R v Guthrie[2002] QCA 509

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Mullins J.  I agree that the application should be refused, for the reasons expressed by her Honour.

[2]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Mullins J, and I agree with them and with the order proposed.

[3] The facts of the case do, however, raise concerns about the effectiveness in practice of s 161(4) of the Penalties and Sentences Act 1992. 

[4] It was obviously the intention of the legislature in enacting s 161 that a declaration that time spent in custody should be counted as part of the sentence was a preferable approach to that previously adopted by sentencing judges of making a reduction from the notional head sentence to take account of time already spent in custody.  To make that desired approach work in practice it was necessary to deal with the situation where, as is more often than not the case, the offender was arrested on more than one charge.

[5] If, as Pincus JA considered in R v Fox [1998] QCA 121, the word “series” implies some sort of connection between the offences, then the operation of s 161(4) is extremely limited.  Frequently an offender will be arrested on a number of charges where it is difficult to say that there is some connection between them.  That is particularly so when the legislation gives no guidance as to what might be regarded as a sufficient connection; is it sufficient that the offences are broadly of the same type.  It is difficult to see why the section should not apply to the situation where the offender was arrested for a number of offences even though it is not possible to categorise them as a “series”.  (See also R v Massey [2002] QCA 312).

[6] Further, the use of the term “continuously” in s 161(4)(b) seriously restricts the scope of operation of the provision, as the facts of this case demonstrate.  Here the applicant was in pre-sentence custody for a period of 1,121 days which, apart from the period 11 June 1999 (date of arrest) until 2 July 1999, related solely to what could reasonably be classed as a “series” of offences.  Two warrants of apprehension with respect to the applicant were issued out of Victoria on 16 November 1998 requiring him to be held in custody.  The material indicates that for the period 11 June to 2 July 1999 the applicant’s custody was also with respect to those Victorian warrants. It is for that reason that the requirement of s 161(4)(b) cannot be satisfied; the applicant was not in custody continuously since arrest on charges of the offences and for no other reason.

[7] Given the philosophy behind s 161 it is difficult to see why a declaration should not be made with respect to the 1,100 days the applicant was in custody after 2 July 1999 solely with respect to the series of offences in question.

[8] As was pointed out by this Court in Fox, and as is exemplified by the facts of this case, s 161(4) can have little effective operation in practice.  The words “series” and “continuously” impose unrealistic restrictions on the operation of the section.

[9] Given the reasons behind the introduction of s 161 it would be far better if a sentencing judge could make a declaration that, for example, in this case the applicant had spent 1,100 days in pre-sentence custody, rather than forcing the sentencing judge to adopt the method of calculating a deduction from a notional head sentence to reflect time already spent in custody.

[10]  Legislative amendment should be seriously considered.

[11]  MULLINS J:  The applicant applies for leave to appeal against the sentences imposed on 9 July 2002 in the Supreme Court at Brisbane. 

Background

[12]  The applicant pleaded guilty to counts 1 to 6, counts 8 to 18 and count 20 of indictment 418 of 2001 and guilty to 2 counts of possessing dangerous drugs on indictment 443 of 2001.  The most serious offence was count 8 on the first indictment that between 1 February and 12 June 1999 at Cooroy and elsewhere in the State of Queensland the applicant carried on the business of unlawfully trafficking in the dangerous drugs heroin and cannabis sativa.  The other charges to which the applicant pleaded guilty related variously to production and supply of dangerous drugs and associated offences. 

[13]  For the trafficking offence the learned sentencing judge imposed a sentence of 9 years and declared pursuant to s 161B(3)(b) of the Penalties and Sentences Act 1992 (“the Act”) the applicant to have been convicted of a serious violent offence in respect of that count.  The applicant is seeking that this declaration be set aside. 

[14]  The applicant was born on 10 August 1936 and therefore committed the offences when aged between 61 and 62 years.  He was 65 years old when sentenced.  His prior criminal history was of no significance.  He had been held in custody in respect of the offences for which he was sentenced on 9 July 2002 and in respect of two other offences in respect of which the respondent did not proceed for a period of 1,121 days which was calculated to be approximately 3.1 years.  The sentencing proceeded on the basis that a declaration could not be made under s 161 of the Act (and nor could an order be made under s 158 of the Act), as a result of the presentence custody applying to both the offences to which the guilty pleas were entered and the two counts in respect of which the respondent did not proceed.    

[15]  Medical evidence was placed before the learned sentencing judge as to the applicant’s sight and cardiac problems.  As at March 2002 his vision in his left eye was perception of light only and the vision in his right eye was such that he could see at 6 metres what a person with normal vision could see at 60 metres.  He was diagnosed as at March 2002 from suffering from atrial fibrillation and congestive cardiac failure, although changes to his cardiac medication showed that on 3 April 2002 there was substantial improvement in his cardiac output and his symptoms.      

Facts

[16]  On 14 May 1998 police executed a search warrant at the applicant’s address at Cooroy.  The applicant claimed to be the only occupant.  The applicant admitted growing and drying cannabis plants on the property and showed police two hydroponic systems.  One system was supporting 144 plants ranging between seedlings and 20 cms in height.  The other hydroponic system supported about 150 cannabis plants.  In the house a small amount of dried cannabis and a jar of cannabis seeds were found.  There was also a screen set up which had dried cannabis on top and inside a cupboard eleven bags of finely ground cannabis leaf were found.  Six bags of cannabis heads and a set of scales were located in another room.  The applicant admitted that he had dried the cannabis before placing it into bags which he intended to sell and that he did not smoke cannabis, but grew the plants out of boredom and also to obtain money to assist sending his daughter to university.  He also stated that he gave some of the money that he did receive to a charity.  Count 1 on the first indictment charged the applicant that between 1 April 1998 and 15 May 1998 at Cooroy he unlawfully produced the dangerous drug cannabis sativa and the quantity exceeded 500 grams.

[17]  Count 2 arose out of the admission made during the police interview that he had approximately three weeks before sold about 8 ounces of cannabis and received $1,600 for it.  Count 2 was therefore a charge of unlawfully supplying the dangerous drug cannabis sativa on a date unknown between 1 April and 15 May 1998.

[18]  Count 3 charged the applicant with being the occupier of a place at Cooroy that he permitted to be used for the commission of the crime of possessing dangerous drugs on the basis of the applicant’s admission that he permitted his premises to be used by friends for smoking cannabis.

[19]  Count 4 arose out of the possession by the applicant of the hydroponic equipment and set of electronic scales that were found during the police search and had been used in connection with the commission of the crime of producing dangerous drugs.

[20]  Following this search and interview, the applicant was arrested and granted bail.  Counts 1 to 4 on the first indictment can be referred to as the first group of offences.

[21]  On 15 September 1998 the police intercepted the applicant in Cooroy after he had retrieved an item from a post box.  He opened an express envelope and admitted that he had received a small amount of heroin wrapped up in a magazine inside the envelope.  The applicant showed police three balloons secreted inside the panel of the driver’s side door and stated they contained heroin.  The police conducted a further search of the vehicle and located a clip sealed bag in the console where there were a further eight balloons which the applicant admitted contained heroin.  The total weight of the powder was 1.827 grams with a concentration of between 36% and 44%, making the total weight of heroin 0.709 grams.

[22]  Being found in possession of this heroin resulted in count 5 on the first indictment.  Police also found cannabis leaf in the applicant’s vehicle and a canister of cannabis seeds in his kitchen cupboard at his home on the same day.  The total weight of cannabis and seed was approximately 472 grams.  The applicant was therefore charged with unlawful possession of cannabis sativa on 15 September 1998 (count 6).  Counts 5 and 6 therefore form the second group of offences.

[23]  Counts 7 and 19 related to activities at Childers which the applicant disputed and they were the counts that was not proceeded with by the respondent.

[24]  During the period in which the trafficking occurred, which is the subject of count 8, the applicant and his co-offender, Ms Lindy Van Krevel, were observed during a covert operation conducted by the National Crime Authority and the Drug Investigation Squad of the Queensland Police.  A covert police officer made contact with the applicant and Van Krevel in March 1999 and conducted a series of eight separate purchases.  The particulars of those purchases are found in the particulars of counts 9 to 16 on the first indictment which are the charges of supply in respect  of those purchases.  Count 9 was a supply on 15 March 1999 of 1.156 grams of pure heroin for $800.  Count 10 was a supply on 23 March 1999 of 1.441 grams of pure heroin for $900.  Count 11 on 26 March 1999 was for the supply of 5.387 grams of pure heroin.  Count 12 on 9 April 1999 was for the supply of 4.936 grams of pure heroin.  Count 13 was for the supply of an ounce of cannabis for $300 on 9 April 1999.  Count 14 on 22 April 1999 was for the supply of heroin weighing 5.092 grams for the price of  $2,450.  Count 15 was for the supply on 20 May 1999 of 17.225 grams of pure heroin for the sum of $8,200.  Count 16 was for the supply of cannabis on the same day which was of 454 grams for $3,500.

[25]  In total, the covert police operative paid to the applicant or to Van Krevel in the applicant’s presence or as his agent the sum of $21,230.  The purity of the heroin supplied was high with most samples ranging between 71% to 76%.  Numerous other people were seen by the covert police operative purchasing drugs from the applicant at the applicant’s residence or from a clinic which was set up by the applicant to be run by a social worker who was purchasing heroin from the applicant.  This clinic was called “The Youth and Community Care and Advocacy Centre” and was set up in March 1999 in Myall Street, Cooroy, across the road from the police station.  The social worker’s arrangement with the applicant was that he would receive his heroin from the applicant for nothing in exchange for running the clinic.  Van Krevel and the applicant were involved in the setting up of the clinic.  At the applicant’s instigation, a worker of his was placed at the clinic who was using the place to sell drugs on behalf of the applicant.  Van Krevel, in her statement, estimated that it would not be unusual for the applicant to sell drugs to up to 30 people on an average day, and it would not be unusual for him to gross up to $10,000 on a particular day.  In addition to cash, he was also given electrical goods and other items in exchange for heroin.  A financial analysis of the applicant’s income and assets for the period from 1 January 1999 to 17 June 1999 showed that the applicant earned a total of $4,965.35 from legitimate or explained sources, but that he expended $67,439.76.

[26]  After about a month the first worker installed by the applicant in the clinic to conduct drugs sales absconded and a replacement worker was placed by the applicant at the clinic.  There were then problems with zoning requirements of the premises and the clinic moved to rented premises further up the street.  The clinic closed after the applicant and Van Krevel were arrested on 11 June 1999. 

[27]  According to a statement given by Van Krevel, she and the applicant went to Sydney on 10 June 1999 and purchased 3 ounces of heroin for $21,000.  They were intercepted at the Brisbane Airport where the heroin was found on Van Krevel and in her bag.  The total weight of powder recovered was 82.590 grams, of which 54.640 grams was heroin.  Count 17 arose out of the possession by the applicant on 11 June 1999 of that heroin.  At the airport cash in the sum of $2,980 was located in the applicant’s wallet.  That formed the basis for count 18 that on 11 June 1999 the applicant possessed a sum of money obtained from trafficking in dangerous drugs, knowing it to have been obtained from the trafficking.  Count 20 arose out of a search that then took place of the applicant’s premises where a further $4,292.40 in cash was located, and that was the basis of a further charge that the applicant possessed a sum of money obtained from trafficking in dangerous drugs, knowing it to have been obtained from the trafficking.  Counts 8 to 20 (excluding count 19) on the first indictment therefore form the third group of offences.

[28]  The applicant was arrested on 11 June 1999.  There were two warrants of apprehension issued out of Victoria on 16 November 1998 against the applicant that required him to be held in custody.  Those warrants were executed in the Brisbane Magistrates Court on 30 June 1999.

[29]  A further search of the applicant’s residence was conducted on 30 June 1999 with the assistance of Van Krevel.  A piece of PVC tubing was located buried in the ground which was approximately 60 cms in length and contained 22 clip sealed bags containing a total of 613 grams of cannabis.  Also located in the pipe were two clip sealed bags containing a pink powder of total weight 90.066 grams which, on analysis, was found to contain 23.815 grams of methylamphetamine.  The unlawful possession of the cannabis sativa and the unlawful possession of methylamphetamine were counts 1 and 2 on the second indictment.  These will be referred to as the fourth group of offences.

[30]  The Crown Prosecutor informed the learned sentencing judge that in respect of the matters (which appears to have been a reference to the charges on both indictments) the applicant had been in custody, with the exception of two days from 30 June 1999.  The two days were the two days between 30 June and 2 July 1999 where the custody appeared to relate to the warrants.

Approach taken to the sentencing

[31]  It was common ground before the learned sentencing judge that the appropriate way to approach the sentencing was to form a view about the overall criminality involved in the offences to which the applicant pleaded guilty, apply that sentence to the most serious offence of trafficking heroin and cannabis and then to impose concurrent sentences with respect to such of the other offences as were not, in effect, an aspect of the trafficking charge. 

[32]  The process undertaken by the learned sentencing judge was to start at not less than 16 years as the head sentence that would have been required after a trial on the basis of the circumstances of the offences.  That starting point is not challenged on this application. 

[33]  The learned sentencing judge acknowledged that the willingness to facilitate the course of justice evidenced by the guilty pleas justified a substantial discount tempered by the fact that it was not until the sentencing commenced on 8 July 2002 that the applicant desisted from the allegation (which was contested by the respondent) that he was a heroin addict.  The learned sentencing judge therefore stated that, in the circumstances of the offences, the guilty pleas reduced the head sentence to 13 years’ imprisonment.  The extent of the allowance for the guilty pleas is not challenged on this application.

[34]  It was common ground between the parties at the sentencing that the appropriate way to recognise the period of 3.1 years which had been spent in presentence custody (on the basis that ss 158 and 161 of the Act could not be applied) was to reduce the head sentence.  The learned sentencing judge pointed out, however, that had the two discontinued charges never been brought, a declaration under s 161 would have been made in respect of the sentence of 13 years for trafficking which would have required the applicant to serve 7.3 years in actual custody, before being eligible to apply for post-prison community based release, as the sentence of 13 years would have carried with it an automatic declaration that the applicant had been convicted of a serious violent offence.  The figure of 7.3 years was derived by applying s 135(2)(c) of the Corrective Services Act 2000 and taking 80% of 13 years (which is 10.4 years) and deducting the period of 3.1 years spent in presentence custody. 

[35]  The learned sentencing judge therefore considered it was appropriate to fashion a sentence which achieved a similar result to that which would have obtained, if the discontinued charges had not been preferred.  The learned sentencing judge concluded that if a head sentence of 9 years’ imprisonment were imposed on count 8, coupled with a declaration that the offence were a serious violent offence, the applicant would be required to serve, in addition to the 3.1 years already served, 7.2 years in actual custody (being 80% of 9 years).  The learned sentencing judge also stated that a sentence of 9 years, coupled with such a declaration, though it produced about the same minimum time in custody as would have followed a 13 year sentence, would be an appreciably less onerous sentence than a 13 year sentence and that sufficiently allowed for the blindness and ill-health of the applicant which had made, and in the future could be expected to make, the applicant’s incarceration more than usually difficult.  The learned sentencing judge also stated that the sentence of 9 years’ imprisonment with the declaration, though much more substantial that that imposed on Van Krevel, was not on the material before the learned sentencing judge higher than that required by parity considerations, because the applicant’s criminality was significantly greater than the criminality of Van Krevel.

Grounds for application

[36]  During the hearing of the application for leave to appeal against sentence, leave was given to the applicant to add an additional ground to support the application.  This additional ground was that the learned sentencing judge erred when his Honour proceeded on the basis that a declaration could not be made under s 161 of the Act in respect of the presentence custody of 3.1 years.  The other ground advanced in support of the application was that the sentence was manifestly excessive by virtue of the declaration in respect of count 8 that the applicant was convicted of a serious violent offence. 

Whether declaration available under s 161

[37]  Section 161(1) of the Act provides:

“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”

Because the applicant was held in presentence custody for the two discontinued charges, in addition to those to which he pleaded guilty and for which he was sentenced, his presentence custody was not referable only to the offences for which he was sentenced.  Effect must be given to the words “for no other reason” used in s 161(1) of the Act.  The applicant was therefore unable to bring himself within the stringent requirements set out in s 161(1) of the Act. 

[38]  Mr Vasta QC who appeared on behalf of the applicant advanced an argument based on s 161(4) of the Act which provides:

“If -

(a)an offender is charged with a series of offences committed on different occasions; and

(b)the offender has been in custody continuously since arrest on charges of the offences and for no other reason; the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was arrested even if the offender is not convicted of the offence for which the offender was first arrested or any other offences in the series.”

[39]  The intent of s 161(4) of the Act is plain.  How that intent can be implemented is not.  As was observed by Pincus JA in R v Fox [1998] QCA 121; CA No 50 of 1998, 12 June 1998 (“Fox”):

“Obviously, some alleviation of the position of an offender who is in custody in respect of more than one offence was contemplated, but the subsection does not explain what alleviation is to be.”

[40]  In Fox, McPherson JA (with whom Thomas J agreed) read the expression “charges of the offences” in s 161(4)(b) of the Act as referring back to “the series of offences” described in s 161(4)(a) of the Act.  Pincus JA in Fox stated:

“The word ‘series’ implies some sort of connection between the offences.  Plainly, the offences mentioned in para(4)(a) need not be committed on the same occasion; nor, as appears from the concluding words of the subsection … is it contemplated that arrests in respect of all the offences must have taken place at the same time.”         

[41]  Assuming that even though the applicant was charged on different dates with the first group of offences, the second group of offences, the third group of offences and the fourth group of offences respectively, they comprised a series of offences within the meaning of s 161(4)(a) of the Act, the fact that the custody of the applicant from 11 June 1999 until 2 July 1999 related also to the Victorian warrants of apprehension precludes the applicant from fulfilling the condition in s 161(4)(b) of the Act.  He was placed in custody upon arrest on 11 June 1999 and his custody cannot be described as being “continuously” in respect of the offences comprising the series of offences. 

[42]  At least from the time that the applicant was charged with the fourth group of offences and his custody ceased to be referable to the warrants, the applicant was in the position of being held in custody for no reason other than the first, second, third and fourth groups of offences, of which he was not convicted of two only of the offences, because the respondent did not proceed in respect of those two offences.  Although the intent of s 161(4) of the Act would be to give effect to that time of continuous presentence custody in respect of the first, second, third and fourth groups of offences as time already served under the sentences imposed in respect of those offences (other than for the two of which he was not convicted), the wording of s 161(4) of the Act precludes giving effect to that intent in respect of the applicant, because his custody commenced on 11 June 1999.  I agree with the observations of Williams JA on the operation of s 161(4) of the Act and the need for legislative amendment to be considered.

Whether serious violent offence declaration made sentence manifestly excessive

[43]  There were two submissions made on behalf of the applicant as supporting the setting aside of the declaration in respect of the trafficking count that the applicant had been convicted of a serious violent offence.  The first submission was that no consideration was given to the applicant’s poor health.  The second submission was that the learned sentencing judge failed to sufficiently take into account the principles of parity in sentencing. 

[44]  With respect to the first submission, the matter of the plaintiff’s ill-health was a relevant consideration in considering the entirety of the sentence to be imposed and not a factor to be considered separately as to whether or not the serious violent offence declaration was to be imposed: cf R v Bojovic [2000] 2 Qd R 183, 191.  In reducing the sentence of 13 years which would have otherwise been imposed for the trafficking offence to allow for the period of 3.1 years and presentence custody, the learned sentencing judge took off slightly more than the period of 3.1 years when he arrived at the head sentence of 9 years (which was then coupled with a declaration of serious violent offence).  As summarised by the learned sentencing judge in his sentencing remarks, this process undertaken by the learned sentencing judge of deducting 4 years instead of 3.1 years was to recognise both presentence custody and the blindness and ill-health of the applicant.  It therefore cannot be said that there was no consideration of the applicant’s poor health in the sentencing process.  What was in substance being argued on behalf of the applicant was that not enough weight was given to this factor of the blindness and ill-health of the applicant. 

[45]  It is not unusual that ill-health of an applicant intervenes after the offending and before sentencing.  An example of that is R v Irlam; ex parte A-G [2002] QCA 235.  It must be relevant to the weight to be given to the ill-health of the offender that the offending was committed by the offender while suffering from the same conditions for which he seeks sympathetic treatment on the sentencing, as was the case with this applicant.  In all the circumstances of the offending of the applicant, the relatively little weight given by the learned sentencing judge in fixing the sentence for the applicant’s blindness and ill-health did not result in the sentence being manifestly excessive. 

[46]  With respect to the second submission, it was ultimately common ground between the parties before the learned sentencing judge that the nature of the role of Van Krevel was that described in the sentencing remarks of Holmes J who sentenced Van Krevel to a term of imprisonment of 9 years with a recommendation for parole after 2 years.  The sentencing of Van Krevel had proceeded under s 13A of the Act and without those considerations, her sentence would have been 9 years with no recommendation for parole, but with a declaration in respect of her presentence custody being available.  The relevant matters that were referred to in the sentencing remarks of Holmes J were that Van Krevel was the right-hand person to the applicant, kept records of sales, counted money, occasionally made independent sales and had an organisational role in relation to the setting up of the clinic in Cooroy and of the alternative premises.  Reference was made to Van Krevel being a heroin addict and that her relationship with the applicant was described as the exchange of sexual favours for support and the division of drugs.  It also was put before Holmes J that Van Krevel had travelled to Sydney without the applicant to make purchases of heroin for the applicant and that when Van Krevel went to Sydney with the applicant, she was the one who went out to purchase the heroin.  Van Krevel also pleaded guilty. 

[47]  It is relevant to compare the term of imprisonment of 13 years which would have been imposed by the learned sentencing judge on the applicant, but for the considerations of the presentence custody and ill-health and blindness with the sentence of 9 years imposed on Van Krevel.  It is not appropriate to compare the likely time spent by each of the applicant and Van Krevel in actual custody.  The sentence of 13 years which carries the automatic declaration of serious violent offence reflected the greater criminality of the applicant compared to Van Krevel.  That greater criminality was due to the trafficking and related offences being committed by the applicant after having been granted bail in respect of the first and second groups of offences, the fact that the applicant was not a heroin addict and, although Van Krevel appears to have been closely involved in assisting the applicant in the trafficking activities, it is apparent from the material that was before the learned sentencing judge that the applicant remained the person in control of the activities.

Order

[48]  There are no prospects of a successful appeal in respect of both grounds relied on to support the application.  The application must be refused.