R v Gillbanks[2015] QCA 148

COURT OF APPEAL

HOLMES JA

MORRISON JA

PHILIPPIDES JA

CA No 56 of 2015

SC No 88 of 2014

THE QUEEN

v

GILLBANKS, PaulApplicant

BRISBANE

FRIDAY, 14 AUGUST 2015

HOLMES JA:  The applicant was convicted on his own plea of guilty of one count of possessing methylamphetamine with a total weight of 12.781 grams, at 71.8 per cent purity, and one count of possessing 29 grams of cannabis.  At the time he was sentenced, on 4 March 2015, he was serving a sentence of three years imprisonment for burglary, his parole having been suspended on his arrest in April 2014 for the present charges.  His full-time discharge date on that sentence is 25 August 2016.  He was sentenced to two years imprisonment on the count of possessing methylamphetamine and 18 months imprisonment on the count of possessing cannabis, those sentences to be served concurrently with each other but cumulatively on the burglary sentence.  His parole eligibility date was set at 25 February 2017.He seeks leave to appeal the sentences on the grounds that they are manifestly excessive by reason of the fixing of the parole eligibility date almost two years after he was sentenced and that the sentencing judge erred in regarding himself as obliged to set that date after the full-time discharge date on the burglary sentence.

The facts of the offending can be shortly stated.  The applicant was on parole on the burglary sentence when the car in which he was travelling as a passenger was intercepted by police and he was found to be in possession of the drugs.  The cannabis was in a clipseal bag contained in a shopping bag at his feet, as were 10 clipseal bags containing a substance used for cutting with methylamphetamine.  A clipseal bag containing the methylamphetamine itself was found secreted between the passenger seat and the centre console.  The applicant had $370 in cash on his person.  The Crown submitted, and it was not contested, that the possession of the drugs was for a commercial purpose.

The applicant was 39 years old when he committed the offences.  He had a criminal history dating back to 1995.  It included offences of serious assault and wilful damage for which he was sentenced to 12 months imprisonment, having breached an intensive correctional order; an offence of carnal knowledge attracting nine months imprisonment; an offence of indecent treatment of children for which he received 15 months imprisonment, suspended for two years after having served 280 days; possession of property suspected of having been used in connection with the commission of a drug offence, for which he was sentenced to six months imprisonment, concurrently with a further 12 months to be served for unlawful possession of weapons;  a number of offences of failing to comply with reporting requirements and breaches of fine option orders; a Commonwealth offence of using a carriage service to menace, harass or cause offence, for which he was sentenced to three months imprisonment;  and three offences of entering premises and committing an indictable offence, for which he was sentenced on three separate occasions respectively to two years, two and a-half years and three years imprisonment.  The last of those sentences was imposed on 26 August 2013 and the applicant was given a parole release date of 25 November 2013.  That is the sentence he is currently serving, and that was the parole which he breached by the current offences.

The applicant’s counsel at sentence submitted that he had a disturbed childhood, having become a ward of the state at 12 years of age.  He had been born in New Zealand but moved between that country and Australia, where he had developed an amphetamine addiction.  Notwithstanding, he had worked from time to time in a variety of trades and had a qualification as a glazier.

The sentencing judge accepted that the applicant was drug-dependent, so that the maximum penalty for the methylamphetamine possession was 20 years imprisonment.  His Honour accepted that the applicant had an unfortunately upbringing but observed that he also had an appalling criminal history; imprisonment had not deterred him from further offending.  In the course of argument, his Honour indicated that, had he been sentencing for the offences in isolation, he would have considered the appropriate sentence as one of between two and a half and three years.  He was referred to some decisions in comparable matters including R v Fabre [2008] QCA 386 and R v Beasley [2013] QCA 322, both of which supported that view, and the applicant does not take any issue with it.  Taking into account the significant time the applicant had spent in custody to date and the totality principle, his Honour moderated the head sentence to one of two years imprisonment.

During submissions at the sentence hearing, counsel for the respondent observed that the sentencing judge could impose an eligibility date before the sentence the applicant was currently serving had expired.  His Honour responded:

“But I can’t because I am making the sentence cumulative … which means it can’t start until his sentence has expired.”

He went on to give his reasons for imposing a cumulative sentence.  His Honour said that he fixed the parole eligibility date “at earlier than would otherwise be the case for a timely plea of guilty”, but it is clear from that comment and the fact that the date was set six months into the two-year term of imprisonment that he regarded it as relating purely to that term.

The respondent accepted that the sentencing judge was in error insofar as he considered that the parole eligibility date had to be set after the expiration of applicant’s existing sentence, but argued that the court could conclude that the error had made no material difference to the sentence and there had been no miscarriage of the sentencing discretion as a result.  Alternatively, if there had been a miscarriage of the discretion, so that this court was obliged to re-sentence, no different sentence should be passed.

The concession that the learned sentencing judge erred as to the need to fix the applicant’s parole eligibility date after the expiration of his earlier sentence was properly made.  Section 160F of the Penalties and Sentences Act 1992 makes it clear that the new eligibility date was to be set by reference to the period of imprisonment (the total period of five years) rather than either term of imprisonment.  The error was not one which one could conclude made no difference to the sentence.  The applicant was required to serve three and a half years, or 70 per cent, of the five year period of imprisonment.  That plainly was not a considered approach and reflects, in my view, effectively a failure to have regard to the totality principle in respect of this aspect of the sentence.  The sentencing discretion miscarried and this court must now, in my opinion, re-sentence.

The applicant proposed that the parole eligibility date be set at 4 November 2015, presumably with the notion that it would reflect a period of eight months from the sentencing date, or third of the two year sentence.  I see no reason why the applicant should be treated as though his earlier sentence were inconsequential in fixing his eligibility for parole.  He was entitled to some credit for his cooperation in the administration of justice as reflected by his early guilty plea in relation to the current charges, but any consideration for the plea of guilty on the burglary charge was well and truly dissipated by his abuse of the benefit he was given in respect of it. Giving him some recognition for his early guilty pleas on the current charges, I would set parole eligibility half-way through the total period of imprisonment. 

I would grant leave to appeal against sentence, allow the appeal, and set aside the sentences imposed on each count.  I would re-sentence the applicant on count 1 to two years imprisonment and on count 2 to 18 months imprisonment, with a parole eligibility date fixed at 25 February 2016.  To put the matter beyond any doubt I would declare that the applicant is to be taken to have been serving his term of imprisonment for the current offences since the date he was originally sentenced for them, that is, 4 March 2015.

MORRISON JA:  I agree.

PHILIPPIDES JA:  I also agree.

HOLMES JA:  The orders are, then, that the applicant is granted leave to appeal against sentence.  The appeal is allowed.  The sentences imposed on each count are set aside.  He is re-sentenced on count 1 to two years imprisonment and count 2 to 18 months imprisonment with a parole eligibility date fixed at 25 February 2016.  He is to be taken to have been serving his term of imprisonment for the current offences since 4 March 2015.

Those sentences are to be served cumulatively upon the sentence imposed on 26 August 2013.