R v Swan[2000] QCA 430

COURT OF APPEAL

McMURDO P

DAVIES JA

MACKENZIE J

CA No 195 of 2000

CA No 273 of 2000

THE QUEEN

v.

STEPHEN SWAN Appellant

BRISBANE

DATE 19/10/2000

JUDGMENT

THE PRESIDENT:  This is an application for an extension of time within which to appeal against sentence.

On 20 July 2000 in the Supreme Court at Brisbane the applicant was convicted of one count of possession of dangerous drugs (heroin, methylamphetamine and cannabis sativa) with a circumstance of aggravation in that the quantity of methylamphetamine exceeded two grams on 21 April 1999;  one count of possession of a dangerous drug, methylamphetamine, also on 21 April 1999;  and a further count of possession of methylamphetamine on 20 August 1999.

The applicant was convicted after a four day trial.  He was sentenced to five years' imprisonment in respect of count 1 and three years' imprisonment in respect of counts 2 and 3.  Those sentences were ordered to be concurrent with each other but cumulative upon his present sentence of imprisonment.  The learned sentencing Judge recommended that the applicant be considered eligible for parole after serving two years of the five year sentence.

The applicant appealed against his conviction within time but did not seek leave to appeal against his conviction.  He has today abandoned his appeal against conviction which has been dismissed.

Although the applicant has not given any particular explanation for his delay in seeking leave to appeal against sentence, it seems that Mr Rafter, who is his counsel, came into the matter only recently and advised the applicant that he had some prospect of success in appealing against his sentence.

The facts of the offences are as follows. 

In the early hours of 21 April 1999 police were called to an Ipswich motel room rented by the applicant to investigate a complaint.   Drugs were located with a calculated weight of pure methylamphetamine of 5.485 grams, pure heroin of .690 grams and 14 to 15 grams of cannabis sativa.  Empty foils were found in rubbish bins in the room and syringes were located in a travel case belonging to the applicant's two female companions.

Paper in the applicant's wallet contained details for the manufacture of the second schedule drug, metcathinone, a stimulant similar to amphetamine, together with $850 cash and deposit slips totalling $28,000.  These facts constituted count 1.

A further two foils containing a total weight of pure amphetamine of 1.418 grams were found in the applicant's motor vehicle, secreted beneath the centre console.  This constituted count 2.

The applicant was charged and, rather surprisingly because he was on parole at the time for trafficking in methylamphetamine, was released on bail.

On 20 August 1999 police attended an address at Bundamba where the applicant was visiting two other males.  As the applicant left the room, police saw him drop a silver packet from his right hand.  He kicked the packet under a pile of clothes on the floor. 

A search by police located a silver foil packet which contained five clipseal bags each containing methylamphetamine.  A further clipseal bag containing methylamphetamine was also located under those clothes.  The total weight of pure methylamphetamine was 1.370 grams.

The applicant was 47 years old and had an extensive and diverse criminal history, commencing with offences of stealing and indecent assault on a female under 16 in 1970 for which he was sentenced to non-custodial orders.

He committed a further offence of stealing in 1971 and an offence of false pretences in 1972.  In 1984 he was convicted of cultivating a prohibited plant and was placed on probation and ordered to perform community service.  In 1986 he was dealt with for three further stealing charges and for possession of a firearm whilst a prohibited person.

His first term of imprisonment was imposed in November 1986 when he was sentenced to one month's imprisonment for possession of property suspected of being stolen.

In 1992 he was placed on probation and ordered to perform community service for possession of a third schedule drug and possession of a dangerous drug.  Later that year he was convicted of unlawfully taking fauna. 

He was convicted of a similar offence in 1993.  Most significantly, on 8 September 1993, he was convicted of trafficking in dangerous drugs, methylamphetamine, between August 1991 and September 1992.  He was sentenced to seven years' imprisonment with a recommendation for parole after three years.

This case is another example of the complexity of sentencing under the Penalties and Sentences Act 1992 and the difficulties faced by sentencing Judges when all relevant matters are not satisfactorily placed before the sentencing Court. 

At sentence, the prosecutor submitted that the appropriate penalty was a sentence of about five years' cumulative imprisonment with a recommendation for parole after serving two years of that sentence.  Defence counsel concurred generally with that submission but requested an earlier recommendation for parole after serving about 15 months of the cumulative three year sentence.

The applicant's conviction and sentence on these offences during the parole period for the trafficking offence results in the cancellation of the parole period.  The applicant must serve the unexpired portion of that sentence with no consideration for the time spent on parole.  This factor was not discussed in detail by counsel with the learned sentencing Judge at the time of sentence.

The effective result of the sentence imposed by her Honour was a term of imprisonment of eight years ten and one half months.  According to documents supplied by Queensland Corrections, the applicant is currently eligible for parole on 6 December 2004. 

Taking into account his presentence custody of 72 days, the applicant would be required to serve something like four years and seven months before becoming eligible for parole under the present sentence.  It is, of course, impossible to know when the applicant would be released by the Parole Board so that under his current sentence his time in custody may well be longer than this.

This Court has previously recognised the need to moderate such cumulative sentences in appropriate cases where the combined effect of the sentences is oppressive.  See R v. Denaro 323 of 1997, 21 October 1997, where the Court noted that:

"The judgments in Coss [CA 262 of 1992] make it clear as did this Court in Clements v. R (1992) 68 A Crim R 167, that the particular case must be carefully looked at in the case of a prisoner serving a lengthy term.  This is because a further term imposed cumulatively does not begin to run until well into the future and may have an extremely onerous or perhaps an overwhelming effect in some cases."

Mr Rafter, who appears for the applicant, submits that the sentence in this case was manifestly excessive because of its cumulative nature.

It is difficult to find a truly comparable case to this.  The cases referred to by the Crown Prosecutor at sentence and those referred to by Mr Rafter in his submissions are less serious than this.  The respondent principally relies on the case of R v. McLaughlin [1997] QCA 473; CA No 365 of 1997, 19 November 1997.

McLaughlin pleaded guilty to ten drug-related charges.  There was a larger number of charges and a significantly larger quantity of drugs than in this case.  McLaughlin, unlike this applicant, pleaded guilty at an early stage.

McLaughlin was sentenced to four years' imprisonment cumulative upon a sentence for receiving, which required him to serve the remaining part of a two year term of imprisonment suspended after three months.  The effective  combined sentence in McLaughlin's case was one of five years and nine months.  Significantly, McLaughlin, unlike this applicant, was addicted to drugs and the drugs were for his personal use.  McLaughlin was 28 years old and apparently had some prospects of rehabilitation.

This Court found that the sentence in McLaughlin's case was heavy but not excessive.  It must be said that McLaughlin's combined sentence was not as onerous as that imposed upon this applicant.

The applicant here was a mature man who was unable to claim the benefit of remorse or of an early plea of guilty.  Three illegal drugs in total, and a considerable quantity of methylamphetamine were involved.  There was a commercial element, at least as to count 1.

It is a serious aggravating factor that the applicant was on parole for like offences at the time he committed these matters and further that he committed count 3 whilst on bail for counts 1 and 2.  In addition, he had a significant criminal history beyond his trafficking conviction in 1993.  He has breached prior probation orders for drug offences.

Nevertheless, the combined effect of the cumulative sentence in this case is to make the sentence imposed by the learned primary Judge manifestly excessive.  The appropriate sentence in my view was a cumulative sentence of three years' imprisonment with no recommendation for parole.

I would grant the application to extend time until today.  I would grant the application for leave to appeal and allow the appeal and vary the sentence imposed at first instance by deleting the term of imprisonment of five years cumulative in respect of count 1 and substituting instead a sentence of three years' imprisonment, concurrent with the sentences on counts 2 and 3 but cumulative upon the sentence currently being served.

Otherwise, I would confirm the sentence imposed at first instance.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  That is the order of the Court.