SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 19 March 2008 the applicant pleaded guilty to two counts of possessing a dangerous drug with a circumstance of aggravation, one count of possessing a dangerous drug, two counts of receiving stolen property with a circumstance of aggravation and a number of summary offences.  He was sentenced to three years imprisonment in respect of each of the drug related offences and 18 months for each of the receiving counts.  For an offence of driving whilst disqualified, he was sentenced to six months imprisonment and was disqualified from holding or obtaining a driver's licence for three years.  For each of the other summary offences, he was sentenced to six months imprisonment.  All terms of imprisonment were to be served concurrently.  The learned sentencing judge fixed 8 July 2009 as the date for release on parole.  Thus the applicant was required to serve a little over 15 months in prison before his release on parole.

[2] The applicant seeks leave to appeal against his sentence on the ground that it is "manifestly excessive and contrary to law".

The circumstances of the offences

[3] The offences were committed on various dates between 31 December 2005 and 20 July 2007.

[4] On 2 October 2006 police searched the applicant's residence and found a small quantity of cannabis, a quantity of powder which contained 2.204 grams of methylamphetamine and 514 tablets which contained 22.809 grams of 3, 4 methylenedioxymethamphetamine.  He was also found in possession of electronic scales, a DVD player, jewellery and drug utensils.  The DVD player and jewellery were suspected of being tainted.  He was arrested, charged and admitted to bail.

[5] On 10 January 2007 police found the applicant in possession of 10 empty clip-seal bags which bore powder residues.  The powder contained 1.063 grams of methylamphetamine.  The applicant was arrested, charged and admitted to bail.

[6] On 20 July 2007 police found the applicant in possession of crystalline methylamphetamine which weighed 6.385 grams.  He also had $7,000 in cash and a notebook which contained references to transactions involving drugs.

[7] The receiving counts related to a stolen television set and stolen drivers' licences.

[8] On 22 July 2006 the applicant drove a vehicle at Bell's Creek while disqualified from holding or obtaining a driver's licence.

The applicant's personal circumstances

[9] The applicant was between 26 and 27 years of age when the offences were committed.  He was 29 years old when he was sentenced.

[10]  He has some history of offending.  In January 2002 he was placed on a 12 month bond for assault occasioning bodily harm.  In June 2006 he was fined $1,200 for possessing dangerous drugs.  On this occasion, a conviction was not recorded.  He was also placed on a 12 month bond for possessing drug utensils and property suspected of having been used in connection with a drug offence.

The sentence

[11]  At sentence, the Crown Prosecutor contended for a sentence of imprisonment for two and a half to three years with a period of 100 days pre-sentence custody to be taken into account in respect of the drug offences, with release on parole after a third of the sentence had been served.

[12]  The learned sentencing judge immediately made it clear that the sentence proposed by the Crown Prosecutor was unduly lenient.  His Honour invited Counsel for the applicant "to concentrate on the one year" actual imprisonment proposed by the Crown Prosecutor.  His Honour said: 

"The level of repetition of offending involved in what he has done seemingly involving an increase in the gravity of his offending with respect to drugs is a bad feature. 

You will need to show me that the decided cases could accord with a sentence which was any less than three years after allowing credit for the plea."

His Honour then allowed the applicant's Counsel opportunity to respond to his Honour's invitation to refer him to any "decided cases [which] would indicate that such a sentence [of three years] is too severe". 

[13]  After Counsel had been afforded that opportunity, his Honour indicated that he was provisionally minded to sentence the applicant to three years imprisonment, to be released on parole after "a few days less than 15 months".  Upon that indication being given, the applicant's Counsel chose not to make any submissions to the contrary.  Counsel did not seek to identify any error in his Honour's approach.

[14]  The learned sentencing judge referred to the circumstance that the applicant had spent 101 days in custody.  While this period could not be declared as time served under the sentence to be imposed by his Honour, his Honour made it clear that the applicant was being given credit for this period in the sentence imposed on him.

[15]  His Honour observed that by reason of the applicant's pleas of guilty, the applicant would be accorded a substantial discount on the sentence which he would have received had he proceeded to trial.

[16]  On the other hand, it was, as his Honour noted, a circumstance of concern that the acceleration of the applicant's involvement with dangerous drugs, including, by July 2007, use of methylamphetamine commercially, occurred while he was on bail.

The application

[17]  Insofar as the applicant asserts that the sentence was contrary to law, no error of law is apparent from a perusal of the learned sentencing judge's sentencing remarks.

[18]  The applicant argued that his Honour erred in law in proceeding on the footing that the applicant's criminal history included the conviction for a drug offence.  The applicant's point was that, on the occasion when he was dealt with for that offence, June 2006, a conviction was not recorded and, therefore, could not be taken into account for the purposes of the proceedings against the applicant for the offences of present concern.  The applicant's argument is contrary to the provisions of s 12(4)(b)(iii) of the Penalties and Sentences Act 1992 (Qld).

[19]  As to the applicant's contention that the sentence was manifestly excessive, the first point to be noted here is that the sentence was in conformity with the position ultimately advanced on the applicant's behalf before the learned sentencing judge.  While the imposition of a proper sentence is the responsibility of the sentencing judge, the circumstance that the sentence imposed accords with the position taken by the applicant at sentence means that the applicant's prospects of obtaining leave to appeal to argue that the sentence is manifestly excessive should usually be regarded as poor.

[20]  This difficulty for the applicant is confirmed in the present case by reference to R v Hesketh; ex parte A-G (Qld)[1] where a range of imprisonment of two and a half years to four years was said to be appropriate in relation to the possession of substantial quantities of dangerous drugs even where the offender has the benefit of a plea of guilty.

[21]  The applicant sought to argue by reference to the decision of this Court in R v Kunst[2] that more serious offending than his had attracted sentences which led to a period of imprisonment of 12 months before release on parole.  That case does not assist the applicant.  It was a case where there was only a recommendation for release on parole, whereas, in this case, the applicant has been given the benefit of a fixed release date.  In any event, the applicant's argument fails to recognise the breadth of the sentencing discretion confirmed by the decision in R v Hesketh and, further, that so far as the exercise of that discretion is concerned, there is no decision which suggests that the sentence imposed by his Honour was not open in the case of a mature repeat offender whose involvement in drugs has accelerated rapidly to commercial activities while on bail.

Conclusion and order

[22]  The sentence which was imposed was not affected by error of law, nor was it manifestly excessive.

[23]  The application for leave to appeal against sentence should be refused.

[24]  MUIR JA:  I agree with the reasons of Keane JA and with the order he proposes.

[25]  FRASER JA:  I agree with the reasons of Keane JA and with the order proposed by his Honour.