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R v Fabre

 

[2019] QCA 78

[2019] QCA 78

COURT OF APPEAL

SOFRONOFF P

FRASER JA

MULLINS J

CA No 350 of 2018

DC No 105 of 2018

DC No 465 of 2018

DC No 494 of 2018

DC No 495 of 2018

THE QUEEN

v

FABRE, Hugo CharlesApplicant

BRISBANE

TUESDAY, 7 MAY 2019

JUDGMENT

MULLINS J:  Mr Fabre applies for leave to appeal against the sentences imposed on him in the District Court on 3 December 2018 on the ground the sentences are manifestly excessive. He pleaded guilty to two counts of supplying schedule 1 drugs (counts 1 and 2) and one count of possessing things (a mobile phone and digital scales) used in connection with supplying a dangerous drug (count 3) and four summary charges.

He was sentenced to two years’ imprisonment for each of the supplies and four months’ imprisonment for the possessing things. In relation to the four summary charges, he had failed to appear before the Magistrates Court on 27 June 2018 in respect of one of the summary charges to which he ultimately pleaded guilty on 3 December 2018. On the summary charge of failure to appear in accordance with undertaking, he was sentenced to three months’ imprisonment. On each of the other summary charges, (two charges of breach of bail condition and one charge of possess property suspected of having been acquired for the purpose of committing a drug offence), he was sentenced to one month’s imprisonment. Apart from the sentence for the failure to appear, which was cumulative by virtue of section 33(4) of the Bail Act 1980 (Qld), these sentences were concurrent. A pre-sentence custody declaration was made in respect of the period of 67 days spent in pre-sentence custody between 27 September 2018 and 2 December 2018, which applied to each of the concurrent sentences.

The learned sentencing judge also had to deal with two suspended terms of imprisonment, of three months and 14 days, imposed in the Maroochydore Magistrates Court on 31 January 2018 and 14 May 2018 respectively, as one of the charges (failure to appear on 27 June 2018 in accordance with undertaking) was committed during the operational period of both suspended terms of imprisonment and two summary charges (breach of bail condition on 12 May 2018 and 19 May 2018) were committed during the operational period of the first suspended term of imprisonment. These suspended terms were activated in full by the sentencing judge. The imprisonment of 14 days had been imposed for failure to appear on 24 May 2018 in accordance with undertaking and therefore, pursuant to section 33(4) of the Bail Act 1980, had to be served cumulatively on the other sentences imposed on 3 December 2018.

Mr Fabre was also dealt with for a contravention of probation order in respect of the probation order for a period of two years imposed in the District Court on 6 February 2018. The probation order was revoked and Mr Fabre sentenced to 10 months’ imprisonment that was concurrent with the other sentences. The effective head sentence was therefore two years, three months and 14 days. The sentencing judge fixed the parole release date at 27 September 2019, which requires Mr Fabre to serve 12 months in custody.

The complaint made on Mr Fabre’s behalf is that the fixing of the parole release date after 12 months in custody (after 44 per cent of the sentence is served) makes the sentence manifestly excessive or it is so plainly unjust as to imply error in the sentencing discretion.

Mr Fabre was 50 years old at the date of sentence. He is a qualified chef. He has two children, who were aged 24 years and 13 years at the date of sentence. His earlier drug convictions related to cannabis. When he separated from the mother of his children in his late thirties, he started using harder drugs. The three counts of the indictment had been first listed for sentence on 20 June 2018, but Mr Fabre did not appear. A bench warrant was eventually issued, in addition to the warrant that was issued in the Magistrates Court for the failure to appear on 27 June 2018. Mr Fabre was taken into custody on 27 September 2018.

Mr Fabre has an extensive and relevant criminal history. He has entries in his criminal history for minor drug offending committed in 1986, 1988, 1993, 2000, 2007 and 2008 and dishonesty offending committed in 2006 and 2007. He was sentenced in the Supreme Court on 20 October 2008 for much more serious drug offending committed in November 2006, namely, possession of methylamphetamine with a circumstance of aggravation and possess property suspected of having been used in connection with the commission of a drug offence. He was sentenced to imprisonment for two years and six months for the aggravated possession and given a parole release date fixed after serving eight months in custody.

He had been in possession of a pure amount of methylamphetamine of 6.798 grams that was held for a commercial purpose. For the other offence he was imprisoned for 18 months, to be suspended for three years after serving eight months in custody. As there had been five months of non-declarable custody which had not been taken into account in the sentencing, Mr Fabre was successful on appeal in having the parole date and suspension take effect after serving three months in custody: R v Fabre [2008] QCA 386.

A conviction in the Magistrates Court for possessing dangerous drugs on 28 December 2009 resulted in Mr Fabre being breached for the suspended sentence, and the operational period was extended by 12 months. He was dealt with in the Magistrates Court for dishonesty offences and minor drug offending in 2013 and 2014. He was then dealt with in the District Court on 1 August 2014 for one count of producing dangerous drugs, for which he was sentenced to imprisonment of 295 days that equated to the pre-sentence custody and probation for two years. About one month after being released from custody, he was in possession of dangerous drugs, for which he was convicted in the Magistrates Court. As a consequence, he was dealt with for breach of the probation order in the District Court on 6 February 2015 and resentenced to two years’ probation.

Property offences for which Mr Fabre was sentenced in the Magistrates Court on 4 May 2016 breached the probation order. He was dealt with in the District Court for that breach on 4 July 2016, and the probation order was extended to 6 October 2017. There are further entries for minor offending committed in 2016 and 2017, including minor drug offending and four breaches of bail committed in May 2017. The last two entries in the criminal history are the suspended terms of imprisonment imposed on 31 January and 24 May 2018.

The circumstances of the offences on the indictment were as follows. The first supply was committed on 12 August 2016. On that day, an undercover police officer exchanged text messages with another person about purchasing drugs. The undercover officer picked up that other person, and they attended at Mr Fabre’s house, where the other person spoke to Mr Fabre. The other person then informed the undercover police officer he could get three eight-balls or 10.5 grams of methylamphetamine for $2,500 and it was more expensive because the methylamphetamine was more pure.

The police officer then observed Mr Fabre making a telephone call. Mr Fabre and the other person entered the police officer’s car, and Mr Fabre directed the police officer to drive to a shopping centre, where the car stopped. Mr Fabre identified his supplier. The undercover police officer handed over the money, which Mr Fabre handed to the supplier. The supplier returned to the car an hour later and handed Mr Fabre a clip-seal bag and handed two clip-seal bags to the other person. The undercover police officer took possession of the two clip-seal bags and the supplier confirmed it was three eight-balls. Mr Fabre kept the bag containing a smaller amount of white substance. The total weight of the substance given to the police officer was 9.073 grams, containing 6.831 grams of pure methylamphetamine.

On the return drive, Mr Fabre told the police officer he had access to quality MDMA and agreed the police officer could give his number to a “friend” who was interested in buying some MDMA. The friend was also an undercover police officer, who messaged Mr Fabre on 20 August 2016 inquiring about buying MDMA. Mr Fabre told the undercover officer he made a phone call and it would be good to be picked up that night and the price would be at about $250 for a gram.

The undercover officer picked up Mr Fabre, and they drove to a bus-stop, where a male approached the car and handed the undercover officer a clip-seal bag containing a brown crystalline substance in exchange for $250 dollars, which was the supply that is count 2 on the indictment. The quantity of substance weighed 0.960 grams and contained 0.662 grams of pure MDMA. The police executed a search warrant at Mr Fabre’s home on 30 March 2017 and located a set of scales and a mobile phone that are the subject of count 3 on the indictment.

At the hearing before the sentencing judge, the prosecutor noted that the two supplies occurred about one month after Mr Fabre had been given another chance at rehabilitation with the extension of the District Court probation order and that should be treated as an aggravating feature of his offending. The prosecutor relied on R v Gabbert [2010] QCA 133 and R v Wilson [2016] QCA 301 to submit for a head sentence of between two years and two and one-half years’ imprisonment.

Mr Fabre provided a letter to the Court in which he expressed an apology and took full responsibility for his offending and stated that he realised drug use was the catalyst for his offending and that only he could change that. He had done a program in prison about prevention of relapse and aimed to get his children back into his life and return to full-time work.

Counsel who appeared for Mr Fabre on the sentence submitted the appropriate head sentence for the supplies was around two years’ imprisonment and conceded that the two sentences for the failures to appear had to be cumulative on the sentence for the drug offences. He submitted that the parole release date should be fixed after six months had been served in custody so that Mr Fabre could obtain the benefit of supervision on parole for an extended period of time.

The sentencing judge made the following observations in the course of the sentencing remarks. Mr Fabre was facilitating commercially motivated supplies in respect of the two supply counts, and, although it was unclear what benefit he obtained, the inference arose in relation to the supply of methylamphetamine that he was supporting his own drug habit by obtaining some of the drug for himself. He had to be sentenced in a way that made it clear to him that he had to deal with his drug addiction and that consequences would ensue for him should his offending behaviour continue. There was a need for Mr Fabre to be supervised on parole release. It was “very difficult to place a great deal of weight upon [his] aspirations for the future”. In fixing the parole release date after Mr Fabre had served 12 months, the sentencing judge stated:

“I have taken into account the fact of your plea of guilty and the indication before this Court that the matter would always be dealt with as a plea of guilty but otherwise noting that there has not been a great deal of cooperation in actually dealing with the matter, particularly with the failure to appear for which has now become a component of your sentence.”

Despite the sentencing judge expressly stating that he had taken into account Mr Fabre’s guilty pleas, it is submitted on behalf of Mr Fabre that it is unclear as to how the sentence was moderated to take the guilty pleas into account. It is also submitted that the sentencing remarks do not indicate that regard was had to the totality principle in setting the non-parole period in circumstances where cumulative sentences were imposed. As was observed by Chesterman JA, with whom McMurdo P and Fraser JA agreed, in R v Doraho [2011] QCA 29 at [19], the reasons for choosing the particular structure of the sentence and explaining the length of the sentence “need be neither elaborate nor long”.

A fair reading of the whole of the sentencing remarks suggests that the criticism of them is unfounded. It is apparent from the sentencing remarks that the sentencing judge was aware of the potential for harshness in sentencing for a number of offences, dealing with breaches of other sentences at the same time and being constrained by the statutory requirement to impose two of the sentences cumulatively. That explains why all the sentences were concurrent, except for the two sentences that were mandated by statute to be cumulative. The sentencing judge expressed his concern about Mr Fabre’s prospects for rehabilitation, as the history showed he was a recidivist drug offender for whom community-based orders had been unsuccessful over many years. His cooperation had been limited, as he had absconded for three months when his charges on the indictment had been first listed for sentence.

Although it is common for a guilty plea to result in the fixing of a parole release date or parole eligibility date, as the case requires, after one-third of the sentence has been served in custody, it is not an invariable rule; R v Amato [2013] QCA 158. R v Kitson [2008] QCA 86 at [17] is authority for the proposition that where the applicant has a claim upon a discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the mid-point of the head sentence is very unusual, so that the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it.

Here the parole date is fixed at less than the mid-point. The only question is whether the sentence as a whole is manifestly excessive. There is no error of principle shown in the sentencing judge’s reasons for imposing the sentences that he did. Ms Robb of counsel, who appears for Mr Fabre on this application, concedes that unless the Court were persuaded there was an error of principle in the sentencing, the head sentence of two years’ imprisonment was not outside an appropriate exercise of the sentencing discretion for the supply counts, and submits that the ground of manifest excessiveness depends then on showing that the parole release date after serving 44 per cent of the total sentence was manifestly excessive in the circumstances.

When the issue of manifest excessiveness is considered in the light of the whole sentence, the sentencing judge highlighted the factors that balanced the weight to be given to the guilty plea. Fixing the parole release date after Mr Fabre had served 44 per cent of the effective sentence could not be said to be outside a sound exercise of the sentencing discretion in the circumstances. I therefore would refuse the application for leave to appeal against sentence.

SOFRONOFF P: I agree.

FRASER JA: I agree.

SOFRONOFF P: The order of the Court is that the application for leave to appeal is refused.

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Editorial Notes

  • Published Case Name:

    R v Fabre

  • Shortened Case Name:

    R v Fabre

  • MNC:

    [2019] QCA 78

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Mullins J

  • Date:

    07 May 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC105/18; DC465/18; DC494/18; DC495/18 (No Citation) 03 Dec 2018 Date of Sentence.
Appeal Determined (QCA) [2019] QCA 78 07 May 2019 Application for leave to appeal against sentence refused: Sofronoff P, Fraser JA and Mullins J.

Appeal Status

{solid} Appeal Determined (QCA)