SUPREME COURT OF QUEENSLAND

[1] de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the order proposed by His Honour, and with his reasons.

[2] KEANE JA:  On 10 April 2007 the applicant was convicted on his own plea of one count of unlawful production of the dangerous drug methylamphetamine (speed), one count of unlawful production of the dangerous drug MDMA, and one count of the intentional importation of  sassafras oil, the importation of which was prohibited under the Customs Act 1901 (Cth).

[3] The applicant was sentenced on that date to seven years imprisonment in relation to the unlawful production of speed with a recommendation for eligibility for parole after three years.  He was sentenced to shorter concurrent terms of imprisonment in respect of the other offences.

[4] On 1 March 2008, that is more than 10 months into his sentence and more than nine months after the time limit on any appeal expired, the applicant applied for an extension of time within which to apply for leave to appeal against the severity of the sentence in relation to the unlawful production of speed.

[5] At this point, some brief reference to the circumstances of the case is necessary.  When the applicant was arrested on 13 May 2004, he was found to be involved in a moderately sophisticated commercial operation producing speed and ecstasy.  It was said that he had obtained ingredients necessary for his operation from Western Australia, France and, potentially, Sri Lanka.

[6] The applicant was 30 years old at the time of this offence.  He had a lengthy criminal record which commenced when he was 18 years old.  He was himself a user of amphetamines but it was apparent that the production in question had a commercial aspect.  This was the fourth occasion on which the applicant was apprehended for offences involving either possession, or production of, drugs.  He had once previously been dealt with for producing amphetamine-based drugs.  On 13 February 2001 the applicant had been fined $600 for producing small quantities of speed for his personal use.  The offending for which he was sentenced in 2007 involved what the learned sentencing judge described as "a very significant step up in your activities." 

[7] The learned sentencing judge was evidently concerned, as he was obliged to be, that the applicant's criminal activity was escalating in its seriousness notwithstanding the leniency previously extended to him by the courts.

[8] It may also be noted that the learned sentencing judge gave the applicant credit for his early plea of guilty, as is reflected particularly in the recommendation for early eligibility for parole.

Delay

[9] The applicant has not given a satisfactory explanation for the delay.  The applicant initially said in his application for an extension of time dated 1 March 2008 that he did not appreciate that there was a 28 day time limit on any appeal until he was three months into his sentence, during which period he was expecting the lawyer who had acted for him on his sentence to get back to him.  This was plainly no explanation at all of the subsequent delay which he allowed to occur. 

[10]  On 2 July 2008 the applicant swore an affidavit to the effect that shortly after he was taken into custody he formed the view that an appeal had been filed on his behalf and that he was not advised that, in fact, an appeal on his behalf was not on foot until the time of his application for an extension.  What the applicant's affidavit does not show is any basis on which he could have formed and held a reasonable belief that an application for leave to appeal had been filed on his behalf.

[11]  Mr Kimmins of Counsel, who appeared on behalf of the applicant, argued that the absence of a satisfactory explanation for the applicant's delay should not be regarded as fatal to his application for an extension of time.  Mr Kimmins relied upon the statement by this Court in R v Tait:[1]

"The recent approach of this Court to the question of extending time in criminal appeals is sufficiently illustrated by R v Mentink ([1996] 1 Qd R 532, 536–537, 542; cf R v Lewis [1999] 2 Qd R 636) and a number of unreported cases in this Court (R v Porter (CA No 160 of 1997, 26 May 1997) especially per Davies JA and per McPherson JA; R v Wolfven (CA No 376 of 1997, 28 November 1997); R v Tatnell (CA No 42 of 1996, 13 March 1996); R v Doyle (CA No 70 of 1996, 2 May 1996). These suggest that the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal (Compare Kolalich v DPP (NSW) (1991) 173 CLR 222, 228; Gallo v Dawson (1992) 66 ALJR 859, 860), and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay."

[12]  A provisional assessment of the strength of the applicant's prospects of success in his application for leave to appeal against his sentence may proceed by reference to the contentions advanced by Mr Kimmins that the sentence was manifestly excessive and that it was also affected by error on the part of the sentencing judge in punishing the applicant for offences other than that of which he had been convicted.  I now turn to a consideration of these contentions.

Manifestly excessive?

[13]  The applicant seeks to argue that the sentence imposed in respect of the charge of production of speed was manifestly excessive.  In this regard, it must be said immediately that the head sentence which was imposed by the learned sentencing judge accorded with the submissions made to his Honour by Counsel who appeared on the applicant's behalf.  While it is true, as Mr Kimmins said, that the imposition of a proper sentence is a matter for the sentencing judge, where the sentence which is imposed accords with the submissions made by Counsel for the applicant to the sentencing judge, an argument that the sentence is manifestly excessive will usually be difficult to sustain.

[14]  Reference to the decision of this Court in R v Boyd[2] suggests that a sentence of seven years imprisonment is certainly at the top of the range which might properly be imposed for this offence.  In that case, this Court was obliged to re-sentence a 58 year old offender who had been convicted after a trial of one count of producing methylamphetamine and one count of possession of chemicals for use in the production of a dangerous drug.  The offender had previous convictions for drug related offences, but not for the production of dangerous drugs.  In that case, Counsel for the offender submitted that the relevant range was from three to five years imprisonment, and Counsel for the Crown contended for a range of five to seven years.  Williams JA, with whom Douglas and Mullins JJ agreed, referred to these suggested ranges and said:  "In my view, taking everything into account, the appropriate sentence is that of five years' imprisonment." 

[15]  In this case, it must be borne in mind that the sentence of seven years imprisonment was imposed in respect of the most serious of the offences of which the applicant had been convicted.  It may be that his Honour imposed a sentence higher than that which might have been fixed for that offence had it stood alone in order to reflect the overall criminality of all the offences of which the applicant was convicted.  Such an approach would not be inconsistent with the approach sanctioned by this Court's decision in R v Nagy.[3]

Other error?

[16]  The applicant seeks to argue that the learned sentencing judge had improper regard to evidence of criminal conduct on the applicant's part beyond that to which regard could properly be had in respect of the offences to which the applicant had pleaded guilty. 

[17]  It is well-established that a sentencing judge must not take into account in sentencing an offender circumstances which establish a separate offence consisting of conduct which did not form part of the offence of which the person to be sentenced has been convicted.[4]  The position was relevantly summarised by this Court in R v D:[5]

"Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes.

1. Subject to the qualifications which follow:

(a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

(b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp Merriman at 593, R v T at 455); and

(c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or

(c) a 'circumstance of aggravation' (Code, s 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.

3. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., 'context' or the 'relationship' between the victim and offender, or to establish, for example, the offender’s 'past conduct', 'character', 'reputation', or that the offence was not an 'isolated incident', etc."

[18]  It is argued on the applicant's behalf that the learned sentencing judge erred in having regard to the circumstances put before his Honour relating to the establishment and operation of the applicant's drug production operation because those circumstances revealed other offences with which he had not been convicted.  But these circumstances determined, as a matter of common sense, the offence of which the applicant had been convicted.  The applicant's connections in Western Australia, France and Sri Lanka to suppliers of ingredients necessary for his operation, the obtaining of supplies from these sources, and the materials and equipment found by police at the applicant's premises on 13 May 2004, were all circumstances properly relevant to demonstrate the commercial nature of the applicant's production of drugs.[6]

[19]  On my provisional assessment of the prospects of the application for leave to appeal, I do not consider that the applicant's prospects of demonstrating that the sentencing process miscarried are so strong that the interests of justice require that the applicant be afforded an extension of time in order to pursue his proposed application for leave to appeal against sentence.  But even if the applicant were able to establish that the sentencing process had miscarried so that it became necessary for this Court to re-sentence him, it is, I think, doubtful whether this Court would now impose a sentence substantially less severe than that imposed by the learned sentencing judge.

[20]  In light of circumstances which would now be before the Court, the considerations of personal deterrence and community protection would loom large.  It is ironic that one of the applicant's grievances stated in the application for leave which he prepared himself is that the sentence imposed on him in this case was much more severe than that which was imposed in February 2001 for, as the applicant put it, "doing the same thing". 

[21]  The point to be made here is that the applicant was not doing the same thing at all:  he had moved from production for his own use to commercial production.  The applicant's evident lack of insight into the criminality of the commercial production of methylamphetamine, even after 10 months in custody, highlights the need for a sentence which conveys a strong element of personal deterrence.  Furthermore, the protection of the community from an offender who cannot see the difference between his own personal use of methylamphetamine and the production of the drug for commercial purposes requires not only condign punishment but also a lengthy period of supervision of the offender on parole.  For these reasons, if the applicant were to be re-sentenced by this Court in the light of these circumstances, it is not likely that he would receive a substantially less severe sentence.

Conclusion and order

[22]  In my respectful opinion, the interests of justice do not warrant the grant of an extension of time to allow an application for leave to appeal against sentence to proceed.

[23]  I would dismiss the application for an extension of time.

[24]  LYONS J:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the reasons and the order proposed by his Honour.