R v Nicholson[2016] QCA 315

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Mullins J’s analysis of the facts and issues in this application for leave to appeal against sentence and that leave to amend the proposed grounds of appeal should be given.  I also agree with her Honour that the sentencing judge made an error of fact warranting the granting of leave to appeal and requiring this Court to re-exercise the sentencing discretion to determine whether the appeal against sentence should be allowed.  Unlike Mullins J, however, I would allow the appeal against sentence.
2. I note that the sentence imposed at first instance was within range and not manifestly excessive but this Court must exercise its own discretion in resentencing the appellant.
3. There is no doubt that this 37 year old offender, now 38, a methylamphetamine addict for half his life, has a lamentable history of drug-related offending.  He committed the offence the subject of this appeal, possessing methylamphetamine in excess of two grams on 24 July 2015, a short time after successfully completing a six month live-in residential drug rehabilitation program with Breaking Through Transitional Services Limited.^[1]  The circumstances of this offence and his criminal history demonstrate that, despite his motivation and desire to be drug-free, he has been unsuccessful so far in taming his drug addiction.  That he is genuine in his efforts to rehabilitate is supported by the letter to the judge from his partner,^[2] the letter from a potential employer,^[3] and the appellant’s statement to the judge at sentence.^[4]  The letter from the senior case manager at Breaking Through Transitional Services Limited,^[5] dated 28 June 2016, well after the appellant’s most recent offence and shortly before sentence, referred to the appellant’s commendable efforts at rehabilitation and indicated the organisation’s preparedness to assist him in the future.  The court report from Corrective Services, dated 16 June 2016, again, well after his most recent offence and shortly before sentence, stated that the authors considered he would be suitable for future community based orders.^[6]  As this report was tendered by the prosecution and was apparently obtained to place before the sentencing court, without more information I would not be prepared to infer the authors were unaware of the present offence.  The harsh reality of the evils of drug addiction is that an addict, even a highly motivated one, can relapse several times before succeeding in taming the addiction.
4. As a result of these factors, combined with the appellant’s full co-operation with the police and timely guilty plea, I would impose a sentence of three years imprisonment with a parole release date set at 22 August 2017.  This is slightly later than the one third point commonly given where there is co-operation and a timely guilty plea, but this is appropriate to reflect the appellant’s concerning recidivism.
5. As my view is in the minority, the order I would propose will not prevail and the appeal is to be dismissed.  In those circumstances I join in Mullins J’s observations that the appellant will have a better chance of rehabilitation and successfully rejoining society if he has the supervision and support offered by a lengthy parole period.

6. MORRISON JA:  I have read the reasons of Mullins J and agree with those reasons and the orders her Honour proposes.

7. MULLINS J:  On 29 June 2016 Mr Nicholson pleaded guilty to one count of possessing the dangerous drug methylamphetamine where the quantity of the dangerous drug exceeded two grams.  He was sentenced to imprisonment for a period of three years and nine months.  His eligibility for parole date was fixed at 22 August 2017 (after almost one year and two months of the sentence).  He applies for leave to appeal against his sentence on the ground the sentence is manifestly excessive and, in particular that the sentence should have been structured to enable a parole release date to be fixed, rather than a parole eligibility date.  During the hearing of the application, it became apparent that the prosecutor at first instance (who was not the respondent’s counsel on this application) misstated a relevant fact which was perpetuated in the learned sentencing judge’s sentencing remarks.  The applicant therefore applies to add a further ground of appeal that the sentence proceeded on the basis of an error of fact.  In connection with that further ground of appeal, the applicant also applies for leave to adduce further evidence.

The offence

8. There was an agreed schedule of facts put before the sentencing judge.  The police executed a search warrant on 24 July 2015 at the address where Mr Nicholson and his partner were staying.  The police searched the room occupied by them and located a small plastic container containing 0.73 grams of crystalline substance in the top drawer of the dressing table.  Subsequent analysis showed that the substance contained 0.398 grams of methylamphetamine, at a calculated purity of 54 per cent.  A clip seal bag containing 42.143 grams of crystalline substance was found in a Nike shoe in the same drawer.  The calculated weight of methylamphetamine in that substance was 29.078 grams at a purity of 69 per cent.  A set of silver digital scales was located on top of the dressing table.  Another set of digital scales was located in the driver’s side of the door of Mr Nicholson’s vehicle.  When Mr Nicholson was shown the small plastic container with crystals in it, he said it was “ice” and belonged to him and the glass pipes located in the room were used by him to smoke “ice”.  He also said that the scales found in the room and his car were used by him to weigh the drugs he was buying to ensure he got the correct amount.

Mr Nicholson’s antecedents

9. Mr Nicholson was born in 1978 and was aged 37 years at the time of the offence.  He had an extensive and relevant criminal history, explicable by his addiction to methylamphetamine from the age of 19 years.  He was sentenced in the Supreme Court on 12 December 2001 for trafficking in methylamphetamine which was detected, as a result of 12 supplies he made to an undercover police officer for which $10,420 was paid for a total amount of 16.069 grams of pure methylamphetamine.  He was sentenced to five years’ imprisonment with a recommendation for release on parole after serving two years of that sentence, but served most of the sentence before his release on parole.
10. Mr Nicholson was sentenced in the District Court on 15 March 2002 for offences committed prior to his sentence in the Supreme Court on 13 December 2001, including two charges of unlawful use of a motor vehicle and receiving property obtained by a crime.  On this occasion he was sentenced to 12 months’ imprisonment concurrent with the sentence he was then serving.
11. There were further sentences of imprisonment imposed on Mr Nicholson in the Magistrates Court on 5 February 2007 which resulted in an effective head sentence of 12 months’ imprisonment (with an eligibility for parole date of 5 November 2007) for property offences and using a carriage service to menace, harass or cause offence.
12. On 20 May 2011 Mr Nicholson was sentenced in the Supreme Court for 46 offences committed mainly over a period of about 11 months between December 2007 and November 2008.  The most serious offences were production of methylamphetamine, dangerous operation of a motor vehicle, and supply in prison of Buprenorphine.  It was noted that his lengthy criminal history was largely associated with his long term drug addiction.  At the time of the sentence, he had been on remand for 993 days which was time that was declared in respect of the effective sentence of imprisonment of five years and four months that was imposed.  His eligibility for parole date was fixed as the date of the sentence, but he served almost the entire sentence before he was released on parole.
13. On 12 October 2013 Mr Nicholson was intercepted by police when his vehicle stopped at a service station.  A knife was discovered on his person and he was arrested for the possession of a knife in a public place.  He escaped immediately from the custody of the police, jumped into the Nerang River and swam to the other side.  Stolen items were located on a search of his vehicle.  When Mr Nicholson was eventually caught, he was dealt with in the Magistrates Court on 8 August 2014 for the offences detected on 12 October 2013.  He was given a total sentence of eight months’ imprisonment of which he had served 19 days in pre-sentence custody and was released on parole on 8 August 2014.
14. According to the court report dated 16 June 2016 prepared by the Department of Corrective Services, Mr Nicholson’s parole order made on 8 August 2014 was suspended around 25 August 2014, as a result of being charged with further offences.  Further offending was detected on 7 September 2014 when police entered an apartment where Mr Nicholson was present, he dropped something over the balcony, and struggled with the police.  When he was searched, he was found with three clip seal plastic bags containing a crystalline substance, a brown substance and green leafy material and a syringe.  On 13 October 2014 Mr Nicholson pleaded guilty in the Magistrates Court to three charges of possessing dangerous drugs, one charge of assault or obstruct police officer, and one charge of fail to take reasonable care and precautions in respect of syringe or needle, all of which were committed on 7 September 2014.  He was sentenced to 12 months’ imprisonment to be served by way of an intensive correction order.  According to the court report, it was not until 9 December 2014 that Mr Nicholson was re-inducted at the Probation and Parole office into the court ordered parole order and the intensive correction order and by 17 December 2014 he was participating in the Breaking Through Transitional Services program undertaking the residential program of six months with that organisation.  The recommendation of the court report was:

“Prior to his imprisonment, Mr Nicholson’s response to supervision was poor, however he appears to have made some improvements to his order compliance and motivation upon his release.  Based on his re-release behaviour he is would be considered suitable for future community based orders.”

15. At the time of his sentence, Mr Nicholson had been in a relationship with his partner for about two years.  He is close to her young daughter.  Mr Nicholson has a teenage son who is in the care of his sister.  Mr Nicholson had taken steps towards obtaining a qualification as a truck driver and had an offer for further training and possible employment from a trucking company.

Submissions made to the sentencing judge

16. When the prosecutor at the sentencing hearing tendered the court report dated 16 June 2016 that dealt with Mr Nicholson’s performance under the parole order and the intensive correction order, the sentencing judge observed that:

“The report appears to be written in ignorance of the fact that he committed the methylamphetamine possession offence with which I am concerned during the operation of the ICO.”

The prosecutor agreed with the observation made by the sentencing judge.  He then proceeded to tender a pre-sentence custody certificate which listed a large number of offences (apart from the subject offence and related summary offences committed on 24 July 2015) which were alleged to be committed on various subsequent dates including 27 September 2015, 5 October 2015, 17 and 31 December 2015, 8 March 2016 and 24 April 2016 on which he was also held on remand.  The certificate showed that Mr Nicholson had been received into custody on 24 April 2016 and that none of the pre-sentence custody of 67 days was therefore declarable in respect of the subject sentence.

17. The prosecution contended that by reference to the weight and purity of the methylamphetamine and Mr Nicholson’s criminal history, there was a commercial element to the offending.  Mr Nicholson gave instructions to concede that, even though he had the drugs for his own use, he could not rebut the possibility he was going to sell some of the methylamphetamine to make money to buy more methylamphetamine.  Mr Nicholson’s counsel (who is not the same counsel who appeared on this application) agreed with the sentencing judge’s characterisation that “some was very likely destined for commercial exploitation”.
18. The prosecutor relied on R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116 and R v Nguyen [2015] QCA 205 at [27]-[30] to submit that the appropriate sentence would be at the end of the range identified in Hesketh at [17] of imprisonment between two and one-half years to four years.
19. Mr Nicholson’s counsel at the sentence submitted that Mr Nicholson should be sentenced to three years’ imprisonment with a fixed parole release date after serving 12 months of the sentence less the period of 67 days which he had spent in pre-sentence custody since 24 April 2016.  In reliance on Hesketh, Nguyen and R v Marsanic [2008] QCA 219, it was submitted that the “range” of imprisonment for a commercial possession of methylamphetamine was imprisonment for two and one-half years to four years.  It was submitted that Mr Nicholson’s long standing addiction and institutionalisation from long periods in custody where reintegration then had its difficulties meant that Mr Nicholson’s criminal history was not only an aggravating factor, but gave context to his offending.  Although Mr Nicholson accepted he may have sold some of the methylamphetamine in the future to support his habit, it was submitted there was an absence of the usual indicators of a commercial purpose, such as tick sheets, re-packaging into smaller parcels, mobile telephone records of other transactions, or cutting substances.
20. The letter tendered from Breaking Through Transitional Services Limited showed that Mr Nicholson had entered the residential treatment facility on 8 December 2014.  The letter did not specify how long Mr Nicholson remained in the treatment program, but in response to a question from the sentencing judge, Mr Nicholson’s counsel advised that the residential program was six months.  (That meant that the offence for which he was being sentenced was committed less than two months after completing the residential treatment program.)
21. Mr Nicholson’s partner’s letter to the court advised of the difficulty she had in meeting her work commitments without the assistance of Mr Nicholson to look after her daughter.  She had met Mr Nicholson whilst he was undertaking the residential drug treatment program and described the stark difference in his attitudes and sociability when he was not using illicit substances compared to what he was like when he was using illicit substances, when he was withdrawn, easily agitated, extremely paranoid and depressed.  Mr Nicholson’s partner was prepared for Mr Nicholson to live with her and her daughter in a regional area when he was released, in order to isolate him from other drug users and assist him to overcome his drug addiction.
22. Mr Nicholson had injuries on his face at the time of the sentence which the sentencing judge was informed were as a result of Mr Nicholson being assaulted whilst in prison which Mr Nicholson put down to overcrowding.  The submission was made expressly for the head sentence not to exceed three years’ imprisonment which would give him the certainty of a fixed parole release date.
23. At the conclusion of his counsel’s submissions, Mr Nicholson addressed the court, acknowledging that he was a drug addict and he thought he would die from his addiction, if he did not do something about it.  He referred to his girlfriend and desire to move forward with his life.  He stated that he took “full accountability” for his actions and his drug addiction and that he would not give up on trying to stop his addiction.

Sentencing remarks

24. The sentencing judge recited the guilty plea and the circumstances of the offending and noted that Mr Nicholson was addicted to methylamphetamine and “it is common ground that some of the methylamphetamine was very likely destined for commercial exploitation so that you could feed your long-standing addiction”.  The sentencing judge referred to the sentences imposed on Mr Nicholson in the Supreme Court in 2001 and 2011 and that at the time he committed the subject offence, he was subject to an intensive correction order imposed on 13 October 2014.  Reference was made to Mr Nicholson’s participation in the program for six months in the residential facility and that his urine tests throughout that period were clear.
25. The sentencing judge explained that it was necessary “to emphasise considerations of personal deterrence in relation to offending of this kind in respect of the possession of methylamphetamine for commercial exploitation, to some extent” and for general deterrence.
26. It was also noted by the sentencing judge that Mr Nicholson had a substantial incentive in his new family to avoid recidivism and that it would be a challenge again on his eventual release into the community.  In respect of whether it was possible to give a sentence with a fixed parole release date, the sentencing judge observed:

“It is, I accept, well on the cards that if you are given a parole eligibility date, you may not obtain parole on that date.  Your criminal history may tend in that direction.  It is also possible that your conduct in custody may affect the prospects of you obtaining parole on a fixed parole eligibility date.  But notwithstanding the considerations mentioned, I do not consider that it would be right, in all the circumstances, to fashion a head sentence below the level that I am about to mention.  The inevitable consequence is that you will obtain an eligibility date.”

27. In fixing the sentence the sentencing judge expressly noted the mitigating factors of the plea of guilty, that Mr Nicholson was drug-dependent and the period of 67 days spent in pre-sentence custody, for which period it was indicated that Mr Nicholson was given full credit in setting the sentence.  It is apparent from the exchange with counsel during the course of submissions that the ultimate sentence was arrived at by allowing for a deduction on account of the period of 67 days held on remand prior to the sentence from both a notional head sentence of four years’ imprisonment and a notional period of 16 months of the sentence to be served before the date fixed for eligibility for parole.

Error of fact

28. The error made by the prosecutor on the sentence was in failing to draw the sentencing judge’s attention to the entry in Mr Nicholson’s criminal history that showed on 28 May 2015 an application was made to the Magistrates Court for revocation of the intensive correction order imposed on 13 October 2014 which was granted, and the order revoked and Mr Nicholson was resentenced for the original offences to the recording of convictions and not further punished.
29. The obvious significance of that entry in the criminal history was that the offence for which Mr Nicholson was being sentenced before the sentencing judge was not committed during the currency of the intensive correction order.  The sentencing judge’s observation in the sentencing remarks to the effect that the offence was committed during the currency of that order was an error of fact.
30. If the prosecutor at the sentence had referred to the entry of 28 May 2015 in Mr Nicholson’s criminal history, then the prosecutor may have procured the material to explain that entry which the respondent’s counsel managed to obtain for this application (which was made exhibit 1).  Exhibit 1 comprised the office copy of the application for revocation and the accompanying court report.  The revocation was made on the application of an authorised corrective services officer on the ground that Mr Nicholson had been unable to comply with condition (e) of the intensive correction order that he must perform community service directed by an authorised corrective services officer during the period of the order and that Mr Nicholson had been required to complete a minimum of six hours per week in respect of which he had completed zero hours on the basis that he was “currently and mentally unfit to complete any hours due to experiencing high levels of anxiety” and Mr Nicholson provided two medical certificates confirming he was unfit to complete the hours.
31. The court report dated 24 March 2015 that supported that application was also illuminating.  It showed that it was a condition of the intensive correction order that within 48 hours of his release from custody that Mr Nicholson attend and complete the residential rehabilitation program at Breaking Through Transitional Services.  That report showed that his response to supervision was considered satisfactory, he was engaging in regular appointments with the psychologist and the psychiatrist subcontracted through the Breaking Through Transitional Services, and had provided three clear urine tests.  Presumably, no alternative sentence was imposed when the intensive correction order was revoked due to the satisfactory compliance otherwise with the conditions of the intensive correction order, and particularly the constraint on personal freedom that applies to participation in a residential rehabilitation program: see R v Delaney (2003) 59 NSWLR 1 at [19]-[24] and [35].
32. The patent error of fact made by the prosecutor before the sentencing judge cannot be treated as immaterial to the sentence, as it was expressly referred to in the sentencing remarks.  It is therefore appropriate to give leave to add a ground of appeal based on that error of fact.  It follows that leave should also be given on this application to adduce the further evidence that explained the circumstances of the revocation of the intensive correction order on 28 May 2015.  Because of this error, leave to appeal against the sentence should be granted.

What sentence is appropriate to Mr Nicholson’s offending and circumstances

33. Because of the error of fact made by the sentencing judge in determining the sentence, it is necessary to consider what sentence should be imposed on Mr Nicholson for the subject offence without that error.
34. There was no issue about the relevance of the comparable sentences relied on before the sentencing judge.  Each of them was, in fact, objectively for less serious offending than Mr Nicholson’s offending, having regard to his relevant prior criminal history.  Apart from its use as a comparable sentence, Hesketh was relied on by both parties for the oft-quoted statement at [17] to the effect that the “broad range of imprisonment” for the offence involved in Hesketh would be “from about two and a half years to about four years imprisonment”.
35. Hesketh was an appeal by the Attorney-General against a sentence imposed on Hesketh who was 39 years old when she was found in possession of 57.347 grams of pure methylamphetamine where the purity of the gross substance ranged from 36.5 per cent to 61.3 per cent and was also located with a total sum of $3,550 in cash hidden in various places around her house.  She pleaded guilty to possessing methylamphetamine with a circumstance of aggravation.  Her plea of guilty was early and she was the sole carer of a five year old child and cared for her mother who was in poor health.  Hesketh had a lengthy prior criminal history, but had never previously been sentenced to actual imprisonment.  Hesketh was sentenced on the basis that there were indications she may have engaged in some commercial activity in relation to the possession of the methylamphetamine, although it was also accepted that some of the drug was held for her own use.  She had been sentenced at first instance to 12 months’ imprisonment to be served by way of intensive correction order.  That was increased on appeal to a sentence of imprisonment of two and one-half years.  In the normal course, the court would have ordered her to serve nine months of that sentence in custody, but as she had served some of the sentence under the intensive correction order, the sentence was ordered to be suspended after serving about four months in prison for an operational period of five years.
36. Mr Nicholson was of similar age to Hesketh when he committed the same type of offence with the attribute of a commercial element to the possession of a large quantity of methylamphetamine.  Although Hesketh possessed twice as much methylamphetamine as Mr Nicholson, his prior convictions for trafficking and production of methylamphetamine in the Supreme Court for which significant sentences of imprisonment were imposed and served were aggravating and distinguishing factors from Hesketh’s history.  Whereas Hesketh on an Attorney-General’s appeal was sentenced at the lower end of the range appropriate for this type of offending, Mr Nicholson’s offending placed him at the other end of that range of appropriate sentences suggested in Hesketh at [17].
37. The thrust of the submissions on behalf of Mr Nicholson is that he is unlikely to receive the benefit of a parole eligibility date, because of his criminal history, and will end up serving most, if not all, of the sentence, but if the sentence were structured to give Mr Nicholson a fixed parole release date, rather than a parole eligibility date, having certainty of release would act as a strong motivational tool in Mr Nicholson’s continued rehabilitation.
38. Counsel for Mr Nicholson emphasises that Mr Nicholson had completed the residential treatment program in June 2015 and had formed a new, stable, personal relationship and had the benefit of the recommendation in the court report dated 16 June 2016 that Mr Nicholson was suitable for future community based orders.
39. Although the sentencing judge had made an error in treating the subject offence as committed whilst on the intensive correction order, the fact remains that the offence was committed a matter of weeks after Mr Nicholson completed the residential treatment program.  Although without the negative feature of committing the offence whilst subject to a court order, it remains a negative feature of Mr Nicholson’s offending and equally egregious that it was committed so soon after an intensive and relatively lengthy rehabilitation program that was the means by which the sentence for the drug offending detected on 7 September 2014 was carried out.  In fact, during the hearing of the application Mr Nicholson’s counsel confirmed that the date Mr Nicholson was discharged from the residential treatment program was 15 June 2015.  The recommendation in the court report dated 16 June 2016 appears referable to the period when Mr Nicholson was still participating in the residential treatment program and therefore loses its positive impact for the sentencing of the serious offence committed by Mr Nicholson within such a short period after the completion of that program which was intended to address the type of offence that was committed.
40. It is inaccurate for the submission to be made on Mr Nicholson’s behalf in terms of his “continued” rehabilitation.  Not only was the subject offence committed in such close proximity to the completion of the residential treatment program, but Mr Nicholson could not point to a period free of offending after being charged with the subject offence and before he was taken into custody on 24 April 2016.  Mr Nicholson is fortunate to have the support of his partner when he is eventually released from prison, but it is not a mitigating feature for the purpose of the sentence, particularly when the relationship had commenced prior to the commission of the subject offence.
41. Whether a sentence attracts a parole eligibility date or a fixed parole release date is determined by application of Division 3 of Part 9 of the Penalties and Sentences Act 1992 (Qld) (the Act).  When a sentence of imprisonment of three years or less is imposed and s 160B(3) of the Act applies, the court must fix a date for an offender to be released on parole.  If the sentence is greater than imprisonment for three years and s 160C(5) of the Act otherwise applies, then the court may fix the date the offender is eligible for parole.  A sentencing judge will be cognisant of the effect of these provisions when imposing a sentence of imprisonment which is around three years.  When the appropriate sentence for an offence, however, is greater than three years, reliance cannot be placed on the effect of s 160C of the Act to avoid imposing the proper sentence.
42. Before taking into account the period of 67 days spent in pre-sentence custody which is not declarable, the appropriate head sentence for Mr Nicholson’s offending in the light of his history was imprisonment for four years.  His early plea of guilty deserved to be reflected in a date for eligibility for parole at one-third of the sentence. Although as a result of the error of fact made during the sentence below, this court must re-sentence, I have reached the same conclusion as the sentencing judge.  I would not disturb the sentence imposed at first instance which means the appeal must be dismissed.
43. Mr Nicholson’s lawyers are pessimistic about his prospects for obtaining parole.  That is a matter for the parole authorities, when his application is considered.  It will be affected by Mr Nicholson’s conduct in prison and the steps he takes to address his addiction, as he foreshadowed in his statement to the court when he was sentenced that he intended to do.  No doubt the parole authorities will take into account that for an offender with his history, he will have a better chance of transitioning from custody, if he is given the opportunity to be supervised under parole for a lengthy period.

Orders

44. I propose the following orders:
    1. Leave to amend the proposed grounds of appeal by adding a further ground of appeal:

“The sentence proceeded on the basis of an error of fact, namely that the offence was committed during the currency of the intensive correction order imposed on 13 October 2014.”

2. Leave to adduce the further evidence (exhibit 1) relating to the revocation of the intensive correction order on 28 May 2015.
3. Application for leave to appeal against sentence granted.
4. Appeal dismissed.