R v Sharman

[1992] QCA 237

COURT OF APPEAL  [1992] QCA 237

MACROSSAN CJ
McPHERSON JA
PINCUS JA

CA NO 103 of 1992

THE QUEEN

v,

SCOTT ALAN SHARMAN

(Appellant)

BRISBANE

.. DATE 15/7/92

.. JUDGMENT

THE CHIEF JUSTICE: The Court will order that the appeal against conviction be dismissed.

The applicant was convicted on 9 March 1992 after a contested hearing on a charge that on a date unknown between 1 December 1991 and 15 January 1992 he unlawfully supplied a dangerous drug. The drug in question was cannabis sativa. The applicant was convicted and fined $750. The hearing also was concerned with charges that he was in possession of a dangerous drug and that he was in possession of implements used in connection therewith.  Having pleaded guilty to each of those two charges, he was fined $200 and $400, respectively.  He makes no challenge to the fines imposed in those two cases.

The convictions to which I have referred were the applicant's first convictions for drug offences.  He had some minor criminal history but it is not of relevance to any matter that concerns us.  He was 22 years of age and a single man.  In some ways it might seem unusual that he should be challenging a fine for $750 for supply of cannabis when he allows to remain without challenge a fine of $400 for possession of implements, but that is the position.

The charge is in form one alleging a single supply and the charge remained in that form unamended.  The prosecution case was proved largely by the admissions which the applicant had made to police officers in interview.  He told them, in brief, that he had marihuana or cannabis which he bagged and he sold handfuls in bags to friends ‑ in the plural, as it is stated ‑ for $50 and he used the money to buy groceries.

When the record is more closely examined and when the reasons of the Magistrate in convicting are examined also, it is not clear whether the case really did proceed on the basis of a single supply with evidence of wider circumstances admitted, or whether it went on the basis of a number of separate acts of supply, even though the form of charge remains as I have already referred to it.  The submissions of counsel did not elucidate this matter and looking at the form of the proceedings with the confusions that are there contained and the reasons of the Magistrate, I am left with the impression that the Magistrate understood himself to be convicting for several acts of supply ‑ and it does look as though three was the number in question ‑ and, in any event, in convicting he was imposing a fine appropriate to several acts of supplying and, once again, three appears to be the number.

There were some personal circumstances relevant to the applicant in addition to those that I have already stated.  The Magistrate accepted that he was under the influence at the time the record of interview was taken.  That may not be a particularly weighty factor.  We have had our attention drawn to the fact that the applicant suffered some mental disturbance and had to have treatment for it.  The weightiest circumstance appears to be the fact that he had no previous drug offences.

In view of the impression which is created by the record that, in truth and rather incautiously, he may have been dealt with for multiple acts of supply although charged with only one, it appears to me that the sentence should be regarded as excessive in the circumstances and I would allow the application for leave and grant the appeal and set aside the sentence imposed below of $750 and, in substitution, insert a fine of $250.

PINCUS JA: I agree.

McPHERSON JA: I agree.

THE CHIEF JUSTICE: That will be the order of the Court.  The same default period as was ordered below, namely 25 days, will apply to the new sentence.

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