R v Strutt

[1992] QCA 257

COURT OF APPEAL [1992] QCA 257

FITZGERALD P McPHERSON JA DAVIES JA

CA No 174 of 1992

THE QUEEN

v.

ANDREW JOSEPH STRUTT

(Applicant)

BRISBANE

..DATE 17/7/92

JUDGMENT

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McPHERSON JA: The applicant for leave to appeal against
sentence came before the Maroochydore Magistrates Court on 13
May 1992. He pleaded guilty to possession of a dangerous
drug, namely cannabis sativa, and was convicted and fined

$350.

The possession to which the offence relates was alleged to
have taken place on the previous day, that is, 12 May 1992.
In the course of addressing the Court, the prosecuting officer
said that the amount involved was a gram of cannabis.

In an affidavit that has been read before us today, the applicant states that the amount of cannabis seized was much less than a gram and that he informed the duty solicitor that the amount was less than a quarter of a gram. He says that his solicitor did not comment on the divergence of information on that subject. I think it is not possible for us to resolve a difference of that kind in these circumstances in this Court.

Nevertheless, it is proper to look at the circumstances of the applicant. He is a young man of 22 years of age. He has no previous criminal record of any kind. He is qualified as a teacher and has also worked in a number of other occupations and displays skills in a number of diverse areas.

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It seems to me that having regard to his personal
circumstances and to the impact of recording a conviction,
as well as to the fact that a fine of $350 was imposed, the
case is one in which the sentence may be regarded as excessive
for a person like this and a first offence of this kind.

In all the circumstances, I would be disposed to grant the application for leave to appeal and set aside the sentence, substituting for it instead, a period of community service of, I would be inclined to say, some 40 hours. That would, as I understand the provisions of the Corrective Services Act, mean that no conviction would be recorded for this person. Is that correct, Mr Byrne?

MR BYRNE: That's so, Your Honour.

That is the course that I would recommend that we should take.

THE PRESIDENT: I agree.

DAVIES JA: I agree

McPHERSON JA: Mr Strutt it's necessary - there's no question
is there? There would be an officer in the area? Where does
Mr Strutt come from? I can see he's been dealt with in

Maroochydore?

MR BYRNE: Landsborough, Your Honour.

McPHERSON JA: There'd be provision for community service in

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that area?

MR BYRNE: That's supervised from Nambour, Your Honour.

McPHERSON JA: Is it. Well, there'd be no question that he could take the benefit of it there then?

MR BYRNE: No.
McPHERSON JA: Yes, all right. Thanks Mr Byrne. Mr Strutt, I
have to explain this to you, and obtain your consent to it.
The effect of what we are proposing to do, if you agree with
the order that I would make that you perform community
service, is that instead of having a conviction and fine
against you, you would instead have to perform 40 hours of
supervised work for the benefit of the community. The purpose
of requiring you to do that is to bring to your attention the
fact that you have offended against the laws of the State and
that you should make some recompense for the time and trouble
that you've caused to others, as well as the expense to the
Courts. There are requirements attached to the making of such
an order, which involve that you should perform it in a
satisfactory manner.

In order to set the process going, you will have to report to a community correctional officer so that you can be told what to do and where to go.

The conditions will be as follows: that you report in person to the community correctional office at Nambour -----

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MR BYRNE: Nambour, Your Honour.

McPHERSON JA: ----- at Nambour within 48 hours. How long do you think we should allow for that, Mr Byrne?

MR BYRNE: Until Monday afternoon would probably be fair, Your
Honour.

McPHERSON JA: Yes, that you report in person to the community correctional officer at Nambour before 4.30 p.m. on Monday, whatever the date is.

MR BYRNE: The 20th.

McPHERSON JA: Monday, 20 July 1992. Secondly, that you perform in a satisfactory manner for 40 hours such community service as a community correctional officer or supervisor directs at such times as the community correctional officer or supervisor so directs.

I think I might explain that to you in this way. I'm not at all sure what sort of work you would be given to do. It varies a good deal. Sometimes it's cleaning up parks or painting park benches, but I think it's quite often more sophisticated than that and that somebody with your skills will find yourself being made use of in a reasonable kind of

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way.

When you are performing that service you must comply with every reasonable direction of the person who is supervising you in doing the work. Do you understand all that?

APPLICANT: Yes, Your Honour.

McPHERSON JA: You must also advise the community correctional officer of every change in your place of residence and you must do so within 48 hours of that change, that requirement applying throughout the period when you are performing that 40 hours of community service. Are there any other conditions I have to mention, Mr Byrne?

MR BYRNE: I don't believe so, Your Honour.

McPHERSON JA: Do you agree to perform that community service?

APPLICANT: Yes, Your Honour.

McPHERSON JA: You have understood all I have said?

APPLICANT: Yes.

McPHERSON JA: All right. Well, in those circumstances, I

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would order that you perform 40 hours of community service in
accordance with the requirements that I have stated to you and
are set out in form 33 to the Corrective Services Regulations
1989, with the particulars that I have mentioned to be
included such as the time for reporting to the officer at
Nambour.

Will you let him know or will someone let him know precisely what the address is where he is to go, in case he doesn’t know?

MR BYRNE: Yes, when the Court adjourns, I will undertake to do that, Your Honour.

McPHERSON JA: I think there has to be an order made as well, doesn't there? I think the Court has to provide something.

MR BYRNE: He will have to obtain the order from the Registry,

I believe.

McPHERSON JA: All right. Thank you, Mr Byrne.

THE PRESIDENT: Yes, I agree.

DAVIES JA: I agree.

THE PRESIDENT: The order of the Court is application for leave to appeal against sentence and appeal against sentence allowed with applicant to perform community service in accordance with the order indicated by McPherson JA.

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