SUPREME COURT OF QUEENSLAND

[1]  FRASER JA:  I agree with the reasons for judgment of Atkinson J and the orders proposed by her Honour.

[2]  ATKINSON J:  The applicant, Robert John Warren, was convicted on his own plea of guilty on one count of producing a dangerous drug exceeding Schedule 3, one count of possessing a dangerous drug exceeding Schedule 3, one count of possession of a dangerous drug, one count of possessing things used in connection with the production of a dangerous drug, one count of possessing property obtained from supply, one count of disqualified driving, one count of driving while over the general but under the high alcohol limit, one count of possession of utensils, one count of possession of weapons and one count of possession of weapons at Category D level.

[3] He was sentenced on 10 April 2007 in the Supreme Court in Townsville.  The most serious count was the count of production of a dangerous drug exceeding 2 grams for which he was sentenced to five years imprisonment.  He was sentenced to concurrent sentences of three years imprisonment for one count of possession of a dangerous drug exceeding 2 grams, one count of possession of things and one count of receiving or possessing property obtained from supplying.  In addition he was sentenced to concurrent sentences of two years imprisonment on the count of possession of a dangerous drug; six months imprisonment for the count of possession of weapons (Category D); and convicted and not further punished in respect of the four summary offences being driving over the general alcohol limit, disqualified driving, possessing utensils and unlawfully possessing a weapon.  In addition he was disqualified from holding a driver’s licence for a period of 18 months with respect to the count of disqualified driving.

[4] The learned sentencing judge fixed the applicant’s parole eligibility date on the count on which he was sentenced to five years imprisonment and his parole release date on the counts on which he received sentences of two years and three years imprisonment, as 13 April 2007, i.e. three days after he was sentenced. 

[5] Such an order relating to a prisoner’s release on parole is not permitted under Div 3 of Part 9 of the Penalties and Sentences Act 1992 (Qld) (“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.  Where, as in this case, an offender is sentenced to a term of imprisonment of more than three years (but not for a sexual offence or a serious violent offence), the court may fix a parole eligibility date.  The court may not fix a parole release date for any concurrent term of imprisonment of three years or less.  That error was not adverted to in any of the submissions but should be corrected.

[6] The circumstances of the offending were as follows.  The applicant was the subject of a random blood alcohol test on 31 December 2004.  His blood alcohol reading was 0.141 per cent.  He was disqualified from holding a licence at the time.  The police conducted a search of him and his vehicle and located methylamphetamine.  The weight of the material found was 3.073 grams of which 0.344 grams was pure methylamphetamine.  The drug was secreted partly in his shoe and partly in his collar.  The sentencing judge accepted that this methylamphetamine was only for personal use.

[7] On 12 May 2005, the police executed a search warrant at the applicant’s residence.  He was arrested at gunpoint in the yard of the residence.  In his residence, the police located a clandestine methylamphetamine laboratory that was in use.  A search of the residence also located instructions for the manufacture of methylamphetamine, chemicals used in the manufacture of methylamphetamine, heating elements, glassware and a glass baby food jar containing methylamphetamine.  In the yard of the premises was a Ford sedan in which police found $3,495 and 13 clip seal bags containing methylamphetamine.  The total weight of the powder containing methylamphetmaine was 164.382 grams, of which 24.888 grams was pure methylamphetmaine.  The police also located a Category D weapon, a single shot rifle, a shot gun, and a flick knife.  They also found a utensil for smoking cannabis. 

[8] At the time of sentence, on 10 April 2007, the applicant was a 40 year old man.  He had a troubled adolescence and, because of his abusive step-father, left home.  He became a jockey which brought him considerable success.  However in order to maintain the low weight required of a jockey, which he found very difficult, he started taking Duromine, a weight-loss drug then available over the counter.  It has asimilar effect to amphetamine.  He used it for 14 years.  After retiring as a jockey, he worked in physically demanding jobs and started using amphetamine on a regular basis from early 2003.  After he was found by the police in late December 2004 to have methylamphetmaine in his possession which he had just purchased, he decided to start manufacturing it himself.  Whilst on remand, he completed a number of education courses available to him but was yet to undergo a drug rehabilitation course as that was not available on remand.

[9] The applicant has a criminal history which dates back to his first conviction in the Townsville Magistrates Court for possessing a dangerous drug on 27 May 1987.  Just three months later he was again convicted of possessing a dangerous drug.  In 1989 he was convicted of a stealing offence which related to events that had also occurred in 1987.  In 1990 he was again convicted in the Townsville Magistrates Court of possessing a dangerous drug.  It was not until 1998 that he was again convicted in the Townsville Magistrates Court of drug related offences. 

[10]  In March 1999 the applicant was again convicted of drug related offences in the Townsville Magistrates Court and also two counts of having possession of a weapon whilst not being the holder of a licence.  He was sentenced to three months imprisonment on each charge to be served concurrently.  On the same day the applicant was also dealt with in the Townsville Supreme Court for two counts of possession of a dangerous drug.  The drugs he possessed were five kilograms of cannabis.  He was sentenced to two years imprisonment. 

[11]  In the years between 2002 and 2005, the applicant was dealt with in the Magistrates Court for unlawful possession of weapons, possession of a dangerous drug on two occasions, common assault, contravening a direction and breach of probation order.

[12]  At the time of sentence, on 10 April 2007, he had been in custody for 698 days but, because that related to “one or two summary matters” in addition to the matters dealt with by the learned sentencing judge, the time could not be declared as time spent under the sentence pursuant to s 159A of the PSA.  His Honour observed, and the prosecution accepted, that the applicant would have to be given allowance for that time even if declarations could not be made.

[13]  The prosecution submitted that a head sentence in the order of four years imprisonment would be appropriate but would need to be crafted to take account of his plea of guilty and his substantial period in pre-sentence custody.  When the judge suggested that he should be released immediately because he had effectively already served that term with almost two years of pre-sentence custody, the prosecutor “reframed” his submission in order to require the applicant to spend some further time in custody.  After further discussion with the judge, the prosecutor said he would not press any further a submission that the applicant should not be released immediately.

[14]  Defence counsel immediately agreed with the sentencing judge’s observation that he could not do much better than that.  The judge then opined that if he sentenced the applicant to five years imprisonment, he would ordinarily be eligible for parole after serving two and a half years of the sentence so to give a parole eligibility date after he had effectively served two years would be to ameliorate the sentence for the plea of guilty.  On the other hand if he imposed a sentence of four years imprisonment, then the applicant would already have served more than he would have expected to serve if he were given a reduction in his parole eligibility date to reflect his plea of guilty.

[15]  The sentencing remarks refer to the seriousness of the offences, particularly the manufacture of methylamphetamine given the prevalence of the use of that drug in the community.  The judge noted the applicant’s very substantial criminal history, his pleas of guilty and that his possession of methylamphetamine on 31 December 2004 was in respect of personal use.  What the learned sentencing judge regarded as “most notable … in framing the appropriate sentence” was that the applicant had been in prison for almost two years.  That imprisonment was almost entirely attributable to the matters for which he was being sentenced.  His Honour concluded:

“In these circumstances, it seems to me, that the justice of the case requires that I allow in full the 698 days that you have been in custody for.  This means that on whatever approach I make, once allowance is made for your pleas of guilty, which I take into account, you should have the benefit of an eligibility for parole date which will result in your virtual immediate discharge from prison.”

[16]  What is complained of now by the applicant is that the sentencing judge failed to take account of the time already spent in custody in fixing the head sentence so that he was effectively sentenced to seven years imprisonment on the count of production of a dangerous drug in excess of Schedule 3.

[17]  The applicant has made an application for an extension of time within which to appeal because he asserts that he only recently realised that the five year sentence took effect from the date of sentence and so was effectively a sentence of seven years imprisonment which he would seek to argue was manifestly excessive for the offences in the circumstances.

Extension of time

[18]  The application was well and truly out of time, being filed some three years and nine months after it should have been.  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.[1]

[19]  The applicant’s explanation for his delay has, in part, already been adverted to in these reasons.  He said that he sought clarification of his sentence from his legal representatives on the day on which it was imposed.  As a result of speaking to them he believed his full-time release date was in early April 2010, that is five years after he was first imprisoned on remand, rather than, as it was in fact, five years after he was sentenced, that is early April 2012.  He applied for and was granted parole after four months in prison, on 24 July 2007.  He was told by community corrections at that time that his full-time release date was in April 2012.  The applicant says that he sought clarification from his solicitor who confirmed his previous advice that April 2010 was his date of full-time release. 

[20]  After his release from prison on parole in July 2007, he spoke to a barrister who advised him to seek advice from Legal Aid to get an opinion on sentence and to lodge an appeal if necessary.  The applicant did not have the financial means to proceed on his own at that time.

[21]  It was not until early November 2007 that he said he spoke to Legal Aid and gave them the relevant paperwork.  He says Legal Aid told him that they would make contact after finalising their assessment in early 2008.  When he had not heard from them, he again made contact with Legal Aid and was told that they had no record of the consultation nor any paper work.  The applicant was waiting for the settlement of the sale of some property so he says he decided to wait for that to be finalised so he could pay for legal representation.

[22]  The applicant said he was returned to custody on 20 June 2008 for a breach of his parole order for an offence of disqualified driving and sentenced to 15 months imprisonment on 27 February 2009.  He was transferred to  Lotus Glen Correctional Centre away from where he said he could gain support.  The property settled in June 2009 and he spoke to a barrister by telephone about his case.  He said they decided in consultation to wait for him to be released and then seek an opinion from Senior Counsel.  He was released from custody on 4 January 2010 and says that not long afterwards he sought an opinion from Senior Counsel.  In June 2010 Senior Counsel informed the junior barrister that he could not proceed with the matter as he had been appointed a judge.  The applicant subsequently filed his application on 4 February 2011 and appeared for himself on this application for an extension of time.

[23]  The delays since the applicant said he was informed by community corrections no later than July 2007 that his full-time release date was in April 2012 cannot be regarded as satisfactory.  None of his submissions was supported by evidence on oath and even if it is all correct, much of the delay is attributable to his own failure to take steps to ensure that any application was filed promptly.

[24]  Nevertheless, despite the unsatisfactory nature of the applicant’s explanation for his delay, the court retains a discretion to grant an extension of time if a miscarriage of justice might otherwise be perpetuated.[2]  It is therefore appropriate to consider whether there is any substance in the proposed application for leave to appeal against sentence.[3]

[25]  The merits of the application for leave to appeal against sentence depend on whether the sentence imposed was outside the applicable range in the circumstances.

[26]  A review of sentences imposed for the production of methylamphetamine does suggest that the sentence was manifestly excessive when regard is had to the almost two years already spent in custody which could not be declared as time spent under the sentence imposed.

[27]  In R v Boyd [2001] QCA 421, the appellant was convicted after a trial of two counts of producing the dangerous drug methylamphetamine and one count of possession of things used in connection with the production of a dangerous drug.  The Court upheld his appeal against conviction in respect of one of the counts of production and against a circumstance of aggravation in respect of the other count of production.  Turning to the question of sentence, the Court noted that at the time of the offences the appellant was 58 years old and had a significant criminal history, including prior drug convictions and a sentence of imprisonment for importing cannabis.  In light of the lack of any mitigating factor derived from a plea of guilty, the Court ordered the appellant be sentenced to a period of five years imprisonment.

[28]  In R v Campbell [2002] QCA 109, the appellant pleaded guilty to one count of producing the dangerous drug methylamphetamine in excess of two grams, one count of possession of materials used in that purpose and one count of possession of cannabis.  He was sentenced to five years imprisonment with a recommendation he be eligible for parole after two years.  The applicant had a minor criminal history.

[29]  The circumstances of the offences were that the applicant had allowed his residence to be used for the commercial production of the drug by a co-offender and also produced a quantity of the drug himself under instruction.  When police searched his premises they located 120 grams of methylamphetamine and sufficient chemicals to enable production of a further 160 to 190 grams.  The Court allowed the appeal and substituted a sentence of four years with a recommendation for parole after 18 months.  The Court also referred to the sentence imposed upon a co-offender, White, whose involvement was much greater and who had also been convicted of trafficking in the drug.  The sentencing judge had reduced the head sentence imposed on White by 10 months to take account of the time spent in custody in circumstances where that could not be declared time spent under the sentence.

[30]  An appropriate sentence for trafficking is likely to be much higher than that for production alone.  In R v Kelly [2005] QCA 103, for example, the appellant was convicted after trial of ten counts of supplying methylamphetamine, one count of producing methylamphetamine and one count of trafficking methylamphetamine. He was sentenced to concurrent terms of eight years imprisonment in respect of the producing and trafficking offences and more nominal penalties in respect of the supplying offences.  The appellant’s co-offender, who pleaded guilty before the trial on essentially the same charges, was sentenced to five years imprisonment.  The charges related to a series of transactions where the appellant and his co-offender had supplied an undercover police officer with drugs and also purchased a large amount of Sudafed tablets. 

[31]  The appellant appealed against both his conviction and sentence, complaining in the sentence appeal of the disparity in the sentences imposed.  The appellant was 52 years old and had a lengthy criminal record.  The Court considered that there was ample material on which the sentencing judge based her conclusion that the appellant was the dominant party and the ‘organiser, the supplier and the principal recipient of the proceeds’, which, along with his co-offender’s plea of guilty, led to the differences in the respective sentences.  The Court dismissed the application for leave to appeal against sentence, with McPherson JA observing at [14] that cases in the Court of Appeal showed a range of seven to nine years imprisonment was appropriate for offences of the kind and degree found in that case.

[32]  In R v Cromwell [2008] QCA 191, the applicant was convicted on his own plea of one count of unlawful production of the dangerous drug methylamphetamine, one count of unlawful production of the dangerous drug MDMA and one count of the intentional importation of sassafras oil (prohibited under the Customs Act 1901 (Cth)).  He was sentenced to seven years imprisonment with parole eligibility after three years for the offence in relation to methylamphetamine, which was to be served concurrently with shorter terms of imprisonment that were imposed in respect of the other offences.  It can be assumed that the sentence imposed for the production of methylamphetamine reflected his overall criminality.  The applicant was involved in what was described as a ‘moderately sophisticated commercial operation producing speed and ecstasy’ for which he had obtained ingredients from interstate and overseas.  He was 30 years old at the time of the offences and had a lengthy criminal record, including previous offences for possession and production of drugs.  His plea of guilty was reflected in the sentencing judge’s recommendation for early eligibility for parole.

[33]  The Court dismissed the applicant’s application for an extension of time to appeal, stating that the considerations of personal deterrence and community protection loomed large and that it was doubtful that a substantially less severe sentence was warranted in the case.  The Court also noted that the sentence imposed accorded with the submissions made by the applicant’s counsel to the sentencing judge which made it difficult to argue that the sentence imposed was manifestly excessive.  Keane JA observed at [14] that “a sentence of seven years imprisonment is certainly at the top of the range which might properly be imposed for this offence.” 

[34]  The cases referred to suggest that a sentence which was effectively a sentence of seven years imprisonment in the present case was excessive and that the learned sentencing judge should have reduced the head sentence, as well as the parole eligibility date, to take account of the time spent in custody which could not be declared as time spent under the sentence.

[35]  Counsel for the prosecution on the appeal conceded that the learned sentencing judge erred in only reducing the parole eligibility and not the head sentence when his Honour took into account the time served that could not be declared, and that the sentence imposed was manifestly excessive.  As the Crown prosecutor submitted before the sentencing judge, an approach with which counsel for the prosecution concurred on appeal, a sentence of four years imprisonment would have taken account of the seriousness of the offending and the time already spent in custody.  It was this proposed sentence with which the applicant’s counsel concurred. 

[36]  The learned sentencing judge appears to have been distracted by the fact that the applicant had already spent two years in custody and might not then get full credit for his plea of guilty if he were to sentence him to a period of four years imprisonment.  In fact he would have, because a sentence of four years imprisonment was effectively a sentence of six years imprisonment.  This sentence was appropriate considering the nature of his offending on two separate dates, the seriousness of the production and possession of methylamphetamine and his previous criminal history including convictions for drug offences which had led to periods of imprisonment but which did not include any like offence of production of a dangerous drug.  A parole eligibility date after two years was appropriate to ameliorate the sentence because of the applicant’s plea of guilty and the learned sentencing judge was correct in his approach in considering his parole eligibility date in light of the time already spent in prison.

[37]  I would allow the application for an extension, extend the time to file an application for leave to appeal against sentence, allow the application for leave to appeal against sentence and allow the appeal only to the extent of reducing the sentence on the count of producing a dangerous drug on 12 May 2005 to four years imprisonment, removing his parole release date and fixing his parole eligibility date as 13 April 2007.

[38]  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.