The Queen v Crocker[1999] QCA 377

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 118 of 1999

Brisbane

[R v Crocker]

THE QUEEN

v

GEOFFREY LUKE CROCKER

(Applicant) Appellant

McMurdo P

Pincus JA

Thomas JA

Judgment delivered 10 September 1999.

Joint reasons for judgment of McMurdo P and Thomas JA; separate reasons of Pincus JA concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.  SENTENCES BELOW SET ASIDE AND REPLACED BY CUMULATIVE SENTENCES OF THREE AND A HALF YEARS IMPRISONMENT ON THE DRUG CHARGES (BUT CONCURRENT WITH ONE ANOTHER) AND A SENTENCE OF NINE MONTHS IMPRISONMENT ON THE ACCESSORY CHARGE (CONCURRENT WITH ALL OTHER SENTENCES) AND A DECLARATION THAT THE DATE FOR ELIGIBILITY FOR CONSIDERATION OF PAROLE IS 12 DECEMBER 2001.

1. McMURDO P AND THOMAS JA:  The applicant was convicted of seven counts of supplying methyl-amphetamine and one count of being an accessory after the fact to a breaking and entering committed by two other persons.  These offences were committed in the latter half of 1997, but the applicant was not dealt with upon them until 15 March 1999.  In the interim he had been sentenced on 12 December 1997 to three years imprisonment for a range of prostitution-related offences committed between 1990 and 1995.  That sentence included the unusual condition that parole be considered after serving two and a half years of the term.  He was serving imprisonment for those offences when he was dealt with on the present matters.

2. The sentences imposed on the drug charges were four years imprisonment cumulative upon his existing sentences.  On the accessory after the fact charge he was sentenced to a further eighteen months imprisonment cumulative upon those other sentences.  The learned sentencing judge proceeded to make a fresh recommendation that the appellant be considered for parole after serving four years imprisonment, that is to say not before 15 March 2003.

3. The practical effect of the sentences, when taken along with the then existing sentences, was to impose upon the applicant a head sentence totalling eight and a half years of which five and a quarter years would be served before the applicant was eligible for consideration of parole.

4. The applicant, a 52 year old man, has a long criminal history mainly related to an obvious association with gaming and the prostitution industry.  His only custodial penalties however were 14 days imprisonment for keeping a common gaming house in 1983, a three year sentence in 1989 for keeping premises for prostitution, and the sentence of 12 December 1997.

5. With respect to the present charges the applicant supplied 151.563 grams of powder containing 8.126 grams of methyl-amphetamine to a police operative to whom he was introduced by a user of the drug named Cooke.  He made seven supplies over a two month period, receiving total payments of $6,050.00 from the undercover policeman.  There was no evidence that the appellant supplied the drug to anyone else, although his involvement in these activities suggests that it was not an isolated aberration.  The applicant was one step higher in the chain of supply than Cooke who had introduced him to the police operative.  The quality of the drug was such that it was not capable of being further cut down and was described as "street grade".  The Crown asked that the applicant be punished for his activity on the basis that it was an intensive burst of activity over six weeks.

6. The circumstances relating to his conviction as accessory after the fact were that at about 2 a.m. the applicant, who was at certain premises at Bowen Hills, was requested to go to an area near the Breakfast Creek Hotel and collect two men who had broken into the hotel and had set off an alarm at the premises.  The person who contacted the applicant seems to have been an intermediary on behalf of the two men.  The applicant drove to the vicinity of the hotel and took the men away from the scene.  He had had prior contact with the two men but it was not suggested that he had been involved in the planning of the break and enter nor was it alleged that he was to receive any benefit from his involvement.  Indeed the essence of the offence was not involvement in breaking and entering, but in assisting other persons to avoid the consequences of their breaking and entering.  The maximum penalty for the offence was 2 years imprisonment.

7. An aggravating feature is that the applicant was on bail for the earlier prostitution-related offences and for the accessory offence when he committed the drug offences.

8. In submissions before the learned sentencing judge the Crown prosecutor submitted that the appropriate range of sentence on the drug counts was between three and five years.  The precedents referred by him to the learned sentencing judge, and again by counsel for the Crown in this Court namely R v Radulovic,^[1] R v Neave^[2] and R v Cuddy^[3] do not, on analysis, support such a range, particularly for a person without a prior history of drug offences.  Even taking into account the aggravating feature of the commission of offences whilst on bail for others and the fact that he had a criminal history of offences of another kind, we find it hard to see how a case of seven supplies (amphetamines) to an undercover agent over two months with sales with a total value of $6,000.00 calls for a sentence beyond four years.  In fact the "range" might more fairly be described as between eighteen months and four years.

9. So far as the accessory charge is concerned, as stated above the maximum penalty was two years imprisonment.  Only sketchy details were supplied to the Court, but it must be borne in mind that a cumulative sentence of 18 months on top of another cumulative sentence may well result in an excessive total punishment.  We will return to the question of totality after discussing submissions concerning alleged errors by the learned sentencing judge in this particular sentencing process.

10. Firstly it is conceded by the Crown that the learned judge erred in expressly sentencing on the basis that the maximum sentence for the supply charges was 20 years.  The maximum sentence was in fact 15 years (see s 6(1)(d) of the Drugs Misuse Act 1986).  The learned judge was led into error by the Crown prosecutor who misinformed the court in this respect.

11. In the second place it is submitted that the learned judge gave no benefit at all to the applicant for his plea of guilty.  This would seem to be so, not only by reference to the severity of the sentence, but also from the fact that the learned judge disclosed no intention of giving any such benefit in extensive sentencing remarks.  Of course the failure to mention such a factor, as the court is required to do by s 13(3) of the Penalties and Sentences Act, will not always persuade the Court of Appeal that it has been overlooked.  But as observed in Mallon^[4] such a failure causes the sentence to be examined more closely. 

12. In the present case, having regard to certain remarks made in the course of the sentencing procedure, it seems highly likely that the learned judge deliberately chose to deny the applicant any benefit for his plea.  Having referred on a number of occasions to the fact that the Crown had not proceeded with a trafficking charge that had earlier been brought against the applicant, the learned judge seems to have assumed that there must have been an "implied plea bargain" which led to the dropping of the trafficking charge and the pursuit of the supply charges.  The learned judge expressed the view that by pleading guilty to the supply charges the applicant had already obtained a benefit, and that further benefit ought not now be given for the plea of guilty, referring expressly to Bishop's Criminal Procedure (2nd Edn) and to the advantage resulting to an accused from an "implicit plea bargain".  The learned judge asserted that "if someone comes to court having already had the benefit of facing lesser charges than they would face if they did not plead guilty to these, [he already] has the advantage of the basis on which he is here".  This is an interesting and no doubt debatable concept, but it is contrary to the practice of this Court and involves a fundamental error.  The accused could be regarded as having obtained a "benefit" or "advantage" only if it is assumed that he was guilty of the greater charges, or at least of something more serious than the charges of which he was convicted.  Such an assumption is fundamentally obnoxious to the criminal law.^[5]  Such suggestions were neither rejected nor embraced by the Crown prosecutor and it may be noted that the learned author, Dr Bishop, goes no further than to suggest that in such circumstances the accused "may receive a 'double benefit'".^[6]  It is in our view inappropriate for the sentencing court to speculate upon what might have been charged or maintained by the Crown, and certainly not to compensate for what might be perceived to have been a weak or timorous withdrawal by the Crown.  The Court simply does not know the circumstances and it is not its business to speculate.  It must deal with the charges that are actually laid and of which the prisoner is convicted. 

13. The notion that an accused person will not get the benefit of a plea of guilty if he or she has first plea bargained would tend to impair the efficacy of reasonable negotiations between representatives of the accused and the Crown.  Removal of the incentive to acknowledge guilt would be very likely to reduce substantially the benefit that the community thereby obtains from the avoidance of unnecessary trials.  It was also quite unfair to this particular applicant to make him the first example in recent times of a person who receives no benefit from a timely plea of guilty.

14. The particular error is compounded by the circumstance that it was based upon an incorrect factual premise.  The learned judge asserted in the sentencing remarks that "the Crown agreed to drop the trafficking charge and you subsequently agreed to plead guilty to the supply charges" and that "I think the record should reflect the fact that the Crown has dropped the trafficking charge against you".  It is difficult to know what "record" is here referred to, though it is probably a reference to the transcript of the sentencing remarks.  The relevance of the comments is hard to see in the light of the statement that "you will only be sentenced today on the basis of the supply charges to which you have pleaded guilty".  The learned judge had been expressly informed that the applicant had been initially charged with trafficking and with the supply counts in the alternative, and that he had indicated his intention to plead guilty to the supply counts on 22 September 1998.  Subsequently at committal the Crown chose to discontinue its prosecution for trafficking.  There followed a series of leading questions in which the learned judge asserted that the applicant had the advantage of "an implicit plea bargain" and that "the guilty plea to these charges (was) apparently in return for not facing a trafficking charge".  This was denied by defence counsel whose responses included his lack of knowledge of what motivated the Crown to make its decision.  The learned judge then said to defence counsel "You say that that happened at the same time as the Crown elected not to proceed with the trafficking?"  Defence counsel replied "No, no that happened before".  He again repeated that on 22 September 1998 there was a letter sent by his instructing solicitors and that the Crown dropped the trafficking charge at committal on 7 December 1998.  Despite all this, the learned judge asserted in the sentencing remarks that "the Crown agreed to drop the trafficking charge and you subsequently agreed to plead guilty to the supply charges".

15. From a perusal of the record it seems inescapable that the learned judge was impressed with the notion of double benefit raised in Bishop's Criminal Procedures and took the view that the present case was an example to which that notion should be applied.  It would seem that the learned judge erred both in principle and in the factual premise upon which it was based.  It is clear that this applicant was given no discount for his timely plea.

16. It would also seem that the combined effect of multiple cumulative orders in this case is excessive.  It was unobjectionable in itself to make the penalty for the drug offences cumulative with those which he was already serving for the brothel-keeping offences.  However to make a third cumulative order in respect of the accessory offence so as to add on five and a half years to an existing sentence of three years made the overall total manifestly excessive.

17. In view of the errors canvassed in paragraphs 10 to 16 above it is necessary for this Court to set aside the sentences and impose sentences afresh.  It may be noted that Cooke, the user who had introduced the applicant to the undercover policeman, was dealt with on the more serious charge of trafficking by the learned judge immediately preceding the present matter, and was sentenced to four years imprisonment with a recommendation for parole after one year.  Cooke was an addict and was a regular supplier to other users at street level, making it a clear case of trafficking although not of the worst kind.  The applicant was regarded as being one step closer to the original supply line than Cooke, but he fell to be sentenced for a limited number of supplies over a limited period.  In our view if all matters involving the applicant had been dealt with on the one occasion in December 1997 it is difficult to think that the total head sentence would have fallen outside a range of six to seven years.  Also, looking at the drug charges in their own right, it is difficult to think that a sentence greater than three or perhaps three and a half years was justified, having regard to the cases referred to in paragraph 8 above.  The main difficulty in framing an appropriate new sentence lies in the unusual relativity of the December 1997 sentence between head sentence and parole period.  That sentence was framed in that way to give effect to the circumstance that some of the prostitution offences breached the parole that the applicant had been granted in relation to still earlier sentences in 1989.  The 1997 sentence was upheld on appeal, and it poses a difficulty in the fixing of an appropriate fresh recommendation for parole under s 157 of the Penalties and Sentences Act.^[7]

18. Taking all factors into account it seems to us that the appropriate total sentence for the 1997 offences and those presently under consideration would be a total of six and a half years imprisonment with a non-parole period of four years.  In other words, it would be appropriate to fashion head sentences of an additional three and a half years, and fix a parole date four years after the commencement of his original sentence.  At the date of sentence the applicant had served one year and three months.  The fresh parole eligibility date should be fixed at 12 December 2001.

19. The application should be granted, and the appeal allowed.  The sentences below should be set aside and replaced by cumulative sentences of three and a half years imprisonment on the drug charges (but concurrent with one another) and a sentence of nine months imprisonment on the accessory charge (concurrent with all other sentences) and a declaration that the date for eligibility for consideration of parole is 12 December 2001.

20. PINCUS JA:  I have read the joint reasons prepared by McMurdo P and Thomas JA and subject to the following observations agree with them.  I also agree with the orders they propose.

21. Before the learned primary judge counsel appearing for the prosecution submitted that the sentencing range in respect of the drug offences was between 3 and 5 years.  In the course of submissions made on behalf of the applicant, below, it was indicated that the facts outlined by the prosecution were disputed.  The judge said that if the defence wished "to cavil with the suggested sentence of" - meaning the range submitted by - the prosecution then evidence might be needed.  After further discussion, counsel for the applicant below said that he wished to have a brief adjournment to discuss the matter with his client and was informed by the judge, as I understand the remarks made, that if the applicant disputed the Crown's version of the facts the judge would not "feel bound by" the sentencing range the Crown had suggested.

22. Subsequently, after some further exchanges, the intimation from the defence that the facts might be disputed was withdrawn.  It does not appear to me right to encourage defence counsel not to contest what the Crown puts forward, either as to the proper sentencing range, or any other matter, in this fashion.  It is counsel's duty to make any proper submission which seems likely to assist the party he or she is engaged to represent.  That task, so important in the proper administration of justice, may be rendered more difficult if counsel is told that submissions of a certain character will, if made, place the client at risk of enhanced punishment.