R v Thompson[2016] QCA 196

SUPREME COURT OF QUEENSLAND

[1] MORRISON JA:  I have read the reasons of Burns J and agree with those reasons and the orders his Honour proposes.

[2] PHILIPPIDES JA:  I agree with the orders proposed by Burns J for the reasons given by his Honour.

[3] BURNS J:  The applicant, Mitchell Bernard David Thompson, was sentenced in the Supreme Court at Brisbane on 15 February 2016 for various drug offences, the most serious of which was trafficking in methylamphetamine and cannabis.  He complains that the sentences imposed were manifestly excessive and seeks leave to appeal.

The offences

[4] There were two indictments.  The first was presented in the District Court on 11 December 2014 and contained 14 counts.  After the applicant pleaded guilty to all counts on 3 September 2015, it was transferred to the Supreme Court for sentence.  A second indictment containing 10 counts was presented in that court on 23 October 2015.  It was this indictment that contained the count of trafficking, along with nine other counts.  The applicant pleaded guilty to each count on that indictment on the day he was sentenced.  He was also dealt with for 13 summary offences.

[5] Across the two indictments there were, in addition to the trafficking count, 19 counts of supplying a dangerous drug, three counts of possessing a dangerous drug and one count of possession of a thing used in connection with supplying a dangerous drug.  In the case of the summary offences, there were nine charges of possessing property suspected of having been used in connection with the commission of a drug offence, one charge of possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 (Qld), two charges of possessing utensils that had been used in connection with a drug offence and one charge of failing to take reasonable care and precautions in respect of a syringe.

[6] For the trafficking offence, the applicant was sentenced to four years and six months imprisonment, suspended after serving one third of that sentence (18 months) for an operational period equivalent to the head sentence.  On each count of supplying a dangerous drug, he was imprisoned for two years with a parole eligibility date of 13 August 2017, that being the day on which the sentence of imprisonment imposed with respect to the trafficking count will be suspended.  On each count of possession of a dangerous drug, he was sentenced to imprisonment for 18 months and, on the count of possession of a thing used in connection with supplying a dangerous drug, he was sentenced to six months imprisonment.  All sentences of imprisonment were ordered to be served concurrently.  In the case of each of the summary offences, the applicant was convicted but not further punished.

[7] As to the circumstances of the offending, the facts were agreed and reduced to writing in two separate schedules.

[8] The offences contained on the District Court indictment were detected when a vehicle being driven by the applicant was stopped by police on 27 February 2014 for the purpose of random breath testing.  Because the applicant was acting suspiciously, they asked him to alight from the vehicle so that a search could be conducted.  The applicant produced a plastic container.  In it were five clip seal bags of white powder that, on later analysis, was found to contain methylamphetamine.  From a total weight of over two grams of powder, the bags contained 1.317 grams of pure methylamphetamine.  The applicant told police that the powder was “gear” for his personal use and that it “would do [him] for a month”.  He said that he had purchased it “an hour ago”.  On request, the applicant supplied police with his PIN to access text messages on his mobile phone.  The content of these messages confirmed that, between 16 February 2014 and 27 February 2014, the applicant had been actively engaged in the supply of methylamphetamine on 11 occasions, the supply of MDMA on one occasion and the commission of an act preparatory to a supply on another occasion.  The largest amount of methylamphetamine supplied was what was described as a “half ball” for $850 (on 25 February 2014).  On 26 February 2014, the applicant received a complaint about the quality of what he had supplied.  He responded, “Really ur the first to complain I’ve sold an oz of it in the past few days … I don’t know since you’re the only one … out of about 100 ppl so either there’s a 1 in 100 chance u got a bad lot or you use too much”.  In another exchange of messages the next day, a supply was sought from the applicant on behalf of someone who was said to be “in a bad way” and would not “stop crying” because he had lost his job and was living out of his car.  The person enquiring messaged that all his friend needed was “a shot”, but acknowledged that the applicant had “a business to run”.  The applicant replied that none of this was his problem and that he did not “give out shots or [he] would be homeless as well”.

[9] The applicant was arrested and soon after took part in a formal record of interview with police, but only to a limited extent; he confirmed the version of events outlined by the interviewing officer and then declined to answer any further questions.  He was charged and released on bail.

[10] On 17 September 2014, police executed a search warrant at a unit in a residential complex situated in Fortitude Valley.  The applicant was located in a bedroom with his former partner, a Mr Laurie.  A number of items of drug paraphernalia were found during the search including electronic scales, empty clip seal bags, a “tick sheet” recording debts owed to the applicant, a list of names with weights recorded next to them (suggesting amounts the applicant had, or intended to, supply to those persons), a quantity of cash ($260) and a mobile telephone.  Although all of the text messages on the telephone had been deleted, 2,582 messages that had been sent and received between 9 and 18 September 2014 were later retrieved from the service provider.  These evidenced daily drug supply communications over that period with 48 different contacts and the supply of methylamphetamine on 47 separate occasions.  Three of those supplies were made to Mr Laurie.  The smallest sale was a “point” which was sold for $50 and the largest was a gram of methylamphetamine which was sold for $650.  On four occasions the applicant supplied (or made arrangements to supply) quantities of cannabis.  On another occasion, he agreed to supply LSD.

[11] The applicant’s usual mode of conducting business was to direct customers to the residential complex after an order was placed.  At times he would provide customers with the code for access to his unit but, on other occasions, he would meet customers outside the complex or in the car park.  The text messages also included complaints made by the applicant to his suppliers about the quality of what had been supplied.  Unlike the first bracket of offending in February 2014, on a couple of occasions the applicant supplied drugs on credit.

[12] There was no room for doubting that the applicant was carrying on business in the supply of dangerous drugs over the period charged.  He said so himself.  To mention but one example, the following appears in a text message sent to a customer on 14 September 2014:

“Dan if you don’t have the rest of my money by 6pm tonight you can find yourself a new dealer I run this like a business and you should know a lot better.”

[13] Following the search, the applicant was arrested but declined to participate in a record of interview.  After being charged, he was again released on bail.

[14] Next, on 28 November 2014, the applicant’s vehicle was stopped by police who were conducting random breath tests in Fortitude Valley.  The police asked the applicant if he had anything to declare.  The applicant directed them to a bag in the boot of his car which was found to contain a “sharps kit” along with electronic scales.  He was issued with a Notice to Appear.

[15] Lastly, police executed a search warrant at a home unit in Spring Hill on 17 January 2015.  The applicant was found asleep in one of the bedrooms.  More drug paraphernalia was located in the applicant’s possession including two sets of electronic scales and a mobile telephone.  Later analysis of the text messages on that telephone showed that the applicant had only used it on 16 and 17 January 2015 but, on those days, he received numerous drug supply enquiries, some of which he answered and others that he did not.  On one occasion he refused to supply and on two occasions he told the customer that he was waiting to restock.  The content of the messages supported three counts of supplying methylamphetamine, the last of which occurred only a few hours before police executed the warrant.  The applicant was arrested and declined to be interviewed.  He was formally charged and then held in custody for three days until his release on bail on 19 January 2015.

The sentencing hearing

[16]   The applicant was 29 years of age at the time of sentence and aged 27 and 28 years when he committed the offences for which he was sentenced.  He had a minor criminal history consisting of two entries.  On 7 April 2011, he was dealt with for the offence of wilful damage and fined $300.  He was ordered to pay restitution but no conviction was recorded.  Just over three years later (24 April 2014), he was sentenced for possession of utensils or things that had been used in connection with a drug offence (on 30 June 2013) and fined $600.  No conviction was recorded.

[17] The District Court indictment was listed for trial to commence on 2 February 2015 but, after a late change of solicitors (on 30 January 2015), the Crown were notified that the applicant intended to plead guilty.  The Supreme Court indictment was never listed for trial.  In any event, the applicant was sentenced on the basis that he had pleaded guilty to both indictments at an early stage.

[18] At the sentencing hearing, the Crown accepted that the trafficking count consisted of street level dealing; the applicant sold to end users and not to intermediate suppliers.  The most disturbing feature of the overall offending was submitted to be that the applicant continued to transgress whilst on bail.  Although it was conceded that the trafficking occurred over a relatively short period, the Crown emphasised the large number of supplies as well as the significant number of text communications with the applicant’s drug contacts.  It was accepted by the Crown that the applicant may have “scaled down” his illegal activities subsequent to his arrest for trafficking, but the applicant was clearly prepared to continue to supply dangerous drugs until he was taken into custody on 17 January 2015.

[19] The learned sentencing judge was referred to s 5(2) of the Drugs Misuse Act.  It provides that persons convicted of trafficking in a Schedule 1 drug (such as methylamphetamine) who are sentenced to a term of imprisonment must serve at least 80 per cent of their sentence before release on parole unless they are sentenced to an intensive correction order or a suspended sentence.[1]  However, the Crown submitted that it was open to the sentencing judge to impose a partially suspended period of imprisonment for the offence of trafficking to “reflect the gravity of the whole of the offending” across both indictments with lesser, concurrent terms of imprisonment for the other indictable offences.  Subject only to what is discussed below in connection with Counts 2 to 5 on the Supreme Court indictment,[2] such a proposition was plainly correct.  To that end, her Honour was referred to the decisions of this Court in R v Taylor,[3] R v Challacombe[4] and R v Mikula[5] as establishing the appropriate sentencing level.  Mention was also made of R v McAway.[6]

[20] The applicant was represented in the court below by experienced counsel.  It was submitted that the sentencing approach just discussed was “exactly” what was sought on behalf of the applicant and that a partially suspended period of imprisonment of “between four and five years” should be imposed with respect to the trafficking count despite the relatively short period of time during which the trafficking took place.  In support of those submissions, the sentencing judge was referred to the decision of this Court in R v Blumke[7] as well as a single judge decision.[8]

[21] So far as the applicant’s antecedents are concerned, it was submitted by his counsel that the applicant had a troubled upbringing, that he was estranged from his father and that he had a poor relationship with his mother.  At 20 years of age, he formed a relationship with a woman and that union produced two children who were, at the time of sentence, aged eight years and six years respectively.  Their relationship ended after about four years when the applicant met Mr Laurie, someone who was submitted to be a “very heavy amphetamine user”.  Although the applicant had used drugs in the past, it was not until he commenced his relationship with Mr Laurie that he became a regular user of methylamphetamine.  It was submitted that the applicant’s offending was primarily undertaken to support his own habit.  In 2013, the applicant was diagnosed with HIV.  This condition was being treated with medication and apparently well managed, although he had been hospitalised for a urinary tract infection in the week preceding the sentencing hearing.  It was accepted by that the applicant would continue to receive his required treatment whilst in prison.

[22] A number of references were provided to the court.  These were from the mother of his children, his grandmother and from the proprietor of a property maintenance business for whom the applicant had been working to pay off a debt he owed for rent.  Taken together, this material established that, since the date of his last arrest (17 January 2015), the applicant had taken some steps to come to terms with his drug use.  He re-established a relationship with his children with the support of their mother and obtained part-time work.

[23] A treatment report from the Biala Acute Care Service dated 4 September 2015 was also tendered.  It recorded that the applicant sought assistance from that service in July 2015, and was treated for “methamphetamine withdrawal management” on three subsequent occasions that month before being referred to the Chermside Alcohol and Drug Service for ongoing support and counselling.  Unfortunately, it does not appear that the applicant took advantage of that referral, although it was submitted that he was “drug free” at the time of sentence and that he had been for some time.  According to the treatment report, the applicant had been using methylamphetamine intravenously since the age of 23 years and quickly developed a daily dependence.  He was also reported to have a problem with alcohol and a history of cannabis use along with the opportunistic use of MDMA and cocaine.  He gave a history of depression and anxiety and, for that reason, was referred to a staff psychiatrist.  The applicant subsequently attended appointments with the psychiatrist on 27 July 2015 and 19 August 2015 and was treated with antidepressant medication.

[24] When sentencing the applicant, the judge noted with understandable concern that the applicant had been involved in two serious episodes during which he supplied dangerous drugs, the second of which constituted the offence of trafficking.  Her Honour described them as “relatively brief, but very intense”.  The efforts the applicant had made to rehabilitate himself since his arrest in January 2015 were acknowledged, as were each of the other matters his counsel submitted in mitigation of penalty including the feature that custody will be more difficult in his case than in others because of his HIV status.  That the applicant pleaded guilty to both indictments was expressly noted.  Indeed, in an earlier exchange with the applicant’s counsel,[9] the feature that those pleas were the only real manifestation of the applicant’s cooperation was confirmed.  In any event, because of the way in which the sentences were structured, providing as they did for the applicant’s release from custody after serving only 18 months of the effective head sentence of four years and six months, his pleas of guilty were plainly taken into account by the sentencing judge.

[25] Her Honour resolved to assist with the applicant’s rehabilitation by “fashioning a sentence which will make sure [he has] supervision when [he is] released from custody”.  The sentence imposed with respect to the trafficking count was said to take account of all of the applicant’s offending “including the fact that [he had] committed offences whilst on bail and, indeed, more serious offences whilst on bail”.

The proposed grounds of appeal

[26] The applicant was not represented on the hearing of this application.  In his Outline of Submissions, the applicant proposed the following grounds of appeal:

1. that the sentencing judge failed to take account of his early pleas of guilty;
2. that the sentences were “manifestly excessive for supplying such a small amount of drugs and for a very short [trafficking] period with no financial gain”;
3. that three days of pre-sentence custody were not taken into account; and
4. that the sentencing judge failed to “take into account full cooperation with police during the whole process with passwords and surrendering evidence before police searches”.

[27] In support of the submission that the sentences imposed were manifestly excessive, the applicant referred to the decision of this Court in R v Scott[10] as well as a single judge decision from 1992 in a matter of Wilkins.[11]

[28] In oral submissions, the applicant sought to make some additional points. He claimed that, between the date of his release from custody (19 January 2015) and his sentencing hearing (15 February 2016), he was subjected to an unwarranted level of attention from the police including the execution of search warrants at his home. But, even assuming that to be the case, it would be unsurprising if close attention was paid to the applicant after his release from custody given his preparedness to offend on bail in the past. The applicant also asserted that, after he was arraigned and pleaded guilty to the District Court indictment (3 September 2015), he believed that all matters concerning him had been finalised (save for his sentencing on those counts) and that he was caused great distress when, to his surprise, the Supreme Court indictment was presented in the following month. Such an assertion does not withstand scrutiny; the applicant must have known that none of the charges based on the evidence gathered by police on 17 September 2014 and 17 January 2015 had been dealt with, let alone indicted, at the time when he was arraigned in the District Court. The applicant also maintained that there were inaccuracies in the schedules of facts that were tendered on sentence including inconsistencies as to the prices charged by him for various supplies but, even leaving to one side the feature that the schedules were tendered by agreement between the Crown and the defence, none of the matters the applicant pointed to in this regard could have had any material effect on the sentences that were imposed. It follows that none of these points assists the applicant.

[29] The applicant did, however, make one point of substance.  He referred to the Supreme Court indictment and to the feature that he had been punished for a number of counts of supply that occurred during the period of trafficking for which he was of course also punished.  He submitted that this must have been an error and, for the reasons that immediately follow, that submission should be accepted.

Consideration

[30] Count 1 on the Supreme Court indictment alleged that the applicant unlawfully trafficked in methylamphetamine and cannabis between 8 September 2014 and 18 September 2014.  Counts 2 to 5 alleged that the applicant unlawfully supplied cannabis on 12 and 16 September 2014.  Count 6 alleged that the applicant unlawfully supplied a dangerous drug (LSD) on 13 September 2014.  Each of counts 2 to 6 were therefore alleged to have been committed during the period of trafficking alleged in count 1.  Count 6 is of no relevance to the applicant’s point because it concerned a drug that was different to those alleged in count 1.  However, it was accepted by the Crown at the hearing of this application that the supplies alleged in counts 2 to 5 were relied on, in part, as particulars of the trafficking offence.  It was therefore inappropriate to impose sentences on those supply counts,[12] but each attracted concurrent terms of two years imprisonment with a parole eligibility date of 13 August 2017.  Unfortunately, despite the sentencing judge having specifically canvassed the structure of the sentences at the submission stage, her Honour was not alerted to this feature of the Supreme Court indictment in the court below.  Indeed, quite to the contrary, the submission was made that lesser concurrent terms of imprisonment should be imposed for the supply counts in question.  Be that as it may, the imposition of sentences of imprisonment on counts 2 to 5 was an error and it must be corrected.

[31] I turn then to the proposed grounds of appeal appearing in the applicant’s Outline.

[32] There is no substance to the complain t that the applicant’s pleas of guilty were not taken into account by the sentencing judge . For the reasons already expressed, [13]  his pleas were rightly regarded by her Honour as the only real manifestation of cooperation in this case . They were expressly referred to in her Honour’s sentencing remarks and had a significant reducing effect on the period of actual custody that the applicant was ordered to serve . Indeed, there was little else to justify such a reduction . In that regard, although it may be ac cepted that the applicant supplied the PIN for his mobile telephone when he was first arrested (27 February 2014), the reason he advanced to the police for being in possession of the five clip seal bags of powder was hardly credible . Furthermore, his part icipation in the record of interview that followed was of negligible assistance, and he declined to be interviewed on both occasions when he was subsequently arrested (17 September 2014 and 17 January 2015) . When his vehicle was stopped by police on 28 No vember 2014 and the applicant was asked whether he had anything to declare, he directed them to the bag in the boot in which the items seized that day were contained but, apart from that and the provision of his PIN on 27 February 2014, it cannot be said t hat the applicant provided much in the way of positive assistance to the police in their investigation of his offending . It follows that the applicant’s assertion that there was “full cooperation with police during the whole process” must be rejected.

[33] The complaint that the sentences imposed were manifestly excessive should meet a similar fate.  All of the offences on the Supreme Court indictment, as well as most of the summary offences, were committed by the applicant whilst he was on bail.  In any such case, considerations of personal deterrence take on greater than usual significance.  Further, although the period of trafficking was measured in days, the applicant managed to supply dangerous drugs on no fewer than 47 occasions during that time.  His preparedness to do so whilst on bail and, further, to go about his offending in such an organised and businesslike manner warranted the serious view the sentencing judge took of that bracket of his offending.  Then, undeterred by his second arrest and grant of bail, the applicant brazenly persisted in his offending until he was taken into custody on 17 January 2015.  His offending spanned 11 months and it was that overall criminality which attracted the head sentence that was imposed for the trafficking count.  Shortly stated, a head sentence of four years and six months imprisonment could not be said to be other than a sound exercise of the sentencing discretion in the circumstances of this case, as his counsel’s submissions at the sentencing hearing effectively acknowledged and the comparable decisions demonstrate.

[34] As to the comparable decisions, it is convenient to start with the decisions relied on by the applicant in his submissions.  Wilkins is of no assistance because the offender in that case was not dealt with for trafficking.  In Scott, the offender pleaded guilty to trafficking in methylamphetamine and cannabis, three counts of possession of those drugs and one count of possession of a thing used in connection with dangerous drugs.  He was charged with trafficking only three days after the date on which he had been charged with the possession offences and released on bail and it was based on admissions he made in a formal record of interview with police that day.  Scott was 21 years of age at the date of the offences and 23 years at the date of sentence.  He had a minor criminal record and was a plasterer by trade with the prospect of a ready return to work when released.  The trafficking took place over about two months and involved supplies to between five and eight people.  He was a user of methylamphetamine and was dealt with on the basis that he committed the offences to fund his own habit.  He was sentenced to three years and six months imprisonment with a recommendation for post-prison community based release after serving 15 months.  In dismissing the application for leave to appeal, Keane JA (with whom Williams JA and Douglas J agreed) observed that “in cases of trafficking in methylamphetamine even at the lower end of the scale of seriousness, a range of three to five years is appropriate”.[14]  It can therefore be seen that Scott was a less serious case than the one at hand: the offender was younger; although he was charged with the trafficking whilst on bail, that charge was based on admissions relating to his past conduct; he cooperated to a much more significant degree including the making of full admissions; and the trafficking involved substantially fewer customers than in this case.

[35] Turning then to the comparables to which the sentencing judge’s attention was drawn, in Taylor, a head sentence of five years imprisonment suspended after two years was imposed on a 20-year-old man for trafficking in methylamphetamine and MDMA.  He had no criminal history and his offending was regarded at the lower end of a drug trafficking network.  Based on admissions he made to police, he was dealt with on the basis that he had been selling drugs for approximately two months, during which he sold sold methylamphetamine to about a dozen regular customers as well as approximately 1,000 tablets of MDMA.  He was not a drug user; he offended to make money.  The sentence was not disturbed.

[36]McAway involved a young woman, aged 19 to 20 years at the time of offending, who pleaded guilty to trafficking in MDMA and MDME over a six month period. She had no criminal history but, after being charged, breached bail on one occasion. She was sentenced to five years imprisonment with parole eligibility after 18 months. There were many mitigating features including her youth, cooperation with the authorities including the fact that the trafficking count was based solely on her admissions, an early plea of guilty and promising prospects of rehabilitation. The application for leave to appeal against the sentence was dismissed. In the course of so doing, and after reviewing a number of comparables including Taylor, McMurdo P said that a “sentence in the range of four to five years imprisonment with parole eligibility after one to two years would have been appropriate”.[15] Although the sentence imposed was at the top of that range, it was not manifestly excessive.

[37] In Challacombe, the Court also refused to interfere with a head sentence of five years imprisonment with parole eligibility at 18 months that was imposed on a young man who was 21 and 22 years of age at the time he trafficked in methylamphetamine and MDMA.  The period of trafficking was approximately four to five months and his role was regarded as having been at a “relatively low level”.[16]  He had four regular customers and made a profit of between $3,000 and $4,000.  Although a drug user, he was not an addict.  There was full cooperation with the authorities including full admissions, a good work history and attempts to rehabilitate himself.

[38] Mikula involved trafficking in methylamphetamine for commercial gain. It took place over a nine month period, during which the offender supplied to approximately 17 users. He was 22 and 23 years of age at the time of offending, and 25 years at the time of sentence. He had a minor criminal history, excellent work references and had made commendable efforts at rehabilitation since his arrest. He had been drug-free from that time and had the support of his family. He cooperated with the authorities and pleaded guilty at an early stage. He received a sentence of four years imprisonment for the trafficking offence, suspended after he had served 16 months. His application for leave to appeal was dismissed, it being observed by McMurdo P (with whom Holmes JA and Morrison JA agreed) that the appropriate range in his case was “a head sentence of between three and four years with parole eligibility at or slightly earlier than one third”.[17]

[39]    The decision of this Court relied on by the applicant, Scott, was recently referred to along with Taylor, McAway, Challacombe and Mikula by Morrison JA in R v Clark.[18]  There, the offender pleaded guilty to trafficking in methylamphetamine that had occurred over a two and a half month period.  She was noted to be “very active in ordering and selling methylamphetamine, both for commercial gain and to feed her own $300 a day habit”.[19]  She was 24 and 25 years of age at the time of the offending.  She had a criminal history which included repeated drug offences and she was on probation at the time of the trafficking.  Her descent into drug use was triggered by the death of her firstborn child who had died of sudden infant death syndrome.  She was not considered to be a suitable candidate for either a suspended sentence or probation.  By reason of s 5(2) of the Drugs Misuse Act, the sentencing judge was required to order that she not be released from prison until she had served a minimum of 80 per cent of any term of imprisonment that was imposed.  That harsh consequence was taken into account in imposing a head sentence at the lower end of the applicable range, that is, three years imprisonment.  McMurdo P considered that, prior to the introduction of s 5(2) in 2013, Clark would have been sentenced to between three and four years imprisonment with parole or suspension after about 12 months to reflect the mitigating features of her case.  After reviewing the comparable decisions, Morrison JA (with whom North J agreed) considered that the adoption by the sentencing judge of a starting point for the head sentence of four years before taking account of the effect of s 5(2), and then ameliorating the sentence accordingly, was appropriate.

[40] To complete the picture, reference should be made to the decision of this Court referred to by counsel for the applicant in the court below, namely, Blumke.  There, the offender pleaded guilty to trafficking in methylamphetamine, cannabis and another drug along with several other lesser counts.  He was sentenced to four years imprisonment on the trafficking count, suspended after he had served 12 months.  The trafficking took place over a 10 week period when he was 27 years of age.  The sentencing judge described the trafficking as having been “primarily at street level but on occasion not at a street level”.[20]  The drugs trafficked included substantial quantities of methylamphetamine and the applicant’s involvement was marked by a level of sophistication.  He was careful to avoid detection and was “an active participant in the trafficking business, including negotiating prices and dealing with various customers”.[21]  He had eight entries on his criminal history including convictions for minor drug offences, but they were somewhat dated.  He did not have the feature that is present in this case of offending whilst on bail.  Since being apprehended, he had “turned his life around”[22] by obtaining employment, removing himself from the drug culture and resuming a relationship with his partner.  Philippides JA (with whom McMurdo P and Jackson J agreed) was not satisfied that the sentence imposed was manifestly excessive and, for that reason, the application was dismissed.

[41] Given the aggravating features that were present in this case, not the least of which was the applicant’s persistent offending whilst on bail, not only am I unpersuaded that the head sentence of four years and six months imprisonment was manifestly excessive, but I am also of the view that such a sentence was entirely appropriate when regard is had to the comparable decisions reviewed above.  Nor can any serious complaint be made about the portion of that sentence which the sentencing judge ordered to be served in actual custody.  It meant that the applicant will serve one third of the head sentence before his release and that was also an appropriate, if not generous, reflection of what was accepted to be his early pleas of guilty.

[42] The remaining proposed ground of appeal is that three days of pre-sentence custody were not declared or otherwise taken into account by the sentencing judge.  That was the period during which the applicant was held in custody after his arrest on 17 January 2015.  For whatever reason, the sentencing judge was not alerted to it and a pre-sentence custody certificate was not tendered at the hearing.  Be that as it may, it is common ground that the applicant was in custody with respect to the subject offences for this period and the Crown concedes that the sentence ought be “corrected” by making a declaration pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld).

Disposition

[43] The sentencing of the applicant to terms of imprisonment on counts 2 to 5 of the Supreme Court indictment and the failure to make a declaration of pre-sentence custody (or otherwise take that period of custody into account) meant that the sentencing process was affected by two errors.  Neither was the fault of the sentencing judge, but their existence means that this Court is required to re-sentence the applicant.  For the reasons already expressed, I would not interfere with the head sentence imposed in the court below or the partial suspension of that period imprisonment after 18 months.  Instead, I would set aside the sentences imposed on counts 2 to 5 of the Supreme Court indictment and order that the applicant be convicted and not further punished.  I would also declare the three days of pre-sentence custody as time served with respect to the sentences of imprisonment otherwise imposed and for no other reason.

[44] The orders I propose are these:

1. Grant leave to appeal;
2. Allow the appeal;
3. Other than the recording of convictions, the sentences imposed on counts 2 to 5 of Supreme Court indictment No 819 of 2015 be set aside and the applicant not be further punished on those counts; and
4. Declare, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that the period of three days during which the applicant was held in custody from 17 January 2015 to 19 January 2015 was time served under the sentences of imprisonment imposed on 15 February 2016.