R v Liddle[2006] QCA 45

SUPREME COURT OF QUEENSLAND

1. THE COURT:  On 6 April 2005, the applicant pleaded guilty to one count of producing a dangerous drug, namely methylamphetamine, one count of possessing a dangerous drug, namely methylamphetamine in excess of two grams, and one count of possession of things used in producing a dangerous drug, namely laboratory equipment and chemicals.  On 31 August 2005, the applicant was sentenced to two years imprisonment.  This sentence was to be served cumulatively upon the activated balance of a suspended sentence and cumulatively upon the sentence of one month's imprisonment imposed by the Magistrates Court on 10 August 2005.

2. The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive in all the circumstances.

The circumstances of the offence

3. On the afternoon of 26 February 2003, police executed a warrant on a house in Boondall occupied by a couple, McFadyen and Jager. The applicant was found in the shower at the house. A broken glass reaction vessel was on the hotplate of the stove. All the chemicals and equipment necessary to produce methylamphetamine were located in the kitchen. The applicant's fingerprints were found on a tin of acetone located in the kitchen.

4. A motor vehicle used by the applicant was parked in front of the house. Police found 9.985 grams (2.408 grams pure) of methylamphetamine and glassware, equipment and chemicals in the car. Tests revealed that this equipment had been used to produce methylamphetamine. There was also a quantity of Demazin tablets sufficient to produce 7.39 grams of pure methylamphetamine.

5. Messages were recovered from a mobile phone in the car which showed that the applicant was involved in the production and supply of methylamphetamine.

6. These offences were committed during the operational period of a suspended sentence imposed on the applicant on 21 March 2001. On that occasion, the applicant had pleaded guilty to a number of offences which included trafficking in methylamphetamine, which was then a schedule 2 offence. The applicant was sentenced to three and a half years imprisonment suspended after 12 months. Thus the unserved balance of the sentence which had been imposed on 21 March 2001 was two and a half years.

The applicant's circumstances

7. The applicant was born on 12 August 1964. He was 38 years of age at the time of the offences committed in 2003, and 41 years of age at the date of sentence. He is a bricklayer by trade, and was for several years a professional boxer. He has for some time been in a relationship with a young woman with whom he has a young child.

8. The applicant has a criminal history which commenced in 1982. It is a history of minor offending, but it includes drug offences in 1983, as well as the offences for which he was sentenced in March 2001 and a sentence of one month's imprisonment on 10 August 2005 for possession of a dangerous drug on 25 March 2005. It may be noted that, on 10 August 2005, the applicant was sentenced in respect of other kinds of offences. In respect of a number of driving offences, he was sentenced to three months imprisonment to be served concurrently.

9. The applicant suffers from an addiction to drugs. In the light of his persistent offending, it cannot be said that his prospects of rehabilitation are good.

The sentence

10. The learned sentencing judge referred to s 147(3) of the Penalties and Sentences Act 1992 (Qld) ("the Act") and was satisfied that it would be unjust not to activate the balance of the March 2001 sentence.  Of course, by virtue of s 147(2) of the Act, his Honour was obliged to order that the applicant serve the whole of the suspended imprisonment unless he was positively satisfied that it would be unjust to do so.

11. As to the offence of February 2003, the learned sentencing judge was concerned, and, with respect, rightly concerned, by the circumstance that the applicant had engaged in the production of methylamphetamine whilst enjoying the benefit of a suspended sentence for trafficking in the drug.

12. His Honour also referred to the powerful consideration that methylamphetamine is a Schedule 1 drug, the production of which is rife so as to require the imposition of "strongly deterrent penalties where it is detected".

13. Having referred to these considerations which justified condign punishment, the learned sentencing judge expressly referred to the need for moderation because the term of imprisonment which he intended to impose would be served cumulatively upon the other terms of imprisonment which the applicant was obliged to serve. His Honour was mindful that the "overall period of imprisonment … cannot be crushing, cannot overwhelm any prospect of rehabilitation …".

The applicant's arguments

14. In the light of the circumstances to which his Honour referred, the applicant's submission that the sentence was manifestly excessive confronts some formidable difficulties, not the least of which is that the sentence imposed was within the range suggested by the applicant's counsel below.

15. The applicant argues that the learned sentencing judge erred in failing to make a recommendation for post-prison community based release ("ppcbr"), it being contended that such a course was mandatory under s 157(3) of the Act. That contention is contrary to the decision of this Court in R v Fifita.^[1]  The decision in R v Fifita establishes that the requirement in s 157(3) of the Act that a sentencing judge make a ppcbr recommendation applies only where a ppcbr recommendation was made in respect of the earlier term of imprisonment.  The sentence of 21 March 2001 did not include such a recommendation.

16. Not only was the learned sentencing judge not obliged to make a parole recommendation in respect of the total period of imprisonment to which Mr Liddle was being sentenced, but also no parole recommendation could be made in respect of the activated suspended portion of the total sentence. This Court so held in R v Waters.^[2]  Had the learned sentencing judge made a recommendation for post-prison community based release, that recommendation could only have been for such release after the two years six months activated term had been served, cumulative (as then ordered) upon the one month term being served; that would have disadvantaged the applicant.  Without any recommendation, he is eligible for ppcbr, by reason of s 135 of the Corrective Services Act 2000 (Qld), when he has served half of the total period of four years and seven months to which the learned sentencing judge intended to sentence him.  The sentencing judge was accordingly correct in leaving Mr Liddle subject to the regime automatically applying in the absence of a recommendation.

17. The next contention agitated on behalf of the applicant is that the learned sentencing judge failed "to state in open court that he took account of the applicant's guilty plea as required by s 13(3) of the (Act)". In a variation on this contention, it is also urged that this Court "cannot be justly satisfied that the applicant's guilty plea was taken into account".

18. While it is true that the learned sentencing judge did not expressly state in open court that he took account of the applicant's plea of guilty, it is apparent from the record that his Honour was fully aware that the applicant had pleaded guilty. The decision of this Court in R v Mallon^[3] confirmed that the result of the failure to comply with the obligation in s 13(3) will cause the appeal court to examine the sentence more closely since it will not clearly appear that the court has in fact taken the plea into account.  In the present case, it is clear from the appeal record that the learned sentencing judge was made fully aware of the plea of guilty in the course of submissions and, as has been noted, the sentence which was imposed accorded with the submissions advanced on behalf of the applicant.  It cannot be said that the applicant's plea of guilty was made at the earliest opportunity.  There had been considerable delay on his part.  The applicant could not have expected a substantial discount in relation to his plea of guilty.  Mr Liddle entered that plea on 6 April 2005, was granted bail, and was released to re-appear on 29 April.  He failed to appear at the time specified, a warrant was issued for his arrest, but he turned up later that day.  The warrant was set aside.

19. That was just one of the delays Mr Liddle caused in the prosecution process. The Crown prosecutor informed the learned sentencing judge that the committal hearing had been on 3 December 2003, and a seven month delay had been due to changes in Mr Liddle’s instructions to his then lawyers. An indictment was presented, and the matter was listed for trial in November 2004, but just prior to the trial there was an indication Mr Liddle would plead guilty. The matter was listed for sentence on 23 November 2004, but Mr Liddle failed to appear. It was adjourned until 24 November 2004 when he appeared and was arraigned, but he pleaded not guilty. The matter was adjourned and re-listed for trial in April 2005, on which date the plea of guilty was entered. The sentence was adjourned that day because of advice that Mr Liddle could provide information to the police; in fact no useful information had been provided by the date he was sentenced, 31 August 2005. Mr Liddle had been listed for sentence on 11 July 2005, and he did appear for sentence on that date, but when proceedings were adjourned due to an evacuation of the courts that day, Mr Liddle left and did not return. A warrant was issued, executed on 25 July 2005 and he was finally sentenced on 31 August.

20. In those circumstances Mr Liddle was entitled to very little, if any, remission of his sentence by reason of his plea. He had made little effort to co-operate with the prosecuting authorities or with the administration of justice. Indeed, he had rather frustrated it for a considerable time. All of the circumstances were explained to the learned sentencing judge in August 2005, and Mr Liddle could not have been in doubt at all as to why nothing was said about mitigation of sentence for his plea. For all that, the learned judge certainly did reduce the sentence imposed below the level suggested by the Crown prosecutor, a level supported by a consideration of recent decisions of this Court.

21. In R v Jeffs,^[4] the offender pleaded guilty to one count of producing methylamphetamine and one count of possessing things for use in the commission of a crime.  He was not the actual producer of the drug, but had provided tablets, which he had purchased, to the producers over a 12 month period to enable them to produce the drug.  He was under an order to perform community service for some of this period.  He was originally sentenced to four years imprisonment.  This sentence was altered on appeal by the addition of a recommendation for ppcbr after 18 months.  The criminal responsibility of the present applicant in respect of the present offence was considerably greater than that of the offender in R v Jeffs.

22. In R v Day and Gill,^[5] head sentences of three and a half years and three years imprisonment respectively were not disturbed on appeal.  Police found the offenders in possession of 3.818 grams (2.63 grams pure) of methylamphetamine in their car.  Thirty tablets for use in drug production were also found.  A subsequent search of their property revealed a rudimentary drug laboratory.  There was a commercial aspect to the production of drugs by Day and Gill.  Day was a drug addict with a long history of drug offences.  Gill had no prior convictions.  Each pleaded guilty.  The applicant's sentence can be seen, in comparison, to be distinctly moderate and clearly to incorporate the benefit of the applicant's plea of guilty.

23. The next submission advanced on the applicant's behalf was that the learned sentencing judge failed to give reasons for imposing cumulative sentences. Ordinarily, of course, a failure on the part of a sentencing judge to give reasons for the imposition of cumulative sentences under s 156 of the Act would constitute an error of principle as was explained by this Court in Gordon & Camp v Whybrow.^[6]  The learned sentencing judge gave succinct reasons during the submissions by each counsel as to why all of the two and a half years of the suspended sentence should be activated, and counsel for Mr Liddle agreed with those reasons.  The learned sentencing judge also explained during the submission of each counsel why a cumulative term of imprisonment would be imposed for the February 2003 offences, and again Mr Liddle’s counsel agreed with that course, and with the proposed term.  It must be appreciated that the offending in 2003 was quite separate from the offending the subject of the sentence in March 2001, and, most importantly, the offending in 2003 occurred while the applicant was at liberty as a result of the partially suspended sentence for earlier drug trafficking.  Having regard to the moderate approach taken by his Honour to sentencing the applicant in respect of the 2003 offending, and the statutory necessity under s 147(2) of the Act to activate the balance of the March 2001 sentence, if the sentences had been made concurrent the applicant would have escaped any real punishment in respect of his very serious offending in 2003.

24. It has not been demonstrated that, on the materials put before the learned sentencing judge, the sentence imposed was excessive, much less that it was manifestly so. Subject to what now follows, we would dismiss the application for leave to appeal against sentence.

25. In the course of his submissions below the prosecutor informed the learned sentencing judge that the applicant had pleaded guilty in the Magistrates Court on 10 August 2005 to an offence of possession of a dangerous drug. The submission went on that the applicant was "given, on my instructions, one months imprisonment in relation to that possession". Nothing further was said by either counsel as to the sentence imposed on 10 August 2005. The learned sentencing judge then ordered that the two and a half years imprisonment he activated for breach of a suspended sentence "commence at the termination of the term of the imprisonment you are currently serving being that imposed by the Magistrates Court on 10 August 2005". As the learned sentencing judge was only made aware of a sentence of one month's imprisonment his Honour's clear intention was that the two and a half year term commence after the one month's imprisonment for the other drug offence had been served.

26. It now appears that the applicant had been dealt with for numerous offences in the Redcliffe Magistrates Court on 10 August 2005. Effectively there were four counts of driving whilst disqualified, two breaches of the Bail Act 1980 (Qld), one count of possessing a dangerous drug, three counts of unlawful possession and one count of failing to appear.  On the driving counts he was sentenced effectively to three months imprisonment, and on each of the offences involving bail to one month's imprisonment to be served cumulatively.  On the charge of possession of a dangerous drug he was sentenced to one month's imprisonment to be served concurrently and on the other offences to sentences not exceeding one month to be served concurrently.

27. It would appear that the Department of Corrective Services has interpreted the sentences now under review in a way which would make the two and a half years for the breach of the suspended sentence cumulative upon his Honour's two year sentence and upon an effective five month sentence imposed in the Magistrates Court at Redcliffe on 10 August 2005. That is clearly not what was intended by the learned sentencing judge. To that extent, the sentence imposed was excessive, albeit inadvertently so.

28. In the circumstances, the application for leave to appeal against sentence should be granted and the appeal allowed. However, the appeal should be allowed only to the extent of reducing the sentence of two years to one year and eight months. This sentence should be served cumulatively on the activated balance of the suspended sentence and the cumulative sentences imposed by the Magistrates Court on 10 August 2005.