- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v McManus  QCA 110
McMANUS, Liam Anthony
CA No 329 of 2019
SC No 1219 of 2019
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 12 November 2019 (Bowskill J)
29 May 2020
8 May 2020
Morrison JA and Ryan and Wilson JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant had originally been sentenced to 4 ½ years imprisonment suspended after 12 months with an operational period of 5 years for a drug possession offence – where the applicant had also been sentenced to 3 years imprisonment with a parole release date for a drug supply offence – where the applicant committed offences during the 5 year operational period and whilst on parole – where the applicant spent nearly 6 months in custody following suspension of parole which could not be declared in relation to the outstanding portion of the suspended imprisonment – where the applicant was ordered to serve the whole of the suspended sentence – whether undeclarable time spent in custody ought to have been considered in exercising the discretion to activate the whole of a suspended sentence – whether the whole of the suspended sentence should have been activated
Corrective Services Act 2006 (Qld), s 214
Penalties and Sentences Act 1992 (Qld), s 147(2), s 147(3), s 160C
R v Stevens  QCA 361, cited
S L Kissick for the applicant p>
N L Lima for the respondent
David Burns Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the reasons of Wilson J and agree with those reasons and the orders her Honour proposes.
RYAN J: I have read the reasons of Wilson J and agree with those reasons and the orders her Honour proposes.
WILSON J: On 3 October 2017, in the Supreme Court of Queensland, the applicant pleaded guilty to a two count indictment and a number of summary offences and was sentenced as follows:
Count 1 - possessing a schedule 1 drug in excess of 2.0 grams – 4 ½ years imprisonment, suspended after 12 months for an operational period of 5 years (“the commercial possession offence”);
Count 2 - supplying schedule 2 drugs - 3 years imprisonment with a parole release date of 8 January 2018 (“the supply offence”);
Summary offences - trespass, obstructing a police officer and two counts of stealing - convicted and not further punished; and
268 days of pre-sentence custody were declared time already served under this sentence.
The applicant then committed a number of offences during the operational period of the suspended sentence and whilst on parole, which were dealt with in the Magistrates Court.
On 12 November 2019, in the Brisbane Supreme Court, the breach of the suspended sentence for the commercial possession offence was proven and the applicant was ordered to serve the whole of the unexpired portion of the suspended sentence, namely 3 ½ years. It was further ordered that the applicant be eligible for parole on 12 November 2019, i.e. the day of the breach hearing.
The applicant seeks leave to appeal against this order on the basis that the activation of the whole of the suspended sentence was unjust in all the circumstances.
In relation to the commercial possession offence, on 9 January 2017 the applicant was found to be in possession of clip seal bags containing a combined weight of 197.685 grams of pure methylamphetamine in 276.621 grams of substance.
In relation to the supply offence, the applicant’s phone was analysed and found to contain records indicating the applicant had supplied somebody with a quantity of cannabis.
At the time of committing these offences, the applicant was a 20 year old indigenous man who had a criminal history dating back to when he was 15 years old. The applicant’s criminal history was predominantly for breaching bail conditions, property, dishonesty and drug offending. Although the applicant had been sentenced to juvenile detention as a child, he had not served a custodial sentence as an adult.
The Crown Prosecutor’s submission was that 5 to 6 years imprisonment was within the range for the commercial possession offence, and that lesser concurrent sentences should be imposed for the supply offence and the unrelated summary offences.
The applicant’s counsel urged the learned sentencing judge to impose 4 ½ years imprisonment for the commercial possession offence and in recognition of the applicant’s youth and prospects of rehabilitation, to be suspended after 12 months.
For the supply offence, the applicant’s counsel submitted that 3 years imprisonment with a parole release date after 12 months should be imposed.
The applicant’s counsel acknowledged that, ordinarily, 3 years imprisonment would be excessive for one count of supplying cannabis to another, as such an offence would usually attract around 18 months imprisonment. However, the applicant’s counsel submitted that by taking into account all of the offending and couching the 3 year sentence as a global sentence, structuring the sentence in this way, while unorthodox, was permissible, appropriate and desirable in these circumstances.
The applicant’s counsel submitted, in effect, that an operational period of five years for the possession offence would mean that the balance of that sentence would be ‘hanging over the applicant’s head’. In conjunction with the three year imprisonment with a parole release date after 12 months, it would provide additional specific deterrence, with support and rehabilitation to minimise the risk of reoffending and to maximise the chances of the applicant’s successful rehabilitation.
The applicant was sentenced in accordance with his counsel’s submissions. The learned sentencing judge expressly noted that a sentence of 3 years imprisonment was higher than would ordinarily be appropriate for the supply offence. However, the learned sentencing judge stated that she was looking at the overall offending in totality, and considered that it was appropriate that the applicant have a period of supervision on parole upon his release for the supply offence, which was balanced with the suspended sentence for the commercial possession offence. At the breach hearing, the approach taken in the original sentence was described in this way:
“On the possession, you were sentenced to four years and six months to be suspended for five years after serving 12 months. On the supply, you were sentenced to three years, which was a higher penalty than that offence would ordinarily have attracted, but I expressly sentenced you to that on the basis that it reflected the overall criminality. I was coming down a bit on the possession, and I went up a bit on the supply, but, importantly, I responded to a submission made on your behalf then that it was important to try to give you certainty of release, and that was achieved.”
The learned sentencing judge declared 268 days of pre-sentence custody as time already served under this sentence.
The applicant then committed a number of offences between 25 July 2018 to 14 May 2019 which were:
1 count of failure to appear in accordance with an undertaking on 25 July 2018;
1 count of stealing a television and vacuum cleaner on 13 August 2018;
1 count of stealing a t-shirt on 4 August 2018;
1 count of enter premises and commit indictable offence on 16 April 2019;
2 counts of obstructing a police officer on 12 May 2019; and
1 count of wilful damage of police property on 14 May 2019.
The applicant’s failure to appear offence occurred on 25 July 2018, when the applicant failed to appear in the Brisbane Magistrates Court for a charge that has since been discontinued.
The enter premises and commit indictable offence occurred on 16 April 2019, when the applicant attended a Red Rooster store to sell a mobile phone to an employee of the store. The employee refused to purchase the phone because it was damaged. The applicant became upset, and claimed that he was owed $300.00 because he had driven from Warwick. When the employee resumed his duties, the applicant went behind the counter area and stole $1,400 from a closed but unlocked safe.
Both obstructing police offences occurred on 12 May 2019, when the applicant resisted police arrest in the police vehicle and cells at Stanthorpe. This occurred when the applicant was apprehended on a return to prison warrant due to his parole being suspended on 3 May 2019.
The wilful damage of police property offence occurred on 14 May 2019, when the applicant threw his lunch over the walls of the Warwick Watch House.
In relation to the offence of stealing a television and a vacuum cleaner on 13 August 2018, the applicant was sentenced on 29 October 2018 in the Southport Magistrates Court to a fine of $450 with no conviction recorded.
The applicant pleaded guilty to all the other offences in the Warwick Magistrates Court on 12 August 2019. By that time, his parole had been suspended and he had spent 3 months in custody. The Magistrate, whilst noting that these were not the most serious charges, stated, in effect, that the time the applicant had already served in custody was a sufficient penalty for these offences. The Magistrate stated that “one has to be careful with totality”; the applicant was convicted and not further punished.
The breach of the suspended sentence hearing
The Probation and Parole Report, tendered at the breach hearing, noted that the applicant had a mixed response to supervision; he had contravened the parole order on a number of occasions by committing offences and had provided a number of urine samples confirming illicit substance use. On each occasion that he contravened the parole order, the applicant was given the opportunity to remain in the community and engage in interventions. However, his willingness to maintain engagement was superficial.
The applicant ultimately disengaged from supervision in April 2019, resulting in the parole order being suspended on 3 May 2019. He was deemed unsuitable for further community based orders.
At the time of the breach hearing, the applicant had spent nearly six months in custody following the suspension of his parole order for the supply offence. As this six months in custody only related to the supply offence, it could not be declared in relation to the outstanding portion of the suspended imprisonment for the commercial possession offence.
The applicant’s full time expiry date for the supply offence was 17 January 2020.
Since being returned to custody, the applicant had been managed by the Prison Mental Health Service. Dr Scott, his treating psychiatrist, provided a report which stated that the applicant had disclosed in an interview that:
In his early adolescence he was sexually abused by his biological father;
He was later emotionally and physically abused by some of his mother’s partners and began to experience features of post-traumatic stress disorder including early insomnia, anxiety, hypervigilance and intrusive thoughts of past abuse (flashbacks);
From age 11 he began using cannabis, from age 14 he began to self-harm by cutting himself and also began to use methamphetamines intermittently.
Dr Scott noted that during the applicant’s time in custody, his mental state had remained stable, he did not satisfy the involuntary treatment provisions of the Mental Health Act 2016 (Qld) and upon release he would see a general practitioner for follow up treatment and prescriptions of his current medications.
At the breach hearing, the applicant tendered a hand-written letter to the learned sentencing judge. This letter outlined that the applicant had lost a child at birth with his partner, which resulted in the relationship breaking down and in turn the applicant returning to a significant amount of drug use.
Since being returned to custody, the applicant had been working in the prison kitchen, had engaged with two rehabilitation programmes and had professed to Dr Scott a strong motivation to abstain from all substances upon his release. The applicant had the support of his family upon release from custody.
The Crown Prosecutor submitted that:
The applicant’s suspended sentence should be fully activated, with the possibility of immediate eligibility for parole from the date of the breach hearing, being 12 November 2019;
The commercial possession offence was very serious and the original sentence had taken into account the applicant’s youth and had endeavoured to provide him an opportunity to undergo rehabilitation;
Although the applicant was a young man, he had an extensive criminal history, and he required a further period in the community subject to supervision; and
A desirable result of fully activating the suspended sentence would be that the applicant be released into the community, perhaps upon the expiry of his three-year sentence, which was 17 January 2020, under the supervision of a parole order.
Counsel for the applicant submitted it would be unjust for the suspended sentence to be fully activated. Rather, only a short period of the applicant’s suspended sentence should be activated, and then the applicant should be released into the community.
The applicant’s submissions at the breach hearing focussed on activating only 2 months of the suspended sentence, which would then allow a parole release date to be imposed. However, if a term of imprisonment beyond 2 months was activated, then the applicant would be serving a sentence beyond the 3 year full time expiry date of the supply offence. Consequently, the applicant would be serving a period of imprisonment of more than 3 years and a parole eligibility date could only be imposed. It was for this reason that the applicant’s counsel urged that only 2 months of the suspended sentence be activated.
In oral submissions, the applicant raised the cumulative effect of activating the entirety of the suspended sentence:
“MR KISSICK: And my submission exposes him to some further jail where he’s at risk – he’s now at risk, effectively, of – well, he’ll be on parole if your Honour activates the entirety for six and a half years. That’s the ultimate upshot of the original sentence, is that – it won’t be quite that. It will be two months short of that.
HER HONOUR: How do you get to that?
MR KISSICK: Well, he’s two months shy of completing three years parole. And your Honour is giving him three and a half more today concurrently. So that means he, across that sentence originally imposed, would be six years and four months on parole.
HER HONOUR: Well, that’s the negative of imposing a suspended sentence in the first place, isn’t it?
MR KISSICK: Well, I agree entirely, your Honour.”
The learned sentencing judge was not persuaded that activating only a 2 month period was appropriate in the circumstances; her inclination was that it was better to activate the whole of the suspended sentence. Ultimately, the applicant’s counsel did not wish to press her on that aspect of the sentence.
The learned sentencing judge noted that further suspending the sentence was not appropriate and supervision of the parole authorities was warranted.
The learned sentencing judge stated:
“You have heard the exchange I have had with Mr Kissick. Because that is my view, the next question is, is it appropriate to activate the whole of what is left or only part? And I think the logical thing is to activate the whole, because then you just get on with it. I cannot control what the Parole Board does, but if you are released on parole, it starts from – the serving of the sentence starts from today, rather than coming back for some other part of it in the future.
So having regard to the serious nature of the offence for which you were sentenced to the suspended term of imprisonment, taking into account the nature of the offences that you have been convicted of that have breached that, which I accept are of a lesser seriousness and of a different nature but nonetheless concerning, and the other matters before the Court, I am not of the opinion that it would be unjust to order that you serve the balance of the suspended term of imprisonment. However, I am persuaded that it is appropriate to fix the date you be eligible for parole at today in respect of that activated period.”
Appeal hearing - the applicant’s submissions
The applicant submits that from the perspective of exposure to prison, as a result of the timing of the breach in November 2019, the imposition of the whole of the suspended term extended the applicant’s period of imprisonment (for the original offences, the breaching offences and the breach proceedings) to 6 years and 4 months imprisonment.
By the time the applicant appeared for the breach hearing, he had served 34 months of the 3 years imposed for the concurrent supply offence, which included:
12 months continuously from commencement of sentence;
16 months in the community subject to parole; and
A further 6 months following his return to prison in May 2019.
The applicant’s counsel submits that in breaching his suspended sentence, the applicant had not returned to the same type of serious drug offending, and the Magistrate was correct in describing the spree of offending as ‘not the most serious.’
In the circumstances, it was significantly disproportionate that the applicant become exposed to serving 6 years 4 months upon the activation of the full unexpired portion of the suspended sentence, considering the original offending, the applicant’s degree of compliance and the breaching offences.
The applicant submits that setting the parole eligibility as the date of the breach hearing did not ameliorate the injustice.
The applicant submits that the appeal should be allowed, and that a significantly shorter period of the unexpired portion of the sentence should be activated.
Appeal hearing - the respondent’s submissions
The respondent submits that in ordering the applicant to serve 3 ½ years of his suspended sentence, the learned sentencing judge had regard to the following matters:
The legislation requires the court make an order that the whole of the suspended term of imprisonment be activated unless the court considers it is unjust to do so;
The applicant served 12 months of the 4 ½ year term of imprisonment initially;
The applicant was a young man at the time of the original sentence and remained a young man;
The Probation and Parole Report indicated he had a mixed response to supervision, but that prior to July 2018 he had returned a number of positive tests for the use of cannabis, methylamphetamine, and morphine;
Further, the Probation and Parole Report did not regard the applicant as suitable for community-based supervision at the time the report was written, as he had disengaged from it;
He had considerable challenges from a mental health perspective and dealing with drug addiction;
The original sentence was structured in a way designed to give him certainty of release;
The original offences were serious;
The breaching offences, while different in nature to the original offence, were nevertheless concerning, particularly in the context of the continued use of drugs and continued offending which was not minor or insignificant;
The further suspension of the sentence was not appropriate and the supervision of the parole authorities was warranted; and
The applicant was really making a concerted effort in custody to take opportunities and participate in courses.
The respondent submits that the learned sentencing judge did not err in the formation of the opinion that it was not unjust that the applicant serve the suspended sentence; such a finding was open to the learned sentencing judge.
The applicant was not a promising candidate for further suspension given the Probation and Parole Report, which recorded continuing use of dangerous drugs and that the applicant offended while subject to a suspended sentence and parole.
The learned sentencing judge was aware that the applicant became exposed to serving 6 years, 4 months on parole, by her Honour activating the whole of the unexpired term of imprisonment, and commented that this was the negative of a suspended sentence being imposed in the first place. Her Honour ameliorated the sentence by imposing an eligibility date on the day of sentence. The respondent submits that this structure was apt to achieve the supervision deemed necessary.
Section 147(2) of the Penalties and Sentences Act 1992 (Qld) (“PSA”) states that the court must order the offender to serve the whole of the suspended imprisonment unless it is of the opinion that it would be unjust to do so.
In deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment, the court must have regard to the matters set out in section 147(3) PSA:
whether the subsequent offence is trivial having regard to—
- the nature of the offence and the circumstances in which it was committed; and
- the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and
- the antecedents and any criminal history of the offender; and
- the prevalence of the original and subsequent offences; and
- anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—
- the relative length of any period of good behaviour during the operational period; and
- community service performed; and
- fines, compensation or restitution paid; and
- anything mentioned in a pre-sentence report; and
- the degree to which the offender has reverted to criminal conduct of any kind; and
- the motivation for the subsequent offence; and
the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and
any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.
Whilst section 147(3) refers to the matters which must be considered by a court in determining whether it would be unjust to order the offender to serve the whole of the suspended imprisonment, they are not the only matters to be taken into account in determining whether it will be unjust to order the offender to serve the whole of the suspended imprisonment.
The issue of pre-sentence custody is not referred to in section 147(3), but may be a relevant factor in determining whether it would be unjust to order the offender to serve the whole of the suspended imprisonment. In R v Stevens  QCA 361, the example was given of an offender serving a period of pre-sentence custody, which could not be declared at the original sentence, and the judge taking this period into account in determining the period of suspension but not in moderating the head sentence. The Court of Appeal noted that serving a period of pre-sentence custody may, in these circumstances, be a relevant factor in determining whether it would be unjust to order the offender to serve the whole of the suspended imprisonment.
Section 147(3)(c) PSA requires the court to consider any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of the suspended imprisonment. As the respondent acknowledges in its supplementary submissions, this provision is wide enough to encapsulate time spent in custody following the original offence.
In this case, the applicant was sentenced to a lengthy term of imprisonment of 4 ½ years for the commercial possession offence. However, the penalties imposed for all of the applicant’s offending were structured to provide certainty of release, with a suspended sentence for the commercial possession, combined with supervision in the form of parole for the supply offence. This is not an unusual sentence structure; it is often utilised as the PSA does not allow a parole release date to be imposed for any sentence beyond 3 years.
The learned sentencing judge noted that a 3 year sentence for the supply offence was a higher penalty than ordinarily would be appropriate for the charge. However, taking into account the overall totality combined with the suspended sentence for the commercial possession offence, the learned sentencing judge regarded it to be appropriate in all of the circumstances. The sentences imposed for the commercial possession and supply offences were concurrent and in effect operated as a package to provide certainty of release, with 2 years of rehabilitative support in the form of parole for the applicant.
However, by the time of the breach hearing, the applicant’s parole had been suspended for the supply offence, he had spent an additional 6 months in custody and was approaching the full time expiry date for the supply offence sentence.
In total he had spent 18 months in custody and 16 months in the community subject to parole. A prisoner released on parole is taken to be still serving the sentence imposed. None of this was taken into account by the learned sentencing judge when considering whether it would be unjust to order the applicant to serve the whole of the suspended term of imprisonment.
In particular, the learned sentencing judge did not take into account that the applicant had spent six months in custody for the supply offence that could not be declared when activating the suspended sentence. The sentences for the supply offence and the commercial possession offence were concurrent. The maximum amount of imprisonment that the applicant could serve under these sentences was 4 ½ years imprisonment. By not taking into account the time spent on parole and in custody for the supply offence and then ordering the whole of the suspended sentence to be served, this meant that the applicant was, in effect, being sentenced to imprisonment in excess of 4 ½ years. It is noted that the applicant’s counsel at the breach hearing did not frame his submissions in this way, or explicitly bring these matters to the learned sentencing judge’s attention.
The learned sentencing judge was in error by not considering that the applicant had served nearly all of the 3 year sentence for the concurrent supply offence when determining whether it would be unjust to activate all of the suspended term of imprisonment.
Accordingly, as the applicant has shown error, this Court must intervene and reconsider whether it would be unjust to activate the whole of the suspended term.
Relevant matters to consider when determining whether it would be unjust to activate the whole of the suspended sentence are:
The commercial possession offence involved a large quantity of methylamphetamine and was a very serious offence;
The subsequent offences are not drug offences and were appropriately described by the sentencing Magistrate as “not the most serious’;
The applicant has a poor criminal history reflective of a long term problem with drug use;
The applicant is a young indigenous man who was 20 years old at the time of committing the commercial possession offence and 21 and 22 years old when he committed the subsequent offences;
Since his release from custody for the original offending, the applicant and his partner have lost an unborn baby. The applicant’s partner then left him whereby his anxiety and depression got worse, he stopped taking his medication and his drug use increased;
The applicant has seen a psychiatrist in custody and disclosed that he had been sexually abused by his father, and physically and emotionally abused by some of his mother’s partners. The applicant began to experience features of post-traumatic stress disorder including early insomnia, anxiety, hypervigilance and intrusive thoughts of past abuse;
Since being in custody the applicant’s mental state has remained stable and he has professed to his psychiatrist a strong motivation to abstain from all substances upon his release;
The applicant has been productive whilst in custody by working in the kitchen and attending some rehabilitation courses;
The applicant has the support of his family upon release; and
The applicant has nearly served all of the 3 year sentence for the concurrent supply offence which included:
- 12 months continuously from the commencement of sentence;
- 16 months in the community subject to parole; and
- A further 6 months following his return to prison in May 2019.
The applicant was originally sentenced to 4 ½ years imprisonment for the commercial possession offence and 3 years concurrent imprisonment for the supply offence. The applicant should not serve a sentence in excess of 4 ½ years for this offending.
Accordingly, in my view, taking into account the 34 months the applicant has already served in relation to the concurrent supply offence, the maximum amount of imprisonment that could be activated for the commercial possession offence is 20 months imprisonment.
Whilst acknowledging the very serious nature of the commercial possession offence and taking into particular account:
That the applicant had been originally sentenced to concurrent sentences and had served nearly 3 years of the supply offence (including an 6 additional months in custody);
That the subsequent offences were not drug offences and “not the most serious”; and
The applicant’s relatively young age, his mental health issues and the steps he has taken towards rehabilitation;
it would be unjust to activate the whole of the suspended imprisonment.
It would be unjust for the applicant to serve the whole of the remainder of the suspended term of imprisonment. In my view, taking all these factors into account, and in the particular circumstances of this case, the appropriate course is to order that 9 months of the suspended term of imprisonment be activated with the parole eligibility date to remain as at the date of the breach hearing.
Conclusion and Orders
For the reasons expressed above, I would make the following orders:
- Grant the application for leave to appeal.
- Allow the appeal.
- Set aside the order that the applicant serve the whole of the remainder of the suspended term of imprisonment.
- The applicant serve 9 months of the suspended term of imprisonment.
- Confirm the order that the applicant be eligible for parole at 12 November 2019.
For the unrelated summary charges, the applicant was convicted and not further punished.
The applicant’s parole had been suspended on 3 May 2019 and he was returned to custody a short time later on 12 May 2019 (total time was a period of 9 days).
Penalties and Sentences Act 1992 (Qld) s 160C.
R v Stevens  QCA 361 at  per McMurdo P.
R v Stevens  QCA 361 at  per McMurdo P.
Corrective Services Act 2006 (Qld) s 214.
- Published Case Name:
R v McManus
- Shortened Case Name:
R v McManus
 QCA 110
Morrison JA, Ryan J, Wilson J
29 May 2020
No Litigation History