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R v Fischer

 

[2020] QCA 66

[2020] QCA 66

COURT OF APPEAL

SOFRONOFF P

BODDICE J

WILLIAMS J

CA No 281 of 2018

SC No 1387 of 2018

SC No 1429 of 2018

THE QUEEN

v

FISCHER, Ty Jordan Applicant

BRISBANE

TUESDAY, 7 APRIL 2020

JUDGMENT

SOFRONOFF P:  The applicant pleaded guilty to the following offences: one count of trafficking in dangerous drugs, between March and November 2016;  nine counts of unlawfully supplying weapons, including category H weapons; four counts of unlawful possession of weapons, including category H weapons; four counts of possession of dangerous drugs; four counts of possession of property obtained from trafficking; one count of receiving tainted property; one count of unlawful possession of a motor vehicle; two counts of unlawful use of a motor vehicle; one count of dealing with identification information; and one count of forgery.

On 28 September 2018, Justice Bond sentenced the applicant to imprisonment for nine years and eight months for the trafficking offence.  His Honour declared the offence to be a serious violent offence.  Lesser concurrent sentences were imposed for the other offences.

By committing the trafficking offence, the applicant breached the terms of certain suspended sentences that had been imposed upon him on 10 February 2016 in the Caboolture Magistrates Court.  Justice Bond ordered that those suspended sentences be served concurrently with each other and with the sentences that his Honour had imposed.

Some of the offences had been committed while the applicant was the subject of a parole order made by Judge Devereaux SC on 8 September 2015.  This rendered the applicant liable to serve the period for which he had been at large after the commission of the first relevant offence while on parole.  That offence was the trafficking offence that had begun to be committed on 23 March 2016.  The period thus activated was from 23 March 2016 until the applicant’s parole was suspended on 2 August 2016, which was a period of four months and eight days.  In accordance with section 156A of the Penalties and Sentences Act 1992 (Qld), Justice Bond ordered the applicant to begin serving the sentences that his Honour had imposed after the applicant had served that period of four months and eight days.

Between 19 September 2016, when the applicant was returned to custody, and the date of the current sentences being imposed, he spent 693 days, which is just over 23 months, in custody, and that period was not declarable, because it involved other offences.

The result of all of this, the applicant submits, is that he must serve just over 10 years before he becomes eligible for parole.  An analysis of the cases in which offenders have pleaded guilty to substantial trafficking in schedule one drugs, after invoking factors in mitigation, show that offenders have commonly been sentenced to periods of imprisonment of between 10 and 12 years: see for example R v Safi [2015] QCA 13.  In one case, this Court observed that, absent extraordinary circumstances, in such cases:

“... mature offenders who have pleaded guilty can expect a sentence of at least 10 years imprisonment.”

See R v Johnson [2014] QCA 79 at paragraph 45.

The applicant’s trafficking was substantial, although carried out over a relatively short period.  He purchased methylamphetamine in kilogram and half-kilogram lots.  He sold by the ounce or in greater quantities.  He sold MDMA, as well, and on one occasion, he sold that drug in an amount of 5,000 tablets.  He used violence to collect debts.  He had some 60 regular customers.  When business was slow, he would advertise his wares to his existing clients via text messages.

His drug trafficking was aggravated by his purchase and sale of firearms for profit, and his offering of firearms for sale, and by the discovery of firearms in his possession when he was arrested.

It is not necessary to dwell on the other property that was discovered, and which was part of his criminal life during that period.  It is enough to observe that when he was arrested, he was driving a stolen car, which was bearing stolen licence plates, and which he had acquired in exchange for drugs.

The applicant has a prior criminal history, comprised of less serious drug offences and stealing and fraud offences.  At least part of the explanation for the applicant’s offending lies in his own addiction to methylamphetamine.

It was submitted that the substantive acts that constituted the trafficking offence occurred over a much shorter period than that which was charged.  However, in my view, that is immaterial, because the subject matter of the sentence was not based substantially upon the alleged total period of trafficking, but was based upon the acts of trafficking that were alleged, as well as the other offences that fell to be sentenced on that occasion.

It was also submitted that the offending was not as bad as it looks at first glance.  It was pointed out that the weapons supply charges were largely constituted by acts of offering to supply weapons, rather than by actual supply.  However, his Honour expressly referred to that feature of the weapons offences, and, in the course of sentencing the applicant, also referred to the particular acts which constituted the offending, and which gave rise to arriving at a just sentence accordingly.

Neither of these matters are capable of demonstrating that the discretion miscarried.  They were matters that were taken into account by Justice Bond, and do not result in a conclusion that the sentences that were passed were too severe, having regard to the actuality of the offending.

In any event, the many offences constituted a very serious course of offending relating to trafficking with a view to putting dangerous drugs into circulation into society, and with a view to profit.  That submission should be rejected.

The applicant also submits that Justice Bond erred in making a serious violent offence declaration, because his Honour approached the exercise of discretion in the forbidden two-step manner.  The applicant points to his Honour’s consideration of the question of making a declaration only after he had come to a preliminary view about the appropriate period of imprisonment.  In particular, in the course of his Honour’s sentencing remarks, he said:

“But from that period, I take into account the amount of time served dealt with in the way described in R v NQ to get a period of imprisonment of nine years and eight months.  The question then arises whether I should make a declaration that you are convicted of a serious violent offence.  I think, in all of the circumstances of seriousness to which I have adverted, that is appropriate.

So the sentence I will impose in respect of count 1 is that you be subject of imprisonment of nine years and eight months.  And that I declare you to have been convicted of a serious violent offence.”

It is established that the process of deciding upon an appropriate sentence in a case, including whether or not to make a serious violent offence declaration, must be by way of what is called an integrated process.  However, when engaged upon sentencing, and when attempting to arrive at a sentence in accordance with authority and with statute, the nature of the question that arises in relation to the discretion to make a declaration must be appreciated.

Despite the statutory title given to the declaration, the immediate practical result of making such a declaration is to postpone a prisoner’s parole eligibility date.  The considerations which may be taken into account in the exercise of the discretion to postpone a parole eligibility date beyond the default 50 per cent period are the same as those which may be taken into account in relation to all other aspects of sentencing: see R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58 at paragraph 47.  Sometimes, and perhaps often, such questions cannot be addressed until a provisional term of imprisonment has been articulated as part of a sentencing Judge’s reasoning.

In some cases, the factors affecting the discretion may arise from the objective facts of the offending.  Such factors may demonstrate that the postponement of parole eligibility is called for by reason of the need for general deterrence, or the need for prominent denunciation, despite there being a perceived benefit for the community in an offender’s early release under supervision.

In other cases, such as the present, the relevant reasons to make a declaration may arise from the prisoner’s personal circumstances, such as a recent rejection of supervision in earlier cases, and the need for personal deterrence.  In any of these cases, it may be that only once a provisional conclusion is reached about a term of imprisonment that a sensible consideration can then be given to the question of whether or not to postpone the parole eligibility date by making a declaration.  The question may be answered differently depending upon the proposed term of imprisonment that is foreshadowed, and the decision that a declaration is desirable may itself affect the term that is finally decided upon.

The process of sentencing demanded by authority does not demand that a Judge undertake a pretended and staged process of articulated reasoning to demonstrate, contrary to the truth, that the Judge’s final decision was the result of a consideration of all factors all undertaken at one and the same time, in order to derive, as a product of a kind of agglomerated but hidden reasoning, a final number with conditions attached.

The expression “integrated process” was one that was adopted to distinguish the correct process from the discredited and incorrect process of taking a number of years as a starting point and then adding or subtracting from that number to reflect the influence of relevant factors until a final number, the appropriate sentence, has been reached: see Markarian v The Queen (2005) 228 CLR 357 at paragraph 39.  The expression does not dictate that it is impermissible for a Judge to take stock, during a point in the Judge’s reasoning process, in order to determine whether or not, upon the assumptions stated to that point in the sentencing remarks, a particular condition attaching to the sentence would or would not be appropriate.

It must be remembered that often, sentencing remarks follow upon the consideration that has already been given to sentence, and follow upon a conclusion about the appropriate sentence already having been reached in the Judge’s mind.  An inquiry of this kind by a sentencing Judge may, for example, reveal that an assumption – say, a proposed sentence of nine years – would be too severe if coupled with a declaration.  In my view, nothing more than that was involved in this case.  In particular, the submission that Justice Bond engaged in impermissible reasoning about whether to make a declaration in reaching his conclusions should be rejected.  For those reasons, the application for leave should be refused.

BODDICE J:  I agree.

WILLIAMS J:  I agree.

SOFRONOFF P:  The order of the Court is therefore that the application is refused.

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Editorial Notes

  • Published Case Name:

    R v Fischer

  • Shortened Case Name:

    R v Fischer

  • MNC:

    [2020] QCA 66

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Boddice J, Williams J

  • Date:

    07 Apr 2020

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status