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  • Unreported Judgment

R v BLJ

 

[2017] QSC 335

Reported at [2018] 3 Qd R 255

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v BLJ [2017] QSC 335

PARTIES:

THE QUEEN

v

BLJ

(defendant)

FILE NO/S:

SC No 151 of 2016

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

Ex Tempore on 18 December 2017

DELIVERED AT:

Cairns

HEARING DATE:

18 December 2017

JUDGE:

Henry J

ORDER:

Not applicable (ruling made during sentence).

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS RELATING TO THE COMBINED OPERATION OF SS 209 AND 211 OF THE CORRECTIVE SERVICES ACT AND S 156A OF THE PENALTIES AND SENTENCES ACT – STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – where the defendant continued to traffic while on parole – where the offence was committed partly before and partly during the parole order – meaning of the period of the order under s 209 Corrective Services Act – meaning of which released on parole under s 156A Penalties and Sentences Act

Corrective Services Act 2006 (Qld)

Penalties and Sentences Act 1992 (Qld)

Drugs Misuse Act 1986 (Qld)

R v Smith [2013] QCA 397, cited

R v Suleman [2015] QSC 005, distinguished

R v Ianculescu [2002] Qd R 521, followed

R v Shillingsworth [2002] 1 Qd R 527, applied

COUNSEL:

M Franklin for the Crown

S Williams for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

O’Reilly Stevens Lawyers for the defendant

 

  1. An aspect bearing upon the proper sentence to be imposed is the combined operation of ss 209 and 211 of the Corrective Services Act and s 156A of the Penalties and Sentences Act. My discussion of this component of what are otherwise in-camera sentencing remarks will be the subject of an order permitting its publication generally as an extract of my sentencing remarks with the case name anonymised to R v BLJ.
  2. The defendant became the subject of parole order on 10 April 2014, at which time the defendant had served 70 days of a 15-month sentence, leaving a little under 13 months of the sentence to be served on parole.  The defendant was placed on parole when the defendant’s trafficking offence had been under way for a bit over three months and the defendant continued to traffic for another eight months on parole.
  3. Today’s sentence for count 1, trafficking, and count 2, possession simpliciter, will automatically cancel that order if either offence was committed “during the period of the order”, within the meaning of s 209 of the Corrective Services Act. Section 209(2) has the effect of clawing back s 209’s operation, even if the parole order has expired, as discussed by Morrison JA in R v Smith [2013] QCA 397.  The critical question is whether the offences attracting the new sentences were committed during the period of the order. 
  4. Count 2, possession simpliciter on 19 March 2015 clearly was.  Count 1, trafficking, was committed between 31 December 2013 and 10 December 2014 partly before and partly during the order.  Was it an offence committed during the period of the order? 
  5. The same question arises in the context of s 156A of the Penalties and Sentences Act which has the effect of requiring me to impose a cumulative sentence for count 1, trafficking, if it was an offence committed while the defendant was released on parole. 
  6. A similar question arose in a different context in R v Suleman [2015] QSC 005 where Byrne SJA concluded of the former s 5(2) of the Drugs Misuse Act, that the now abolished mandatory 80 per cent rule in respect of trafficking did not apply to a trafficking committed partly before and partly after the commencement of the section.
  7. However, his Honour there applied a transitional provision stipulating the section only applied to a trafficking offence if the act or omission constituting the offence occurred “wholly” on or after the commencement of the section’s operation.  There is no such provision in play here, nor was such provision in play in R v Ianculescu [2002] Qd R 521 where Cullinane J, with whom Ambrose J agreed, dealt with the question whether a trafficking commencing before the operation of part 9A Penalties and Sentences Act (creating the serious violent offence sentencing regime) but continuing after it, attracted that regime. 
  8. Cullinane J concluded:

“In my view, a continuing offence constituted by a course of conduct such as the count of carrying on the business of unlawfully trafficking in a dangerous drug must be regarded as an offence committed throughout the period concerned.  The consequence is that part 9A of the Penalties and Sentences Act applies in this case.” 

  1. That reasoning, which has not been overruled, appears to be of at least highly persuasive (if not binding) application in a case like the present and, accordingly, I will follow it.
  2. The application of Cullinane J’s reasoning to the present case is that the defendant’s trafficking was a continuing offence committed throughout the charged period so that it was committed during the period of the parole order within the meaning of s 209.  To put it another way, it was committed while the defendant was released on parole within the meaning of s 156A Penalties and Sentences Act.
  3. It follows the sentences to be imposed here for both the trafficking and the possession, must be ordered to be served cumulatively on any other term of imprisonment the defendant is liable to serve.  I should therefore sentence the defendant, taking into account, in the sense discussed in R v Shillingsworth [2002] 1 Qd R 527, that this sentence will trigger the defendant’s service, first, of the earlier imposed sentence of 15 months less the 70 days previously served.
  4. I proceed to do so, now ceasing the publishable component of these remarks.
Close

Editorial Notes

  • Published Case Name:

    R v BLJ

  • Shortened Case Name:

    R v BLJ

  • Reported Citation:

    [2018] 3 Qd R 255

  • MNC:

    [2017] QSC 335

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    18 Dec 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 335 [2018] 3 Qd R 255 18 Dec 2017 Determination of whether the offences for which the defendant was to be sentenced were committed during parole period; determination made - offences committed during parole period; defendant's sentence to be served cumulatively on any other term of imprisonment the accused is liable to serve: Henry J.

Appeal Status

No Status