Taylor v Brady

[2007] QDC 357

[2007] QDC 357

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE NEWTON

No 1140 of 2007

ADAM JAMES TAYLOR	Appellant
and
TRACEY ANN BRADY	Respondent
BRISBANE ..DATE 12/11/2007

ORDER
HIS HONOUR: This an appeal by Adam James Taylor in respect of

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a sentence imposed by the Magistrates Court at Toowoomba on 29 March 2007. Mr Taylor on that date pleaded guilty to a number of charges, namely one charge of possession of a dangerous
drug on the 18th of December 2006, one charge of stealing on

the 17th of December 2006, one charge of possessing a pipe	10
used in connection with smoking a dangerous drug on the 17th of December 2006 and two counts of failing to appear on the 24th of January 2007 and the 12th of March 2007 respectively.
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He was sentenced to six months' imprisonment for the charge of
possessing a dangerous drug, one months' imprisonment for the
stealing charge and one months' imprisonment for the charge of
possessing a pipe. Those sentences were made concurrent. A
further one months' imprisonment was imposed in respect of	30
each of the charges under the Bail Act. Those sentences were
cumulative with each other and also cumulative with the
sentences imposed with respect to the other matters. The
effective head sentence was therefore one of eight months'
imprisonment. The Magistrate declared a period of pre-	40
sentence custody from the 14th of March to the 29th of March 2007, a total of 15 days, as part of the sentence. The parole release date was fixed by the Magistrate at 13 November 2007.
This appeal concerns the sentence of six months' imprisonment	50

imposed for the charge of possession of a dangerous drug. It
is said by Mr Taylor that this sentence is manifestly
excessive.
Ms Gilbert, who appears on the behalf of the appellant, has 2 ORDER 60

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noted in her submissions that an early plea of guilty was
entered by the appellant before the Magistrate and further that the amount of the drug was very small. In fact, I am told that the amount was 1 gram of cannabis sativa. It seems

to be accepted by all that the possession of this quantity of	10
cannabis was for Mr Taylor's personal use. Ms Gilbert acknowledges in her submissions that to a considerable extent, the outcome of this appeal is somewhat academic in that the appellant is due for release tomorrow.
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Ms Balic for the respondent asks this Court to focus not on
the sentence imposed with respect to the possession of a
dangerous drug, but rather to look at the overall picture,
including the sentences imposed for the other offences
together with the criminal history of the appellant. Ms Balic	30
concedes that the amount of the drug found in the possession of Mr Taylor is indeed a very small amount and further concedes that the drug was for the appellant's personal use.
When one looks at the criminal history of Mr Taylor, one is	40
struck immediately by its length and also by the number of
matters that relate specifically to drug offences of this ilk.
It seems to me in general terms that the Courts have done
everything possible in terms of options provided by the
legislation to encourage Mr Taylor to deal in a positive way	50

with what would appear to be undoubtedly an addiction on his
part.
Community service, fines, suspended sentences, intensive 3 ORDER 60

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correction orders, probation and orders by way of intensive
drug rehabilitation, have all been attempted without
conspicuous success. There can be no doubt that Mr Taylor has
a lengthy and a relatively serious criminal history which the

Magistrate was undoubtedly entitled to have regard to in	10
imposing sentence in this case.
So, if one accepts the invitation of the advocate for the
respondent and removes the focus from the specific offence
under appeal to concentrate more broadly on the criminal	20
history of Mr Taylor, indeed one is hard-pressed to come to a
conclusion that the sentence imposed was indeed manifestly
excessive. The difficulty with that approach though, it seems to me, is this, that a bad criminal history should not be used by a Court to increase a sentence imposed in respect of a	30
particular, discrete and specific offence. It seems to me
that a criminal history of this nature has the effect simply
of denying to Mr Taylor any degree of leniency that might
otherwise be extended to him on the basis of a limited
criminal history or even no criminal history at all.	40
There is some force in Ms Balic's submissions that the
Magistrate could have gone about the structuring of his
sentence in a different way to reflect the undoubted
seriousness of the breaches of the Bail Act and by so doing,	50

to have come up with something similar to the orders actually
made in terms of the overall effect of the sentences.
I accept that the sentence in this matter could have been 4 ORDER 60

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better structured by the Magistrate, but it seems to me that an order of six months' imprisonment imposed in respect of a charge of possessing one gram of cannabis for personal use is
manifestly excessive. Indeed, I note that Ms Balic has not

attempted to refer to any decisions of any Court where such a	10
sentence for a very small amount of cannabis for personal use has hitherto been imposed.
In the circumstances, I am minded to allow the appeal and to
vacate the order imposed by the Magistrate with respect to	20
possession of a dangerous drug and in lieu thereof to order
that Mr Taylor be imprisoned for that offence for a period of
four months. The parole release date is fixed at 28 September
2007, that date being designed to reflect the erroneous
declaration made in respect of the pre-sentence custody.	30

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5 ORDER 60