The Queen v Lynch[1999] QCA 274

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 36 of 1999

Brisbane

[R v Lynch]

THE QUEEN

v

DALE STEPHEN LYNCH

(Applicant) Appellant

Pincus JA

Davies JA

Demack J

Judgment delivered 23 July 1999

Judgment of the Court

1. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED; APPEAL ALLOWED.

2. SET ASIDE THE SENTENCES IMPOSED BELOW AND THE ORDER THAT THE WHOLE OF THE SUSPENDED SENTENCE BE SERVED CUMULATIVELY UPON THE SENTENCES IMPOSED.

3. SUBSTITUTE A SENTENCE OF THREE YEARS IMPRISONMENT FOR THE TRAFFICKING OFFENCE.

4. SUBSTITUTE SENTENCES OF ONE AND A HALF YEARS IMPRISONMENT FOR EACH OF THE OFFENCES OF RECEIVING AND EACH OF THE OFFENCES OF UNLAWFUL POSSESSION OF A MOTOR VEHICLE, AND SENTENCES OF SIX MONTHS IMPRISONMENT FOR EACH OF THE OTHER OFFENCES THE SUBJECT OF THIS APPEAL ALL TO BE SERVED CONCURRENTLY.

5. ORDER THAT THE SENTENCE FOR TRAFFICKING BE SERVED CUMULATIVELY UPON THE SENTENCES OF ONE AND A HALF YEARS IMPRISONMENT.

6. ORDER THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING ONE AND A HALF YEARS OF THAT TOTAL TERM.

7. ORDER THAT THE WHOLE OF THE SUSPENDED SENTENCE BE SERVED CONCURRENTLY WITH THE ABOVE SENTENCES.

8. DECLARE THAT A PERIOD OF 256 DAYS FROM 21 MAY 1998 TO 1 FEBRUARY 1999 BE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCES.

9. ORDER THAT THE APPLICANT PAY TO THE STATE OF QUEENSLAND THE SUM OF FIVE THOUSAND AND FIFTY DOLLARS ($5,050) BY WAY OF PECUNIARY PENALTY PURSUANT TO S 17 AND S 34 OF THE CRIMES (CONFISCATION) ACT 1989, THAT BEING THE VALUE OF THE BENEFIT DERIVED FROM THE COMMISSION OF A SERIOUS OFFENCE.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23 July 1999

1. On 1 February this year the applicant pleaded guilty in the Supreme Court to a number of offences. He was sentenced to a total period of six years imprisonment. However the learned sentencing judge ordered that he be eligible for parole in respect of those sentences after serving a total of two years. At the same time, however, his Honour activated a suspended sentence of four months imprisonment and ordered that the whole of that sentence be served cumulatively upon the sentences which he had imposed.
2. His Honour then declared a period of 256 days to be imprisonment already served under the sentences which he imposed. He recommended that the applicant be given consideration for treatment in respect of his drug problems and he made an order for payment of a pecuniary penalty.
3. The applicant seeks leave to appeal against those sentences including the activation of the suspended sentence cumulatively upon imposition of the others.
4. The total period of six years imprisonment imposed by his Honour consisted of two cumulative terms, one for eight counts of receiving which was a sentence of two and a half years and the other a sentence of three and a half years for trafficking in amphetamines. The trafficking offence was committed between 25 May 1997 and 24 July 1997. The receiving offences were committed, according to the applicant, about the same time. The applicant was also sentenced to one and a half years imprisonment for each of three offences of unlawful possession of a motor vehicle, six months imprisonment for each of two offences of possession of a dangerous drug and six months imprisonment for each of four summary offences; but all of these were ordered to be served concurrently with the sentence of two and a half years imprisonment for the receiving offences.
5. The trafficking consisted of six sales of methylamphetamine by the applicant to an undercover police officer. The total price was $3,350 and the total weight was 4.153 grams. The last two sales involved substantial weights and amphetamine of a purity of about 60 per cent. During the course of these transactions the applicant demonstrated his familiarity with the drug trade and indicated that he was involved in dealing with persons other than the police agent. He instructed the agent about cutting drugs and reducing the level of purity to ensure a better profit.
6. The offences of being unlawfully in possession of motor vehicles involved stolen vehicles which the applicant agreed to sell to the police agent. On one occasion when an arrangement was made for sale the car had not even been stolen. The applicant's contention was that he was merely an intermediary between the car thief and the police agent but admitted that he received a commission on the deal in each case.
7. The receiving offences involved a quantity of stolen property discovered in the applicant's possession upon search of his residence. It consisted mostly of jewellery and similar items, which the applicant said he acquired in a box, but it also included items such as a Makita hammer drill and a Sanyo microcassette recorder, the latter being the property of the Commissioner of Police.
8. The applicant contended in this Court that all of the offences the subject of the sentences imposed on him on 1 February were part of the same "crime spree". He therefore contended that they should have been made the subject of concurrent sentences.
9. The applicant did not at first admit his guilt. Moreover when he first admitted the trafficking offences the applicant claimed to have been induced by the undercover agent to become involved in the sales. This claim was later withdrawn by his counsel in making submissions on his behalf at the sentence hearing. It was plainly a false claim. In view of that some doubt may be justified in respect of a letter which he wrote to the learned sentencing judge claiming to be remorseful for his conduct.
10. His Honour regarded the applicant's plea of guilty as "something of an early plea" and rightly took it into account. He also appeared to accept the applicant's claim that his dependence on amphetamines was some explanation, although not an excuse, for the commission of the trafficking offences. This may be some indication that, if he can overcome his drug addiction, he may yet have some prospects of rehabilitation. Apparently in support of his sincerity in that respect the applicant submitted in this Court that, as appears from the transcripts of his recorded interviews with the undercover police officer, he informed that officer that he no longer wished to sell drugs to him as he was, himself, trying to overcome his addiction. The transcripts were not before this Court but the applicant's statements as to their effect was not disputed by the respondent. The applicant added that that matter was not adverted to on his behalf below.
11. In considering the severity of the sentences generally, regard must be had to the applicant's substantial previous criminal record. He is now 42 years of age having been born on 21 August 1956. He has a long criminal record commencing from the time when he was a child. He has been convicted on numerous occasions of offences of stealing and of breaking, entering and stealing and has been sentenced to gaol on a number of occasions. Some of these offences were quite serious. He was convicted of stealing with violence in 1972 and again in 1974 and of robbery in company in 1975. On the other hand, as he contends, apart from a wholly suspended sentence of four months imprisonment imposed in 1996 for possession of property suspected of being tainted, he has not been convicted of any offence involving more serious punishment than a fine since 1975.
12. There can be no criticism, in our view, of his Honour's decision to impose a trafficking sentence cumulatively upon the sentences for receiving, unlawful possession of a motor vehicle, possession of a dangerous drug and the summary offences even if, as the applicant contends, all of the offences occurred at about the same time. The trafficking offence was of a distinctively different kind from the others, was an offence of a very serious kind, and justified the imposition of a cumulative term. The real question is whether the total of six years imprisonment imposed by the learned sentencing judge was excessive having regard to the totality of the offences for which it was imposed and whether sufficient allowance was made in the recommendation for parole for the matters of mitigation to which we have referred.
13. We do not think it could be seriously contended that a sentence of two and a half years imprisonment for the totality of offences for which it was, in effect, imposed was too high.
14. Of the trafficking offence it must be said that, although the applicant was dependent on methylamphetamine, it is plain from conversations which he had with the police officer that he was in the business of trafficking in the drug at least partly for profit. In other words greed was a motive as well as the feeding of his drug habit. Nevertheless when regard is had to sentences for comparable offences a period of three and a half years, when it is imposed cumulatively on the sentences already referred to, appears to be too high.
15. In Cuddy (1988) 37 A Crim R 226 the Court of Criminal Appeal reduced a sentence of four and a half years for trafficking in methylamphetamine to three years in circumstances in which the offender had a substantial criminal record, had previously been convicted of selling methylamphetamine and had been sentenced to six months imprisonment for that offence. This offence occurred only nine months after his release from prison. And in Simpson, CA No 140 of 1995, judgment delivered 11 July 1995, this Court considered that a sentence of three years imprisonment for possession of methylamphetamine in what was plainly a commercial quantity, but in circumstances in which the applicant had no previous drug offences, was within the appropriate range. These and other cases show, in our view, that a sentence of three and a half years imposed cumulatively on a sentence of two and a half years for the other offences committed at about the same time is too high. We think that a total sentence of four and half years for the trafficking and the other offences would have been appropriate. And because of the mitigating factors to which we have referred we think that his eligibility for parole should be fixed at one and a half years.
16. In submitting that the learned sentencing judge erred in ordering the activated suspended sentence of four months to be served cumulatively the applicant relied on the decision of this Court in Whybrow CA No 10 of 1998, judgment delivered 24 March 1998. He submitted, in reliance on that case, that his Honour ought not to have imposed that activated term cumulatively on the sentences which he had imposed without good reason and he gave none. It does appear that his Honour was led into error by a concession made by the applicant's counsel that his Honour had no option but to make the activated term cumulative. It seems that his Honour's statement that that activated term should be served cumulatively may well have been in reliance on that concession. It was conceded before this Court that that concession was wrongly made and that there was no obligation upon his Honour to impose the activated term cumulatively upon the other sentences which he imposed.
17. Section 148 of the Penalties and Sentences Act 1992 provides that if a court orders an offender to serve imprisonment which had previously been suspended then, unless it otherwise orders, that imprisonment must be served -

"(b) ... concurrently with any other imprisonment previously imposed on the offender by that or another court."

It may be implicit from a dictum of this Court in Whybrow that the operation of this provision may depend on the sequence in which events occur during the course of one sentence hearing;  so that, if a sentence of imprisonment is imposed, and then the court orders the offender to serve imprisonment previously suspended, that would come within s 148(b);  whereas if the events in the sentence hearing occurred in the opposite order, the operation of s 148(b) would not be attracted.  It may be necessary, on some later occasion, to consider whether that view is consistent with the way in which s 156A(2) was construed by this Court in Pepper and Cornwell CA Nos 366 and 367 of 1998, judgment delivered 2 March 1999.

18. But it is sufficient in the present case to say that, whatever may be the correct construction of s 148(b) the error already referred to which the learned judge appears to have made causing him to order that the activated suspended sentence be served cumulatively requires this Court to set aside at least that order and to consider it afresh. In doing so we note that the offence which gave rise to the suspended sentence (possession of tainted property) and the offence which caused the operative period of that sentence to be extended (possession of dangerous drugs) both appear to be related to his drug addiction which, it appears, there are some grounds for believing that he is genuine about overcoming. The absence of other serious offences since 1975 is also relevant to this question. Having regard to those matters and to the totality of the term which the applicant will be already required to serve we would order that the applicant serve the whole of the suspended imprisonment but that it be served concurrently with the sentences already imposed.
19. In order to impose a total term of four and a half years imprisonment for the offences the subject of the sentences imposed below it is necessary either to impose cumulative terms, one or more of which will be less than the term which would otherwise be appropriate, or to impose a term for the trafficking offence, with which the other offences would be ordered to be served concurrently, which is greater than that which would otherwise be appropriate. Adopting the former course we would impose a term of three years imprisonment for the trafficking offence, terms of one and a half years imprisonment for each of the receiving offences, terms of one and a half years imprisonment for each of the offences of unlawful possession of a motor vehicle and terms of six months imprisonment for each of the other offences. We would order that all of the offences other than the trafficking offences be served concurrently but that the trafficking offences be served cumulatively upon the terms of imprisonment for those offences.
20. The orders which we would impose therefore are as follows:

1.  grant the application and allow the appeal;

2.  set aside the sentences imposed below and the order that the whole of the suspended sentence be served cumulatively upon the sentences imposed;

3.  substitute a sentence of three years imprisonment for the trafficking offence;

4.  substitute sentences of one and a half years imprisonment for each of the offences of receiving and each of the offences of unlawful possession of a motor vehicle, and sentences of six months imprisonment for each of the other offences the subject of this appeal all to be served concurrently;

5.  order that the sentence for trafficking be served cumulatively upon the sentences of one a half years imprisonment;

6.  order that the applicant be eligible for parole after serving one and a half years of that total term;

7.  order that the whole of the suspended sentence be served concurrently with the above sentences;

8.  declare that a period of 256 days from 21 May 1998 to 1 February 1999 be imprisonment already served under the sentences.

9.  order that the applicant pay to the State of Queensland the sum of five thousand and fifty dollars ($5,050) by way of pecuniary penalty pursuant to s 17 and s 34 of the Crimes (Confiscation) Act 1989, that being the value of the benefit derived from the commission of a serious offence.