- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Sabine  QCA 36
CA No 141 of 2018
SC No 1475 of 2017
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 17 May 2018 (Brown J)
5 March 2019
18 February 2019
Holmes CJ and Morrison and Philippides JJA
The application for leave to appeal is refused.
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – SENTENCE – POSSESSION – where the applicant was convicted after trial of unlawful possession of the dangerous drug, methylamphetamine, in a quantity exceeding 2.0 grams – where the applicant left a clip-lock bag containing methylamphetamine in the public toilet at a service station – where the applicant was sentenced to two years imprisonment – whether the sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to two years imprisonment for possession of methylamphetamine – where it was contended by counsel for the applicant that the methylamphetamine was not for a commercial purpose – where it was contended that the appropriate sentence for the offence should be 18 months – whether the sentence of two years imprisonment was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 160A, s 160B(4), s 160E(1)(a)
Mill v The Queen (1988) 166 CLR 59;  HCA 70, considered
R v Daly (2004) 147 A Crim R 440;  QCA 385, considered
R v Frame  QCA 9, cited
R v Hesketh; Ex parte Attorney-General (Qld)  QCA 116, considered
R v Nicholson  QCA 315, considered
R v Sartori  QCA 284, considered
R v Walsh  QCA 391, cited
R v Warren  QCA 175, considered
A J Kimmins for the applicant
C Cook for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES CJ: I agree with the reasons of Morrison JA and with the order that the application be refused. The sentence was not a lenient one, but it was not excessive. I agree also that consideration ought to be given to correcting the anomaly created by s 160B(4) of the Penalties and Sentences Act.
MORRISON JA: Following a trial the applicant was convicted of unlawful possession of the dangerous drug, methylamphetamine, in a quantity exceeding 2.0 grams. He was sentenced on 17 May 2018. The sentence imposed was two years’ imprisonment, with parole release set at 17 May 2019.
The applicant seeks leave to appeal against that sentence on the sole ground that it is manifestly excessive.
The applicant left a clip-lock bag containing methylamphetamine in the public toilet at a service station. The applicant had returned twice on the evening when he left the bag in the toilet, asking whether anything had been handed in and offering a reward of $500. He later rang and left his name and mobile phone number, seeking to know if anything had been handed in. He also had a female friend come into the service station to enquire whether anything had been left.
The bag was later found to contain 21.75 grams of a substance, of which 15.877 grams was pure methylamphetamine. The evidence established that the level of purity of the crystal substance in the clip seal bag was 73 per cent. The average street value for the 15.877 grams of pure methylamphetamine was approximately $5,000.
Antecedents and criminal history
At the time of the offending the applicant was 29 years of age. He was 30 when he was sentenced. He had completed most of his schooling, leaving at year 11. He then completed certificate courses at TAFE and ended up working as a subcontractor with Queensland Rail. In that capacity he travelled throughout Queensland performing railway line realignment and other work on the ballast of railway lines. He was working in that position until February 2018, when he had a bad motorbike accident. He sustained a double fracture of his left radius and ulnar, and also his scaphoid. He was left with a significant weakness in his left arm which had prevented him from undertaking work.
Whilst working as a subcontractor to Queensland Rail his methylamphetamine habit increased. His counsel described the habit as “quite bad” and that the habit had increased to the point where he was consuming 3.5 grams per day.
His criminal history largely related to drug offences. They included the following:
August 2010: possession of dangerous drugs (methylamphetamine) and possession of property suspected of having been used in connection with the commission of a drug offence – fined and no conviction recorded;
August 2011: possession of dangerous drugs (steroids) and possession of utensils or pipes used with dangerous drugs – fined and no conviction recorded;
October 2013: possession of dangerous drugs (.4 grams of methylamphetamine), possession of utensils or pipes for use with dangerous drugs and unlawful possession of weapons – fined and a conviction recorded;
May 2014: stealing – fined and a conviction recorded;
June 2015: possession of utensils or pipes used with dangerous drugs (a glass pipe and a pill press) and unlawful possession of weapons – fined and convictions recorded;
June 2017: possession of dangerous drugs (two clip seal bags of amphetamine), possession of utensils or pipes (two offences), possession of dangerous drugs (two clip seal bags with 6.5 grams of methylamphetamine) and possession of dangerous drugs (two tablets of ecstasy) – convictions recorded and two years’ probation ordered.
The offences for which the applicant was convicted in June 2017 fell into two categories. The first three were offences which had been committed prior to the offending the subject of this application. The remaining two (each possession of dangerous drugs) were committed subsequent to the offences the subject of this application.
Thus, the offence the subject of this application was committed at a time when the applicant was subject to notices to appear issued in respect of the three offences which pre-dated it.
Reports as to the applicant’s performance on probation were tendered to the learned sentencing judge. Those reports identified a low risk assessment and noted that the applicant had been directed to attend an alcohol and other drugs service for treatment for his substance abuse issues. He did not attend after the initial occasion. Whilst initially reporting on time, the applicant failed to report as directed on two occasions. However, he had not reoffended and had not been the subject of any contravention action.
Approach of the learned sentencing judge
The learned sentencing judge noted the essential facts of the offending and the applicant’s criminal history and antecedents. The following were the additional matters that her Honour noted:
the fact that the offence had been committed whilst on notice in relation to other offences committed in May 2016 was an aggravating feature to be taken into account, as was the fact that a further offence had been committed after the notice to appear in respect of the current matter had been given;
the indication was that the applicant’s offending had been escalating, although no further offence had been committed since November 2016;
it was of concern that the applicant had not been attending treatment with the alcohol and drug service, but that was partly because of his involvement in the trial;
some steps had been taken towards rehabilitation, but there was no evidence of remorse;
the applicant had not co-operated with enforcement agencies;
the amount of the drugs was a significant quantity, but her Honour was not persuaded that the applicant possessed the drugs for a commercial purpose;
there was insufficient evidence to make a finding of drug dependency, though the applicant had a drug habit;
the principle of totality was involved because of the offences for which the applicant was sentenced in June 2017, but which were committed prior to this offence; however, had the current offence been sentenced at the same time as the others, a far greater sentence would have been imposed at that time;
comparable authorities, general deterrents was a significant factor but personal deterrents was a significant factor because of the number of times the applicant had been found in possession of dangerous drugs, and the fact that the imposition of fines had not acted as a deterrent; and
the applicant had not taken full advantage of the benefit afforded to him in the sentences that had been imposed upon him to the current time.
The competing positions in sentencing submissions were: on behalf of the Crown, three to four years’ imprisonment; the applicant’s Counsel contended for a sentence of 18 to 24 months on the basis that the possession was not for a commercial purpose.
Before this Court Counsel for the applicant contended that a period of 18 months imprisonment was the appropriate sentence, and that 24 months was manifestly excessive, given that the possession was for a non-commercial purpose. It was contended that the comparable authorities did not support the imposition of 24 months as a head sentence. Given that the applicant had served nine months of the sentence to the hearing before this Court, it was urged that parole release be granted as at the date of the appeal.
For the Crown it was contended that the sentence imposed was within the range of sentences that might be warranted by the comparable cases. It was submitted that there were several difficulties confronting the applicant:
the sentence was within the range proposed by his Counsel at the sentencing hearing;
on 3 August 2018 the applicant was sentenced before a Magistrate and that court imposed a parole release date of 17 May 2019 in respect of that offence; the provisions of s 160F of the Penalties and Sentences Act 1992 (Qld) meant that this Court could not impose any other parole release date but the one granted in the Magistrates Court, with the consequence that immediate release was not possible.
There were two main points advanced by Counsel on behalf of the applicant. The first was that the learned sentencing judge did not adequately apply the totality principle identified in Mill v The Queen. This was said to be the case because two years’ imprisonment with parole eligibility set after 11 months and one week was manifestly excessive in light of the sentence imposed for the previous offences, namely two years’ probation (with a conviction recorded) imposed on 14 June 2017 in the Ipswich Magistrates Court. Further, the sentence imposed did not adequately reflect the fact that possession for commercial use had been rejected. The sentence imposed was excessive by comparison to others which involved no actual custody, and did not reflect the principle in s 9(2)(a) of the Penalties and Sentences Act, namely that imprisonment should only be imposed as a last resort and a sentence that allowed the offender to stay in the community was preferable.
I do not accept those contentions. This was a case where the applicant’s use of the dangerous drug, methylamphetamine, had been increasing over time. His criminal history indicated the substantial benefits that he had been afforded since first being brought before the courts in August 2010. On his first two occasions no conviction was recorded and the applicant was merely fined. On the next three occasions convictions were recorded, but the applicant was still only fined. Then on the last occasion in June 2017 he was afforded probation. Out of the last set of convictions there were two matters adverse to acceptance of the contentions in this Court. The first was that some of the offences for which he was convicted in June 2017 pre-dated the offence the subject of the current application. That offence was committed whilst the applicant was on notice in respect of the others. Secondly, some of the offences for which he was sentenced in June 2017 post-dated the commission of the current offence.
Further, the applicant’s sentence was imposed at the end of a trial and not on a plea of guilty. As the learned sentencing judge accepted, there was no sign of remorse, nor any co-operation with authorities. Thus, the mitigating factors that might otherwise apply were absent here.
In addition, the applicant’s poor performance on probation had not been to his benefit. He had neglected or refused to attend for treatment of his substance abuse issues, and he had only partially complied with reporting requirements.
Finally, the contentions in this Court overlooked the substantial quantity of methylamphetamine of which he was convicted of being in possession. The clip-seal bag contained 21.74 grams of crystal substance, of which 15.877 grams was pure methylamphetamine. The purity level was 73 per cent. At street values it was worth something in the order of $5,000. Given that the particular offence was characterized by possession in excess of 2.0 grams, this offence involved a significant quantity of methylamphetamine, nearly eight times the limit, which could not be ignored. Seen in that light, the finding that the possession had no commercial element was one quite favourable to the applicant.
The contention that the comparable cases should have compelled the learned sentencing judge to impose only 18 months rather than 24 months, cannot be accepted.
Hesketh and Nicholson were each cases involving greater quantities of methylamphetamine, and commercial aspects to the possession. More particularly, each was the product of a plea of guilty rather than a sentence imposed at trial. The sentences in those two cases, which were substantially higher than that imposed here, do not support the proposition that the current sentence was manifestly excessive.
Similar criticism can be levelled at the utility of Sartori and Warren, each of which involved a plea of guilty but were less serious cases than the current one, involving smaller quantities of dangerous drugs and offenders with less significant criminal histories than that of the applicant. Neither of those cases support the proposition that the applicant’s sentence was manifestly excessive.
The learned sentencing judge considered that Daly was of most relevance. That case involved a 23 year old offender who pleaded guilty to possession of 2.26 grams of methylamphetamine and a small amount of cannabis. The sentence imposed was three years’ imprisonment suspended after 12 months. That offender had an unfortunate personal background and had made significant efforts in terms of rehabilitation. For those reasons it seems to me to be of little utility in the present case, and certainly does not support the proposition that the applicant’s sentence if manifestly excessive.
Counsel for the applicant urged that Armstrong supported a conclusion of manifest excess. I do not agree. That offender was somewhat older (35 at sentence) but the offence involved only 2.7 grams of pure methylamphetamine, and therefore something only just above the trigger point for the offence. Further, there was a plea of guilty in Armstrong. Therefore the sentence of 18 months in that case does not support the proposition that the sentence in the applicant’s case was manifestly excessive.
Counsel also referred to R v Woodsand R v Nguyen,but neither of those cases advanced the matter any further. Each involved a plea of guilty to possession of different quantities of drugs by offenders with differing criminal histories. In Woods there was a history which included offences committed whilst on bail, and in Nguyen there was previous trafficking offence. That is enough to show the inutility of those two decisions.
The Crown referred to Harrison and Sutton as supporting the sentence imposed on the applicant. In Harrison the offence was possession of 4 grams of substance, of which 2.6 grams was pure methylamphetamine. The possession was not for a commercial purpose, the offender was about 30 and whilst he had some criminal history he had not previously been sentenced to a term of imprisonment. The sentence imposed there was 18 months. Given that the quantity of drugs involved was considerably less than that in the case of the applicant, Harrison does lend some support to the imposition of the applicant’s sentence. It does not warrant the conclusion that the applicant’s sentence could only have been 18 months’ imprisonment.
In Sutton two years’ imprisonment was imposed for possessing cocaine for both commercial and personal use. The pure weight of the cocaine was less than in the applicant’s case, and the offender had a relatively minor criminal history. This Court did not interfere with the head sentence of two years’ imprisonment. For that reason Sutton lends some support to the applicant’s sentence.
The applicant confronts the additional difficulty, namely that the sentence imposed was in conformity with one for which his Counsel contended at the sentencing hearing. In R v Framethis Court held that where the circumstance that a sentence imposed accords with the submission made on behalf of the applicant to a sentencing judge, that is an obstacle to an argument that there is manifest excess. Keane JA referred to R v Walshwhere his Honour said:
“The imposition of a just sentence is, of course, the responsibility of the sentencing judge; but where the sentence which is imposed accords with the position taken by the offender before the sentencing judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain.”
For these reasons the application for leave to appeal should be refused.
The parole release date
On 3 August 2018 the applicant was convicted in the Ipswich Magistrates Court of possession of utensils or pipes for use in connection with dangerous drugs, possession of dangerous drugs and possession of tainted property. On all charges a conviction was recorded and the applicant was sentenced to four months’ imprisonment with a parole release date set at 17 May 2019. The sentencing remarks by the learned Magistrate show it was noted that the applicant was serving the sentence imposed in this case:
“So I will be sentencing you to a period of imprisonment, but I’ll make it concurrent with your existing sentence, and your parole release date will remain unchanged. So for the two offences of possessing dangerous drugs – taking into account the matters I’ve already referred to – you’ll be sentenced to four months imprisonment on each of those, one month for possession of the pipe, and one month for possessing the tainted property. They’re all concurrent with each other and concurrent with your existing sentence. Parole release date remains unchanged at the 17th of May of 2019.”
Plainly the learned Magistrate imposed a parole release date of 17 May 2019 because that was the existing parole release date imposed by the learned sentencing judge at first instance in this case. Though not expressly stated the learned Magistrate was evidently doing so because of s 160F of the Penalties and Sentences Act, which provides:
“(1) One of the objects of sections 160A to 160E is to ensure that at any 1 time there is only 1 parole release date or parole eligibility date in existence for an offender;
When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”
The order made in the Magistrates Court poses an obvious difficulty for the applicant in this Court, given that no appeal has been instituted in respect of the Magistrate’s sentence. However, the sentence in the Magistrates Court was imposed on 3 August 2018 and the four months’ imprisonment was going to expire on 3 December 2018, more than six months short of the parole release date set under that sentence.
To understand what the learned Magistrate did it is necessary to refer to those provisions of the Penalties and Sentence Act that relate to setting a parole release date.
Under s 160A the Act provides:
“(1) Sections 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.
Sections 160B to 160D are the only law under which a court may, on sentence of an offender for an offence, make an order relating to the person’s release on parole.”
Section 160B of the Act makes provision where the sentence is less than three years and the offence is not a serious violent offence or sexual offence, which is the case here. It provides:
“(3) If subsection (2) does not apply, the court must fix a date for the offender to be released on parole.
If the offender had a … current parole release date, a date fixed under subsection (2) or (3) must not be earlier than the current parole eligibility date … current parole release date.”
Section 160B(2) does not apply in this case. The term “current parole release date” is defined as follows:
“current parole release date, in relation to the imposition of a term of imprisonment mentioned in section 160A on an offender, means the parole release date –
previously fixed for the offender in relation to another term of imprisonment; and
cancelled under section 160E on the imposition of the term of imprisonment.”
Section 160E(1)(a) provides for the automatic cancellation of a parole release date:
“(1) An offender’s parole release date is automatically cancelled when-
a court fixes another parole release date … for the offender under this division;
Subsections (1) and (2) have effect even though the court fixing the relevant date or imposing the further term of imprisonment … is a court of lesser jurisdiction than the court that fixed the current parole release date … being cancelled under the subsection.”
Section 160F provides as follows:
“(1) One of the objects of sections 160A to 160E is to ensure that at any 1 time there is only 1 parole release date … in existence for an offender.
When fixing a date under this division as the date an offender is to be released on parole … the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”
Section 160G(1) provides:
“(1) If, under this Act, the court must fix a parole release date for an offender, the court may fix any day of the offender’s sentence as the offender’s parole release date.”
The learned Magistrate sentenced the applicant for drug offences, and imposed four months’ imprisonment. Under s 160B(3) the learned Magistrate was obliged to fix a parole release date. The parole release date of 17 May 2019, set by the learned sentencing judge on 17 May 2018 in this case, was the “current parole release date”. Section 160B(4) meant that the date the learned Magistrate set for parole release could not be earlier than the current parole release date, namely that set by the learned sentencing judge at first instance.
Immediately the date for parole release was set by the Magistrate under s 160B(3) the date set by the leaned sentencing judge in at first instance in this case, being the “current parole release date”, was automatically cancelled under s 160E(1)(a). That served the object which s 160F(1) recognised, namely that at any one time there is only one parole release date.
Therefore, the position prior to this Court considering the application for leave to appeal can be summarised:
the Magistrate was obliged to fix a parole release date: s 160B(3);
for that purpose the Magistrate could fix “any day of the offender’s sentence” as the offender’s parole release date: s 160G(1);
any day of the four months imposed by the learned Magistrate was always going to be months earlier than the expiry of the then “current parole release date”, set by the learned sentencing judge in this court; and
however, under s 160B(4), because the applicant had a current parole release date, the date that the Magistrate could fix could not be “earlier than the … current parole release date”.
The foregoing serves to demonstrate an anomaly in the provisions of the Penalties and Sentences Act.
Before this Court the applicant contended for immediate parole release. If this Court had come to the view that the sentence imposed at first instance was in error, for whatever reason, and should be set aside, the consequence would be that the applicant would be re-sentenced. Even if this court then concluded that immediate parole release was appropriate, the definition of “current parole release date” and the provisions of s 160B(4) of the Penalties and Sentences Act would mean that it could not set a parole release date other than at the date set by the Magistrates Court, that is, beyond when it determined the applicant should be released. This would be so even though the “current parole release date” was set by reference to the sentence that this Court had set aside.
There is no obvious way around that anomaly.
There is no obvious basis for the Magistrates Court to reopen its sentence under s 188 of the Penalties and Sentences Act. Two possible courses seem to be open. The first is for this Court to re-sentence and set an immediate parole release date, then permitting a reopening to be pursued in the Magistrates Court. The second is for this Court to stay its re-sentence (at least in so far as the parole release date is concerned) while a reopening was pursued in the Magistrates Court.
If the first course was adopted, the re-sentence by this Court would set a new “current parole release date” which the Magistrates Court could not avoid, because the parole release date set on 3 August 2018 would have been automatically cancelled under s 160E(1).
If the second course was followed, it is questionable that there is any legal basis upon which the Magistrates Court could act. Section 188(1) of the Penalties and Sentences Act permits a sentencing court to reopen the sentence in four cases. First, where it has “imposed a sentence that is not in accordance with the law”: s 188(1)(a). Secondly, where it has “failed to impose a sentence that the court legally should have imposed”: s 188(1)(b). Thirdly, where the court failed to set a date for parole release: s 188(1)(d). None of those is applicable to the case here.
Fourthly, where it has “imposed a sentence decided on a clear factual error of substance”: s188(1)(c). Whilst one could argue the error is that the Magistrates Court thought that there was a parole release date set at 17 May 2019, whereas that order will have been set aside, the order was in place when the Magistrates Court sentenced. Until it is set aside it has full force. Thus there was no factual error.
Further, it is difficult to see any avenue under appeal provisions, given that the Magistrates Court dealt with the charges on a summary basis and any appeal would lie to the District Court under s 222 of the Justices Act 1886 (Qld).
The conundrum is one which calls for legislative attention. Perhaps the answer lies in specifying that a subsequent court which is sentencing an offender to a lesser period of imprisonment than an existing sentence, is not required to set a parole release date. Or maybe in permitting the subsequent court in that case to set a parole release date at the limit of the term it imposes, but on the basis that that date does not cancel the later date set by the previous court.
I express no concluded view on these matters.
Disposition of application for leave to appeal
The application for leave to appeal is refused.
PHILIPPIDES JA: I agree with Morrison JA and endorse his Honour and Holmes CJ’s comments about s 160B(4) of the Penalties and Sentences Act.
 Appeal Book (AB) 181.
  QCA 116.
  QCA 315.
  QCA 385.
  QCA 284.
  QCA 175.
 AB 172 and 181.
  QCA 116.
  QCA 94.
  QCA 318.
 (1988) 166 CLR 59 at 62-63.
  QCA 204.
  QCA 205.
  QCA 9.
  QCA 391 at .
 Exhibited to an Affidavit of Ms Gillies which was read before this Court. Emphasis added.
- Published Case Name:
R v Sabine
- Shortened Case Name:
R v Sabine
 QCA 36
Holmes CJ, Morrison JA, Philippides JA
05 Mar 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC1475/17 (No Citation)||17 May 2018||Date of Sentence (Brown J).|
|Appeal Determined (QCA)|| QCA 36||05 Mar 2019||Application for leave to appeal against sentence refused: Holmes CJ and Morrison and Philippides JJA.|