Exit Distraction Free Reading Mode
- Unreported Judgment
- Appeal Determined (QCA)
- R v Kitson[2008] QCA 86
- Add to List
R v Kitson[2008] QCA 86
R v Kitson[2008] QCA 86
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 726 of 2007 |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED ON: | 11 April 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 April 2008 |
JUDGES: | Fraser JA, Fryberg J and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the applicant was convicted on his plea of guilty of one count of unlawful possession of the dangerous drug methylamphetamine, one count of unlawful possession of the dangerous drug methadone and one count of possession of a mobile phone for use in connection with the commission of the crime of supplying a dangerous drug – where the applicant was sentenced to imprisonment for a period of 12 months – where the trial judge ordered that the applicant be released on parole after serving nine months imprisonment APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – where the applicant’s parole release date was significantly past the halfway point of his head sentence – whether the trial judge erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point Corrective Services Act 2006 (Qld), s 199(1) Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1) Bawden v ACI Operations Pty Ltd [2003] QCA 293, cited Camden & Anor v McKenzie & Ors [2007] QCA 136, cited Crystal Dawn Pty Ltd & Taylor v Redruth Pty Ltd [1998] QCA 373, cited In re Hamilton; In re Forrest [1981] AC 1038, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited R v Anable [2005] QCA 208, discussed R v Armstrong [2005] QCA 116, discussed R v Assurson [2007] QCA 273, considered R v Cunningham [2005] QCA 321, cited R v McDougall & Collas [2006] QCA 365, considered R v Norton [2007] QCA 320, cited |
COUNSEL: | D C Shepherd for the applicant M J Copley for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent |
[1] FRASER JA: On 29 November 2007 the applicant was convicted on his plea of guilty to one count of unlawful possession of the dangerous drug methlyamphetamine, one count of unlawful possession of the dangerous drug methadone and one count of possession of a mobile phone for use in connection with the commission of the crime of supplying a dangerous drug. On the same date he was sentenced to imprisonment for a period of 12 months on each count, with an order that he be released on parole on 29 August 2008.
[2] The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive, particularly in relation to the specification of a parole release date after three quarters of the sentence will have been served.
Circumstances of the offences
[3] On 28 April 2006 the applicant was apprehended with a total of 22 bags each containing a small quantity of methylamphetamine (a total weight of 2.115 grams, equivalent to 0.217 grams of pure amphetamine), three methadone tablets and a mobile phone. When first questioned, the applicant falsely told police that only one bag, the one found in his wallet, was purchased by him. He said then, but later accepted it was untrue, that he had found the remaining 21 bags and the tablets. Text messages found on the mobile phone included requests for methadone or methylamphetamine by someone else. The fact that the methylamphetamine was contained in a large number of separate clipseal plastic bags was consistent with their possible future sale. It was common ground that the value of each bag was in the order of $50, with a total value of about $1,050.
[4] After a full hand up committal completed in March 2007, an indictment was presented on 21 September 2007 and the matter was listed for trial. In the week before trial the Crown agreed not to proceed with a count of unlawful supply of methylamphetamine and methadone to another person if the applicant pleaded guilty to the remaining three counts. Pleas of guilty to those three counts were entered on the morning of trial. That saved a very short trial, which would have involved only two police witnesses.
The applicant's personal circumstances
[5] The applicant was 49 years of age when he committed the offences, and is 51 years old now.
[6] He has a number of previous convictions for minor non-drug related offences in New South Wales and he has some convictions for drug related offences and other offences in Queensland. In 1995 he was sentenced to 200 hours of community service on charges of possession of a dangerous drug and supply of a dangerous drug, said to be heroin. In August 2004 he was convicted and fined for possession of methylamphetamine type powder and in September 2004 he was convicted and sentenced to six months probation for the possession of a controlled drug in that same month and for failing properly to dispose of a needle and a syringe. He was also convicted of a number of other relatively minor offences. It appears from submissions made on his behalf at the sentencing hearing that he served six months imprisonment in 2007 for a breach of probation resulting from a drink driving offence.
[7] A psychologist's report indicated that the applicant had last worked full time some 10 years before these offences, and had otherwise had some casual short term work but has been in receipt of a disability support pension for about nine years. He was granted that pension on account of his hepatitis C, alcoholism and being on the methadone program. The applicant reported a chronic history of poly-substance abuse and dependency, which had commenced at least by the time he was 20 years of age when he was addicted to heroin and dependent on alcohol. His dependency on amphetamine, with daily use, was said to have commenced from about 1999.
[8] The psychologist diagnosed the applicant's condition as being chronic, but commented that his amphetamine and opoid dependency was in remission at the present time. In that respect, the learned sentencing judge took into account the submission on the applicant’s behalf that as a result of the five months he spent in prison earlier in the year he came out released from addiction, at least for a time.
[9] The psychologist also observed that the applicant might benefit from rehabilitation although his prognosis was guarded in light of his chronic addictions, that the applicant might benefit from further drug and alcohol education programs and that he required medical and psychiatric supervision and treatment.
[10] The learned sentencing judge took these matters into account in arriving at the sentence. It is therefore appropriate to consider this application on the premise that the applicant has made some efforts at rehabilitating himself, with some degree of success, and that he might benefit from a sentence that promotes further efforts at rehabilitation.
The issues
[11] Both applicant and respondent accepted at the sentencing hearing and in this Court that a head sentence of between 12 months and 18 months imprisonment was within the discretion of the learned sentencing judge. I will return to this topic after considering the issues that were in contention.
[12] It is submitted on behalf of the applicant that the mitigating factors including the plea of guilty, efforts made towards rehabilitation, the applicant's recent period of imprisonment and his personal circumstances should have been recognised by fixing a parole release date at a time earlier than half of the term of the head sentence.
[13] In response, it is submitted on behalf of the respondent that it can be assumed that a head sentence of 12 months, at the bottom of the range, was settled upon to reflect those matters in the applicant's favour. The respondent’s contention is that, had the applicant proceeded to trial, he would have been sentenced to a term of 18 months imprisonment, so that his co-operation and other matters in his favour have resulted in him having to serve nine months in custody with a possibility that he might serve 12 months, rather than serving at least nine months in custody and being in jeopardy of having to serve as much as nine months more.
[14] The sentencing remarks do not articulate any such reasoning process. Nor should this Court assume such a construction. It was apparent from the matters accepted by the learned sentencing judge that this applicant might benefit from a parole period that was relatively lengthy, but the effect of the sentence, if constructed in the manner contended by the respondent, was that the factors in favour of the applicant were reflected in a relative reduction of the parole period as against the time required to be served in prison.
[15] The respondent submitted that the Court should distinguish those authorities holding that "good reason" must be demonstrated before fixing a parole release date at a point later than half of the term: R v McDougall & Collas [2006] QCA 365 at [14], [21]; R v Assurson [2007] QCA 273 per Williams JA at [22], per Keane JA at [27], and per Mullins J at [33]-[34]. The point of distinction is that those cases concern offences for which the effect of the legislation is that an offender will be eligible for parole at the halfway point of the sentence unless a contrary order is made. In this case, because the sentence was for a term of less than three years and the offences were not serious violent offences or sexual offences, the date upon which the applicant was to be released on parole was any date fixed by the learned sentencing judge which fell within any day of the applicant's sentence: Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1); Corrective Services Act 2006 (Qld), s 199(1).
[16] The submission accurately records the effect of the legislation, but it is not clear that R v McDougall and R v Assurson are to be distinguished on that basis. In each case, the Court retains a discretion, not relevantly fettered, to fix the relevant date (for eligibility for parole or for release on parole). It is, however, not necessary to consider that issue further in this matter, for two reasons.
[17] First, in a case such as this, where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the midpoint of the head sentence is very unusual: cf R v Norton [2007] QCA 320 per Douglas J. So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it.
[18] As was said in the joint judgment in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at paragraph [39], accessible reasoning is necessary in the interests of victims, the parties, appeal courts, and the public. Such an explanation might be quite brief in many cases, but here the reasons do not explain at all why the parole release date was postponed until after the mid-point of the sentence.
[19] There are decisions of this Court to the effect that a failure to give reasons that ought to have been given amounts to appealable error: Camden & Anor v McKenzie & Ors [2007] QCA 136; Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29]; Crystal Dawn Pty Ltd & Taylor v Redruth Pty Ltd [1998] QCA 373.
[20] Secondly, the applicant also contends for error in that the possibility of postponement of the parole release date beyond the mid-point of the sentence was not mentioned in submissions or by the learned sentencing judge at the sentence hearing.
[21] In my opinion, that contention must be accepted. Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.
[22] In re Hamilton; In re Forrest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that:
"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication."