R v Woods[2004] QCA 204

SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The applicant, Steven Malcolm Woods, was sentenced on 26 March 2004 to 12 months' imprisonment on each of one count of possession of the dangerous drug cannabis sativa and one count of possession of the dangerous drug methylamphetamine in excess of 2 grams.  The applicant for leave to appeal against sentence does not dispute that head sentence, but it is submitted that the learned sentencing judge failed to take into account the requirements of s 13 of the Penalties and Sentences Act, that is that the guilty plea must be taken into account and the sentence may be reduced from what would have been imposed had the offender not pleaded guilty. 

[2] The offences of which the applicant was convicted were committed on 12 February 2003.  He was apprehended by the police riding a bicycle without a helmet.  The police found 5.8 grams of cannabis in his bag as well as 12 grams of powder containing 3.85 grams of methylamphetamine.  It was accepted that there was no element of commerciality in his possession of the drugs.  He was also convicted of the summary offences of failing to properly dispose of a needle and possession of property suspected of being stolen.  No further punishment was imposed with regard to those offences. 

[3] The applicant was born on 20 December 1978 and so was 24 at the time of the offences.  By then he had accrued a criminal history.  In January 2001 he had been convicted of possession of a knife in a public place.  No conviction was recorded and he was fined $150.  He was also convicted in the same month of unlawful use of a motor vehicle and another count of possession of a knife in a public place as well as contravening a direction under the Police Powers and Responsibilities Act 1992 (Qld).  He was convicted on each charge and sentenced to two years’ probation. 

[4] In June 2001 he was convicted of unauthorised dealing with shop goods, obstructing a police officer, possessing dangerous drugs and utensils or pipes, possession of a knife in a public place and breaching his bail undertaking.  He was convicted and various fines were imposed upon him.  In December 2001 he was convicted of breach of the probation order imposed in January 2001.  He was convicted and fined and the probation order was ordered to continue.  In July 2003 he was convicted of being in breach of a bail condition and undertaking.  He was convicted but not further punished.  He was also convicted of possession of property suspected of being stolen or unlawfully obtained, possessing dangerous drugs, possessing utensils or pipes and receiving property obtained in Queensland.  He was convicted and in respect of the possession of stolen property and dangerous drugs he was sentenced to one month’s imprisonment on each to be served concurrently.  On the two charges of receiving property obtained in Queensland he was sentenced to three months’ imprisonment on each to be served concurrently.  On the breach of a suspended sentence imposed on 12 November 2001 with regard to disqualified driving, the suspended sentence was activated and he was convicted and sentenced to four months’ imprisonment. 

[5] In September 2003, after these offences were committed, he was convicted on three counts of possessing dangerous drugs, one count of possessing utensils or pipes and one count of possession of property suspected of being stolen.  Those offences were committed whilst on bail for the offences which are the subject of this sentence application.  He was convicted on each and sentenced to terms of imprisonment of two weeks for some and of one month for others.

[6] Given the offences concerned and the applicant’s criminal history, the head sentence imposed of 12 months’ imprisonment was within the proper range of sentencing discretion.  This can be demonstrated by reference to comparable sentences in cases such as R v Christie [2000] QCA 165; R v Kennedy [2000] QCA 140 and R v Brooker [2002] QCA 101 where sentences of 6 – 18 months’ imprisonment were held to be within range for offenders in somewhat similar circumstances.  As the dangerous drug methylamphetamine was subsequently made a Schedule 1 drug, a sentence of 6 months may now be considered below the relevant range.

Effect of plea of guilty

[7] Sub-section 13(3) of the Penalties and Sentences Act provides that when imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.  If the court does not reduce the sentence imposed upon an offender who has pleaded guilty, then the sentencing judge must, pursuant to sub-section 13(4), state in open court that fact and his or her reasons for not reducing the sentence.  Sub-section 13(5) provides that a sentence is not invalid merely because of the failure of a court to make the statement mentioned in sub-section (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.  This is an application for such an appeal.

[8] Section 13 of the Penalties and Sentences Act is a statutory expression of the common law principle which has most recently been referred to by the High Court in Cameron v The Queen[1] where Gaudron, Gummow and Callinan JJ observed at 343 [11]:

“It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence.  In Siganto v The Queen[2] it was said:

‘A plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial.   The extent of the mitigation may vary depending on the circumstances of the case.’

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty.  The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.”

The relevant principles are set out in more detail by Kirby J at [65] – [66]. 

[9] In this case the learned sentencing judge did not expressly indicate any benefit for the guilty plea and did not mitigate the head sentence in any way.  After the sentence of imprisonment of 12 months was pronounced, counsel for the applicant asked the learned sentencing judge if he intended to suspend any part of the sentence in recognition of the early plea.  The judge said that he would not.  His Honour gave no reason for refusing to do so.  His Honour did not, for example, say that he had taken the guilty plea into account, as the respondent asked this court to infer he did, by a reduction in the head sentence. 

[10]  The necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process.  In R v Taylor & Napatali; ex parte A-G (Qld)[3] McPherson JA observed:

“Section 13(1)(a) … requires a sentencing court to take a guilty plea into account.  It uses the expression ‘must take the guilty plea into account’.  Having done so, the court ‘may then reduce the sentence imposed’ … and, in doing so, have regard to the time at which the offender pleaded guilty or advised the intention of doing so: s 13(2).  This confers a discretion on the sentencing court; but it is plainly intended that the sentence will ordinarily undergo some reduction on that account.  If it is not so reduced, the reasons for not doing so must be stated in open court: s 13(4).” [emphasis in original]

[11]  As the requirements of s 13 of the Penalties and Sentences Act have not been complied with in this case the sentencing discretion has miscarried.  It falls to this court to exercise the sentencing discretion afresh.  We would allow the application for leave to appeal and allow the appeal only to the extent of suspending the sentence on each count after the applicant has served four months with an operational period of three years.