R v McAnally[2016] QCA 329

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
2. MORRISON JA:  On 20 September 2014 Mr McAnally was driving with his infant son and another passenger, when he was stopped by police.  He told them that he was taking his child to hospital and was in the area to pick up his partner.  He complied with a police direction to get out of his car, taking his child with him.  During a search of the car police found a package of white powder, which was later shown to be heroin.
3. Mr McAnally then got back into the car and started it.  He refused police directions to desist, and drove the car slowly forward so it crashed into a police car.  The police struggled to get him out of the car, but eventually succeeded and restrained him.
4. That constitutes a relatively innocuous summary of the events.  The agreed schedule of facts, and a video of some of the events,^[1] reveal a more disturbing picture of Mr McAnally’s conduct, which was affected by a cocktail of drugs in his blood, consisting largely of methylamphetamine, Diazepam and Nordiazepam.
5. He pleaded guilty to:

1. count 1 – possession of a dangerous drug (heroin) in excess of two grams;^[2] and
2. count 2 – dangerous operation of a vehicle with a circumstance of aggravation, namely being adversely affected by an intoxicating substance.

6. The main sentence imposed was on count 2, imprisonment for two years, with a parole release date set at 24 December 2016, after serving six months.  On count 1, he was sentenced to six months’ imprisonment, to be served concurrently with the sentence on count 2.  In addition, on each count he was disqualified from holding or obtaining a driver’s licence for two years.
7. Mr McAnally seeks leave to appeal against his sentence on the ground that it is manifestly excessive.  As emerged from oral submissions there were two points which he wishes to advance.  First, that the imposition of a sentence requiring six months to be served infringed the totality principle.  Secondly, that five days of pre-sentence custody was not taken into account.

Circumstances of the offending

8. An agreed schedule of facts^[3] was provided to the learned sentencing judge.
9. At about 2.00 am on 20 September 2014, police intercepted the car driven by Mr McAnally.  He failed to stop as required and continued to move forward slowly, continuously starting and stopping.^[4]
10. Eventually the car stopped and a police officer approached it.  The car started creeping forward before stopping again.  From looking inside the car, the police officer saw Mr McAnally in the driver’s seat, a juvenile in the front passenger’s seat,^[5] and in the back seat Mr McAnally’s son (then a toddler).
11. The police officer instructed Mr McAnally to put the vehicle in park, with the handbrake on.  Mr McAnally complied.  He identified himself and produced his driver’s licence.  Police noticed that his eyes were glazed and his speech was slow and slurred.  As a result the police officer formed the opinion that Mr McAnally was displaying the indicia of being under the influence of alcohol or drugs.
12. Mr McAnally told a second officer that he was taking his son to the hospital because he had “gastro”.  He also said that he was in the area to pick up his partner who lived nearby, and who was in possession of their Medicare card.
13. Whilst staying seated in the car, Mr McAnally removed his son from the rear passenger seat and placed him on his lap.  He was then told by the police that he had been detained for the purposes of a search, and he was directed to step out of the car and stand near the boot.  The police officer opened the car door and Mr McAnally stepped out holding his son.  He then walked to the middle of the road and stood there in what appeared to be a dazed state.  The police officer ushered Mr McAnally off the road and towards the boot of the car.
14. The search of the car revealed a plastic package in the driver’s side door, containing a white powdery substance.^[6]  While the search was ongoing, Mr McAnally asked the police officer “can I call my missus to let her know to pick up my son”?  Mr McAnally moved from the boot of the car and back into the driver’s seat, with his son on his lap, unrestrained.  A police officer followed him in order to continue to observe his conduct.  As that officer was walking towards Mr McAnally, Mr McAnally placed the keys in the ignition and revved the engine.  He was seen to attempt to put the car into drive mode.  At that point the police officer used his radio to call for assistance, and activated his video camera mounted in his vest.
15. A second officer entered the car and struggled with Mr McAnally in order to prevent him from removing the handbrake and putting the car into drive.  A police officer at the driver’s side turned the car off and attempted to remove the key from the ignition, but was unsuccessful.  As that officer was trying to remove the keys, Mr McAnally was pushing and shoving him with his right arm.  He struck the police officer a number of times on his left arm and body.
16. As the struggle continued, Mr McAnally’s son fell into the driver’s foot-well, and started to scream and cry.  Mr McAnally then managed to start the car again and was revving it loudly in an attempt to flee the scene.  The police officer on the passenger side continued to fight with Mr McAnally in order to keep the handbrake on and the car in park.^[7]
17. Mr McAnally continued to struggle and kick out at the police.  In the process his leg came into contact with his son.  He was also trying to put his foot down on the accelerator.  The officer on the driver’s side was briefly able to gain control of the ignition key and turn the car off.  He attempted to drag Mr McAnally out of the car, but Mr McAnally kept yelling at the police, “fuck off, fuck off, you scum, fuck off”.
18. The struggle continued and once again Mr McAnally was able to gain control of the car.  He revved the engine again.  Both of the police officers continued to try and gain control of the situation and stop the car moving forward.  The officer on the driver’s side continued to try and turn the engine off, but Mr McAnally kept pushing and shoving him away.^[8]
19. The officer on the driver’s side then struck Mr McAnally’s face with his foot.  Mr McAnally kept on revving the engine until it was “red lining”.  At that point the officer on the driver’s side deployed his Taser on Mr McAnally’s shoulder.  Mr McAnally continued to rev his car and fight with the officer on the passenger side.  Mr McAnally then managed to pull the Taser wires off and break them.
20. At about that time, back-up police officers arrived.  At the same time, Mr McAnally managed to put the car into drive, and slowly drove about ten metres before colliding with a stationary police car parked in front.  At the time of driving forward, a police officer was still kneeling in the passenger seat, with the passenger door open, and Mr Anally’s son was still in the foot-well of the driver’s seat when the car crashed.^[9]
21. Police then ran towards the car, and one officer called to the others that there was an infant in the car.  A third officer then deployed his Taser on Mr McAnally, who stood up and removed the wires and broke them.  Having exited the car, Mr McAnally moved towards police.  A fourth officer then deployed his Taser, which caused Mr McAnally to fall to the ground, where police handcuffed him.
22. A breath test was provided, and was negative.  Police searches revealed that Mr McAnally was driving the motor vehicle whilst disqualified.^[10]
23. Mr McAnally was arrested and transported to hospital where he provided a blood specimen.  That blood was analysed to reveal the following drugs in Mr McAnally’s system:
    1. Amphetamine – 0.02 mg/kg;
    2. Methylamphetamine – 0.31 mg/kg;
    3. Diazepam – 0.29 mg/kg;
    4. Nordiazepam – 0.21 mg/kg; and
    5. Droperidol – 0.06 mg/kg.
24. At the scene, police questioned Mr McAnally about the white powder found in the car.  He initially denied what its contents were, but upon further questioning informed police that it was Subutex and that he was on a “program”.  When police asked Mr McAnally why he had so much of it, he stated “I get takeaways”, and that he was on “20 mg’s a day”.
25. Mr McAnally refused to be interviewed at the watch house.
26. A forensic medical officer provided a statement that the Diazepam result could relate to drugs administered at the hospital.  In respect of the methylamphetamine level in the blood, the officer reported:

“The indicia of slow slurred speech, ‘spaced out’ appearance, stumbling and wandering into the middle of the road, could be explained by the effects of methylamphetamine withdrawal.  The requirements for Tazor [sic] deployment suggests that the offender was also noncompliant and agitated which could be explained by amphetamine intoxication or withdrawal.  A person who has such visible indicia, and with the methylamphetamine concentration of 0.31 mg/kg in their blood, would have their ability to safely control a motor vehicle severely impaired”.

27. The powder found in the car weighed 13.766 grams.  Analysis showed it was 16.1 per cent pure, resulting in 2.216 grams of pure heroin.
28. The main count, dangerous operation of a motor vehicle, was particularised as comprising five elements as follows:
    1. Driving a car while the child was unrestrained in the driver’s foot-well;
    2. Driving a car while police officers were in and around the car;
    3. Driving a car contrary to police directions;
    4. Driving a car whilst other cars were in close proximity, which resulted in a collision with a police car; and
    5. Driving a car whilst severely impaired by the drug methylamphetamine (a circumstance of aggravation).

Mr McAnally’s personal circumstances

29. Mr McAnally was 36 at the time of the offences, and 38 at sentence.  Sentencing remarks from previous offences showed that by the time he was in his 20’s he had become a heroin addict.
30. There was nothing remarkable about his upbringing or education, and he had a supportive family, even during his offending over the years.  His work history was limited because his addiction interrupted his apprenticeship.  His mother provided a letter which attested to the close family that still supported him, and the fact that his children lived with the family, or stayed with them frequently.^[11]
31. Mr McAnally’s criminal history revealed repeated drug convictions since 1996.  The bulk of those convictions were for possession of dangerous drugs, with others including possession of things used in connection with drugs, tainted property, break and enter, and receiving.  Such convictions occurred every year up to the year 2000, when Mr McAnally received his first prison sentence, namely seven years.  The sentencing remarks on that occasion revealed Mr McAnally being in possession of a considerable quantity (67.246 grams) of pure heroin which he had in part for a commercial reason.^[12]  The remarks also contained expressions of hope on the part of the sentencing judge that Mr McAnally’s relationship and imminent birth of his child might give him an incentive to break with his heroin dependency.^[13]
32. That sentence was unsuccessfully challenged in this Court.^[14]  In the course of his judgment McPherson JA said:^[15]

“It seems clear that these offences were committed in order to satisfy his addiction by providing money for that purpose. It is also to be noted that he has made some efforts to break his addiction, but without success in the long term. What, unfortunately, goes strongly against him in this application for leave to appeal is that he committed the offence while he was subject to a probation order imposed in the District Court in 1998.”

33. Mr McAnally was next convicted of a drug-related offence in 2007 (seven months imprisonment), then in 2009 and 2010 when prison sentences were imposed.
34. The next major sentence was in 2013 when he was sentenced to three years’ imprisonment for drug-related offences and possession of a weapon.  The sentencing remarks at the time refer to Mr McAnally’s “hopeless addiction to drugs of various kinds”, including heroin and methylamphetamine.^[16]  Reference was also made to the “some disturbing aspects of [Mr McAnally’s] offending ... that notwithstanding being given … a number of opportunities … by way of granting probation orders and suspended sentences, you have continued to offend in breach of such orders and continued to offend whilst on probation and on bail”.^[17]
35. Subsequently there were continued offences in 2013 including breaches of bail, weapons offences, tainted property, and possession of dangerous drugs.
36. Mr McAnally’s traffic history was extensive and unflattering.  His offending commenced when he was 19, and had continued regularly ever since.  That included offences for: frequent speeding (15 occasions), disobedience to traffic signs (seven times), using a mobile phone while driving (two), unlicensed driving (two), and careless driving.

Approach of the sentencing judge

37. The learned sentencing judge took into account the following factors relevant to Mr McAnally’s circumstances:^[18]

1. his age (36);

2. the nature of the conduct and that the offences were committed whilst he was on parole, and disqualified from driving;
3. the severe impairment due to his intake of  methylamphetamine; his addiction to heroin;
4. the “very extensive” and “very concerning” criminal history; the offending had not stopped even after a long time in prison;
5. the fact that subsequently to these offences he had offended in prison in relation to possession of drugs;
6. his dangerous behaviour in standing in the middle of the road;
7. the serious nature of his attempting to flee, assaulting police, putting his child at risk and endangering property; her Honour described it as “quite dreadful conduct”;
8. the offending was such that “there is a flavour to your offending which is above and beyond that commonly seen by drug offenders”;
9. the heroin in the car was for personal use, not commercial use;
10. it was a matter of “great concern” notwithstanding that previous judges had referred to the need for psychiatric and psychological evaluation, there was nothing to show that he had ever seriously undertaken such assistance;
11. that some scepticism was reasonable in relation to his intentions about rehabilitation; and
12. the comparable cases put forward, namely R v Collier,^[19] R v McCoy.^[20]

Relevant principles

38. Mr McAnally contends that the sentence imposed in 2014 offended the totality principle.  That principle was explained in Mill v The Queen^[21] when the High Court approved this statement from Thomas, Principles of Sentencing:^[22]

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’”^[23]

39. The High Court in Postiglione v The Queen^[24] referred to the wider totality principle reflected in Mill.  McHugh J expressed it thus:

“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.”^[25]

40. McHugh J identified the basis of that broad principle in this way:

“In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

‘There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.’

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve the appropriate relativity between the totality of the criminality and totality of the sentences.”^[26]

41. The ambit of the totality principle was referred to by this Court in R v Beattie.^[27]  There Philip McMurdo J^[28] said:

“The ambit of the totality principle has been extended in at least two ways. The first, which is illustrated by Mill v The Queen, is where an offender commits a number of offences within a short space of time but in more than one State. Upon being sentenced to a term of imprisonment in one State, the offender cannot be sentenced in the other State until he is released from custody under the first sentence. In such a case, it is necessary for the second sentencing judge to consider in aggregate the sentences and if necessary to moderate the sentence then to be imposed. The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.’”

42. This aspect of the totality principle was referred to in R v Gordon,^[29] where Hunt CJ at CL said:

“When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.”

43. As was pointed out in R v LAE^[30] that was echoed by the Victorian Court of Appeal in R v Hunter:^[31]

“There must be relativity between the totality of the criminality and the totality of sentences, not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving.”

44. Mr McAnally also contends that the five days spent in custody before the sentence should have been allowed in some way in the sentence.  As to that s 159A(1) of the Penalties and Sentences Act 1992 (Qld) relevantly provides that:^[32]

“(1)If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

…

3. If an offender was held in custody in circumstances to which subsection (1) applies … the sentencing court must, as part of the sentencing order—

1. state the dates between which the offender was held in presentence custody; and

2. calculate the time that the offender was held in presentence custody; and

3. declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.”

45. As can be seen, s 159A(1) only obliges a sentencing court to declare the pre-sentence custody to be time served where the offender was held in custody in relation to proceedings for the offence and for no other reason.

Discussion

46. The two grounds are that the pre-sentence custody should have been taken into account, and that the totality principle was infringed.

Pre-sentence custody

47. Mr McAnally contends that the learned sentencing judge did not allow the time spent in pre-sentence custody.  I am not persuaded that is so, and even if it were so, in my view it would not make any difference to the sentence imposed.
48. First, the issue of the time spent in pre-sentence custody was squarely raised in submissions before the learned sentencing judge, and the Prosecutor invited a submission from Mr McAnally’s Counsel as to what should be done about it:^[33]

“HER HONOUR: Well – thank you. Yes, it can. Yes. I’ll give that one back. All right. So this shows the four days between the full-time finish date of Judge Jones’ sentence and today?

MR BOYLE: Yes.

HER HONOUR: And they can’t declare that either because – is that right – there’s two offences from March 2016? Is that whilst in jail?

MR BOYLE: Yes, your Honour, which is something that, I must say, I’d only discovered this morning, so – but I’ve had a conversation with Mr Ackermann about that. Perhaps Mr Ackermann would like to make submissions just with respect to that for the - - -

HER HONOUR: All right. You can do it in your turn. Thanks very much.”

49. In the event Defence Counsel made no submission asking that it be taken it into account.
50. Secondly, Mr McAnally was required to serve out the balance of his previous sentence (one year and nine months).  The full-time release date was 18 June 2016, some four days prior to the day of sentencing for the present offences.  Once 18 June passed Mr McAnally was held in custody in relation to the present offences as well as the offences he committed in prison in March 2016.  He therefore did not fall within s 159A(1) of the Penalties and Sentences Act 1992 (Qld).
51. In this respect his reliance on R v McCusker^[34] was misplaced.  In McCusker the pre-sentence custody was held to fall within s 159A(1).^[35]  However, McCusker also recognised that time spent in pre-sentence custody but which could not be declared under s 159A(1) could, as a matter of the exercise of the sentencing discretion, be taken into account.  In McCusker the contention that it should not was considered “technical at best”.^[36]  That is not the case here, where the two sets of offences were disparate and unconnected.^[37]
52. Therefore, the learned sentencing judge was not obliged to allow the time under s 159A(1) but could, as a matter of discretion, make some allowance for it.  That allowance was not required to be the entirety of the pre-sentence custody.
53. Thirdly, the learned sentencing judge referred to the question of the time spent in custody while awaiting sentence:^[38]

“I note that after these events, you were taken back into custody, and you served the remaining time on the sentence imposed by Judge Jones in 2013. That was a long prison time. That was one year and nine months. You finished that sentence full time a few days ago on the 18^th of June 2016. You were not released because of the matters that are before me but, also, as I say, that there were charges relating to you having drugs in your possession against prison regulation or – and illegally, indeed, on the 22^nd of March 2016.

As I say, I really think that bodes badly for your rehabilitation that at the end – the very end of such a long time in jail, you would be re-offending. I take into account the fact that you did complete that sentence imposed by Judge Jones, but, really, that is for offending very distinct in time from the offending I’m dealing with. I bear it in mind, as I must bear in mind such a lengthy period of incarceration so shortly prior to the sentence I impose, but, I mean, my attitude to it would be quite different if you had something from that prison sentence to show me – the completion of courses, the sort of references and so forth that prisoners often bring before this court to show that while in prison, they have rehabilitated themselves – but there was nothing concrete in relation to that, and it is one of the reasons I particularly inquired of your counsel as to something concrete from all that time in prison. But there was not and, to the contrary, in March, there are two offences relating to drug use in prison. So I must say that my attitude to the time you have served is influenced by that.”

54. The last sentence of the passage above refers to the “time you have served”, which in the context in which those sentencing remarks were made, likely included the pre-sentence custody.  On that basis the time was taken into account.  That conclusion is reinforced by the sentence itself.  Whilst the term of imprisonment was two years, parole release was set at six months, which was one-quarter of the head sentence.  That is substantially lower that the one-third that would normally be allowed to recognise the plea of guilty.
55. This last aspect is, in my view, the compelling reason to conclude that her Honour has allowed something for the pre-sentence custody.  Given that her Honour took a dim view of the prospects of rehabilitation, her Honour’s ordering parole release at one-quarter of the total sentence is a discount in Mr McAnally’s favour, significantly beyond the usual allowance.  One obvious inference is that her Honour structured the sentence so that Mr McAnally received the benefit of time served, but was subject to a significant period of supervision on release.

The totality ground

56. I am unpersuaded that the contention based on the totality principle should be accepted.
57. First, it was raised in the course of submissions,^[39] and then mentioned in the sentencing remarks themselves,^[40] so that the learned sentencing judge was plainly aware of it.  Her Honour said that she took it into account, but discounted it.
58. Secondly, the previous sentence had been completed in full before the sentencing hearing.  Therefore, as at the sentencing hearing the principle referred to in Mill, Beattie, Gordon and LAE^[41] was not engaged.  That applies where, at the time of sentencing, the offender is still serving another sentence.
59. Thirdly, consideration of the comparable cases, Collier and McCoy, supports the sentence imposed.
60. Collier involved a young offender (18), with a minor criminal record, who pleaded guilty to dangerous driving whilst adversely affected by alcohol (0.163 per cent).  He drove well over the speed limit for two kilometres, cornering at high speed and fishtailing, without headlights on.  He eventually collided with a police car after running a red light.  The sentence was three months’ imprisonment followed by 12 months’ probation.
61. At issue was whether a custodial sentence should have been imposed.  Speaking generally this Court said:^[42]

“The other authorities to which attention was drawn in submissions also support the conclusion that, generally, a sentence of imprisonment of two years with a suspension after a period of actual custody may not be outside a proper exercise of discretion for serious cases with a lesser head sentence of which a relatively brief period is served in custody, being an available option in less serious cases.”

62. McCoy involved an older offender (48 at the offence and 50 at sentence) with an extensive, “significant and shameful”, criminal history and an “extraordinarily bad” traffic history.  She pleaded guilty to a large number of offences, the most serious of which were serious assault, and dangerous operation of a vehicle with a blood alcohol level of 0.133 per cent.  She deliberately drove at a police officer, injuring him.  The sentence was two and a-half years, suspended after 18 months.  This Court held that it was not manifestly excessive.
63. R v Smith^[43] involved 54 year-old offender who drove dangerously with a blood alcohol level of 0.182 per cent.  He had a good personal history, no criminal history but a relevant traffic history including previously driving under the influence (0.098 per cent).  He drove erratically for 20 minutes, wandering across lanes, but not at excessive speed.  He was sentenced to 15 months’ imprisonment, suspended after four months.  At issue was whether a custodial sentence was warranted.
64. This Court reviewed various comparable cases, including Collier.  The majority^[44] held that the sentence should be varied so that it was 15 months, but fully suspended.  The reasons of Jerrard JA were:^[45]

“In this particular matter, this applicant is a person in his mid 50s with a good background and, as we were reminded, who is in employment and whose employment will be endangered by any further imprisonment.  I acknowledge that his driving constituted a significant risk to other road users but, in the circumstances, it happened that there was no collision and no harm was actually done to any other citizen.”

65. Holmes J reviewed the circumstances of the offending, concluding:^[46]

“All of those circumstances seem to me vastly different in that they involved the attempt to outrun the police and the complete abandonment of caution which is not present in this case.  There is no allegation of excessive speed in this case, although the driving clearly was reprehensible.  But the applicant was of excellent character.  He had a history of 20 years' military service.  He was employed, with the consequences for his employment that Justice Jerrard has already referred to.  He was active in charity work.  On the day in question, he had actually done his drinking at a hotel while selling tickets for a charity.  It was a plea of guilty on an ex officio indictment.”

66. As can be seen the lower sentence in Smith, and its suspension, was heavily influenced by the offender’s excellent character and the fact that he was not contesting with police.  That is not the case here.
67. I am unpersuaded that the sentence imposed on Mr McAnally was manifestly excessive.

Conclusion

68. For the reasons expressed above, I would refuse to grant leave to appeal against the sentence.
69. I propose the following order:
    1. The application for leave to appeal against sentence is refused.
70. PHILIP McMURDO JA:  I agree with Morrison JA.