R v Ryan; ex parte Attorney-General
[2014] QCA 68
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- Appeal Determined (QCA)
- R v Ryan; ex parte Attorney-General[2014] QCA 68
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R v Ryan; ex parte Attorney-General[2014] QCA 68
R v Ryan; ex parte Attorney-General[2014] QCA 68
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 11 April 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 March 2014 |
JUDGES: | Margaret McMurdo P and Morrison JA and Douglas J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE – where the respondent pleaded guilty to trafficking in heroin (count 1), possessing heroin (count 2) and related summary offences – where the trafficking extended over about five weeks and involved the regular supply of relatively small quantities of the drug to known drug addicts – where the respondent had a serious criminal history – where there were many mitigating features – where he was sentenced to five and a half years imprisonment on count 1, two years imprisonment on count 2 and convicted but not further punished for the summary offences – where the judge fixed the parole eligibility date after nine months – whether the sentence was manifestly inadequate Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, cited |
COUNSEL: | A W Moynihan QC for the appellant |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant |
[1] MARGARET McMURDO P: The respondent, Shane Ryan, pleaded guilty on 21 November 2013 to trafficking in heroin between March and April 2012 (count 1) and possessing heroin on 19 April 2012 (count 2). He also pleaded guilty to three related summary offences committed on 19 April 2012: possession of utensils or pipes used in connection with the smoking of a dangerous drug; possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 (Qld); and possession of a phone for use in connection with supplying a dangerous drug. He was sentenced to five and a half years imprisonment on count 1, two years imprisonment on count 2 and convicted but not further punished for the summary offences. The judge declared 99 days presentence custody as time served under the sentences and fixed the parole eligibility date after nine months. The appellant, the Attorney-General of Queensland, has appealed against that sentence contending that it was manifestly inadequate in that the parole eligibility date was too early.
Antecedents
[2] The respondent was an Aboriginal man born in November 1971. He was 40 when he committed the offences and 42 at sentence. He had a bad criminal history beginning in 1988, soon after his 17th birthday, with convictions for property offences for which he received non-custodial sentences. In June 1989 he breached his probation order and was ordered to perform community service. Later that month, he was sentenced to three months imprisonment for unlawful use of a motor vehicle. In November that year he was again convicted of an assortment of property offences and sentenced to three months imprisonment and two years probation. In 1990 when he breached his probation he was sentenced to 12 months imprisonment. In February 1991 he was sentenced to eight months imprisonment for escaping from lawful custody. In April that year he was sentenced to six months cumulative imprisonment for a further property offence. Later that month, he was sentenced to three months cumulative imprisonment for escaping legal custody. In 1992 when only 20 years old he was sentenced for offences including armed robbery in company to an effective term of 12 years imprisonment with parole eligibility after four years. Later that year, he was convicted and fined for minor drug offences. In April 1994 he was sentenced to nine months imprisonment for attempting to escape lawful custody. In August 2004 he was sentenced to three months cumulative imprisonment for possessing dangerous drugs and other related offences. Upon his release, he did not re-offend significantly in Queensland until 2008 when he was sentenced for minor property offences to a fully suspended term of imprisonment and to 40 hours community service for unlicensed driving. In 2013 he was again ordered to perform community service for unlicensed driving.
[3] In New South Wales in December 2008 he was sentenced for property offences committed on New Year's Day 2008 to two years imprisonment suspended on entering into a bond for two years, supervised by Queensland Probation and Parole with counselling and urinalysis conditions.
[4] Queensland Corrective Services prepared a court report which stated the following. Whilst he was not always compliant in completing community service, in the end he successfully completed the orders. He needed assistance with substance abuse and mental health issues and made several contacts with a drug and alcohol counselling service, ultimately insisting his drug problem was under control. He missed some counselling interviews but attended five psychological assessment and treatment sessions and was considered stable with no further appointments needed. On 23 April 2010 he tested positive for morphine and benzodiazepene. He stated that a friend gave him heroin which he regretted taking. His prescribed Zanax was the cause of his poor judgment in taking the heroin. The supervising officer provided him with strategies to assist in future abstinence and discussed interventions. He maintained stable accommodation and employment. Based on his relatively satisfactory progress, he would be suitable for further community based orders.
Facts of the offending
[5] The prosecutor tendered an agreed schedule of facts.[1] The offending was detected during a police operation involving telephone intercepts targeting Peter Belonogov. The respondent conducted a business continuing over about five weeks selling heroin to approximately 10 customers on a daily basis. Ordinarily, sales varied from $50 to $200 with the most significant sale at $600. His partner, Rebecca Nash, assisted in the business (count 1).
[6] On 19 April 2012, police executed a warrant at their home and found $785 cash, a small amount of cannabis, scales and phones (the summary offences). Ms Nash had secreted a quantity of heroin wrapped in plastic inside her body. The heroin began to leak through the plastic and she became ill and informed police. It was later found to weigh 6.69 grams and to contain 1.485 grams of pure heroin (22 per cent purity) (count 2).
Counsel's submissions at sentence
[7] The prosecutor submitted that Belonogov's level of culpability and criminal history were similar to that of the respondent but Belonogov trafficked for a longer period (about two and a half months). He was sentenced to six and a half years imprisonment with parole eligibility after two years and two months. Belonogov had been in custody from the time of his arrest until sentence and, unlike the respondent, had not participated in a community based rehabilitation program.
[8] The prosecutor also referred to the sentence imposed on Hobson, another offender who was detected in the operation.[2] He had a lesser criminal history than the respondent (drink driving, property and drug offending). He pleaded guilty at an early stage to trafficking in heroin over the same period as the respondent; unlawful possession of heroin and cannabis; and related summary charges. He had been a heroin addict since 2004. He trafficked in part to feed his own addiction and in part for a commercial purpose. He supplied heroin every couple of days to between 10 and 15 customers and on one occasion to 25 people. The price range was between $100 and $900. When police searched his car and house they found relatively modest quantities of drugs. He had spent 466 days in pre-sentence custody and had completed a Narcotics Anonymous course which had given him insight into his offending. He was 51 at the time of his offending and 52 at sentence. He had been married for more than 20 years and had an adult son. He had advanced liver disease which may have made his time in custody more difficult than for other prisoners. The sentencing judge imposed a sentence of five years imprisonment with parole eligibility after one-third.
[9] The prosecutor also referred to R v Georgieff[3] and R v Cottle-Pilides[4] to support her submission that a sentence in the range of five to six years imprisonment was appropriate in the respondent's case.
[10] Defence counsel at sentence tendered a letter from the respondent.[5] The respondent referred to his dysfunctional upbringing with an alcoholic, violent step-father and his mother's failed marriage when he was aged 14. He nevertheless completed year 10 and began an apprenticeship as a panel beater/spray painter but fell in with bad company. He commenced a life of crime, ending in his imprisonment as an 18 year old. When finally released from his 12 year sentence, he began a new life in Sydney with Ms Nash. He gained employment with the North Sydney Council and they had two children, now aged eight and six. They moved to Brisbane to be closer to his mother. He had two jobs at the time of his arrest. He allowed a homeless, drug-addicted friend from his past to stay in the family home and he quickly relapsed into drug taking.
[11] He claimed to now realise that he had let down his partner and children but at the time he was blinded by heroin. Ms Nash had never used heroin and constantly tried to stop him using it. She did not deserve to be caught up in his offending. His return to custody made him realise the seriousness of what he had done and the enormity of what he had lost. After four months he was released on bail to complete a three month live-in rehabilitation course at which he excelled. He then returned to his partner and children. This offending was a lapse after he had successfully re-integrated into the community. Doctors had advised that he may have post-traumatic stress from his dysfunctional past. He was concerned that his children were suffering because of his imprisonment. He emphasised that he was now a reformed drug user. He had been on a suboxone program but no longer needed that substitute drug. He had positive future plans and when released into the community would not return to using drugs or mixing with criminals.
[12] Defence counsel added that Ms Nash was a hairdresser and since the respondent's arrest had become the family's primary breadwinner. She was likely to be sentenced in April 2014. The prosecutor interposed that this was at the request of her legal representatives, apparently to lessen the time when the children may not be supervised by either parent.
[13] He tendered a report from Breaking Through Transitional Services dated 19 October 2012 which stated that the respondent had completed its three month rehabilitation program.[6] He had actively involved himself in all groups and activities and produced negative weekly and random urine tests, including one initiated by police. He had obtained employment and had positive interaction with his supportive family. The author congratulated him on the successful completion of the program.
[14] Defence counsel also tendered four other references. Those demonstrated that he had undertaken voluntary work at a facility for people with disabilities. He was genuinely remorseful for his offending and its effect on his family. At the time of the offending he had just lost his job and his father-in-law to whom he was close was dying of cancer. This made him vulnerable and led to his error of judgment. He had a strong work ethic, was a competent self-taught mechanic, and was a caring and supportive father and partner.
[15] Defence counsel emphasised that the most serious aspects of the respondent's criminal history occurred some time ago when he was young. When only 18, he was introduced to a custodial environment without proper rehabilitation services. In light of R v Bugmy,[7] defence counsel emphasised the respondent's dysfunctional background. He also emphasised his early guilty plea. His offending was less serious than that of Belonogov. He urged the judge to impose a five year term of imprisonment and, in order to ensure certainty of release, to suspend the sentence after no more than 20 months. This sentence was within the appropriate range and would recognise the respondent's active steps towards rehabilitation and his insight.
[16] The sentencing judge responded that he had considerable sympathy for the respondent but he was a mature man involved in significant drug trafficking over a five week period and with a very bad criminal history who had been to jail previously for lengthy periods. A five year sentence was not adequate and there was no basis to conclude that he was a suitable candidate for a suspended sentence. The many mitigating features should be taken into account by setting a parole eligibility date earlier than the one-third mark.
[17] Defence counsel added that all the respondent's customers were known to him as addicts; he did not corrupt others. The intercepted telephone calls recorded his and his customers' desperation. He used the funds generated from sales to fund his own addiction.
[18] The judge allowed the respondent to address the court. The respondent essentially repeated what he had written in his tendered letter, emphasising his difficult background, his long path towards rehabilitation after a lengthy prison sentence, his foolish mistake which led him to the commission of these offences and his future plans to open a panel beating shop and help support his wife and family. He had turned his life around and assured the judge that this would not happen again.
The judge's sentencing remarks
[19] In sentencing, the judge set out the circumstances of the offending and the detrimental effect it had on the respondent's children and partner whom he dragged into his offending. The authorities referred to by the prosecutor demonstrated that the appropriate sentence was between five to six years imprisonment. Having regard to the offending, the respondent's criminal history and all the circumstances of the case, a five year sentence was too low. Nor was the respondent an appropriate candidate for a suspended sentence; he needed supervision upon his release and this would be best achieved by setting a parole eligibility date. Although he was not young and had an extensive criminal history, he now had insight into how he relapsed. He had had a difficult upbringing which helped explain his youthful offending. After a very long period in custody, he rehabilitated with the help of a loving partner and they had two dependent children. The judge also noted the references. These mitigating factors warranted a parole eligibility date significantly earlier than usual to enable the respondent to convince the authorities he ought to be released.
[20] The judge stated he had regard to the time the respondent had spent in custody, his remorse, cooperation and early pleas of guilty and the steps he took while on bail to rehabilitate and to address his addiction. The letter from Breaking Through Transitional Services showed he had embraced that opportunity and, together with the references, demonstrated the great steps he had taken to integrate back into society. Belonogov trafficked over a longer period and had more customers. Hobson had a shorter criminal history and some serious health issues. Balancing the competing factors of personal and general deterrence and rehabilitation, the judge sentenced the respondent to five and a half years imprisonment with parole eligibility after nine months.
The appellant's contentions
[21] The appellant contended that the sentence was manifestly inadequate in that it was plainly unreasonable and unjust: Dinsdale v The Queen;[8] Hili v The Queen.[9] The appellant did not complain about the head sentence of five and a half years imprisonment but contended that setting parole eligibility after only nine months made the overall sentence manifestly inadequate. The judge was right to take the mitigating features into account but they were not so extraordinary or exceptional as to justify such an early parole eligibility date. The effect of a sentence on a person's family was of little weight except in rare and highly exceptional circumstances: R v Whiting;[10] R v Edwards[11] and R v Tilley.[12] The respondent's extensive criminal history and long standing anti-social behaviour meant that such an early parole eligibility date should not have been fixed.
The respondent's contentions
[22] The respondent's counsel contended that the competing considerations which inform the fixing of a head sentence also inform the fixing of a non-parole period and their weight and relevance will differ with the different purposes of each function: Bugmy v The Queen.[13] Parole eligibility is a benefit to the prisoner providing a basis for hope of earlier release and an incentive for rehabilitation.[14] The judge was entitled to place particular emphasis on rehabilitation (Penalties and Sentences Act 1992 (Qld), s 9(1)(b)). He was also entitled to have particular regard to the respondent's successful completion of the Breaking Through Transitional Services program (Penalties and Sentences Act, s 9(2)(o)). The discretion given to sentencing judges is of vital importance in the administration of criminal justice: Lowndes v The Queen.[15] The appellate jurisdiction conferred on this Court by s 669A(1) Criminal Code 1899 (Qld) requires that error be demonstrated on the part of the sentencing judge before this Court may in its unfettered discretion vary the sentence and impose such sentence as to it seems proper. There is nothing in the sentencing judge's reasons to indicate a House v The King[16] error. The sentence is not manifestly excessive, unreasonable or plainly unjust and the appeal should be dismissed.
Conclusion
[23] The most serious aspect of the respondent's offending was the offence of trafficking in heroin (count 1), the maximum penalty for which was 25 years imprisonment. This was far from the most serious example of that offence. The trafficking extended over about five weeks and involved the regular supply of relatively small quantities of the drug to known drug addicts. The respondent was himself an addict who trafficked to feed his own addiction. He was, however, a mature man with a serious criminal history. Deterrence, both personal and general, was a highly relevant sentencing factor.
[24] There were, as the experienced sentencing judge rightly noted, many mitigating features. The respondent pleaded guilty at an early time and cooperated with the authorities, although not to the extent of bringing into play s 13A Penalties and Sentences Act. He had a dysfunctional background which was a major cause of his imprisonment for lengthy periods since he was 18 years old and helped explain his concerning criminal history. It is to his credit that upon his eventual release he rehabilitated, obtaining employment and becoming a responsible partner and father. Regrettably, he relapsed into heroin addiction after allowing a homeless past acquaintance to live with his family. He became involved in this offending and, tragically, also involved his partner who disapproved of heroin use. As a result, she has been charged with serious offences and is at risk of a jail sentence so that the lives of their innocent children will be further disrupted. After his arrest, he was on remand for four months until granted bail on condition that he undertake a rehabilitation program. He successfully completed that program and returned to his family. The tendered references, the report from Breaking Through Transitional Services and the report of the officers who most recently supervised his community based order suggested that his rehabilitative prospects were promising. The respondent's letter and statement to the sentencing judge, which clearly made a positive impact, demonstrated his remorse, insight and determination to rehabilitate when released.
[25] As the learned sentencing judge noted, the respondent's offending was not as serious as that of Belonogov who was sentenced to six and a half years imprisonment with parole eligibility after two years and two months. It was more serious than that of Hobson who, although a little older, had a lesser criminal history and a serious illness which would be problematic in prison. Hobson was sentenced to five years imprisonment with parole eligibility after 17 months. Neither Hobson nor Belonogov, however, had the respondent's particularly promising rehabilitative prospects and nor did they suffer from such a high level of dysfunctionality and disadvantage in early life. Full consideration should be given to the principle recognised in House that an appellate court will not interfere with a sentencing judge's exercise of discretion, so vital to the criminal justice system, absent clear error. I am also conscious that the judge was concerned, rightly, to ensure that, in returning the respondent to custody, he did not impose such a heavy sentence that his hope and his commitment to rehabilitation were destroyed. But when the competing factors of this case are considered against those in Hobson, Belonogov, Georgieff and Cottle-Pilides, it is clear that to give the respondent parole eligibility after only nine months was to impose a manifestly inadequate sentence. The mitigating features were not so extraordinary as to warrant such extreme leniency.
[26] The appeal must be allowed with the consequence that under s 669A Criminal Code this Court may in its unfettered discretion vary the sentence and impose the sentence it considers proper. I see no reason to interfere with the head sentence imposed by his Honour. The many mitigating features, as his Honour recognised, warranted a parole eligibility considerably earlier than the one-third mark which is commonly given where there is a timely plea of guilty and cooperation. I consider that an earlier parole eligibility than in Hobson was warranted. I would set the respondent's parole eligibility after 14 months, that is, on 14 October 2014.
[27] It is always a matter for the Parole Board to determine if and when an offender is released on parole. But when that decision is considered in this case, if his rehabilitative prospects remain as promising as they presently appear, he, his family and the community will be well served by his early release into the community with the support and supervision of a thoughtfully structured parole order. It is hoped that his youthful convictions for escaping lawful custody and the like will not prevent this.
[28] I would allow the appeal and vary the sentence to the limited extent of substituting a parole eligibility date of 14 October 2014 for the parole eligibility date of 14 May 2014. I would otherwise confirm the sentence imposed at first instance.
[29] MORRISON JA: I have had the advantage of reading the reasons of McMurdo P and agree with her Honour’s reasons and the orders she proposes.
[30] DOUGLAS J: I also agree with the reasons of the President and her proposed orders.
Footnotes
[1] Ex 5.
[2] R v Hobson, unreported, Margaret Wilson J, SC No 326/13, 29 July 2013.
[3] [1997] QCA 70.
[4] [2006] QCA 72.
[5] Ex 11.
[6] Ex 12.
[7] [2013] HCA 37.
[8] (2000) 202 CLR 321, Gleeson CJ and Hayne J, 325.
[9] (2010) 242 CLR 520, 538-540.
[10] [2013] QCA 18, [12].
[11] (1996) 90 A Crim R 510, Gleeson J 516-517.
[12] (1991) 53 A Crim R 1.
[13] (1990) 169 CLR 525, 531.
[14] Above, 536.
[15] (1999) 195 CLR 665, 672, [15].
[16] (1936) 55 CLR 499.