R v Wright

[2001] QCA 555

[2001] QCA 555

COURT OF APPEAL

DAVIES JA
ATKINSON J
MULLINS J

CA No 311 of 2001

THE QUEEN

v.

JAMES MALCOLM WRIGHT  (Applicant)

BRISBANE

..DATE 30/11/2001

JUDGMENT

ATKINSON J:  The applicant, James Malcolm Wright, seeks leave to appeal against a sentence of 12 months' imprisonment imposed upon him in the Supreme Court on
2 November 2001 and one count of supplying the dangerous drug heroin.

The offence occurred on 23 January 2001, when the applicant was on probation.  The applicant met a person called Greg in Fortitude Valley.  Greg wanted to obtain heroin and the applicant borrowed Greg's phone to contact his dealer who he arranged to meet.  He then drove with Greg, a woman and two children to a car park where Greg gave the applicant $120, which the applicant used to purchase a small amount of heroin from his dealer.

The Crown Prosecutor described the quantity of heroin as being probably about a quarter of a gram.  When the applicant returned to the car where Greg, the woman and the two children were waiting, he gave the heroin to Greg, who prepared it.  The applicant, Greg and the woman then injected the drug and lost consciousness.

A passer-by who had entered the car park and heard the children calling out to their mother discovered the adults unconscious and contacted the police who found the three of them unconscious suffering from drug overdoses.  The applicant was interviewed and his part in the offence was revealed by his admissions.

The applicant was 25 years old at the time of the offences, having been born on 1 November 1974.  He has an extensive criminal history commencing with a conviction in July 1992 for possessing dangerous drugs.  He was again convicted of possession of a dangerous drug in 1994.  In addition he has been convicted of offences closely related to the possession of drugs in 1994, 1998 and 2000.

He has convictions for other offences such as behaving in an indecent manner, possessing property suspected of being stolen and more seriously, in November 2000, the possession of a knife in a public place, unlawful entry of a vehicle with intent to commit an indictable offence, damage to property, stealing, enter a dwelling with intent to commit an indictable offence and break, enter or in a dwelling with intent to commit an indictable offence, fraud, receiving, in possession and unlawful entry of a dwelling.

On these last charges, he was sentenced to five months' imprisonment with 18 months' probation to follow that imprisonment.  It was while he was serving that period of probation that he committed this offence.

In addition he has a number of convictions for breach of Court orders such as fine option orders and bail undertakings.  Subsequent to the commission of this offence, but before his sentence, he was convicted of assault.

The probation report tendered to the Court shows that the applicant has not reported reliably whilst on probation, nor has he shown any willingness to change his offending lifestyle which is centred on drug usage.  His community correctional officer believed that the granting of further supervision orders, including an intensive corrections order, probation and community service would not be appropriate given his attitude, lifestyle, lack of motivation to address his offending behaviour and his poor response to supervision.

Counsel for the applicant conceded that 12 months' imprisonment for this offence was within the permissible range, although towards the upper end of it.  Although the applicant's counsel rightly points to the mitigating factors, including his plea of guilty, his cooperation with the police, his addiction and his not engaging in the supply for profit.

On the other hand, the particular circumstances involving as they did children, and the danger posed to them and to the persons to whom the applicant supplied the drug, together with his criminal history, his failure to comply with his probation order to address his offending behaviour and the seriousness of the offence of supplying heroin means that in my view the sentence, whilst high, was in range and cannot be said to be manifestly excessive.

In the circumstances, I would not allow any appeal against sentence.

DAVIES JA:  I agree.

MULLINS J:  I agree.

DAVIES JA:  The application for leave to appeal against sentence is refused.

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