R v Saunders

[1992] QCA 358

COURT OF APPEAL [1992] QCA 358

PINCUS JA
McPHERSON JA

MOYNIHAN SJA

CA No 239 of 1992
THE QUEEN
v.

IAN JAMES SAUNDERS Applicant

BRISBANE

..DATE 30/09/92

JUDGMENT

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PINCUS JA: This is an application for leave to appeal against sentence. The applicant was sentenced to four months’ imprisonment on two counts of supplying a dangerous drug. It appears that he had a previous criminal history which consisted, so far as the record shows, in his having been convicted of entering a dwelling house with intent and unlawful use of a motor vehicle at the age of 14 and apparently at the age of 16 he was convicted of possession of a dangerous article.

The record shows that he was sentenced to imprisonment in respect of the first two and supervision was ordered in respect of the third. According to what Mr Rutledge has told us today the record is in error and he has never been in prison, as indeed one would deduce from his age.

The circumstances in which he was convicted appear on the record to be that he was represented. Each charge related to one foil of cannabis. The applicant had money in his possession, a sum of $605. He was not in employment. The Magistrate, according to the affidavit said, “if you are going to engage in the commercial operation of the supply of a dangerous drug you had better be prepared to do the time” or words to that effect.

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The respondent, represented today by Mr Rutledge, concedes that on the authorities what the Magistrate did was inappropriate. It does not appear to be the practice to send young people to prison for the first time in relation to offences of this sort - the minor supply of cannabis.

It is perhaps the case that the Magistrate was misled by the criminal history, which, as I have mentioned, was inaccurate in that he had never in fact been in prison, although one might have expected the Magistrate to pick that up from the dates. It is conceded by Mr Rutledge that the penalty was inappropriate and we were informed that the applicant has served 35 days in prison.

In my opinion, the appropriate course now is to grant the application for leave to appeal, to allow the appeal, to set aside the sentence below in so far as it ordered four months’ imprisonment and to reduce the sentence to imprisonment until, but not beyond, 3 September 1992. The result of that will be that the applicant would be released forthwith. The probation order which was made in relation to this and other charges would stand.

McPHERSON JA: Yes, I agree.

MOYNIHAN SJA: Yes, I agree.

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PINCUS JA: The orders will be as I have indicated.

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