SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with Fraser JA’s reasons for the orders pronounced by this Court on 12 May 2011.

[2]  FRASER JA: At the hearing of the applicant’s application for an extension of time within which to appeal against sentence on 12 May 2011 the Court made the following orders:

1.  Grant an extension of time to 17 March 2011for the applicant’s application for leave to appeal against sentence.

2.  Appeal against sentence allowed.

3.  Vary the sentence imposed at first instance by:

(a) Reducing the term of imprisonment of three and a half years imposed on the count of supply of a dangerous drug to 2 years 4 months 1 day.

(b) Setting aside the order fixing the appellant’s parole eligibility date at 5 March 2010.

(c) Ordering that the date for the appellant to be released on parole is 12 May 2011.

4.  The sentence imposed at first instance is otherwise confirmed.

[3] The effect of those orders was that the applicant’s term of imprisonment expired and he was released from prison immediately.  What follows are my reasons for agreeing with those orders.

[4] On 8 April 2009 the applicant was convicted on his pleas of guilty and sentenced for nine indictable offences and 14 summary offences which he committed between 5 December 2006 and 4 November 2008.  For the offence of supplying a dangerous drug, the applicant was sentenced to imprisonment for three and a half years.  He was sentenced to lesser, concurrent terms of imprisonment for each count of the other indictable offences: 18 months imprisonment for three counts of attempted fraud; 12 months imprisonment for counts of breaking and entering premises and stealing, and fraud; and six months imprisonment for wilful damage, attempted stealing, and entering premises and stealing.  The applicant was convicted but not further punished for the summary offences. 

[5] The sentencing judge also found that the applicant had breached suspended sentences of three months imprisonment and two months imprisonment imposed by the Magistrates Court on 5 June and 25 August 2006 respectively.  The applicant was ordered to serve the whole of each suspended sentence, five months in total, cumulatively upon the sentences of imprisonment.  The sentencing judge declared that 91 days which the applicant had spent in pre-sentence custody between 31 January and 1 May 2008, and a further 148 days the applicant had spent in pre-sentence custody between 11 November 2008 and the date of the sentence be deemed time already served under the sentences.  The sentencing judge fixed 5 March 2010 as the date upon which the applicant would be eligible to apply for parole.  Taking into account pre-sentence custody, the effective sentence was imprisonment for three years and 11 months with eligibility for parole after 19 months.

[6] On 17 March 2011 the applicant applied for an extension of time within which to seek leave to appeal against sentence.  In determining such an application the Court considers the length of the delay (it being easier to excuse a short than a long delay), any explanation for the delay, and whether it is in the interests of justice to grant the extension (which, if feasible, may involve some assessment of whether the appeal is viable): see R v Tait [1999] 2 Qd R 667 at [5].

[7] The applicant delayed in applying for just over one year and 10 months after expiry of the time for applying.  His explanation for that delay was that he was misinformed by his solicitors that the sentence was appropriate, it took him some months in prison to discover a disparity between his sentence and that imposed upon others, and his parole application process delayed his appeal.  Those reasons could not reasonably justify more than a part of the applicant’s delay.  Nevertheless, the sentence was a severe one and it was appropriate to review it on its merits.  For that purpose the Court was supplied with a transcript of the sentence proceedings, the sentencing remarks, the applicant’s criminal history, and other relevant material.

The applicant’s circumstances and the circumstances of the offences

[8] The applicant was between 35 and 37 years of age at the time of the relevant offending and he was 37 years of age when sentenced.  He had an extensive criminal history, mainly convictions for offences relating to drugs and (perhaps related) offences of dishonesty.  The history commenced in 1988 when the applicant was 17 years old.  He was not convicted of any offences during a three year period between 1989 and 1992 and for almost nine years between 1992 and 2001.  Otherwise the applicant committed offences in most years up to 2009.

[9] On 5 June 2006 he was convicted and sentenced to three months imprisonment wholly suspended for 15 months for a number of fraud offences, which the prosecutor told the sentencing judge involved changing the amounts on money orders.  The terms of that suspended sentence were breached by the three counts of attempted fraud in 2006 and four summary offences (crossing the road against a red traffic signal and obstructing police on 22 February 2007, and unlawful possession of a weapon and possessing tainted property on 11 June 2007).  After the applicant had committed the fraud offences (but in most cases before he had been given the suspended sentence of three months imprisonment) the applicant committed further offences, including offences of possessing dangerous drugs on 20 April 2006 and unlawful use of a motor vehicle between 10 May and 9 June 2006.  That led to the imposition of the second sentence of imprisonment on 25 August 2006 of two months wholly suspended for 12 months.

[10]  On 21 December 2006 the applicant was convicted of further drug related offences and offences of dishonesty which were submitted by the prosecutor to involve the use of a stolen credit card.  For those offences he was sentenced to seven months imprisonment, with parole eligibility on 20 January 2007, and the operational period of the suspended sentence imposed on 25 August 2006 was extended for six months.  The applicant breached the terms of that suspended sentence not only by the offences which constituted breaches of the first suspended sentence, but also by offences of breaking, entering and stealing, and fraud which the applicant committed on or about 28 January 2008, and an offence of wilful damage on 19 January 2008. 

[11]  The applicant committed the offence of supply of a dangerous drug on 15 July 2008.  He committed that offence in a court room in the Brisbane Magistrates Court.  The applicant, who was sitting in the public gallery, stood up and attempted to attract the attention of a person then sitting in the dock in the court.  After the person in the dock noticed the applicant, he took out of his pocket a pouch containing a grassy substance which smelt of marijuana.  He took some of the grassy substance out of the pouch, looked at the prisoner in the dock, threw the grassy substance towards the dock and then resumed his seat.  A couple of minutes later he walked out of the court room.  Police found in the dock a small ball of green leafy material, which was later identified as cannabis sativa.  The weight of the material was less than one gram.  The prisoner denied knowing the applicant, but the applicant claimed that he knew the prisoner.  There was no suggestion that the prisoner intended or attempted to receive or in fact received any of the material thrown in his direction.

[12]  The three counts of attempted fraud were committed in late 2006 when the applicant was in custody at the Woodford Correctional Centre.  The applicant attempted to defraud deceased estates by writing letters in response to advertisements calling for creditors of those estates to lodge their claims against the estates.  The applicant gave the post office box of Woodford Correctional Centre as his return address and asked that the cheques he sought from the deceased estates be made out to him.  The total value of the attempted frauds was $8,240.  The attempts were unsuccessful and no loss was sustained.

[13]  The wilful damage count was based upon the applicant’s conduct in January 2008 of damaging the wire mesh of a security screen of a building he was attempting to enter for the purpose of finding somewhere to sleep.  A person working at the building found the applicant stuck half way through the window, caught in the wire mesh.  One count of attempted stealing arose from the applicant’s conduct in having lifted a bottle of perfume in a department store on 9 October 2008.  He was seen and quickly caught.  On the same occasion he damaged some articles whilst attempting to remove the security tag from them. 

[14]  One count of entering premises and stealing arose from the applicant’s conduct on 4 November 2008 of stealing cold and flu tablets from a pharmacy in the Queen Street Mall.  The counts of breaking and entering premises and fraud were committed on 28 and 29 January 2008, when the applicant found a security card belonging to an employee of a firm of solicitors.  The applicant used the card to enter the solicitors’ office, where he stole computers and other equipment with a total value of $7,750.  He also stole two credit cards.  He used the credit cards for a number of transactions, some of which were unsuccessful because the signature the applicant used did not match the signatures on the cards.  The total value of the attempted purchases was $794.32.  The loss was $252.33.

[15]  It is unnecessary to set out the details of the applicant’s numerous summary offences, which largely comprised property and drug related offences, mostly of a minor character.  The applicant was also convicted of having unlawful possession of a “category A weapon” (an air rifle) for which he did not have a licence.

[16]  The prosecutor informed the sentencing judge that the total value of property involved in the applicant’s offending was $17,254.27 but much of that concerned unsuccessful attempts at offences.  The total loss to complainants was $8,402.33.

[17]  The applicant had an unstable childhood and he dropped out of school in grade 11.  He embarked upon what his counsel called a “hippie lifestyle with all its associated practices, including the recreational use of illicit drugs.”  He did study journalism for a period, which he financed by regular employment, and he also started a cadetship with the Department of Foreign Affairs in 1988.  He did not complete his studies or his cadetship and returned to his former lifestyle.  He married and had a son and a daughter (aged 11 and four respectively at the time of the sentence hearing), but the marriage broke down and his children and former wife lived overseas.  He had last been in gainful employment four years before the sentence hearing.

The sentence

[18]  The sentencing judge observed that the applicant had led a life of petty crime.  His Honour referred to the submission that the applicant’s drug use increased after he was divorced from his wife, and that the bulk of the increase on the applicant’s criminal record appeared from about 2001.  The sentencing judge referred also to the submission for the applicant that he had a desire to remake his life and to rejoin the community as a useful and productive member, and that the applicant had expressed regret for the offences he had committed.  The applicant’s pleas of guilty were regarded as early and relatively early pleas.  The sentencing judge gave credit for those pleas by fixing an early parole eligibility date.

Consideration

[19]  At the sentence hearing the applicant’s counsel portrayed many aspects of the applicant’s offending as unplanned, unsophisticated, and inept, as was plainly the case.  He sought to persuade the sentencing judge to take into account the prospect that the applicant would see the hopelessness of his continuing to offend.  That was related to counsel’s argument that the sentence should be mitigated because the applicant had expressed regret for his offences and was determined to abandon his life of drug abuse and crime.

[20]  The sentencing judge made some remarks which the applicant initially contended were inappropriate.  His Honour described the applicant’s attempt to defraud the deceased estates as being “knuckleheaded” and his conduct in supplying a dangerous drug to a person in the dock of the Magistrates Court as “breathtaking” and “so galatically [sic] stupid as to show a complete lack of any respect whatsoever for the Court system of this State.”  That was strong language but it did not evidence any departure from the essential requirements that sentencing judges must be and be seen to be judicial and objective in the sentencing process.  Those requirements underpin the moderation and decorum in the language typically used by sentencing judges, but plain speaking and strong language are appropriate in some cases.  Gratuitous insults are of course wholly inappropriate, but the sentencing judge’s remarks were certainly not in that category.  In the course of the applicant’s oral submissions in this Court he abandoned the initial contention in his application that the sentencing judge’s remarks were inappropriate.  The applicant acknowledged that his conduct merited the sentencing judge’s descriptions.  That was an appropriate concession.  The foolish and brazen nature of the applicant’s conduct in attempting frauds from prison in the way he did and in supplying a dangerous drug during a court hearing were relevant considerations in formulating a just sentence, as was reflected also in the applicant’s counsel’s reference to those matters.

[21]  The applicant argued that the sentencing judge failed adequately to moderate the head sentence for matters of mitigation, especially his pleas of guilty to the charge of supplying a dangerous drug.  Whilst I respectfully accept that there was merit in the applicant’s argument that the head sentence was unduly severe, it was open to the sentencing judge to give credit for the mitigating factors by fixing a relatively early parole eligibility date.  The applicant’s argument to the contrary was unpersuasive in view of the extent of his prior offending.  The applicant had failed to mend his ways in response to convictions, fines, and two probation orders (each for twelve months) imposed in the Magistrates Court at various times between 1988 and 2006.  He was not deterred from further offending by the suspended sentence of three months imprisonment imposed on 5 June 2006, the suspended sentence of two months imprisonment imposed on 25 August 2006, or the sentence of seven months imprisonment imposed on 21 December 2006.  Sentences designed primarily with rehabilitation in mind seem to have been no more effective than sentences which also focused upon deterrence.

[22]  However, there was merit in the applicant’s argument that the offence of supplying a dangerous drug did not justify a sentence of three and a half years imprisonment.  The sentencing judge described that offence as “the most serious of the offences before me”, made the strong remarks quoted earlier in these reasons, and imposed the sentence immediately after observing that “I’m proposing to sentence you on the most serious of the offences before me, serious both in terms of criminality and serious in terms of the circumstances in which it occurred.”  The implication was that the supply offence merited more severe punishment than any of the other offences for which the sentencing judge imposed concurrent terms of imprisonment varying between six and 18 months.  The respondent’s counsel conceded that he could not support that view and that the supply offence could not attract a more severe sentence than six months imprisonment.

[23]  In my respectful opinion those were appropriate concessions.  The applicant’s offence was constituted by his conduct in throwing less than one gram of cannabis in the direction of a person who the applicant had no reason to think wanted it or would accept it.  In light of the applicant’s plea of guilty there is no reason to question whether he committed the offence, but he did so only by an attempt at supplying the drug;[1] an attempt that was doomed to fail as it did.  The sentencing judge may have given too much weight to the prosecutor’s submissions that the circumstance that the supply occurred in open court was “significantly aggravating”, showed a “complete disregard for the authority of the Court”, and changed “what, on the face of it, is the supply of a small amount of cannabis into something quite different.”  Certainly the offence was brazen and it is not a mitigating factor that, as the applicant’s counsel submitted at the sentence hearing, there were indications that the applicant was under the influence of drugs when he committed the offence.  However the applicant was not charged with contempt of court and the circumstances of the offence suggested an impromptu act of foolishness rather than serious criminality.

[24]  As the respondent’s counsel acknowledged, none of the decisions cited in the schedule supplied by the respondent were truly comparable.  The most relevant was R v Cole,[2] in which Demack J (with whose reasons McPherson JA and Helman J agreed) described a sentence of three months imprisonment imposed concurrently with an activated suspended sentence of fifteen months imprisonment as “very proper”.  That was many years ago, Cole was only 23 years old and, though her criminal history was significant and diverse, it occupied a much shorter period.  However her culpability was much more serious.  She committed the offence of aggravated supply of a dangerous drug (cannabis) because her supply occurred within a correctional facility,[3] whereas the applicant was convicted only of the offence of supplying the drug; her offence was premeditated, whereas the applicant’s supply was an impromptu and hopeless attempt; and although Cole supplied only 1.3 grams of cannabis to the prisoner, the applicant supplied even less. 

[25]  The respondent argued that the sentence could be supported on the footing that it was intended to reflect the applicant’s overall criminality, both in the drug offence and in the other indictable offences for which the sentencing judge imposed lesser concurrent terms of imprisonment and the summary offences for which the applicant was not further punished.  That is a common sentence structure and the prosecutor had submitted that three and a half years imprisonment was appropriate as a “global head sentence”, but the sentencing judge did not refer to that submission and attributed undue significance to the supply offence in the way discussed earlier.  The Court was not referred to any decisions or reasoned argument which suggested that any of the concurrent sentences were inadequate.  Once it was conceded that the appropriate sentence for the supply offence could not exceed six months imprisonment, the term of three and a half years imprisonment was demonstratively excessive, even taking into account the applicant’s unimpressive criminal history and allowing for some accumulation of the concurrent terms imposed by the sentencing judge.  I concluded that the sentence of three and a half years, as a component of the effective sentence of three years and 11 months, was manifestly excessive.

[26]  Accordingly, I concluded that the Court should grant the extension of time sought by the applicant and exercise the sentencing discretion afresh.  In that exercise I adopted the approach advocated for the respondent of imposing one sentence reflective of the applicant’s criminality in all of the offences, together with lesser, concurrent sentences for the other offences.  Ordinarily the most serious offence might be chosen for that purpose, but the same effective result could be achieved instead by varying the sentence imposed by the sentencing judge for the supply offence.  The parties were content for the Court to adopt the latter approach.

[27]  There was no contest at the sentence proceeding or on appeal that the applicant should be required to serve the whole five month period of the activated suspended sentences, and that it should be imposed cumulatively upon the concurrent sentences imposed by the sentencing judge.  Provided that the overall sentence was not then inappropriately crushing, that was not unjust in light of the applicant’s criminal history and his persistent and varied breaches of the terms of those suspended sentences.[4]

[28]  Having regard to the unusual features and variety of the applicant’s offending, it was difficult to find any truly comparable sentence and none was cited.  For the reasons given earlier, however, this component of the sentence should not exceed two and a half years imprisonment.  At the time of the hearing on 12 May 2009, the applicant had served two years, four months, and one day of his sentence, in addition to the five months he had served on account of the activated suspended sentences.  There was then the further complicating factor that, according to evidence adduced by the respondent, the applicant was not released on parole until 22 February 2011. (He was returned to custody after about seven weeks, on 12 April 2011, as a result of what was said to be his “failure to comply with his Ozcare conditions not returning prior to his required curfew.”) Having regard to the length of time which the applicant spent in custody before being released on parole, in my opinion the appropriate order was to reduce the sentence of three and a half years imprisonment to one which resulted in an overall sentence of imprisonment that expired on the day of the hearing in this Court.

[29]  WHITE JA:  On 12 May 2011 I joined in orders which are set out in paragraph 2 of the reasons for judgment of Fraser JA.  My reasons for doing so are reflected in his Honour’s reasons which I gratefully adopt.