's economic and social wellbeing and her chances of finding employment. However, the Court of Appeal concluded that the appropriate sentence in respect of the most serious of the three offences, that of supplying methylamphetamine, was 18 months probation with a conviction recorded only on the supply count.
Orders
Orders of the court
1.
Application for leave to appeal granted
2.
Appeal allowed
3.
Sentence imposed at first instance set aside.
4.
Instead, the applicant is sentenced to:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Mr Meredith, who appears for the respondent, makes the following submissions. The offence of supplying concerned a schedule 1 drug. This was a distinguishing factor from R v Richardson,[6] the only decision of this Court where no conviction was recorded for supplying methylamphetamine. When Richardson was decided, methylamphetamine was a schedule 2 drug. [6] [1997] QCA 161. Discussion and conclusion It is common ground that the sentence imposed at first instance, 18 months probation with a special condition as to drug testing and a 100 hour community service order is the appropriate sentence in respect of the most serious of the three offences, that of supplying methylamphetamine. Concurrent short terms of probation are the appropriate penalties in respect of counts 2 and 3. But should convictions be recorded on all or any of those counts? In determining whether to record a conviction, a court has a broad discretion where there is that option on the penalty imposed under the Penalties and Sentences Act. Section 12(2) provides: "In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including— (a) the nature of the offence; and (b) the offender’s character and age; and (c) the impact that recording a conviction will have on the offender’s— The offence of supplying the dangerous schedule 1 drug methylamphetamine to others is punishable by up to 25 years imprisonment.[7] This offence was a relatively minor example of that serious offence. In her favour, the applicant supplied the drugs only in small quantities to adult friends and acquaintances who were already users. She did not make a profit. Methylamphetamine is, however, dangerous in the ordinary sense of that word. As the primary judge recognised, it is both highly addictive and destructive. The applicant knew this at the time she supplied the drug to others. She had no relevant prior criminal history and was relatively young. She pleaded guilty at an early time and cooperated with the authorities to the point where she would not have been charged with the most serious of the three offences but for her admissions to police. She also admitted the nature of the drugs in counts 2 and 3 so that analysis was not required. Her cooperation is a factor greatly in her favour. I accept that the recording of a conviction is likely to have some impact on her economic and social wellbeing and her chances of finding employment. At least in the field of nursing, the fact that she has been dealt with for these offences, even without the recording of convictions, would also have a significant impact on those matters. [7] Drugs Misuse Act 1986 (Qld), s 6. It was common ground that, although there have been sentences at first instance where convictions were not recorded for minor examples of supplying a dangerous schedule 1 drug, the only decision of this Court to that effect is Richardson. He pleaded guilty in the Magistrates Court to supplying cannabis, possession of cannabis, supplying amphetamine and possession of amphetamine, then a schedule 2 drug. He was sentenced on each charge to imprisonment for six months suspended after two months with an operational period of two years. He was 23 years old and had been in the Australian Navy for the past six years. He had only recently become a user of drugs. After police conducted an unsuccessful raid at his residence, he attended at the police station and admitted to involvement in the supply of small quantities of cannabis and amphetamine to others. He took a "cut" of the drugs for his own use. The charges resulted solely from those admissions. The police did not find him in possession of any drugs. He also provided the name of his supplier to police. Before speaking to police, he had made admissions to a navy disciplinary board and he was, at sentence, awaiting a decision from it as to what disciplinary action would be taken. The recording of convictions would lead to his discharge from the navy; if convictions were not recorded there was a substantial prospect that he may be able to remain in the navy. The respondent conceded that a non-custodial sentence was within range so that under s 9(4) Penalties and Sentences Act at that time,[8] a custodial sentence should not have been imposed. This Court determined that the sentence was manifestly excessive and re- exercised its discretion to re-sentence Richardson to 160 hours community service and 12 months probation in respect of each offence, without recording any conviction. The Court placed considerable emphasis on the fact that Richardson had named his supplier to police, an unusual circumstance and very much to his credit. [8] Section 9(4) then stated: "A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having—
Ratio Decidendi
Legal Principle Established
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