SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The applicant, Malarka Newman, applied for leave to appeal against a sentence imposed on 22 February 2008 in the District Court at Southport for committing an offence during the operational period of partially suspended sentences imposed in the District Court on 10 October 2003.[1]  The learned sentencing judge considered it would be unjust to activate in full the partially suspended sentences and ordered that she serve nine months of the two and a half years of the unserved suspended sentences with parole eligibility on 22 June 2008.  Ms Newman applied for leave to appeal against her sentence, contending that it was manifestly excessive; gave insufficient weight to rehabilitation and should have contained a parole release date, not a parole eligibility date.

[2] Her application was heard by this Court on 10 April 2008.  That day the Court granted her application for leave to appeal, allowed the appeal, set aside the sentence imposed in the District Court, and made new orders.  The effect of those orders was that she serve two years of the suspended imprisonment imposed on 10 October 2003, fixing 10 April 2008 as her date for release on parole.  These are the reasons for those orders. 

[3] Although the sentence imposed by this Court granted Ms Newman immediate release on parole, it was arguably heavier than that imposed at first instance.  This question was raised with Ms Newman's appellate counsel, Mr Shepherd.  He stated that he had instructions from Ms Newman to nevertheless proceed with her application for leave to appeal and that she was content for this Court to allow the appeal and impose such a sentence.[2]

The offences dealt with on 10 October 2003

[4] On 10 October 2003 Ms Newman pleaded guilty to an assortment of property offences for which she was sentenced to concurrent terms of imprisonment ranging from 18 months to five years.  The longer terms of imprisonment were suspended after two and a half years with a five year operational period.  The offences were six counts of unlawful use of motor vehicles, receiving with circumstance of aggravation, entering or being in premises and committing an indictable offence and break, dangerous operation of a vehicle, 14 counts of entering a dwelling and committing indictable offences, two counts of entering or being in a dwelling with intent to commit an indictable offence with a circumstance of aggravation, stealing, attempted unlawful use of a motor vehicle, two counts of common assault and breach of probation.  She was also convicted but not further punished for some summary offences. 

Ms Newman's criminal history

[5] Ms Newman was 26 at her sentence the subject of this appeal.  She had a significant criminal history in addition to her convictions in October 2003.  It began when she was convicted in the Childrens Court in January 1996 for stealing.  She was placed in detention for three months with release after two months.  In April that year she was again convicted in the Childrens Court and sentenced to a three month release order for unlawful use of a motor vehicle.  In the Childrens Court in June 1997 she was convicted of break, enter and steal; break and enter a dwelling house with intent and break; burglary; two counts of stealing; unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence and unlawful use of a motor vehicle and possession of tainted property.  She was sentenced to 100 hours community service and 12 months probation under the Juvenile Justice Act 1992 (Qld). 

[6] In February 1998, whilst still a child, she made her first appearance in the Southport District Court for unlawful use of a motor vehicle, arson and four counts of robbery in company.  She was effectively sentenced to 195 days detention.  In May 1998 she appeared in the Childrens Court for unlawful use of a motor vehicle, three counts of entering a dwelling with intent, three counts of wilful damage, six counts of stealing and one count of stating false particulars.  She was sentenced to nine months detention.  In November that year, she appeared for a second time in the Southport District Court and was dealt with for two counts of assault occasioning bodily harm in company and two counts of robbery with actual violence.  She was sentenced to six months detention and 12 months probation. 

[7] She was convicted for the first time as an adult in May 1999 but not further punished for unlawful use of a motor vehicle.  In August that year she was convicted and sentenced to 12 months probation, fined $225 and ordered to pay restitution of $132 for unlawful use of a motor vehicle, unauthorised destruction of property and obstructing a police officer.  On 16 August 2000 she was convicted of robbery in company with personal violence, entering a dwelling house with intent in company whilst armed with a dangerous weapon and using actual violence, and stealing.  She was sentenced to two months imprisonment.  In 2000 and 2002 she was convicted of relatively minor offences and sentenced to non-custodial sentences or very short terms of imprisonment.  She was next dealt with on 10 October 2003 for the offences set out earlier and which directly concern her most recent sentence the subject of this appeal.

[8] She committed waves of further offences during the operational period of the suspended sentence imposed on 10 October 2003.  On 9 September 2005 she was convicted of contravening a direction or requirement, two counts of unlawful use of a motor vehicle, and entering a dwelling with intent by break at night.  She was effectively sentenced to two and a half years imprisonment wholly suspended for five years.  The following month she was dealt with for breaching the suspended sentence imposed on 10 October 2003, the operational period was extended for 12 months. 

[9] On 31 July 2006 she was convicted in the Southport Magistrates Court of 19 counts of entering a dwelling and committing an indictable offence, two counts of entering a dwelling with intent, two counts of entering a dwelling with intent by break at night, one count of entering a dwelling with intent by break, eight counts of unlawful use of motor vehicles, unlawful entry of a vehicle for committing an indictable offence, seven counts of stealing, attempted entering a dwelling with intent, receiving, contravening a police direction or requirement and breach of the suspended sentence imposed on 9 September 2005.  She was sentenced to an effective term of four years imprisonment with an intensive drug rehabilitation order ("IDRO") under s 19 Drug Rehabilitation (Court Diversion) Act 2000 (Qld).  She was also ordered to pay restitution of $26,835 and was disqualified from driving for two years.  The operational period of the suspended sentence imposed on 9 September 2005 was extended for a further 12 months. 

[10]  On 16 July 2007 she was convicted in the Southport Drug Court, this time for burglary, unlawful entry of a vehicle for committing an indictable offence and unlawful use of a motor vehicle.  She was sentenced to an effective term of four years imprisonment with an IDRO.

[11]  In December 2007, having successfully completed the IDRO, the Southport Drug Court vacated the sentences imposed on 31 July 2006 and 16 July 2007 and instead sentenced her to 12 months imprisonment wholly suspended for 12 months and 18 months probation with special conditions, providing for the payment of restitution (reduced from $26,835 to $2,671.50), abstinence from illegal drugs and submission to urine testing.

Defence counsel's submissions at sentence

[12]  Ms Newman's counsel at her sentence the subject of this appeal emphasised that she had successfully completed the IDRO, including spending over nine months in a residential programme.  He tendered a letter from the Gold Coast Drug Council dated 21 February 2008 setting out the following.  Ms Newman had been an in-patient at their premises, Mirikai, from 7 February 2007 when she was five months pregnant.  After the birth of her child, she spent another four to six weeks as an inpatient before progressing to their halfway house programme to reside with her partner.  On 30 September 2007 she moved into alternative supported accommodation with her partner and child where she was residing at sentence.  She was compliant with her treatment plan and all directives and had successfully graduated from her IDRO on 3 December 2007.  She had settled well into community living.  She had engaged community support which appeared to benefit her parenting and general living skills.  She had demonstrated a commitment to her current treatment plan which included regular counselling sessions with a psychologist, two supervised urinalysis tests each week, regular case management and reviews with a Drug Court coordinator.  She remained in contact with and was supportive towards her immediate family and their children.  She used Narcotics Anonymous meetings when she felt she needed this support.  The clinical team opined that, "given her criminal history and chronic substance misuse problem, Ms Newman represents a positive outcome and should be commended for her ongoing commitment to recovery". Counsel tendered a graduation certificate dated 3 December 2007 signed by a magistrate on behalf of the Drug Court Team.

[13]  Defence counsel gave the following account of Ms Newman's upbringing.  When she was 13 she suffered a head injury.  She had previously been a good student but she had then developed left lobe temporal epilepsy.  She began to experiment with prescribed drugs.  She left home and lived on the streets, abusing alcohol and illegal drugs and committing offences.

[14]  Placing continued emphasis on Ms Newman's genuine effort at rehabilitation, he submitted that a consideration of the factors listed in s 147(3) Penalties and Sentences Act 1992 (Qld) ("the Act") meant that it would be unjust to order her to serve the whole of the suspended term of imprisonment in actual custody; instead she should be released on parole immediately to continue her rehabilitation.  He submitted that although the original offences were serious, her efforts at rehabilitation following her intensive treatment for her drug abuse were so significant that the community would best be met by her not serving any further actual imprisonment.  The order he proposed would mean that Ms Newman was strictly supervised in the community because she would be subject to court orders for a further two and a half years, during which she would be subject to random urine testing and treatment or counselling as required.  As president of the board of the Gold Coast Drug Council Inc, he understood that were she to be sent to prison, she would lose her supported accommodation at Mirikai where she resided with her nine month old child and her partner.  He noted that she has two other children, aged eight and two, who reside with Ms Newman's adoptive mother, but with whom she has daily contact. 

The judge's sentencing remarks

[15]  In sentencing Ms Newman, the learned sentencing judge understandably referred to her extensive and concerning criminal history, including her numerous previous breaches of suspended sentences.  His Honour noted that she had been ordered to pay compensation of $26,835 in relation to the offences the subject of the present breach of the suspended sentence, very little of which was paid.[3]

[16]  In applying s 147, his Honour noted the following.  The subsequent offending which constituted the present breach was certainly not trivial.  Ms Newman had a very concerning criminal history.  Her original and subsequent offences were prevalent.  On the other hand, she has made very good efforts at rehabilitation.  The IDRO extended for about a further 17 months.  If she were sentenced to a term of imprisonment she would lose her supported accommodation.  She has three children including a nine month old child who lives with her.  It was said that she had been drug-free and had led a stable existence for some time.  The seriousness of her prior offending and her persistent breaches of partially suspended sentences had to be balanced against her commendable efforts at rehabilitation. 

[17]  His Honour ultimately determined to sentence her to serve nine months of the two and a half years remaining of the suspended imprisonment and ordered that she be eligible for parole fixed at 22 June 2008, noting:

"As the head sentence is in excess of three years, and even though the part activated is not in excess of three years, the date set is for parole eligibility, not a fixed parole release date, applying the statement of principle thereon by Mullins J in S P O'Reilly (Indictment 166/03 BNE) on 27 April 2007."

Parole eligibility date or fixed date for release on parole?

[18]  Mr Shepherd first contended that his Honour erred in construing the Act as requiring a parole eligibility date, rather than a parole release date, to be given as part of the sentence.  Mr M J Copley, who appeared for the respondent, conceded that Mr Shepherd's argument was soundly based.  That concession was rightly made for the reasons which follow.

[19]  Section 4 of the Act includes the following relevant definitions:

"parole means parole under a parole order granted under the Corrective Services Act 2006.

…

period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether—

(a) ordered to be served concurrently or cumulatively; or

(b) imposed at the same time or different times;

and includes a term of imprisonment.

term of imprisonment means the duration of imprisonment imposed for a single offence, and includes the imprisonment an offender is serving, or is liable to serve—

(a) for default in payment of a single fine; or

(b) for failing to comply with a single order of a court."

[20]  Part 9 of the Act is headed "Imprisonment"; its Div 3 (s 160 to s 160H) is headed "Parole".  Section 160 gives the following relevant definitions:

"impose, a term of imprisonment on an offender for an offence, includes make an order that the offender serve the whole or part of suspended imprisonment for the offence."

…

parole eligibility date, for an offender, means the date fixed under section 160B(2), 160C(2), (3) or (5), 160D(2) or (3) or 213 as the date the offender is eligible for parole.

…

parole release date, for an offender, means the date fixed under section 160B(3) as the date the offender is to be released on parole.

…

period of imprisonment means the period of imprisonment that includes the term of imprisonment mentioned in section 160A.

Note— Period of imprisonment therefore includes the term of imprisonment a court is imposing at the time of sentence."

[21]  Sections 160A and 160B relevantly include:

160A Application of ss 160B–160D

(1)    Sections 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.

(2)    Sections 160B to 160D are the only law under which a court may, on sentence of an offender for an offence, make an order relating to a person’s release on parole.

(3)    A court can not, on sentence of an offender for an offence, make a recommendation for a person’s release on parole.

…

160B Sentence of 3 years or less and not a serious violent offence or sexual offence

(1)   This section applies if neither section 160C[4] nor 160D[5] applies.

(2)   If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.

(3)   If subsection (2) does not apply, the court must fix a date for the offender to be released on parole.

(4)   If the offender had a current parole eligibility date or current parole release date, a date fixed under subsection (2) or (3) must not be earlier than the current parole eligibility date or current parole release date."

[22]  It follows from the definitions of "period of imprisonment" and "term of imprisonment" in s 4 and "impose, a term of imprisonment on an offender for an offence" and "period of imprisonment" in s 160 that the period of nine months imprisonment which his Honour imposed on Ms Newman for committing an offence during the operational period of suspended sentences was a "term of imprisonment" under s 160A.  The sentence imposed on Ms Newman was a "[s]entence of three years or less and not a serious violent offence or a sexual offence" in terms of the heading to s 160B.[6]  Section 160C and s 160D did not apply to Ms Newman's sentence (s 160B(1)).  As s 160B(2) had no application to Ms Newman's sentence, the judge was obliged under s 160B(3) to "fix a date for [her] to be released on parole".  It follows that the judge erred in instead fixing a parole eligibility date.  His Honour appeared to rely on Mullins J's ex tempore ruling in R v O'Reilly[7] to support his decision to give a parole eligibility date instead of a parole release date.  To the extent that O'Reilly can be said to support his Honour's decision, it is wrong. 

Was the error material?

[23]  Mr Shepherd next contended that the error required this Court to re-exercise its discretion in sentencing Ms Newman.  Mr Copley submitted that the error was not one which influenced the length of the sentence imposed on Ms Newman and was not of such a nature as to enliven this Court's jurisdiction to exercise the sentencing discretion afresh: Baxter v The Queen[8] and R v McQuire.[9]  Mr Copley contended that this Court should have simply varied the sentence imposed by fixing 22 June 2008 (the date selected by the primary judge) as the date for her release on parole instead of her parole eligibility date.

[24]  The judge's error extended to the actual terms of the formal sentence passed on Ms Newman and endorsed on the indictment.  For the following reasons, I am persuaded that the error requires this Court to re-exercise the sentencing discretion.  Defence counsel at sentence urged the judge to impose a sentence with a fixed date for immediate parole eligibility.  Had the judge understood that this sentencing option was open, he may well have ordered Ms Newman to serve a more substantial part of the suspended imprisonment than nine months but then moderated the sentence because of the rehabilitative considerations by setting an immediate or very early parole release date.  Such a sentence would have ensured Ms Newman had the benefit of immediate or early release to continue her proven rehabilitation at Mirikai with the added advantage of an extended period of supervision in the community under the strict controls applicable through a parole order.  It follows that the judge's misapprehension as to the effect of the Act may well have limited his understanding of the relevant sentencing options and wrongly fettered his sentencing discretion.  This Court was therefore required to re-sentence Ms Newman. 

[25]  In doing so, this Court was entitled to take into account new material relating to Ms Newman's changed circumstances since her original sentence.  She had by then spent an additional six weeks or so in prison.  A letter dated 10 April 2008 from the Gold Coast Drug Council Inc was tendered.  It stated that Ms Newman had a residence available to her on her release from custody.  This information differed from the submissions made by defence counsel at sentence.  It seems that this was because Mirikai has done its utmost since sentence to ensure Ms Newman and her child will have stable accommodation upon her release so that she can continue with her treatment plan.

[26]  Section 147 of the Act is central in dealing with Ms Newman for committing offences during the operational period of her suspended sentences.  The primary judge's assessment that it would be unjust to make an order under s 147(1)(b) of the Act was correct.  I turn now to consider the relevant matters listed under s 147(3).  Ms Newman's subsequent offending was not trivial; she had a concerning criminal history and both her original and subsequent offending was prevalent.  On the other hand, I note that her efforts at rehabilitation appear genuine and commendable.  This was recognised in the terms of her graduation certificate of 3 December 2007 signed by a magistrate on behalf of the Drug Court team, and the Gold Coast Drug Council's report of 21 February 2008.

[27]  Despite her concerning offending history, in sentencing Ms Newman, particular weight should be placed on her impressive efforts at rehabilitation and her promising future prospects,.  The community's interests in her rehabilitation, which in this instance happily coincide with the best interests of her children and of her personally, were most satisfactorily met by imposing a sentence which allowed her to continue her rehabilitation in the community under the strict supervision of a relatively lengthy two year parole order with immediate effect.

[28]  For these reasons, I joined in this Court's orders given on 10 April 2008 granting the application for leave to appeal, allowing the appeal, setting aside the sentence imposed on 22 February 2008 and re-sentencing Ms Newman to effectively serve two years imprisonment with 10 April 2008 fixed as the date for her release on parole.

The graduation certificate signed by the magistrate on behalf of the Drug Court Team

[29]  Although it is unnecessary to deal with this matter in determining the appeal, I wish to make some brief additional observations concerning the primary judge's comments about Ms Newman's graduation certificate and the magistrate's comments contained in it.

[30]  Ms Newman's graduation certificate signed by the magistrate on behalf of the Drug Court Team was in these terms:

"Congratulations Malarka.  You have completed all three stages of your intensive drug rehabilitation program.  You have struggled against formidable odds and achieved a considerable period of abstinence.  You have learnt the tools to regain control of your life and earned yourself a place in society.  You should feel proud of, and keep safe, your achievements.  You have our best wishes as you continue your journey through life."

During sentencing submissions, the judge questioned the appropriateness of a magistrate making such comments.  His Honour referred to unspecified "ethical matters", adding that this had nothing to do with the sentencing proceeding.

[31]  His Honour made the following observations during his sentencing remarks:

"Amongst the documentary material which supports the improvements in that regard, in passing - nothing to do with the sentence in this case - is the Court or the community entitled to be a bit concerned by Exhibit 7 when the Magistrate, who has to be seen to be impartial and objective, has written what she has, and it looks like the prosecution has also joined in, if one can read what they write that correctly, though it is not a matter for consideration today, it may well have an ethical connotation for others to look at."

[32]  Drug Courts were established by the legislature under the Drug Court Act 2000 (Qld).  The objects of the Act are:

"(1) …

(a)   to reduce the level of drug dependency in the community and the drug dependency of eligible persons; and

(b)   to reduce the level of criminal activity associated with drug dependency; and

(c)   to reduce the health risks associated with drug dependency of eligible persons; and

(d)   to promote the rehabilitation of eligible persons and their re-integration into the community; and

(e)   to reduce pressure on resources in the court and prison systems.

(2) The objects are to be achieved by establishing drug courts."[10]

[33]  Whilst Drug Court magistrates must have regard to the principles stated in the Penalties and Sentences Act 1992 (Qld),[11] they also have broader powers.  These include doing "all things necessary or convenient to be done for the performance of [their] functions"[12] and "conduct[ing] proceedings quickly and in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of the proceedings"[13].  They are "not bound by the rules of evidence but may inform [themselves] in any way [they] consider appropriate".[14]  In making "relevant decisions",[15] Drug Court magistrates are required to consider the views of the offender's Drug Court team and other interested entities including Legal Aid (Queensland), a prosecuting authority, and departments administering the Corrective Services Act 2000 (Qld) and the Health Services Act 1991 (Qld).[16]

[34]  In the context of this statutory framework, I am unable to apprehend any "ethical connotation" or lack of the magistrate or prosecuting authority being "seen to be impartial and objective" arising from the graduation certificate dated 3 December 2007 signed by the magistrate on behalf of the Drug Court team.  Ms Newman's IDRO was by then vacated.  She was still subject to court orders and liable to statutory sanctions if she breached them.  But as at 3 December 2007, at least on the information before this Court, the statements contained in her graduation certificate were appropriately made.

[35]  FRYBERG J: I concurred in the orders which the Court made on 10 April 2008.  My reasons for doing so are reflected in the President's reasons for judgment, with which I agree.  I also agree with her Honour's comments regarding the graduation certificate signed by the magistrate on behalf of the Drug Court Team.

[36]  LYONS J:   I have had the advantage of reading the reasons of McMurdo P.  I agree with her Honour’s reasons and with the orders made.