SUPREME COURT OF QUEENSLAND

1. McMURDO P: The applicant pleaded guilty on 22 October 2007 on an ex officio indictment to the following charges: conveying a thing to a person with the intention of aiding that person to escape from lawful custody (count 1), supplying dangerous drugs to a person within a correctional facility (counts 2 and 3), unlawful supply of weapons (count 4) and stealing as a servant (count 5).  He was sentenced to six months imprisonment on count 2 and three months concurrent imprisonment on count 3.  On each of counts 1 and 4 he was sentenced to six months concurrent imprisonment but this six month term was ordered to be served cumulatively on counts 2 and 3.  He was sentenced to a further six months imprisonment on count 5 also cumulative on the other terms of imprisonment.  A parole release date was fixed on 22 July 2008, nine months from the date of sentence and the halfway point in the total ordered period of imprisonment under the sentence of 18 months.

2. He was 20 years old when counts 1 to 4 were committed, 21 when count 5 was committed and 22 at sentence. He had a concerning criminal history. He committed an offence of break and entering premises and committing an indictable offence in March 2002 for which he was fined without conviction. He was also fined without conviction for some street offences in June that year. In August 2002 he was placed on three years probation without conviction for house breaking and break and enter. In March and June 2004 he was convicted and fined for breach of bail. In July that year he was sentenced to 12 months imprisonment for armed robbery with violence with a circumstance of aggravation and re-sentenced to lesser concurrent terms of imprisonment for the offences on which he had been placed on probation in 2002. In January 2005, he was sentenced to one month concurrent imprisonment for three charges of stealing; for obstructing a police officer and breach of bail he was convicted and fined $300. On 8 May 2007, he was sentenced to one month imprisonment, suspended for 15 months for two counts of breach of bail.

The offences

3. The circumstances surrounding the applicant’s present offences are as follows. When he was serving the term of imprisonment for armed robbery imposed in July 2004 he was befriended and protected by an older prisoner, X. X was serving a life sentence for murdering his wife whom he thought was about to inform on him to the authorities. X wanted the applicant to repay him for the protection he had provided. Shortly before the applicant was due for release, he became involved in X's plan to escape from custody. X also offered him a financial incentive and arranged for others to assist the applicant in the ambitious escape plan. X envisaged that a helicopter would be hijacked at gun point by his friends, and forced to fly onto the prison football field, and that X would effect his escape in it.

4. The applicant was released from prison on 20 May 2005. Shortly beforehand he aided others in smuggling a mobile phone to X. After his release, X provided him with money to purchase camouflage clothing. He forwarded $300 at X’s request to C, an associate of X (count 1).

5. On 24 May 2005, security officers found three “Aeroplane” brand tennis balls next to a security fence inside the correctional centre. The balls had been cut open and then glued together. The applicant had thrown them into the correctional centre. They contained 0.1 gram of methylamphetamine (count 2) and 15 grams of cannabis sativa heads (count 3). The applicant believed X was to use the drugs to pay others for past or future assistance in furtherance of his escape plans.

6. It was apparent from messages later found by the police on X’s mobile phone that he sought assistance from the applicant and others to aid in the escape by maintaining his mobile phone service and in obtaining equipment, including a GPS navigational system, maps, firearms and the helicopter. The applicant acted as a go-between in obtaining a rifle from H. He hid it for a time, retrieved it and handed it on to C. C lost possession of the gun in a dispute with a motorcycle gang so that in the end it was unavailable for use in the planned escape (count 4).

7. The applicant made contact with helicopter charter services in furtherance of the plan. By then he had begun to appreciate the growing seriousness of his involvement in the escape plan and he decided to extricate himself from it. He texted X on his mobile phone, giving the false explanation that his enquiries with helicopter companies had been fruitless.

8. On 25 May 2005, five days after the applicant’s release from custody, the mobile phone was found in X’s cell. The phone records were examined and some were linked to the applicant. Police searched the applicant's house and found items linking him to both X and C. He was interviewed in May, June and August 2005 and admitted his involvement in the offences. His co-operation with the authorities was very significant and brought into operation s 13A of the Penalties and Sentences Act 1992 (Qld).

9. Count 5 occurred between 21 and 24 September 2006, after the applicant was charged with, and on bail for, counts 1-4. The applicant was employed as a bottle shop attendant. He fraudulently obtained $1,166 from his employer. When interviewed by police he admitted his theft, claiming that he needed the money to pay his solicitor for the approaching court appearances relating to counts 1-4.

The sentencing proceeding

10. Both Mr East, who also represented the applicant in this Court, and the prosecutor handed up written submissions as to the effect of s 13A. In those submissions the prosecutor stated that the applicant’s co‑operation would be crucial in the prosecution of five alleged offenders.  The prosecutor stated that in recognition of the applicant’s crucial assistance, it was open to the judge to discount the sentences to be imposed by as much as 50 per cent.

11. In his written submissions, the prosecutor first contended that, after balancing the competing considerations, an effective head sentence in the range of 15 months to two years with a parole release date after serving between five and eight months would appropriately reflect the totality of both the applicant’s criminality and his ex officio guilty plea and admissions to police. He submitted that a further discount of up to 50 per cent could be given to reflect the s 13A co-operation. The transcript of the discussion between the sentencing judge and the prosecutor suggests that the judge considered such a sentence too lenient, especially because of counts 3 and 4. The prosecutor ultimately accepted that the offences could be seen as three separate episodes of offending and that the appropriate overall sentence, before the 50 per cent discount to recognise the s 13A co-operation, was two and a half to three years imprisonment with parole after 10 to 12 months.

12. Mr East tendered a report from a psychologist, Luke Hatzipetrou, who provided the following information and opinion. The applicant had a highly dysfunctional and abusive upbringing. He engaged in polysubstance abuse from the age of 13 years. He had recently abstained from illicit drugs and moderated his alcohol consumption. He displayed insight into the severity of his previous polysubstance abuse and acknowledged the impact of the illicit substance upon his behaviour and mental state. He had replaced his previous pattern of polysubstance abuse with functional and constructive behaviour such as fishing and camping. This had helped him form positive, non-delinquent peer relationships and increased his socialisation and development of coping strategies. He was of average intelligence. He had symptoms related to these offences consistent with post traumatic stress and anxiety. He is concerned at the potential impact of incarceration upon his personal safety and memories of previous attacks upon him in a correctional centre have re-emerged. He genuinely believed he would be unsafe in prison because of X's networks. He has previously been assaulted, tortured and humiliated in prison and was labelled a “dog” after he gave evidence for the prosecution against a co-offender. He claimed correctional officers observed some of these violent and degrading acts without interference or action. He was adamant that X would attempt to hurt him whilst in custody and that his safety in custody was significantly compromised. Mr Hatzipetrou considered that, whether in custody or in the community, the applicant should receive assistance from mental health professionals. His post-trauma symptoms would be likely to re-emerge if he were detained in custody.

13. Mr East tendered two references, one from an employer and another from a supportive law-abiding community member who had attended court. These references suggested that despite his prior history, the applicant has good prospects of rehabilitation. He had a job available and the support of a respectable community member who was assisting in his rehabilitation. His grandmother was also supportive and had attended court.

14. Mr East emphasised the applicant’s remarkable co-operation with the authorities and stated the following. The applicant's co-operation started when he was first sentenced to prison in July 2004 for the offence of robbery. He gave evidence against a co-offender and was given a reduced sentence. He was labelled by other prisoners as an informer and called a “dog”. It was with that background that X came to be his protector in prison. In the months preceding the applicant’s release, X began to pressure him to repay the protection. When he was released, the applicant felt committed to assisting X in his fanciful escape plan. The applicant was never more than the go-between in the supplying of the drugs to X. He understood that X was using the drugs to repay others who assisted X in his escape plan. The applicant finally realised the seriousness of what he had entered into and falsely told X that the helicopter companies would not fly anywhere near the prison. He had ended his involvement in the escape plan before the police became aware of it. When contacted by police he made full admissions, implicated others, gave statements and provided an undertaking to give evidence against those he implicated.

15. Mr East stated that the applicant had failed to appear in accordance with his bail undertaking in Cairns because he was terrified that if sent into custody he was at serious risk of at least a major assault.  He had seen another man assaulted while in protective custody and this man sustained brain injuries.  Mr East emphasised that the applicant’s sentence must be ameliorated both for his remarkable co-operation with the administration of justice under s 13A and also independently for his plea of guilty by ex officio indictment.  He urged the judge to impose an effective head sentence on all counts of between six and 12 months.  This would reflect a discount of about 50 per cent for his co-operation with the authorities under s 13A.  After also taking into account his early plea of guilty and assistance in the administration of justice, he submitted the judge should order the applicant's immediate release on parole. 

16. The learned sentencing judge considered that the most serious of the offences was the supplying of drugs in prison. This was because of the need to maintain discipline within prisons. His Honour also referred to the serious aspects of the other offences. The judge noted the need for the applicant to serve his term of imprisonment in protection, his youth, his plea of guilty by ex officio indictment, and the factors in the applicant’s favour referred to by his counsel. His Honour accepted that there was some prospect of rehabilitation and stated that he would limit as much as he could the time the applicant would spend in prison. As noted at the beginning of these reasons, the judge sentenced the applicant to an effective overall term of 18 months imprisonment with a parole release date fixed after nine months.

17. In closed court, the judge stated that he had discounted the sentences he would have imposed on all counts by 50 per cent because of the matters relevant under s 13A.

The submissions on appeal

18. In this Court Mr East conceded that the learned primary judge appropriately applied s 13A by recognising the applicant’s substantial assistance to the administration of justice, halving what would otherwise have been the appropriate sentence. Mr East also conceded that the judge was entitled to impose six months imprisonment on count 5 cumulatively on the sentences imposed on counts 1-4. He contended that the judge, first, erred in ordering that the terms of imprisonment on counts 1 and 4 be served cumulatively upon those imposed on counts 2 and 3. He submitted that counts 1-4 were all committed over a few weeks with a single object in mind: assisting X in his escape plan. For that reason he submitted that the sentences should have been concurrent and that their accumulation effectively made the overall sentence manifestly excessive.

19. He alternatively contends that the fixing of a parole release date after nine months failed to adequately reflect an appropriate reduction for the applicant’s timely pleas of guilty and co-operation with the investigating authorities above and beyond the s 13A co-operation.  He emphasises Pincus JA’s observations in R v Webber:^[1]

“… it is positively necessary to make it clear that co-operation, in the sense of incriminating other persons, will be likely to produce a significant discount in sentencing, quite apart from the discount obtained by persons who plead guilty”.

20. Mr East submits that the applicant should be released on parole after serving one third of the 18 month sentence on 22 April 2008.

21. Counsel for the respondent, Mr M J Copley, submitted that it was open to the judge to impose the sentences on counts 1-4 cumulatively on counts 2 and 3. He contended that the present parole release date "strikes the appropriate balance between denouncing the applicant’s conduct and recognising and encouraging his co-operation".

Conclusion

22. It is common ground that the learned sentencing judge gave sufficient recognition to the applicant’s co-operation relevant under s 13A by discounting the effective head sentence he would otherwise have imposed by 50 per cent. I am not persuaded the judge was wrong to order that the sentences on counts 1 and 4 be served cumulatively on counts 2 and 3. Although connected, the offences involved separate conduct and it was open to the judge to impose a cumulative penalty.  

23. The next issue is whether the accumulation of penalties makes the overall sentence manifestly excessive. The applicant participated in extremely serious anti-social offending. As the primary judge recognised, supplying drugs to those in custody and assisting prisoners in a planned escape from custody is conduct which the community, through the courts, rightly denounces. Courts must seek to deter such offences by the imposition of condign punishment. On the other hand, it was a significant mitigating feature that the applicant had ceased his involvement in the escape plan before the police became aware of it. The offence of stealing as a servant also had serious aspects. It was committed whilst he was on bail for the other offences and necessarily involved a breach of trust. Whilst an effective head sentence of as low as nine months imprisonment was within range, I am not persuaded that the 18 month effective head sentence imposed to reflect the applicant’s overall criminality for all five offences was manifestly excessive.

24. Mr East’s second contention does, however, have considerable merit. The applicant pleaded guilty by way of ex officio indictment and made admissions to police. His early guilty plea was a distinct mitigating feature in addition to his s 13A co‑operation: s 13 Penalties and Sentences Act 1992 (Qld) and R v Webber.  In addition, despite his concerning prior history, he was still a young man with real prospects of rehabilitation.  These mitigating circumstances warranted recognition additional to the 50 per cent reduction in his head sentence given for his s 13A co‑operation.  Balancing the seriousness of his offending with these additional mitigating factors, this recognition is most appropriately given by way of an early parole release date after serving about one third of the 18 month sentence.  This has the added advantage of ensuring the applicant's release into the community has the structured support provided by parole for 12 rather than nine months.  He will know that, should he re-offend, he will be likely to be returned to prison to serve the balance of his sentence.  In the circumstances of this case, the learned primary judge erred in not fixing a parole release date before the usual half way point of the combined 18 month sentence of imprisonment to reflect the many mitigating factors additional to his s 13A co-operation.  This omission made the effective sentence manifestly excessive.

25. I would grant the application for leave to appeal and allow the appeal. I would vary the sentence imposed only by vacating the parole release date fixed on 22 July 2008 and instead substituting a parole release date fixed on 22 April 2008.

26. ATKINSON J: I agree with the reasons of the President and the orders proposed by her Honour.

27. MULLINS J: I agree with McMurdo P.