SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P: I agree with Atkinson J's reasons for granting the application for leave to appeal against sentence and allowing the appeal.  I also agree with the orders proposed by Atkinson J.

[2]  ATKINSON J: The applicant, Travis John Baker, was sentenced in the Supreme Court in Brisbane on 14 October 2010.  On that day he pleaded guilty to one count of trafficking in the dangerous drug 3,4-Methylenedioxymethamphetamine (“MDMA”) between 31 December 2008 and 28 February 2009, one count of possessing the drug and one count of possessing a mobile phone used in connection with the trafficking offence.  Those offences were committed in breach of a suspended sentence which had been imposed on 10 July 2007.

[3] On the count of trafficking, he was sentenced to two years and six months imprisonment.  On count 2, he was sentenced to 12 months imprisonment and, on count 3, three months imprisonment.  All those terms of imprisonment were to be served concurrently.  However they were ordered to be served cumulatively upon a suspended sentence which had a residual period of 14 months outstanding at the time of sentence.  The sentencing judge first ordered him to serve the whole of the 14 months; then imposed the sentences on the three count indictment before him.

[4] The applicant’s effective sentence was therefore three years and eight months imprisonment.  His parole release date was set by his Honour as 14 June 2012, which was one year and eight months into that sentence.  His Honour set that date on the basis that it was six months after he commenced serving the sentences on the drug offences.  The prosecutor then submitted that the sentencing judge did not have the power to set a parole release date if the cumulative sentence was for more than three years.  The judge did not accept that submission but nevertheless said that, if he did not have the power to set a parole release date, then 14 June 2012 was to be the applicant’s parole eligibility date.

[5] The applicant applied for an extension of time in which to make an application for leave to appeal against his sentence.  That application was filed on 20 January 2011.  The application was filed some two months out of time.[1]

[6] On an application for extension of time within which to apply for leave to appeal against sentence, the court considers whether there is any good reason for the delay in applying and whether it would be in the interests of justice to grant the extension.[2] 

[7] The applicant’s explanation for the delay in filing his application for leave to appeal his sentence is fairly scant but the delay was not lengthy.  He said that he tried to get his appeal sorted out within 28 days but was unsuccessful due to limited access in the Brisbane Correctional Centre and so he gave up.  He said his solicitor then came to the Woodford Correctional Centre and asked him why he had not appealed his sentence.  He said that his solicitor told him he should appeal as he was dealt with harshly and neither his barrister nor the prosecutor knew why.  His solicitor said that the sentencing judge gave a harsher sentence than the prosecution was asking for.  The applicant said he then applied for legal aid and awaited a response and for the forms for filing an application.  He said he filled out the forms and sent them in as soon as possible.  He opined there might be delays because of the flood crisis.  The application was dated 14 January 2011 and received by the Court of Appeal on 20 January 2011.

[8] Even if there is not a satisfactory reason for the delay, the court retains a discretion to grant an extension of time if a miscarriage of justice might otherwise be perpetuated.[3]  It is therefore appropriate to consider whether there is any substance in the proposed application for leave to appeal against sentence.[4]  If that application has merit then an extension will be granted if a refusal to do so would perpetuate a miscarriage of justice.

[9] The applicant was sentenced on the basis that he was a low-level street dealer in MDMA.  During the time of his trafficking, he sold about 300 tablets to friends and acquaintances and made a profit of about $400.  He was apprehended with 48 tablets in his possession.  The total weight was 17.802 grams with a pure weight of 1.192 grams.  The mobile phone in his possession had been used by him in his drug dealing.  The evidence of his trafficking in MDMA was derived solely from the interview which he voluntarily underwent with police.  In that interview he disclosed that on four occasions over the previous two months he had purchased between 60 and 100 tablets at a price of $15 per tablet and had on sold them for between $17 and $20 each.  He would purchase the tablets on “tick” and had made a profit of approximately $400.  He was himself a drug user and had used that money to pay bills and living expenses.

[10]  The applicant was 23 years old at the time of his offending.  He had a very poor traffic record and a criminal history with a few very minor offences and one more serious offence of grievous bodily harm.  He had no previous convictions for drug offences.

[11]  On 10 July 2007, he had been sentenced in the District Court, on his plea of guilty on one count of grievous bodily harm, to two years imprisonment suspended after four months with an operational period of three years.  The offence had occurred on New Year’s Eve, 31 December 2005.  The applicant, who was somewhat intoxicated, was assaulted and as a result dropped and broke his valuable mobile phone.  The complainant apparently apologised and walked away.  The applicant did not hear the apology and walked after the complainant with a companion.  The applicant punched the complainant twice.  The complainant suffered “quite severe” facial injuries.  The sentencing judge took into account his frank admissions to the police, his early plea of guilty, his unblemished record before the offence and minor problems since, his employment, in which he was held in high regard, and his stable personal life.  The sentencing judge explained to the applicant that if he committed any offence for which imprisonment could be the result, he could and probably would be brought back to court to argue why he should not be sent to prison to serve the rest of the two years.

[12]  Subsequent to his release from prison, the applicant committed two offences punishable by imprisonment during the operational period.  They were two counts of obstructing a police officer: the first committed on 10 November 2007, the day he was released from prison; the second on 2 March 2008.  They were relatively minor offences and resulted in fines.  On a further occasion on 15 December 2007 he was convicted of contravening a direction or requirement of a police officer.  That offence did not breach the suspended sentenced because it does not carry a term of imprisonment.  As the sentencing judge who dealt with him in the District Court on 9 October 2008 said, he showed a disturbing lack of insight in relation to the importance of complying with a suspended sentence when he said to the police “I can do what I like.  I have just been released from gaol.”  The sentencing judge then activated six months of the suspended sentence and ordered an immediate parole release date.

[13]  Fourteen months of the suspended sentence therefore remained in place and did not expire until 9 July 2010.  It was while he was subject to both parole and the suspended sentence that he committed the drug offences for which he was sentenced in the Supreme Court.  The court report prepared by Queensland Corrective Services on 25 March 2010 shows that his parole was suspended on 2 March 2009 as a result of the drug offences and he was returned to custody on 13 March 2009.  The applicant was released from prison on 9 April 2009 at the end of the six month activation of the suspended sentence imposed in the District Court on 9 October 2008.  The senior probation and parole officer said that he was mechanically compliant with reporting requirements but presented with no interest in complying with interventions.  He was therefore assessed as unsuitable for further community based supervision.

[14]  On 11 September 2009, the applicant was convicted of driving a motor vehicle while under the influence of liquor.  His blood alcohol level was 0.087.  He was convicted, fined $450 and disqualified from driving for three months.  His traffic history was tendered solely to show this offence which breached his suspended sentence.  Apart from that, there was no offending between 9 April 2009 when he was released from prison and 14 October 2010 when he was sentenced in the Supreme Court.

[15]  When he appeared for sentencing, the applicant had a strong reference from the construction company which employed him, he also had references from the rugby league club of which he was a playing member.  A letter from his father showed that his father and mother both had severe medical problems with which he helped them at home.

[16]  The applicant’s plea of guilty was timely after a full hand up committal.  The trafficking charge was based entirely on his admissions to police.  The police otherwise had no evidence to implicate him in that crime.

[17]  The prosecutor submitted that the appropriate range of imprisonment for an offence of this kind was three to five years.  She referred to two cases: R v SBK [2009] QCA 107 and R v Challacombe [2009] QCA 314.  Both of those cases concerned higher level and more serious offending so the prosecution submitted that the head sentence for trafficking should be three years with concurrent sentences of 12 months imprisonment for possessing dangerous drugs and three to six months imprisonment for possessing things.  The prosecutor submitted that the remaining period of 14 months of the suspended sentence should be activated and that it should be served concurrently with the head sentence for the current matters.

[18]  The sentencing judge observed that he thought the appropriate course was to make the applicant serve the whole of the unexpired portion of his suspended sentence but then to reduce, to some extent, the sentence that he would otherwise impose for the trafficking and order that to be served cumulatively.  The prosecutor accepted that this was another way to ameliorate the sentence and submitted that a parole release date or parole eligibility date should be set before half-way to take account of his cooperation with the authorities, the fact that, but for his admissions, he would not have been charged with trafficking and his timely plea of guilty.

[19]  On sentencing the applicant’s counsel referred to his good upbringing, stable work history, sporting ability, the continuing support of his family and his support for his parents who were both extremely unwell.  He also referred to the applicant’s full and frank admissions to the police, his remorse, his previous drug addiction and his low-level dealing.  He submitted that the judge should impose a sentence of two years and six months imprisonment, to be served concurrently with any period of the suspended sentence he was required to serve.

[20]  In R v SBK, the applicant pleaded guilty on an ex officio indictment to trafficking in MDMA in a three month period towards the end of 2007.  He was sentenced to a term of two years and six months imprisonment with a parole release date after six months in custody.  He had made a weekly profit during the time of between $250 and $1,000.  He sold between 50 and 100 tablets every weekend for a profit of between $5 and $10 a tablet.  He had given further assistance to the police by identifying a number of other ecstasy dealers in hotels and clubs in Townsville.  He was however not drug dependent and engaged in the trade purely for profit.  From small beginnings he extended his business to bulk sales and deliberately increased his activity to provide an income when he was disabled from work.  The court was not persuaded that the sentence imposed was manifestly excessive.

[21]  In R v SBK the applicant’s confession to otherwise unknown trafficking and extensive cooperation with the police led to a very substantial reduction in the time that he was required to serve in prison before he was released on parole, being only six months of the sentence of two years and six months imprisonment.  The head sentence reflected the seriousness of his offending which, while still a relatively low-level, was more extensive than that of the applicant in this case.

[22]  In R v Challacombe a sentence of five years imprisonment for trafficking in the dangerous drugs methylamphetamine and 3,4-Methylenedioxymethamphetamine over a period of four to five months was held not to be manifestly excessive.  He sold about 1,000 ecstasy tablets and two bags of methylamphetamine with a turnover of between $24,000 and $30,000 with a profit to him of $3,000 to $4,000.  It was ordered that he be eligible for parole after serving 18 months of his sentence of imprisonment.  That case involved much more extensive trafficking than the offending in this case.

[23]  The learned sentencing judge referred in his sentencing remarks to the applicant’s being a low-level street dealer in MDMA who had made about $400 profit and sold around 300 tablets to friends and acquaintances.  His Honour referred to the need for general deterrence and said that he thought that the most comparable case R v SBK.  His Honour also referred to the applicant’s youth, his timely plea of guilty and his extensive cooperation with the investigating authorities and that, without his admissions, the extent of his drug dealing would not have come to light.

[24]  His Honour referred to the fact that the applicant committed the offences during the operational period of a suspended sentence.  His Honour also referred to his traffic history which he said was irrelevant except that it “seems to show a young man with a determination to act irresponsibly and selfishly and to ignore the dictates of civilised society and the obligations we all have to live in society.”

[25]  His Honour stressed the importance of requiring a person who offends whilst subject to a suspended sentence being required to serve the whole of the unexpired term.  As the offences for which the applicant was being sentenced were different in character and committed at a different time, his Honour took the view that it was not appropriate to order that the imprisonment be served concurrently which meant that the applicant would spend a considerable time in prison.

[26]  The sentencing judge did not refer in his sentencing remarks to a number of matters raised in the submissions including that the applicant had no previous convictions for drug offences, that the prosecutor had submitted that his traffic history was irrelevant apart from the fact that it showed a breach of the suspended sentence, that he was subject to parole at the time of the commission of the offences and that some of the suspended sentence had previously been activated, that his offending arose due to his own addiction, that he was in a committed relationship and had obligations to his seriously unwell parents and that he had a good upbringing and a stable work history. 

[27]  There appear to be a number of related issues which need to be addressed in order to determine whether or not the sentence imposed discloses any appellable error.  The first is whether or not there was any error in imposing cumulative rather than concurrent sentences; secondly, if a cumulative sentence was not imposed in error, did the combined sentence lead to a sentence which offended the totality principle; thirdly, was there any error in activating the whole of the suspended sentence under s 147 of the Penalties and Sentences Act 1992 (Qld) (“PSA”) and fourthly, did the judge, in setting the applicant’s parole release date or parole eligibility date as 14 June 2012, being six months into the two and a half year sentence imposed, fail to take account of the requirement to set a parole eligibility date for the whole of the sentence imposed and the various factors in mitigation.

Should the sentences have been imposed cumulatively?

[28]  Section 147 of the PSA sets out the power of a court dealing with an offender who has been in breach of a period of suspended imprisonment.  Subsection 147(1) provides that the court may:

“(a)order –

(i)that the operational period be extended for not longer than 1 year; or

(ii)if the operational period has expired when the court is dealing with the offender –

(A)that the offender’s term of imprisonment be further suspended; and

(B)that the offender be subject to a further stated operational period of not longer than 1 year during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended imprisonment; or

(b)order the offender to serve the whole of the suspended imprisonment; or

(c)order the offender to serve the part of the suspended imprisonment that the court orders.”

[29]  Section 147(2) provides that the court must make an order under subsection 147(1)(b) unless it is of the opinion that it would be unjust to do so.

[30]  Section 147(3) sets out the factors that the court must have regard to in deciding whether it would be unjust to order the offender serve the whole of the suspended imprisonment:

“(a)whether the subsequent offence is trivial having regard to –

(i)the nature of the offence and the circumstances in which it was committed; and

(ii)the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii)the antecedents and any criminal history of the offender; and

(iv)the prevalence of the original and subsequent offences; and

(v)anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example –

(A)the relative length of any period of good behaviour during the operational period; and

(B)community service performed; and

(C)fines, compensation or restitution paid; and

(D)anything mentioned in a pre-sentence report; and

(vi)the degree to which the offender has reverted to criminal conduct of any kind; and

(vii)the motivation for the subsequent offence; and

(b)the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c)any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.”

[31]  If a court orders the offender to serve imprisonment under s 147(1) of the PSA, then s 148 provides that unless the court otherwise orders, the imprisonment must be served immediately, and subject to a provision not here relevant, concurrently with any other imprisonment previously imposed on the offender by that or any other court.

[32]  The PSA does not otherwise deal with whether or not the order to serve the whole or part of the suspended imprisonment should be ordered to be served concurrently or cumulatively with a sentence imposed for an offence which was committed in breach of the suspended sentence and for which the offender is being sentenced on the same occasion on which the offender is ordered to serve the whole or part of the period of suspended imprisonment.  The judge has a choice to impose sentence on the indictment before the court and then decide whether or not to activate the suspended sentence, in whole or in part, in which case the suspended sentence must be served concurrently with the sentence imposed on the indictment; or to activate the suspended sentence and then sentence on the indictment.  That is the more usual course: R v Chard; Ex parte Attorney-General (Qld) [2004] QCA 372 at [7], Rv Gander [2005] QCA 45 at [24].  In that case the sentences may be ordered to be served cumulatively or concurrently.  The period of suspended imprisonment which is activated must be served immediately unless there is a specific order to the contrary.

[33]  Section 156A of the PSA prescribes the circumstances in which a sentence of imprisonment must be ordered to be served cumulatively on any other term of imprisonment which the offender is liable to serve.  In order to come within that section the offender must firstly be convicted of an offence against a provision mentioned in Schedule 1 of the PSA (or of counselling, procuring, attempting or conspiring to commit such an offence).  Trafficking in dangerous drugs contrary to s 5 of the Drugs Misuse Act 1986 (Qld) is such an offence.  Secondly, the offender must have committed the offence while serving a term of imprisonment, or whilst on parole, leave of absence or at large after escaping from lawful custody under a sentence of imprisonment.  There is no requirement that any sentence of imprisonment imposed for an offence which is committed in breach of a suspended period of imprisonment be served cumulatively.  It was not therefore mandatory in this case to impose a cumulative term of imprisonment.

[34]  When s 156A does not apply, sentences of imprisonment are served concurrently unless the sentencing judge otherwise orders.  That is the effect of s 155 of the PSA.  For sentences to be served cumulatively the sentencing judge must specifically direct that they are served cumulatively.  Whether or not sentences are ordered to be served cumulatively or concurrently is a matter of sentencing discretion.  The sentencing judge gave reasons for imposing them cumulatively, in particular that they were committed at a different time and were of a different character.  It could not be said in these circumstances that the sentencing judge erred in imposing cumulative sentences.  It was not necessary; but it could not be said to have been an erroneous exercise of the sentencing discretion.

Totality principle

[35]  As the imposition of a cumulative sentence was not in error, the next question to be considered is whether the combined sentence imposed offended against the totality principle.

[36]  In Mill v The Queen (1988) 166 CLR 59 at 62-63, the High Court approved the following expression of the totality principle in DA Thomas, Principles of Sentencing (2nd ed, 1979) at 56-57:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.  The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces.  It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.” [footnotes omitted]

[37] In Mill, the applicant committed three armed robberies within a period of six weeks in two different states.  He was sentenced in respect of two of the offences to ten years imprisonment with a non-parole period of eight years.  On his release he was arrested and convicted in the second State and sentenced to eight years imprisonment, with a recommendation of parole after three years.  The High Court held, at 66, that the proper approach the sentencing judge in the second State should have taken was to consider what the effective head sentence would have been if the applicant had committed all three offences in one jurisdiction and been sentenced at the same time.

[38] The PSA does not explicitly refer to the principle of totality.  Sections 9(2)(k) – (m) are however consistent with the principle and provide that in passing a sentence a court must have regard to "sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing",[5] "sentences already imposed on the offender that have not been served"[6] and "sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender".[7]

[39]  The Court of Appeal in Western Australia in Stubley v Western Australia [2010] WASCA 36 at [410] described the totality principle as comprising two aspects:

“First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).  Secondly, the total effective sentence imposed on an offender should not constitute a ‘crushing’ sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.”  [footnotes omitted]

[40]  The idea that a sentence should not be “crushing” was referred to in Postiglione vThe Queen (1997) 189 CLR 295, where Dawson and Gaudron JJ at 304 observed that the totality principle serves to ensure that an offender is not subjected to a “crushing sentence” not in keeping with his or her record and prospects.  In that case, two prisoners were convicted of offences committed together while in custody and sentenced to 25 years with a non-parole period of 18 years and 18 years with a non-parole period of 13 years and 10 months respectively.  The prisoner whose effective sentence was increased by the longer period appealed on the basis of disparity between the sentences.  The High Court allowed the appellant’s appeal holding that both the parity and totality principles were relevant considerations to sentencing in the case.

[41] In R v Cutajar; Ex parte A-G (Qld) [1995] QCA 570 at 8, McPherson JA referred to its being appropriate to take into account, when imposing a cumulative sentence, that the combined effect ought not be such as to make it a “crushing” burden for the offender.

[42] The totality principle has also been applied recently in this court.  In R v Nolan [2009] QCA 129, the appellant was convicted of assault occasioning bodily harm, burglary and unlawful use of a motor vehicle and sentenced to concurrent terms of five years imprisonment for each offence.  An  18 month suspended sentence of imprisonment was also activated and ordered to be served concurrently with the five year terms.

[43] Fraser JA (with whom the other members of the court agreed) observed that the sentencing judge had imposed the terms of imprisonment concurrently to avoid a sentence which her Honour thought would be “crushing” in light of the applicant’s young age.  After referring to the High Court authorities in Mill and Postiglione, his Honour stated at [22]:

“… the application of the totality principle involves a discretionary judgment committed to the sentencing judge.  In that respect, the sentencing judge had the advantage, denied to this Court, of seeing and hearing the applicant during a lengthy trial and in the sentence hearing.  The sentencing judge’s view that some substantial allowance should be made in the application of the totality principle should be respected.”

[44] The court ultimately allowed the appeal on the grounds that the five year terms of imprisonment were manifestly excessive in light of comparable decisions for similar offences.

[45] In Sobieralski v Commissioner of Police [2009] QCA 90, the appellant pleaded guilty in the Magistrates Court to a number of offences including common assault, minor drug and motor vehicle offences and public nuisance.  He was sentenced to a total of 27 months imprisonment and ordered to pay fines of $1,700 and compensation of $4,899.20.  He appealed on the grounds that the sentence imposed was manifestly excessive, that the combination of imprisonment and monetary penalties was inappropriate in the circumstances and that insufficient attention was paid to the totality principle.

[46]  The court at [22] referred to the passage in Mill set out above and stated that the appropriateness of combining imprisonment and substantial monetary penalties should be considered by the court when considering the totality of the sentence imposed.  The court allowed the appeal, ordering that the appellant’s fines and penalties be removed so that he was not in danger of further imprisonment because of any inability to pay those moneys.

[47]  The sentencing judge in this case did not consider, after he had imposed both sentences, whether the combined sentence offended the totality principle.  He did not, in accordance with the requirements in Mill, review the aggregate sentence and consider whether the total was just and appropriate.  What he did instead was to impose a slightly lower sentence on the trafficking charge than that contended for by the prosecutor, when she had submitted for that sentence to be imposed concurrently with the activation of the suspended sentence.  That reduction took it down to a head sentence of two and a half years, the same head sentence imposed in R v SBK for more serious offending.  The failure to explicitly consider the aggregate sentence in order to determine whether the total sentence was just and appropriate bespeaks an error in the exercise of the sentencing discretion.

Factors to be considered in activating the suspended sentence

[48]  In exercising the discretion under s 147(2) of the PSA, the sentencing judge must have regard to the setting of a parole release date or parole eligibility date.  Holmes JA explained the necessary procedure in R v Norden [2009] QCA 42 at [13]-[15] as follows:

“[13]The question is whether the decision to set the parole release date should be regarded as an aspect of the decision to be made under s 147(2); that is, something to be taken into account in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment.  (Section 147(3) specifies the factors which must be taken into account, but that list is not an exhaustive list: see R v Stevens).  Or, alternatively, should it be treated as a separate and independent exercise of discretion, arising once a decision is made that it is not unjust to require the offender to serve the suspended imprisonment?

[14]The first alternative provides, in my view, the better answer.  What must be borne in mind is that a judge acting under s 147 is not re-sentencing an offender, but dealing with him for a breach of suspended sentence.  The first step in that process is to consider whether it is unjust to make an order that the offender serve the whole of the suspended imprisonment.  Necessarily, in deciding whether it is unjust to so order, relevant considerations will be that a parole release date or parole eligibility date is to be set, and when it is to be set.  Decisions as to parole cannot sensibly be made as a separate exercise of discretion; one does not decide that it is not unjust to order the offender to serve the whole of the suspended imprisonment and only then turn to consideration of a parole date.  Rather, the judgment required by s 147(2) must be made allowing for the prospective parole date, among other relevant factors.  That process is appropriately regarded as entailing a single exercise of discretionary judgment; and the appeal from an order made under s 147(1)(b) should be regarded as correspondingly confined to an examination of that discretionary judgment.

[15]That situation does not alter simply because the order is made in combination with others.”[8]

[49]  In this case, the learned sentencing judge failed to take account of the parole release date or parole eligibility date in determining how to exercise his discretion under s 147 of the PSA.  As previously mentioned, his Honour only considered imposing a parole release date (or if necessary, a parole eligibility date) on the terms of imprisonment imposed by him on the drug charges, and did not consider it at all in determining whether or not it was unjust to activate the whole of the unexpired portion of the suspended sentence.  There was therefore an error in the exercise of the sentencing discretion.

Parole eligibility date

[50]  Section 151A of the PSA makes it clear that an offender who is serving the whole or part of a suspended sentence of imprisonment is eligible for release on parole.

[51]  Orders made by a sentencing judge relating to a prisoner’s release on parole are governed by Div 3 of Part 9 of the PSA.  Section 160A(1) of the PSA provides that ss 160B to 160D apply if a court is imposing a term of imprisonment on an offender for an offence.  Those sections are the only law under which a court may, when sentencing, make an order relating to the offender’s release on parole.  Section 160B applies only if neither s 160C nor 160D applies.  Under s 160B, if the court imposes a sentence of imprisonment of three years or less (but not for a sexual offence or a serious violent offence), the court must fix a parole release date.  That is the date on which the offender must be released on parole.  Under s 160C, if the court imposes a sentence of more than three years imprisonment (but not for a sexual offence or a serious violent offence), the court may fix a parole eligibility date.

[52]  The word “impose” is defined for the purposes of Div 3 in s 160 of the PSA.  Section (a) of that definition provides that to “impose” a term of imprisonment on an offender for an offence includes making an order that the offender serve the whole or part of suspended imprisonment for an offence.  The period of imprisonment imposed, therefore, was three years and eight months, being made up of 14 months imprisonment, the whole of the suspended sentence outstanding which he was ordered to serve, and a cumulative sentence of two years and six months, to be served concurrently with the sentences of 12 months and three months.

[53]  Because the term of imprisonment resulting from the cumulative sentences imposed was for more than three years, the sentencing judge did not have the power to set a parole release date, so 14 June 2012 was his parole eligibility date.  That parole eligibility date was not imposed, as the sentencing judge thought, on the sentence of two and a half years imposed on the drug trafficking offence and the concurrent lesser terms, but on the whole of the period of imprisonment imposed of three years and eight months.

[54]  A prisoner would ordinarily be eligible for release on parole after serving one half of that sentence, or after one year and 10 months.  A parole eligibility date after the applicant had served one year and eight months therefore failed to take account of the many mitigating factors in the applicant’s favour.  These include his early plea of guilty and stable employment and family situation, the fact that he stayed out of trouble for more than a year before he was sentenced (giving weight to his counsel’s submission as to his rehabilitation from drug usage which had driven his drug offending) and that he confessed to the offending without which the police would not otherwise have been able to charge him with the offence of drug trafficking.

[55]  In addition to the other factors in his favour, the applicant’s admissions to his own offending which would otherwise have been unknown to the police itself merited amelioration of the appropriate sentence that would otherwise have been imposed.  In AB v The Queen (1999) 198 CLR 111 at 155, Hayne J observed:

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty … .  And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.”

[56]  As the sentencing judge erred in the exercise of his sentencing discretion, this is an appropriate case to grant an extension of time and it falls to this court to re-sentence.

[57]  The first issue is what order should be made with regard to the suspended sentence.  Given the fact that the subsequent offence could not be said to be trivial, as the applicant offended whilst on parole and subject to a suspended sentence, his subsequent offending was the serious, albeit low-level, offence of drug trafficking, he had previously had part of this suspended sentence activated and the capacity of the court to order a parole release date or parole eligibility date, it could not be said to be unjust to order the applicant to serve the whole of the suspended period of his imprisonment.

[58]  An appropriate sentence for the drug trafficking offence would be the three year sentence contended for by the prosecutor (and defence counsel) below.  It is not necessary to order that sentence to be served cumulatively.  While drug trafficking is always serious, this was a very minor example of that offence.  The applicant is still a young man with some prospects of rehabilitation and able to make a contribution to the community by working, his sporting involvement and undertaking his family responsibilities.  If the sentence were ordered to be served cumulatively, that sentence would have to be reduced considerably so that the aggregate sentence was just and appropriate.

[59]  Taking into account all the factors referred to earlier which would tend to mitigate the penalty imposed, it is appropriate to order that his parole release date be set after he has served 12 months of that sentence, i.e. on 14 October 2011.

Orders

1.Application for an extension of time in which to file an application for leave to appeal against sentence granted and extended to 20 January 2011.

2.Application for leave to appeal against sentence granted.

3.Appeal against sentence allowed and the following sentence substituted:

(a)The appellant is required to serve the 14 months outstanding of the suspended sentence originally imposed on 10 July 2007;

(b)On the count of trafficking in the dangerous drug 3,4-Methylenedioxymethamphetamine the appellant is sentenced to three years imprisonment;

(c)On the count of possessing a dangerous drug, the appellant is sentenced to 12 months imprisonment;

(d)On the count of possessing a thing used in connection with trafficking in a dangerous drug, the appellant is sentenced to three months imprisonment;

(e)All sentences are to be served concurrently;

(f)The appellant’s parole release date is set at 14 October 2011.

[60]  PETER LYONS J:  I have had the advantage of reading in draft the reasons of Atkinson J, with which I agree.  I also agree with the orders proposed by her Honour.