R v Gordon[2002] QCA 83

COURT OF APPEAL

McMURDO P

MUIR J

PHILIPPIDES J

CA No 330 of 2001

THE QUEEN

v.

STEVEN WILLIAM GORDON

BRISBANE

DATE 18/03/2002

JUDGMENT

MUIR J:  The applicant pleaded guilty to unlawfully supplying the dangerous drugs methylamphetamine and cannabis sativa, receiving money from supplying dangerous drugs knowing the monies to have been obtained from the supply and to possession of electronic scales and spoons used in connection with the commission of the crime of supplying dangerous drugs, and was sentenced in the Supreme Court to terms of imprisonment of three years, two years and two years respectively.

All sentences were ordered to be served concurrently and to start from the end of the period of imprisonment presently being served by the applicant.  It was recommended that the applicant be eligible for post-prison community based release on 18 November 2006.

At the time of sentencing, the applicant was serving a 10 year sentence for armed robbery, the term of which commenced on 15 March 1991.  The applicant was recommended for immediate parole in respect of the sentences imposed on 15 March 1991 and released on parole on 26 July 1991.  Parole was cancelled on 4 March 1996.  He was granted parole again on 26 July 1999. The parole order was suspended on 17 November 2000 and cancelled on 6 December 2000.

The point of narrating this history is to note that the applicant is not eligible for remissions on his sentence which will be completed on 18 November 2005.  He will then commence serving the sentences now directly under consideration.

The applicant was born in January 1968 and was thus 32 years of age at the time of the subject offences.  He had a prior criminal history which in addition to the armed robberies already mentioned included convictions on 4 March 1996 for supplying dangerous drugs, possession of dangerous drugs, possession of a thing used in the commission of a crime and also for receiving.  He was sentenced to one year's imprisonment for each of these offences which I note were committed whilst the applicant was on parole.

In September 2000, whilst the applicant was on parole, the police found 146.5 grams of cannabis sativa and 42.411 grams of powder containing 18.574 grams of methylamphetamine and $2823 in cash as well as electronic scales and syringes in a car driven by him.

The learned sentencing Judge found that there was a commercial element in the applicant's offences and Mr Moynihan, who appears for the applicant, does not contest this finding.  It is common ground that his Honour was advised that pursuant to section 156A(1)(b)(ii) of the Penalties and Sentences Act 1992, the sentences to be imposed by him had to be cumulative on the sentences the applicant was then serving, that this advice was incorrect and that his Honour sentenced on this erroneous basis.

It seems that it was mistakenly thought that the offences for which the applicant were sentenced were offences in the schedule to the Penalties and Sentences Act.

Mr Moynihan submits that an error having been revealed in the exercise of the learned sentencing Judge's discretion, this Court should resentence, exercising its own discretion.  It is further submitted that the discretion miscarried because -

(a)the applicant is liable to serve seven years' imprisonment from the date of sentencing and his discharge date will be 18 November 2008;

(b)although still technically eligible for post-prison community based release, on both terms of imprisonment the prospect of such release is negligible and that in any event the effect of the sentence is to postpone consideration in respect of any such release until 18 November 2006;

(c)the effect of the cumulative term of three years' imprisonment offends the totality principle because the period of imprisonment is out of proportion to the combined seriousness of the offences and the totality of the sentences is thus manifestly excessive;

(d)alternatively, insufficient weight was given to the unexpired portion of the original term of imprisonment which should have resulted in a moderation of the head sentence;

(e)the head sentence of three years in any event is too high for what Mr Moynihan described as an isolated technical supply by transporting the drugs for supply to another.

He submitted that The Queen v. Crocker (CA 118 of 1999) relied on by the Crown at first instance is a more serious case than the subject one and pointed out that in that case the President and Thomas JA said that the range for numerous actual supplies is 18 months to four years' imprisonment.  He submitted that the subject offence is less serious and that the appropriate range was 12 to 18 months.

In the light of all those matters Mr Moynihan submitted that the sentence which would have been imposed was one of 12 to 18 months to be served concurrently with the unexpired portion of the existing term of imprisonment.  He made a number of alternative submissions on an appropriate sentence. 

Mr Campbell, who appears for the Crown, accepts that the applicant is unlikely to succeed in obtaining post-prison community based release in respect of the sentences imposed in 1991.  He concedes that the totality principle is applicable but submits that the sentence is appropriate having regard to the quantity of methylamphetamine involved, the existence of a commercial purpose, the fact that the offences were committed whilst the applicant was on parole and the applicant's past drug related history.

He submits also that the order in relation to post-prison community based release was an effective early recommendation for release after one year of the three year sentence and that this adequately reflected the applicant's plea of guilty and other mitigating factors. 

In my view, the sentence imposed fails to have sufficient regard to the totality principle and, further, that the range of sentences disclosed by the review undertaken in R v. Crocker (even taking into account the circumstance that the applicant re-offended in a serious way whilst on parole) shows that the sentence is excessive.

Having regard to those considerations I would allow the application, set aside the sentence and substitute a sentence of 18 months' imprisonment cumulative upon the sentence imposed on 15 March 1991 and recommend that the applicant be eligible for post-prison community based release after 17 August 2006 which will be a date half way through the 18 months' sentence which, in my view, should be imposed.

THE PRESIDENT:  I agree.  His Honour was wrongly told by the prosecutor at sentence that the sentence to be imposed must be cumulative because of section 156A(1)(b) Penalties and Sentences Act 1992 (Qld).  This, as the respondent concedes, was incorrect.  As it seems that in imposing the sentence his Honour acted on this wrong information, the sentencing discretion miscarried and this Court is free to re-sentence exercising its discretion fresh. 

I agree with what has been said by Mr Justice Muir.  Principles of totality relating to the applicant's 1991 sentence for offences committed in 1987, the principle set out in section 9(2)(l) and (m) Penalties and Sentences Act 1992 (Qld) and the applicant's plea of guilty justify a moderated cumulative sentence of 18 months' imprisonment.  This Court is required to make a recommendation for post-prison community-based release:  see section 157(3) Penalties and Sentences Act 1992 (Qld).  The date proposed by Mr Justice Muir is appropriate in the circumstances.

PHILIPPIDES J:  I agree with the reasons given by Justice Muir and the additional reasons given by the President and with the orders proposed. 

THE PRESIDENT:  The orders are as proposed by Mr Justice Muir.