R v Jamieson[2016] QCA 11

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
2. MORRISON JA:  On 19 September 2014, Mr Jamieson pleaded guilty to a number of charges under the Drugs Misuse Act 1986 (Qld) for offences committed on 28 February and 1 March 2013.  The charges can be summarised as follows:

• Counts 1 to 4 – unlawfully supplying the dangerous drugs cannabis^[1] and methylamphetamine;^[2]
• Counts 5 and 6 – unlawful possession of the dangerous drugs cannabis^[3] and methylamphetamine;^[4]
• Count 7 – unlawful possession of things for use in the commission of a crime, namely possession of a dangerous drug.^[5]

3. He was sentenced on 26 September 2014, when 18 months’ imprisonment was imposed in respect of all counts, to be served concurrently.  Six days pre-sentence custody (between 19 and 26 September 2014) was declared as time served under s 159A of the Penalties and Sentences Act 1992 (Qld).  In addition, a parole release date of 26 June 2015 was fixed.
4. That recitation of the sentence reveals three matters relevant to the application for leave to appeal against sentence.  First, the nine months was half of the total period and not one third, which is often set to recognise the fact that a plea of guilty has been entered.  Secondly, the time actually served under the sentence was nine months plus six days, as six days were declared as time already served but the nine months did not allow for those days.  Thirdly, the parole release date at 26 June 2015 meant that Mr Jamieson had been released on parole about eight weeks prior to the application being heard in this Court.
5. Mr Jamieson challenges the sentence as being manifestly excessive, but only in respect of the setting of the parole release date.  No challenge was mounted as to the head sentence of 18 months.  Mr Jamieson raises several grounds of suggested error on the part of the learned sentencing judge:

1. the parole release date was set at 26 June 2015, which was nine months after the date of sentencing, and half the total period of imprisonment; no sufficient reasons were given for why nine months was imposed instead of the normal one third (six months) to recognise the plea of guilty;
2. no sufficient reasons were given as to why the nine months of actual custody was set on top of the six days declared as time already served;
3. a period of 76 days of pre-sentence custody, separate from the six days that were declared, was not taken into account; and
4. the learned sentencing judge sentenced on the basis that the drugs for counts 1 to 4 came under Schedule 1 of the Drugs Misuse Act 1986 (Qld) when they were caught by Schedule 2.

Nature of the offending

6. A schedule of agreed facts was tendered, revealing the circumstances of the offences.
7. Mr Jamieson and a companion (Ms Murray) rented a unit at Crystal Bay Resort, arriving on 26 February 2013.  On 1 March 2013, police attended the resort on an unrelated matter, but staff raised concerns that Mr Jamieson and Ms Murray were dealing in drugs from their room.  Police then ascertained that Mr Jamieson was wanted for questioning in relation to another offence and Ms Murray was wanted on an arrest warrant.
8. Later that day, police entered the unit and saw a water-pipe and electronic scales.  While they were back at the police station preparing a search warrant for the unit, Mr Jamieson presented himself at the station and was arrested.  Police went outside and arrested Ms Murray.
9. Police returned to the unit with a search warrant, accompanied by Ms Murray.  In the unit they located:

1. a bowl of green leafy material;
2. a container of medium sized clip seal bags of green leafy material;
3. a basket containing further clip seal bags containing green leafy material;
4. a plastic bag containing green leafy material;
5. small clip seal bags containing a white crystal substance;
6. a clip seal bag containing a number of coloured pills;
7. two sets of digital scales (count 7);
8. empty clip seal bags (count 7);
9. pipes ( a water pipe and a glass pipe);
10. $6,565 in assorted denominations;
11. cold and flu medication ( two blister packs);
12. mobile phones and laptops; and
13. a diary and documents containing names, quantities, values and drug names.

10. During the search police found a total of 0.633 grams of pure methylamphetamine (count 5), and 153 grams of cannabis (count 6).  Mr Jamieson’s SIM card revealed several messages which indicated he was supplying dangerous drugs.  Four supplies were identified (counts 1–4) from the following messages:

• 1 March 2013 – 7.45 am: “ … you good to go brother just for the same as yesterday 50 green and 70 cash cheers brother”;
• 1 March 2013 – 9.22 am: “PLEASE CAN YOU SWING US A P AND TEN TILL 3”;
• 1 March 2013 – 12.06 pm: “2 point plz got other coin aswell bro”.

11. Counts 1–6 had a commercial purpose, signified by the tick book entries, the large sum of money ($6,565), clip seal bags, scales and the manner in which the drugs were packaged.
12. Mr Jamieson refused to participate in an interview.
13. It was accepted that there was a commercial element to the offences.^[6]

Mr Jamieson’s personal circumstances

14. Born on 17 December 1988, Mr Jamieson was just over 24 when the offences occurred.  He was 25 years and nine months at sentence.
15. Mr Jamieson had a criminal history that started when he was 16, in the Childrens Court.  His early offences (aged 16 and 18) were for obstructing police and public nuisance, for which no conviction was recorded, but a fine and recognisance order was made.  Then, from when he was 20, drug, property and assault offences appeared.  By the time of sentence, his record of offending, summarised below, included eight drug offences:

2008:possession of dangerous drugs (no conviction), breach of bail (two offences – one fine), wilful damage to property (two offences) and assault a police officer (two offences);

2009:assault causing bodily harm whilst armed (six months’ imprisonment, suspended for two years); enter premises and commit an indictable offence by breaking (probation); assault a police officer (four offences – one months’ imprisonment, suspended for 18 months); serious assault of a police officer (six months’ imprisonment);

2012:receiving tainted property, possession of property suspected of having been acquired for commission of a drug offence, possession of utensils, possession of property suspected of having been used in the commission of a drug offence, possession of property suspected of being the proceeds of a drug offence, not being endorsed to possess a restricted drug (convicted and fined $2,000); possession of property suspected of being the proceeds of a drug offence, and two offences of receiving tainted property (sentenced on 13 July 2012: three months’ imprisonment, suspended for 12 months);

2013:possessing anything used in the commission of a crime (two months’ imprisonment), six supply dangerous drugs (eight months’ imprisonment, and previous suspended sentence fully invoked); possession of tainted property; assault a police officer and drunk and disorderly (fined).

16. The commission of the subject offences, for which he was sentenced on 26 September 2014, breached the suspended sentence imposed on 13 July 2012; see paragraph [15] above.
17. Without objection, the learned sentencing judge was told some of Mr Jamieson’s circumstances.^[7]  He was a drug user, signified by the discovery of an ice pipe and a bong in the unit.^[8]  He completed year 10 and then obtained various labouring jobs over the next 12 months.  Then followed a gap of two years when he was not working, until he was employed in a concreting business for two years.  After that he had a job for about two years with a landscaping firm.
18. Since his release he had worked with his father, earning about $800 per week.  He was the father of a 10 month girl and his partner (Ms Murray) was pregnant again.  He was the only income earner in his family.  He had not committed offences again since becoming a father.
19. Whilst in custody he completed a certificate in “Work safely in the construction industry”,^[9] and a “Self-Conducted Recovery and Prevention Program”.^[10]  A reference was provided by his father,^[11] saying that since Mr Jamieson had become a father he had realised the necessity of a long term stable job.  He also said that Mr Jamieson was a trusted worker in the father’s concreting business.

Approach of the learned sentencing judge

20. In his sentencing remarks the following matters were noted:^[12]

• they were serious offences;
• it was not a case of low level commerciality;
• the offences were committed whilst subject to the requirements of a suspended sentence;
• the plea of guilty was taken into account;
• that Mr Jamieson was a drug user;
• the courses done whilst in custody;
• that there had been no offences since Mr Jamieson had become a father, and what his father had said in his reference;
• drug offences were prevalent and “courts must impose sentences having general deterrent effect”;
• the criminal history, that there were eight previous drug offences, and the fact that there had been no offences since 1 March 2013;
• the conduct was worse than that of the offender in R v Gabbert.^[13]

21. The learned sentencing judge also referred to R v Kitson.^[14]  That case was not advanced by either side as being relevant to Mr Jamieson, but had earlier been cited when submissions as to Ms Murray were made.^[15]  His Honour recited the facts of Kitson, and the sentence imposed, which was 15 months suspended after six months.  He then quoted the following statement from that case:

“Methylamphetamine… is a drug which is notoriously dangerous in its effect on those who use it and that deterrence is an important aim for the all too prevalent offences of this character.”

22. The learned sentencing judge then said that in his view “a sentence of imprisonment with time to be served must be imposed on you, having regard to the factors I’ve referred to.  I propose to impose the same sentence on you for each offence to reflect the totality of your offending”.^[16]
23. Once the learned sentencing judge had announced the head sentence of 18 months, he asked the prosecutor whether “is this a case where a parole release date is fixed or a recommendation for parole”.^[17]  Having been told that a parole release date could be set, his Honour fixed the parole release date “in nine months time of 26^th of June 2015”.^[18]

Contentions on pre-sentence custody and parole release date

24. At the sentencing hearing no specific submissions were made by the prosecutor or counsel for Mr Jamieson as to what might be done in Mr Jamieson’s case in respect of suspension or setting a parole release date.
25. The closest anyone came to the topic was the prosecutor’s reference to the original and appeal sentences in Gabbert.  In that case, the sentence at both levels involved a parole release date after serving one third of the head sentence.  The prosecutor referred to the fact that Gabbert had not committed his offence whilst subject to a period of suspended imprisonment, unlike Mr Jamieson.  The prosecutor had earlier said that this had aggravated Mr Jamieson’s offending.^[19]  The prosecutor submitted that Mr Jamieson’s offending was worse than in Gabbert, but no specific point was made as to whether a parole release date for Mr Jamieson ought to be at one third or something else.^[20]
26. Counsel for Mr Jamieson did not address the issue directly but said this at the end of his submissions:^[21]

“This, if I can sum it up, in my submission, is offending conduct where, of course there is some commerciality, but it’s very low level – very low level indeed. The supplies are unquantifiable, in effect, and two of them are schedule 2 and I note your Honour’s finding about two of them being schedule 1. In my submission, even accepting all of that, it’s still a very low level activity that my client was engaged in. It’s conceded he was on conditional liberty when he’s committed these offences and that’s going to aggravate the penalty to be imposed today but, in my submission, the cases are all more serious than what Mr Jamieson brings to this court.”

Drugs Misuse Act, Schedule 1 and Schedule 2 point

27. One of Mr Jamieson’s contentions is that he was sentenced on the basis of supplying a Schedule 1 drug when it should have been Schedule 2.  At the sentencing hearing the contention was that the indictment was required to specify whether the drug was a Schedule 1 or Schedule 2 drug, because that would be a circumstance of aggravation required to be specified under s 564(2) of the Criminal Code (Qld) (the Code).  The form of the indictment for counts 3 and 4 did not specify the particular drugs, but identified them by reference to “Section 6 Drugs Misuse Act 1986”.^[22]  Therefore, it was said, because it did not specify a Schedule 1 drug, the indictment must be read as specifying a Schedule 2 drug.
28. The contention was advanced to the learned sentencing judge as a technical point, in the sense that it was never suggested that Mr Jamieson was ever in any doubt about what was being charged in counts 3 and 4, namely supply of a Schedule 1 drug.
29. The debate revealed that particulars of the supply charges had been sought and provided on 3 April 2014.  Those particulars specified that counts 3 and 4 involved a Schedule 1 drug.^[23]  The same particulars appeared in the agreed schedule of facts, which specified methylamphetamine as the drug involved in counts 3 and 4.^[24]
30. In the course of ruling upon the issue, the learned sentencing judge said:^[25]

“For the purposes of a charge against section 6(1), the particular drug could be included in the drug in accordance with form 353 or the charge could specify the drug as a schedule 1 or a schedule 2 drug or details of the drug could be provided by particulars, as they were in the present case. In view of the particular, exhibit 6, in my view, the defendant when he was arraigned and pleaded knew precisely what he was pleading to and, in particular, knew that he was pleading guilty to unlawfully supplying a schedule 2 dangerous drug in counts 1 and 2 and unlawfully supplying a schedule 1 dangerous drug in counts 3 and 4, because of the particulars provided.”

31. Although Mr Jamieson mentioned this point in his written outline, it received no elaboration and no further argument orally.  Mr Jamieson said that he “didn’t really know too much about the … schedule 1 and schedule 2 of the drugs, but I’m just going off what [my lawyer] said”.
32. The Drugs Misuse Act 1986 (Qld) (the Act) creates the offence of unlawfully supplying a dangerous drug to another in s 6(1).  That offence does not depend on whether the drug is Schedule 1 or Schedule 2.  That merely affects the maximum applicable penalty, along with whether the supply is one of aggravated supply under one of the provisions of s 6(2).
33. Section 129(1) of the Act provides that in respect of a charge for having committed an offence defined in part 2 of the Act (which applies to s 6) “it is not necessary to particularise the dangerous drug in respect of which the offence is alleged to have been committed”.
34. The form of the indictment used to bring the charge is the subject of provisions in the Code.  Section 564 relevantly provided at the time the indictment was presented:

“(1)An indictment … must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such a manner …  as may be necessary to inform the accused person of the nature of the charge.

(2)If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.”

35. The phrase “circumstance of aggravation” is defined in the Code as meaning: “any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance”.
36. Mr Jamieson’s contention before the learned primary judge was that whether the drug was Schedule 1 or 2 was a circumstance of aggravation.  I do not accept that contention.  Absent the matters in s 6(2), which are truly circumstances of aggravation, supply of a Schedule 1 drug merely attracts a greater maximum penalty than supply of a Schedule 2 drug.  That the contention cannot be sustained is demonstrated by considering its application to an offence involving only Schedule 2 drugs.  The contention would have it that because the supply was of a Schedule 2 drug, that fact had to be set out in the indictment because it was a circumstance of aggravation, that is to say: the supply of a Schedule 2 drug renders the offender liable to a greater punishment than if the offence was committed without the drug being a Schedule 2 drug.  The proposition only has to be stated to see that it is a misapplication of the definition of “circumstance of aggravation”.
37. Support for the rejection of the contention is also gained from the specified form for indictments for offences under the Act, in schedule 4 to the Criminal Practice Rules 1999 (Qld).  For an offence under s 6 of the Act, the form uses the words: “Unlawfully supplied the dangerous drug [name the drug] to another person (or to EF)”.  The form therefore does not require that the drug be identified as Schedule 1 or Schedule 2.
38. Section 573 of the Code provides that the Court may direct that particulars to be delivered “of any matter alleged in an indictment”.  Of course, the same thing can be achieved consensually between the prosecution and defence counsel, which is what occurred here.  Six months before Mr Jamieson was called on to plead to the charges, particulars were given that specified that counts 3 and 4 involved a Schedule 1 drug.
39. Therefore, when the pleas of guilty were entered, Mr Jamieson was well aware that counts 3 and 4 were contended to involve Schedule 1 drugs.  There was also no application to vacate the plea on the basis of any misunderstanding as to the true content of the charge.
40. Further, the agreed statement of facts contained the identification of the drugs as methylamphetamine and cannabis, and then the specific identification of counts 3 and 4 as being under s 6(c) of the Act, and the maximum penalty being 20 years, which is only applicable to supply of a Schedule 1 drug.
41. In my view, the learned sentencing judge was right to sentence on the basis that counts 3 and 4 were offences involving Schedule 1 drugs, namely methylamphetamine.

Errors by the sentencing judge

42. The Crown concedes that the learned sentencing judge made “two minor errors”.^[26]
43. The first was that the declarable days of pre-sentence custody were miscalculated.  It erroneously included the day of sentence, namely 26 September 2014.  In one sense this is not surprising given that the certificate shows that the declarable days are from 19 September at 11.00 am until 26 September at 9.00 am, a total of six days and 22 hours.^[27]  However, the Crown accepted that the period should properly have been calculated from 20 September to 25 September, inclusive.^[28]
44. The second was that when his Honour set nine months as the parole release date, he intended to mean nine months of actual custody including the days declared as pre-sentence custody.  Instead he set the date at nine months from the date of sentencing, and thereby the total period of actual custody was nine months and six days.
45. Whilst the Crown sought to make light of this error, as being a slip that could be corrected without re-exercising the sentencing discretion, I am not satisfied that it is as easy as that.  After all Mr Jamieson was supposed to serve a period of actual custody of no more than nine months, but did so because of that error.  It is also true that there was no explanation in the reasons for adding the six days to the nine months; how could there be, when it was not what was intended.
46. Whilst such an error might be classed as a slip, and corrected as such, if detected before the offender is sentenced or undergoes actual custody, in my view, the same cannot be said where someone has spent six days longer in custody than the Court intended to impose.
47. Furthermore, the six days extra took the parole release date beyond the halfway point.  Absent some clear reasons, that is hard to justify, as the Crown rightly accepted.^[29]  As was said in Kitson:^[30]

“First, in a case such as this, where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the midpoint of the head sentence is very unusual: cf R v Norton [2007] QCA 320 per Douglas J. So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it.”

Sufficient reasons for imposing nine months for the parole release date

48. It is the fact that there is no explicit exposition of the reasons why the learned sentencing judge imposed nine months, or one half of the head sentence, rather than the normal one third (six months), to reflect the plea and other mitigating factors.  One is left to infer what the reasons may have been.
49. That is what the Crown urged in oral argument.  The best that could be identified was to focus on the remarks that his Honour considered Mr Jamieson’s conduct was “worse than the defendant in the case of [Gabbert]”.  The contention was that the learned sentencing judge imposed the same head sentence as in Gabbert, namely 18 months, and therefore the only discernible consequence of the view that the conduct here was worse than Gabbert is that the actual custody was longer in proportion.^[31]
50. One difficulty with that approach is that it requires quite a degree of inferential analysis when the purpose of sentencing remarks is to expose, at least with tolerable clarity, the reasoning behind the sentence.^[32]  The learned sentencing judge did not say why he considered Mr Jamieson’s conduct was worse than Gabbert, except to say he agreed with the prosecutor.^[33]
51. In distinguishing Gabbert, the following matters were raised by the prosecutor:^[34]

• the offender was 31 (Mr Jamieson was about 24);
• there were two actual supplies of methylamphetamine to a police officer;
• the offender had been previously sentenced to imprisonment for  drug offences, but the last such offence was 10 years before; the relevant offences were not committed while subject to a suspended sentence of imprisonment (unlike Mr Jamieson);
• “given the possession charges and the number of supplies with which [Mr Jamieson] has plead guilty, … his conduct is worse than that seen in Gabbert”.

52. One is left to wonder, did the learned sentencing judge agree with all these points or only some of them, and if so, which ones?  Moreover, even if the conduct of Mr Jamieson was worse than that in Gabbert why did it result in the same head sentence with an increased proportion as actual custody, as opposed to a greater head sentence and still a one third period for the parole release date?
53. This Court said in Kitson:^[35]

“[18]As was said in the joint judgment in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at paragraph [39], accessible reasoning is necessary in the interests of victims, the parties, appeal courts, and the public. Such an explanation might be quite brief in many cases, but here the reasons do not explain at all why the parole release date was postponed until after the mid-point of the sentence.

[19]There are decisions of this Court to the effect that a failure to give reasons that ought to have been given amounts to appealable error: Camden & Anor v McKenzie & Ors [2007] QCA 136; Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29]; Crystal Dawn Pty Ltd & Taylor v Redruth Pty Ltd [1998] QCA 373.”

54. In my view, the learned sentencing judge did not give adequate reasons to explain why he imposed a requirement to serve more than one third when the case proceeded on a plea of guilty.  Put another way, there were inadequate reasons to explain why Mr Jamieson was required, in those circumstances, to serve nine months of actual custody.

Taking into account non-declarable pre-sentence custody

55. The learned sentencing judge was told that there were 76 days of pre-sentence custody which could not be declared, but could be taken into account.^[36]  On that both sides were in agreement.
56. It is not evident that the learned sentencing judge took that period into account at all.  The topic received no mention at all in the sentencing remarks.  Therefore if his Honour thought that it was not to be taken into account, one does not know why he thought that.

Conclusion as to errors in approach

57. For the reasons given above it is my view that the learned sentencing judge fell into error in three ways, namely: (i) not giving adequate reasons for the imposition of nine months as the period before parole release; (ii) not taking into account, or explaining why he did not take into account, the period of non-declarable pre-sentence custody; and (iii) setting the parole release day without taking into account the declarable six days of pre-sentence custody.
58. Those errors mean that this Court must exercise the sentencing discretion afresh.  Given that Mr Jamieson sought to attack only the setting of the parole release date, that should be the focus of the exercise.
59. In any event, I have come to the conclusion that a head sentence of 18 months is appropriate for the offences in this case.  In that regard the nature of the offence, Mr Jamieson’s history of drug offending, the supply of methylamphetamine, the commercial aspect of it, that it was committed while subject to a suspended sentence, and the need for general as well as personal deterrence, all suggest that the sentence be one at that level: see paragraphs [7] – [13] and [15] – [16] above.  A sentence of that duration is supported by decisions of this Court in R v Armstrong,^[37] R v Christie,^[38] R v Kennedy,^[39] Kitson, and Gabbert.
60. As to the question of the parole release date, there are mitigating factors which, together with Mr Jamieson’s early plea, make it difficult to depart from setting the date at six months (taking into account the six declarable days pre-sentence custody), namely at 18 March 2015.  Those factors are:

• since his release on the prior sentence in 2013 he had worked consistently in his father’s business earning a good income; he was the only income earner in his family;
• he had become the father of a 10 month girl and his partner (Ms Murray) was pregnant again; the evidence suggested that this gave him a renewed focus on staying away from offending conduct; he had not committed offences again since becoming a father;
• whilst in custody he completed a certificate in “Work safe in the construction industry”, and a “Self-Conducted Recovery and Prevention Program”, which pointed to some steps at rehabilitation;
• his father said that Mr Jamieson was a trusted worker in his handyman/concreting business, and relied on him to do much of the heavier manual jobs; without Mr Jamieson, the father would find it hard to continue by himself; and
• he had not reoffended in the period since being charged.

61. In my view, acknowledging that Mr Jamieson’s offending occurred while subject to a suspended sentence, and his history, the matters referred to in paragraph [60] above weigh against setting the parole release date later than six months.

Conclusion and orders

62. For the reasons given I would order:
    1. The application for leave to appeal be granted.
    2. The appeal is allowed.
    3. Set aside the orders made on 26 September 2014 in so far as they:
       1. declared that the offender was held in pre-sentence custody for six days between 19 September 2014 and 26 September 2014; and
       2. set the parole release date at 26 June 2015.
    4. In lieu thereof:
       1. pursuant to Section 159A of the Penalties and Sentences Act 1992 (Qld), it is stated that the offender was held in pre-sentence custody for six days between 20 September 2014 and 25 September 2014 inclusive; and
       2. the date the offender be released on parole be fixed at 18 March 2015.
    5. Otherwise confirm the orders made on 26 September 2014.
63. PHILIPPIDES JA:  For the reasons given by Morrison JA, I agree with the orders proposed by his Honour.