The Queen v Clare[1999] QCA 227

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

BRISBANE

DATE 17/06/99

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the Brisbane Supreme Court on 18 February 1999 to three counts of supplying a dangerous drug methylamphetamine, one count of supplying a dangerous drug heroin, one count of supplying a dangerous drug methylamphetamine with a circumstance of aggravation that it was supplied within a correctional institution, three counts of receiving stolen property and one count of possession of property obtained from supplying a dangerous drug.

In respect of all counts of supplying drugs, the applicant was sentenced to three years' imprisonment.  In respect of the remaining counts, he was sentenced to two years' imprisonment.  The terms of imprisonment were concurrent with each other but cumulative upon the sentence the applicant was currently serving.  His Honour recommended early parole in these terms:

"... after 12 months from the termination of the sentence that you are now serving, so that consideration takes place as early as maybe 12 months after the appropriate time when you would otherwise have been released from prison apart from these charges."

The applicant is 54 years of age and has a significant criminal history commencing with a conviction for stealing in 1965 and convictions for other minor property offences in 1986 and 1988.  More importantly, he was sentenced to three years' imprisonment in the Toowoomba Magistrates Court in 1991 for possession of a motor vehicle with intent to deprive, although this was reduced to two years' imprisonment on appeal.  In 1993 he was sentenced to six years' imprisonment for possession of a dangerous drug.

The applicant was released on parole on 23 December 1996 after serving three years and three months of that sentence.  On 17 February 1997 he was charged with these offences and was granted bail.  The applicant failed to appear before the Parole Board to show cause why his parole should not be cancelled or suspended and on 24 April 1997 his parole was suspended under s. 185 Corrective Services Act.  A warrant was issued for his arrest.  He has been in custody again since 30 April 1997.

As at the date of sentence he had served four years 11 months and 24 days of that sentence, a period which excludes the time he was on parole in the community. 

The first three offences occurred whilst the applicant was a prisoner on work release:  the applicant sold an ounce of methylamphetamine for $1,000 to another prisoner on three separate occasions, twice outside the Kennigo Community Correctional Centre where he was an inmate and once inside the centre.

After release on home detention, he sold methylamphetamine to the same prisoner on a further four occasions for a total of $2,000.  He later supplied a little over 13 grams of heroin, of which approximately 7 grams was pure, to a police undercover officer for $6,000.  When the applicant's house was searched, $13,850 in cash and property, including electronic scales and a microscope and accessories, valued at $9,100 were located.  This property had been stolen in New South Wales.

The applicant is in very poor health suffering from inoperable heart disease and unstable diabetes such that Dr Metcalfe, visiting medical officer at Woodford Community Correctional Centre, describes his prognosis as poor and that he will be lucky to live to 60.  Because of his breach of parole, he is currently serving his sentence in maximum security.

The only ground of appeal now argued is that the sentence was manifestly excessive.  The effect of the sentence imposed by His Honour is that the applicant must serve all of the six year sentence imposed on 7 September 1993 less any remissions plus a further 12 months' imprisonment before becoming eligible for parole.  His current parole eligibility date, we are told, is 20 February 2000.

Mr Leask, who appears for the applicant, accepts that a three year cumulative head sentence was within the appropriate range but submits that the parole recommendation makes the sentence manifestly excessive.  He submits that no parole recommendation should have been made.  Had no parole recommendation been made, then consistent with s. 166(1)(d) Corrective Services Act 1988, and the definition of "term of imprisonment" in section 10 of that Act, and with this Court's decision in R v. Pepper and Cornwell CA Nos 366 and 367 of 1998 delivered 2 March 1999, the applicant would be eligible for parole after serving half of the total period of the combined terms of imprisonment totalling nine years, namely four and a half years from 7 September 1993, so that the applicant should have been eligible for parole on 7 March 1998, shortly after this sentence was imposed.  This was clearly not His Honour's intention and the parole recommendation made below should only be interfered with if the sentence is manifestly excessive.  The applicant's conduct was most serious.  Having been given the boon of work release and parole, he abused that privilege by dealing in drugs at a very professional level whilst both an inmate on work release and whilst on parole.  He supplied the drugs on a number of occasions to another inmate, on one occasion inside the Kennigo Correctional Centre.  He then sold significant quantities of heroin to an undercover police officer.  Almost $14,000 cash and over $9,000 of stolen property was found at his home.

Such conduct not only reflects badly on the applicant, but tends to bring the work release and parole system into disrepute, thereby making it more difficult for genuine, reformed prisoners to receive the benefit of such support systems. 

His Honour specifically mentioned that he was taking into account the applicant's plea of guilty, ill-health, and that a cumulative sentence will be more burdensome to the applicant in that parole has been lost and the sentence is now being served in maximum security.  His Honour clearly moderated the cumulative sentence he imposed to take into account these factors and the totality principle.

I am not persuaded that the overall sentence, including the parole recommendation, was excessive in the circumstances or that His Honour has erred in any way which has led to a wrongful exercise of the sentencing discretion.  I would refuse the application for leave to appeal.

PINCUS JA:  During the course of argument in this case Mr Leask, for the applicant, discussed the question of whether the learned primary Judge could have imposed a recommendation for parole in respect of the total cumulative term of imprisonment, that is by adding together the new sentence with the old.  This question was discussed in this Court in the case of Robinson, CA No 72 of 1998, 26 May 1998, at pages 2 and 3 of the joint judgment in that case, with which the third member of the Court agreed. 

Apart from that observation, I have nothing to add to the reasons of the President with which reasons I agree.  I also agree with the order Her Honour proposes.

THOMAS JA:  I agree.  I would add that the applicant appears at the material time to have been engaged in professional crime, not limited to the sale of drugs.  He was a receiver of stolen property of considerable value and $13,850 was found in his briefcase when apprehended.

The question in this case comes down to whether total sentences of nine years, with a parole recommendation for consideration after seven years, is excessive.  While this combination may be regarded as unusual, it is the product of his own acts in breaching parole. 

In my view, had the matter been at first instance, perhaps different figures may have been applied to a head sentence and parole recommendation, but when I look at the combination as a whole, I cannot say that the sentence imposed was manifestly excessive.

I note that he is currently eight months short of eligibility for consideration of parole.  In these circumstances, I would not interfere with the sentence that has been imposed and would refuse the application.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.