R v Green[1999] QCA 83

COURT OF APPEAL

McMURDO P

WHITE J

MUIR J

BRISBANE

DATE 19/03/99

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty on 12 October 1998 in the Supreme Court in Brisbane to one count of production of a dangerous drug, methylamphetamine and five counts of supplying a dangerous drug, methylamphetamine.

He was sentenced to five years imprisonment cumulative on a term of imprisonment imposed on 21 February 1995 and a recommendation for eligibility for parole was made after three years, on 12 October 2001. 

He appeals on the basis that the sentence was manifestly excessive.  His lawyer, Mr Callaghan, submitted, as a preliminary matter, that the learned sentencing Judge was led into error in finding that the applicant produced a total weight of 285 grams of material containing nearly 14 grams of pure methylamphetamine, and in particular in respect of the fifth count of supply, in that His Honour was led to believe by the Crown's submissions, that the supply related to 9.859 grams drug weight of pure methylamphetamine whereas the defence submissions indicated (at page 17 of the record and in the written submissions handed up to the sentencing judge) that less than one gram of methylamphetamine had been supplied by the applicant.

It is regrettable that this conflict as to facts was not made clearer below.  The respondent concedes that the dispute existed below and also concedes that it is appropriate for this Court then to resentence the applicant on the basis most favourable to the applicant.

The respondent submits that the appropriate sentencing range for a production and supply of this smaller quantity of methylamphetamine is four to five years on the facts of this case.

It is appropriate, as the applicant was on parole for trafficking in methylamphetamine at the time he committed these offences, for the sentences to be made cumulative.  The four to five year sentence should be discounted somewhat because of the totality principle.

It should be noted that on 21 February 1995 the applicant was sentenced to three and a half years imprisonment with a recommendation for parole after serving 12 months of that sentence.  His only other convictions were for driving offences which may be related to his amphetamine use.  He was released on parole after serving 14 months and one day of the three and a half year sentence and, as his parole has not been suspended or cancelled, he had a further 28 months of that sentence to serve.  His full-time release date on that sentence would be 12 February 2001.   

The facts demonstrated that he was a back yard amphetamine cook who made amphetamine each week for his own use and began to supply Lindsay Jean, a user, with amphetamine as required.  Jean onsold the drug to a police undercover agent.  The applicant's operation was not sophisticated and importantly he was not charged with trafficking.

As His Honour sentenced on an incorrect factual basis it is necessary for this Court to resentence the applicant.  In all the circumstances the appropriate sentence is three years cumulative on the sentence currently being served.   A recommendation for release on parole must be made.  Some credit should be given for his early plea of guilty.

The applicant, having committed these offences whilst on parole for similar offences, is not in my view entitled to a recommendation for eligibility for release on parole any earlier than after eighteen months.

That recommendation should date from 12 October last year when he was first sentenced in respect of this matter by Justice Fryberg.  I would therefore recommend that he be eligible for  release on parole on 12 April 2000, 18 months from 12 October 1998.

The orders I propose are that the application for leave to appeal against sentence is granted.  The appeal is allowed.

The sentence below is vacated and instead a sentence of three years imprisonment on each count concurrent with each other but cumulative upon the sentence the applicant is currently serving is imposed with a recommendation that the applicant be eligible for release on parole on 12 April 2000.

WHITE J:  I agree with the orders proposed by the president.

MUIR J:  I agree.

MR BULLOCK:  Your Honour, there's just one other matter, there was a time in custody declaration by His Honour.

THE PRESIDENT:  What page is that?

MR BULLOCK:  Page 37, line 50. 

THE PRESIDENT:  The orders are as I have proposed and in addition I declare the appellant has been imprisoned solely in respect of the present offences from 17 to 22 March 1998, a period of six days.