Ruston v Henry

[1997] QCA 95

[1997] QCA 095

COURT OF APPEAL
McPHERSON JA
WILLIAMS J

MACKENZIE J

CA No 41 of 1997
G J RUSTON
v.

SIMON ANDREW HENRY Applicant

BRISBANE
..DATE 16/04/97
160497 T11/SJ3 M/T COA66/97
MACKENZIE J: This is an application for leave to appeal against
a sentence of six months imprisonment with a recommendation for
parole after three months for an offence of possession of
cannabis sativa. The sentence was ordered to be served
cumulatively upon a sentence already being served. That
sentence was a sentence of two years imprisonment in total for
housebreaking, stealing, false pretences and attempted false
pretences.

The prisoner was, of course, confined in Borallon Prison at the time of the present offence and the matter the subject of the charge came to the notice of authorities when he was searched and a quantity of cannabis was found in his underpants. He made admissions to the authorities and the Court was told that the quantity of a quarter of a gram and that it was for the applicant's personal use. The Crown expressly before us accepted that the drug was in possession for personal use rather than any other purpose.

It was agreed in the Magistrates Court by the Prosecutor and the applicant's legal representative that a cumulative custodial sentence was called for. However, it is submitted by the applicant who appears in person that a sentence of six months with a recommendation for parole after three months is manifestly excessive. He drew our attention to a Magistrate's decision in the matter of Garwood in which a fine of $500 was imposed and a conviction recorded. I think that the facts are somewhat different in that case because it was a case where there was only a transient possession of some cannabis during the course of a search of cells at a custodial institution. It 160497 T11/SJ3 M/T COA66/97

therefore does not go to the level of a sentence for this case.

Having said that it seems to me that there are some aspects of this case that need to be taken into account in deciding whether the sentence of six months imprisonment with a recommendation for parole after three months is manifestly excessive. It is obvious that had the applicant not been in custody in a custodial institution at the time when this offence was committed he would not have received a custodial sentence for this particular offence. He did have previous convictions for drug offences but as he has pointed out they were not dealt with in a way that put him in prison.

The question then, it seems to me, is whether we are justified in reducing the sentence from six months imprisonment having regard to a factor which, while not a formal circumstance of aggravation, is a factor that we must take into account, namely that the offence was committed whilst the applicant was in a prison.

In my view, even allowing for the fact that there was an offence committed in a prison a sentence of six months imprisonment is rather high having regard to the particular circumstances of this case. There may be other circumstances where a higher punishment is required but in my opinion in this case the justice of the case is served by finding that the sentence of six months with a recommendation for parole after three months is manifestly excessive and substituting therefor a sentence of three months imprisonment. I would therefore give leave to appeal, allow the application and substitute a cumulative 160497 T11/SJ3 M/T COA66/97

sentence of three months imprisonment in lieu of the sentence of six months imprisonment with a recommendation for parole after three months.

McPHERSON JA: I agree.

WILLIAMS J: I agree.

McPHERSON JA: The application for leave to appeal is granted and the appeal is allowed. The sentence is varied by reducing the term of imprisonment to three months.

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