R v Watts

[1992] QCA 122

COURT OF APPEAL	[1992] QCA 122
MACROSSAN CJ DAVIES JA McPHERSON JA
CA No 8 of 1992
THE QUEEN
v.
GREGORY JOHN WATTS

(Applicant)

BRISBANE

... DATE 29/4/92

ORDER

ORDER

THE CHIEF JUSTICE: The applicant seeks leave to appeal against sentences imposed on his guilty plea in the Magistrates Court at Cairns in respect of a number of drug related offences. Those offences took place over a spread of some months.

The first charge was one of production of a dangerous drug between May and October of 1991. On that charge he was sentenced to 12 months imprisonment.

The second charge was of possession of a dangerous drug on a date in October 1991. For that he was sentenced to six months imprisonment.

The third charge was of supply of a dangerous drug between the beginning of August and the end of October 1991. For that he was sentenced to 15 months imprisonment.

The fourth charge was one of possession of moneys received or held in connection with drug offences, the possession being on 30 October 1991. For that he was sentenced to three months imprisonment.

And the final charge was one of possession of a utensil used in connection with the smoking of a dangerous drug. For that he was sentenced to one month imprisonment.

The effective sentence then, in his case, was a term of imprisonment of 15 months.

The applicant was a man aged 37 and he had no previous convictions. The Magistrate, in sentencing him, made a number of observations and some of them should be referred to. He noted that the facts involved the applicant's growing and selling over a significant period of time.

The applicant's flatmate was described as a salesman by the Magistrate. The Magistrate meant to convey, it would appear, that the flatmate was the point of contact between the applicant and the customers who were students at a tertiary education centre in Cairns which the applicant himself was attending.

The Magistrate then observed that the applicant's involvement was such as to call for a significant deterrent penalty. He mentioned also the drug problem in the Cairns area. He concluded that the option which in sentencing he should adopt was one of imposing a custodial term. Argument on behalf of the applicant before us does not really raise some objections to the imposition of a custodial term of some order. For the applicant it is contended to the effect that the sentences imposed were excessive.

For the period that I have already indicated the applicant had, the facts show, been growing the cannabis for his own use and for sale. A total of 24 plants were located together with 300 gm of cannabis and 500 seeds. The applicant admitted to having made 10 to 15 sales for which he had received a total of some $2,000. Clearly then, the applicant was engaged in a commercial enterprise of some sort, although it could be added that it was one of somewhat restricted dimensions. The details I have already given describe the matter perhaps more exactly.

Counsel appearing for the Crown points out that if 250 gm bags or lots were sold on each occasion, as appears to be the case, and there were only 10 sales, then that meant that a total of 2-1/2 kg had been sold over the period when the offences occurred. That is certainly an amount of some significance.

The offence which I have described as the fourth, the possession of moneys, involved the finding by the police in the course of a search of the applicant's bedroom of a sum of $200. There is no doubt that significant discouragement should be offered to the production and sale of marijuana for profit.

It further seems to me that it was certainly appropriate for the Magistrate to decide, as he did, that a custodial term should have been imposed. It is true that there was a calculated course of conduct on the applicant's part designed to bring him profit and that the production and sale were activities which were persevered in over a reasonably extended period. They are aggravating factors in the situation.

On the other hand, the applicant pleaded guilty. He was cooperative with the police in their investigation and he was a first offender, having reached the age of 37, as I have indicated, without then previously having offended.

In these circumstances, while recognising the importance of a deterrent and accepting that a custodial term was appropriate, I have reached the view that two of the sentences imposed should be regarded as manifestly excessive. They are the terms of 15 months imposed in respect of the supply and 12 months imposed in respect of the production of the dangerous drug.

In each of those two cases, I would set aside the sentences imposed below and impose, in each case, a nine months term of imprisonment. I would leave the other terms imposed and the result will be then that there will be nine months maximum effective term. All of the sentences should be served concurrently.

DAVIES JA: I agree.

McPHERSON JA: I have considerably more hesitation about interfering with this sentence, particularly in view of the number or frequency of the sales, the aggregate amounts of material and money involved, and the fact that the applicant was himself a producer, in no small way, of this drug. As well as that, he was selling to students. Nevertheless, I am prepared to accept the opinion of my brothers that the sentence does not give sufficient weight to the applicant's plea of guilty, his cooperation with the police in identifying his source, and his previous non-criminal record. I agree with the order proposed.

THE CHIEF JUSTICE: The order will then be as I have indicated.

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