Wells v Queensland Probation and Parole

[2009] QDC 356

[2009] QDC 356

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE McGINNESS

No 67 of 2009

DANIEL JAMES WELLS	Appellant
and
QUEENSLAND PROBATION AND PAROLE	Respondent
TOOWOOMBA ..DATE 06/11/2009

JUDGMENT
HER HONOUR: This is an appeal against a sentence imposed in

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the Magistrates Court at Toowoomba on the 7th of August 2009 upon the appellant, Daniel James Wells. On that date he was sentenced to an effective term of three months' imprisonment with a Court-ordered parole release date fixed at three

months. This was for a breach of probation order.	10
The breach of probation concerned original charges of
possession of 3.7 grams of cannabis and possession of a water pipe by the appellant. He entered pleas of guilty to both of those charges on the 19th of August 2008. He was given the	20
benefit of a probation order which, unfortunately, he did not comply with. In particular, he failed to attend counselling, report for meetings, and he provided a number of positive
urine samples when tested for the presence of cannabis.
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The Magistrates Court was asked to revoke the original probation order and to re-sentence him for those offences of possession.
The appellant appeals on a number of bases, one of which is	40
that his Honour made an error in sentencing because he had
regard to a prior conviction for possession of drug and
utensil from the Childrens Court which was imposed on the 9th
of August 2005. However, on that occasion the appellant had
received no conviction and 50 hours of community service.	50

This means the Magistrate should not have had regard to that
entry of a similar offence when determining the appropriate
sentence.
The prosecution concedes on this appeal that this error was 1-2 JUDGMENT 60

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made and that therefore the appellant should be re-sentenced

afresh in relation to the breach of probation.

The appellant was born on the 29th of January 1989. He is 20

years of age. He was 19 at the time of the imposition of the	10
order.
He does have relevant criminal history containing an entry for
supplying dangerous drugs, possessing dangerous drugs and
possession of a utensil or pipe.	20
He did enter a timely plea of guilty to the offences, was in
full time employment and one must not lose sight of the fact, despite his history, of the nature of the offences, which was possession of cannabis for personal use and possession of a	30
pipe for personal use.
The appellant has not taken advantage of the opportunities
offered to him under a probation order and is not suitable for
any such further supervision orders.	40
Weighing up all of these factors, the appropriate penalty is
one of a short term of imprisonment but that period should be
wholly suspended taking into account the matters to which I
have referred. He has never been sentenced to any period of	50

imprisonment previously.
In relation to the possession of cannabis, he is sentenced to 1-3 JUDGMENT 60

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three months' imprisonment. For the possession of a pipe, he
is sentenced to one month's imprisonment. Both of those
sentences are to be served concurrently. Those sentences are
to be suspended forthwith for an operational period of six

months. If he re-offends during that period, of course he can	10
be brought back before the Court and may be required to serve the whole of that term of imprisonment.
I should formally say, therefore, the appeal is allowed.
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