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- Unreported Judgment
 QCA 105
COURT OF APPEAL
CA No 48 of 2020
SC No 1466 of 2019
SC No 308 of 2020
ROHLF, Andrew Grant Applicant
THURSDAY, 21 MAY 2020
FRASER JA: On 10 March 2020 the applicant was convicted on his pleas of guilty to possession of a dangerous drug, methylamphetamine, in excess of two grams (count 1) and possession of weapons, category R (count 2). On count 1, he was sentenced to 18 months’ imprisonment, with parole fixed on 10 June 2020. He was convicted and not further punished for count 2 and two summary drug offences. The applicant seeks leave to appeal against sentence on the grounds that the sentencing judge erred in failing to give full credit for the non-declarable period of pre-sentence custody and by concluding that a cumulative sentence nominally should be imposed on count 2.
In the course of execution of a search warrant at the house where the applicant and his co-accused resided, police stopped the co-accused from flushing in a toilet about 13 grams of substance containing about 10 grams of pure methylamphetamine whilst the applicant was acting as a lookout. A clipseal bag of substance found to contain 0.263 grams of the drug was found in the house. Police also found two taser torches, a used glass pipe and digital scales. The applicant admitted that the drugs and other items belonged to him. He was sentenced upon the basis that he possessed the drugs for his personal use only.
The applicant has a criminal history. Most of his convictions were for relatively minor offences. In addition, he had been sentenced to 12 months’ imprisonment with immediate parole after 59 days in pre-sentence custody for offences including dangerous operation of a vehicle in March 2013. As a result of breaching a 12-month probation order imposed in July 2016, he was resentenced in December 2017 to one month and seven days’ imprisonment with immediate parole for offences including contravention of a domestic violence order. In March 2018 he was fined for possession of a quantity of MDMA capsules and a glass pipe. The applicant was 39 when he committed the offences. He had been in employment since he completed his secondary schooling and had some casual work at the time of the offences.
At the sentence hearing the Crown submitted that if, as occurred, the sentencing judge did not accept that the applicant possessed the drug for a commercial purpose, the sentence should be in the order of 18 months’ imprisonment. Defence counsel submitted that such a sentence was within range, in the ordinary course the applicant would serve six months of that sentence, and he had already served more than that in pre-sentence custody.
The sentencing judge took into account the applicant’s timely plea of guilty, his considerable criminal history containing one relatively minor drug offence, and that although the drugs were for personal use there was a lot of drug of high purity. The most relevant comparable case in the sentencing judge’s view was R v Sutton  QCA 318, in which the offender possessed much the same quantity of methylamphetamine. There was some commerciality in that offender’s possession but the applicant’s criminal history was worse. The sentencing judge considered that a notional sentence of two years, as was imposed in Sutton, was appropriate on count 1. The sentencing judge accepted the applicant’s submission that an appropriate sentence on count 2 was six months’ imprisonment but rejected the submission that the sentence should be concurrent; count 2 concerned distinct offending warranting a cumulative sentence. The sentencing judge applied the totality principle in finding that the appropriate overall sentence was 26 months with a parole release date after nine months.
A pre-sentence custody certificate attributes 179 days of pre-sentence custody (between 27 December 2018 and 24 June 2019, when the applicant was granted bail) to remand on an offence of the unlawful use of a motor vehicle committed on 19 November 2018, and 113 days of pre-sentence custody (between 18 November 2019 and 9 March 2020) to remand upon offences of contravening a domestic violence order and assaults occasioning bodily harm whilst armed or in company, committed on 18 November 2019.
The sentencing judge referred to R v Fabre  QCA 386 and concluded that the period of about 10 months the applicant had served in pre-sentence custody that was unable to be declared should be taken into account in reduction both of the head sentence and the custodial period. The sentencing judge distinguished between the two different periods of pre-sentence custody upon the ground that the domestic violence and assault offences were distinct in time and completely different in character from the subject offending whereas the unlawful use of the motor vehicle offence was proximate in time and connected with the subject offending in the sense that people using drugs in the community are likely to commit property offences. The sentencing judge also took into account in exercising the discretion concerning the later period of pre-sentence custody that the only reason the applicant had been on remand was that the applicant had breached his bail.
The applicant submits that a concurrent sentence for count 2 was the appropriate starting point and that although count 2 involved different kinds of offences they were committed in the same period, and to some extent arose out of the same circumstances. No submission to that effect was made at the sentence hearing. I am not persuaded that it was outside the sentencing judge’s discretion to increase the sentence upon count 1, in the way described in R v Nagy  QCA 175, by allowing for some accumulation of the appropriate sentence on count 2.
In relation to the remaining ground of appeal, the applicant relies upon the proposition in R v Fabre that, “although it is not mandatory, it is generally desirable to take into account periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity”. The respondent submits that the sentencing judge did not err by not allowing credit for the four month period of pre-sentence custody relating to the domestic violence contravention and assaults. Accepting, as the respondent submits, that the way in which the discretion is exercised depends upon the particular facts of each case, in my respectful opinion the reasons given by the sentencing judge for not making an allowance for that period of pre-sentence custody are not supported by the material. There is no basis in the material for the conclusion that the domestic violence and assault offences were unrelated to the subject offences or had a less significant relationship with them than did the unlawful use of a motor vehicle offence. The circumstance that the applicant was on bail when he committed the subsequent offences does not, in my respectful opinion, explain the omission to take into account the four month period of pre-sentence custody.
Importantly, it could not be assumed that the applicant would be convicted of the other offences and sentenced in a way that allowed for this pre-sentence custody to be taken into account. In fact, by way of illustration, the court has been informed that the charges to which the four month period of pre-sentence custody related have since been withdrawn. For these reasons, I would grant the application for leave to appeal, allow the appeal, and vary the sentence by substituting for the parole release date fixed by the sentencing judge of 10 June 2020 a parole release date today, 21 May 2020.
McMURDO JA: I agree.
MULLINS JA: I agree.
FRASER JA: Those are the others of the court. I thank you both ‑ ‑ ‑
MR FRASER: Thank you, your Honour.
FRASER JA: ‑ ‑ ‑ at the bar table for your assistance, which has enabled the court to pronounce these orders today. Thank you.
MR FRASER: Thank you, your Honour.
- Published Case Name:
R v Rohlf
- Shortened Case Name:
R v Rohlf
 QCA 105
Fraser JA, McMurdo JA, Mullins JA
21 May 2020