R v Hawke[2021] QCA 179

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  For the reasons given by Applegarth J, I joined in making the orders on 27 July 2021.
2. [2]
   McMURDO JA:  The reasons of Applegarth J explain why I joined in the orders that were made by the Court on 27 July 2021.
3. [3]
   APPLEGARTH J:  By her mid-40s, the applicant had achieved much in life.  After leaving school in grade 11 she had a commendable work history, progressing to senior positions as a business manager.  She had two adult children from her first marriage and a 12-year-old boy from her second marriage.
4. [4]
   Her life then fell apart.  Her husband was badly injured and had no income protection.  In addition to the stresses of mounting financial pressure, she discovered that her husband had been having an affair.  She was introduced to “ice” by a relative of her husband and used it to self-medicate.
5. [5]
   Inevitably, this did her and others great harm.  Her relationship with her husband became even worse.  They separated in 2019 and she left the family home to become a boarder elsewhere.
6. [6]
   That residence was searched by police on 5 December 2019 who found a substantial quantity of methylamphetamine.  The applicant was an addict at the time but her possession of the methylamphetamine also had a commercial purpose: the ability to sell some of it to support her own addiction.
7. [7]
   She was charged with possession of methylamphetamine (count 1, 30.533 grams in a total quantity of substance of 41.612 grams) and with possession of MDMA (count 2, 1.631 grams in a total quantity of substance of 2.384 grams).  She also was charged with summary offences for possession of tablets, possession of cash suspected of being the proceeds of a drug offence and other drug-related summary offences.
8. [8]
   The applicant accepted responsibility for her offending, was remorseful and pleaded guilty at an early stage.  She advanced her own rehabilitation and by the time she was sentenced she was drug-free.
9. [9]
   She was sentenced to three years imprisonment.
10. [10]
    The issue on this application is whether requiring the applicant to serve 12 months actual custody before being released on parole was manifestly excessive in the unusual circumstances of her case.

Interrupted rehabilitation

11. [11]
    The applicant was released on bail and indicated at an early stage that she would be pleading guilty.
12. [12]
    She also took her life in hand.  She obtained a protection order under the Domestic and Family Violence Protection Act 2020 in respect of her husband and made many attempts to access a residential rehabilitation program.  This was not easy, particularly after the start of the COVID-19 pandemic.  The program at Moonyah Recovery Services in Brisbane was not admitting people during the COVID lockdown period.  The applicant went on a waitlist.  She remained in regular contact with that Salvation Army facility and eventually was able to gain admission on 14 September 2020.  This required her to relocate from Central Queensland.  She made good progress in that program.
13. [13]
    Unfortunately, she had not completed the program by the date her case had been listed for sentence on 26 November 2020.  Her former solicitors should have sought a later date for the sentencing hearing.  She obtained leave from Moonyah to attend the hearing in Rockhampton.
14. [14]
    Her counsel invited the sentencing judge to adjourn passing sentence until some point in early 2021 to at least allow her to complete the rehabilitation program and for the judge to make a final decision at that point.  In asking the judge to consider that course the applicant’s counsel hoped that the judge would accede to a submission that the sentence should be one of up to three years in order to provide sufficient deterrence but with an early parole release date.  Counsel submitted that this would allow her rehabilitation at Moonyah to continue and that all of the circumstances would then allow her to be granted immediate release on parole.
15. [15]
    The judge declined to adjourn the sentence part-heard.  In response to the suggestion that this might allow the applicant to complete the rehabilitation program and be granted immediate release on parole at that point, the judge said:

“It’s too much methylamphetamine Mr Maguire, to – for me to accede [to] your submission.”

The sentence and the application for leave to appeal

16. [16]
    The sentencing judge addressed the circumstances of the offending, the applicant’s antecedents, her relationship breakdown and drug use, along with her early plea and rehabilitation.
17. [17]
    His Honour correctly emphasised the seriousness of the offence of possession of a Schedule 1 drug like methylamphetamine in a quantity above two grams for commercial purposes.  Reference was made to the importance of deterrence, both personal and general, and denunciation.
18. [18]
    The cases to which the sentencing court had been referred “as yardsticks” were said by the judge to suggest, “ordinarily, with this amount of drug, the sentence ought to be in the range of four years’ imprisonment”.  However, the applicant’s circumstances, including her background, “excellent work history” and the fact that she had undertaken rehabilitation led the judge to impose a head sentence of three years, which was said to “allow me to release you on a set date”.
19. [19]
    The applicant was sentenced to three years imprisonment on count 1.  She was convicted but not further punished on count 2 and on the summary offences.  A parole release date was fixed after serving 12 months, namely 25 November 2021.
20. [20]
    The applicant sought leave to appeal on the basis that a sentence that required her to serve 12 months in actual custody before being granted parole was manifestly excessive in all the circumstances.

The applicant’s antecedents

21. [21]
    The applicant was aged 47 at the date of the offences (5 December 2019) and 48 at the date of sentence (26 November 2020).
22. [22]
    She moved to Yeppoon with her mother, step-father and three younger siblings when she was aged eight.  In year 10 she moved to Adelaide to live with her father, but left school prior to completing year 11.  She then moved to Brisbane to live with an aunt and uncle.  She worked in an accountant’s office until she was 23, when she moved back to Yeppoon.  Thereafter she maintained employment, progressing to senior positions.  For example, she worked for six years as a business manager in finance and insurance, working long hours six days a week.  The owner and principal of that business and one of its managers each wrote of her qualities, despite knowing of the charges that she faced in the Supreme Court.  The principal recalled the applicant “juggling the requirements of motherhood and professional life”, was pleased that she had entered rehabilitation and hoped that the experience would “rediscover the capable confident and honest woman I knew”.
23. [23]
    References also wrote about the applicant’s contribution to the local community, particularly her active involvement in a large sporting club in which she coordinated social events.  One referee wrote of the respect in which the applicant was held, her prior financial stability and the work that had enabled her to purchase a home.  The education of the applicant’s three children was said to be always of paramount importance to her.  One of her adult children confirmed the applicant’s character as a loving and organised mother.
24. [24]
    References from family members contrasted the applicant’s behaviour before and after her descent into drug addiction.  Consistent with someone who is addicted to methylamphetamine, the applicant disengaged from her parents and adult children who became aware of her drug use.  Their advice was disregarded.  Drug use by the applicant and her husband, the acrimonious marriage breakdown and the refusal to admit to drug dependency had consequences for the applicant’s youngest child.  The applicant’s adult daughter captured the change that occurred when her mother started using drugs.  She wrote that the mother that she and her brothers knew “went out the door” and turned into “a very dysfunctional person”.

The commercial element of the applicant’s possession of methylamphetamine

25. [25]
    When police executed a search warrant at the applicant’s address on 5 December 2019, they found a total of 14 clip seal bags containing methylamphetamine.  The quantity of substance in each bag was not uniform.  However, many were around four grams.  Some were in much smaller quantities of around 0.1 or 0.2 gram.  The prosecution case that the possession was for a commercial purpose was based on the quantity, the packaging and the fact that a total amount of $2,520 was located in a purse and in a clip seal bag in her bedroom.
26. [26]
    The commercial element of her possession of the methylamphetamine was not denied.  She stood to be sentenced on the basis that at the time of her offending she was an addict, that some of the methylamphetamine found in her possession was for her own use, but that a substantial part of it was available for sale.
27. [27]
    The possession of MDMA (count 2) related to police finding a total of eight capsules containing MDMA and a clip seal bag containing MDMA in powder form.

Criminal history

28. [28]
    The only relevant entry on the applicant’s criminal history at the time of sentence related to her possession of two grams of cannabis in July 2019 and a utensil or pipe that had been used in connection with it.  No conviction was recorded on either charge and she was placed on a three month good behaviour bond.
29. [29]
    The balance of her criminal record consists of four breaches of bail conditions, which post-date her offending on 5 December 2019.  They occurred on dates in December 2019, January 2020 and March 2020.  She was fined on each occasion with no conviction recorded.  Her submissions to this Court explained that she was late to sign in on those four occasions because she was attempting to avoid and hide from her husband who she accused of stalking and harassing her.  Otherwise, the applicant did not reoffend during the period of approximately 12 months between being charged in early December 2019 and being sentenced in late November 2020.
30. [30]
    In short, the applicant was a 47 year old who, at the time of sentence, had no prior convictions recorded and the only relevant conviction related to possession of a small quantity of cannabis for which she received a good behaviour bond.
31. [31]
    The absence of prior recorded convictions is an important point of distinction from some other cases which were said during the sentencing hearing to be comparable with the applicant’s case.  As appears below, those offenders had substantial or lengthy criminal histories.

The applicant’s self-rehabilitation

32. [32]
    That the applicant would plead guilty seemingly was always anticipated.  An indictment was presented in the Supreme Court at Rockhampton on 21 August 2020 when the matter was listed for sentence, initially on 16 October 2020.  A schedule of facts was agreed between the parties.
33. [33]
    After being wait-listed for a long time for entry into the rehabilitation program at Moonyah in Brisbane, the applicant was contacted and advised about approval for her admission to that program.  Her intake occurred on 14 September 2020 and after 10 days in the detox program she became a resident undertaking the Bridge Program on 24 September 2020.
34. [34]
    After being advised of her approval for admission, she told her solicitor.  According to the applicant, her solicitor then contacted her and recommended that she adjourn her sentencing date to enable her to complete the rehabilitation program.  Unfortunately, her former solicitors sought an adjournment for six weeks and fixed a new sentencing date for 26 November 2020.  This was not long enough for her to complete the program.  Nevertheless, she undertook different modules, progressed through different levels and, according to her Case Manager “exhibited great determination, honesty and willingness to address those issues underpinning her substance abuse”.
35. [35]
    In his letter to the Court dated 16 November 2020, the Case Manager reported on her progress which showed high motivation to change her life, compliance with all her responsibilities, a positive attitude and a good work ethic.  During the time that she had been on the program she was said to have “emerged and developed into a valued and respected member of the therapeutic community”.  The Case Manager thought that if she continued to apply herself diligently and complete the program she would be successful in attaining her goal of a life free from substance addiction.
36. [36]
    Consistent with this, the applicant returned a number of negative drug tests, the first having been requested on 25 September 2020.
37. [37]
    The fact that the applicant had yet to complete the residential rehabilitation program at Moonyah by the time of the sentence hearing led to defence counsel’s invitation, earlier noted, for the actual passing of a sentence to be adjourned to early 2021 to allow her to complete the rehabilitation program and to then fix a parole release date in the light of her further, expected progress.

Submissions on comparable cases placed before the sentencing court

38. [38]
    In written and oral submissions the legal officer appearing for the Crown relied upon R v Power^[1] and R v Nicholson^[2] as yardsticks.  The written submissions stated that a sentence of between three years and nine months and four years imprisonment was called for.
39. [39]
    In written submissions defence counsel submitted that cases such as R v Hesketh; Ex parte Attorney-General (Qld),^[3] R v Nguyen^[4] and R v Fahey^[5] indicated a range of two-and-a-half to four years imprisonment.
40. [40]
    In oral submissions the prosecutor noted that Fahey had possessed a comparable amount of drugs and, like the defendant, had taken significant steps towards rehabilitation.  Despite this, he was still required to serve six months actual custody.
41. [41]
    The prosecutor urged the sentencing judge to put Hesketh and Nguyen to one side and, ultimately, to be guided by Power and Nicholson.  Power was sentenced to four years imprisonment with parole eligibility after having served 16 months.  Nicholson was sentenced to three years and nine months imprisonment with parole eligibility after almost one year and two months.  However, 67 days pre-sentence custody could not be declared in that case which produced a notional head sentence of almost four years.
42. [42]
    The prosecutor’s ultimate submission to the sentencing judge was that distinguishing features between the applicant’s case and those in Power and Nicholson balanced each other out and the sentence should be in accordance with that imposed in Nicholson.  The need for specific deterrence and denunciation was submitted to still loom large requiring the imposition of a period of actual custody.  Mitigating features in the applicant’s favour could be reflected “in a reduction of the bottom to the one-third or even below” but actual custody was submitted to still be required in the circumstances.
43. [43]
    In oral submissions defence counsel distinguished Hesketh as a more serious case because of the quantity of drugs involved and because Ms Hesketh had a relevant criminal history.
44. [44]
    Fahey was relied upon because of the observations concerning the use of comparable cases, whilst noting that in that case a period of actual custody of six months rather than the period of three months urged in this court was found not to be manifestly excessive.
45. [45]
    Ultimately, defence counsel urged a head sentence of up to three years imprisonment, with early release on parole.  After the sentencing judge intimated that he would not be willing to accede to an order for immediate release on parole, even after the applicant had completed her residential rehabilitation program, defence counsel asked the sentencing judge to be as lenient as he could be in fixing a parole release date.
46. [46]
    As already noted, in his sentencing remarks the judge stated that the cases used as yardsticks suggested that “ordinarily, with this amount of drug, the sentence ought to be in the range of four years’ imprisonment”.  However, factors in the applicant’s favour led to a sentence of three years, allowing the court to fix a parole release date.

The issue raised by the application for leave to appeal

47. [47]
    The applicant submits that fixing a parole release date after 12 months was manifestly excessive, not justified by the cases put forward by counsel, and led to inadequate recognition of her personal circumstances.
48. [48]
    The applicant, who was self-represented at the hearing of her application, acknowledged in her submissions that general deterrence is a significant factor to which effect must be given.  She placed particular reliance upon the mitigating effect of her circumstances at the time of offending, including her experience of domestic violence, and her prompt attempt to rehabilitate herself.  Reliance was also placed upon the fact that she was 47 years of age when she committed the offences, with no convictions recorded on her criminal history.
49. [49]
    In a case that requires a parole release date to be fixed, a defendant’s early plea is commonly accounted for by a parole release date after serving one-third of the term of imprisonment.  The one-third mark is a starting point on account of the plea.  It is not necessarily the point at which parole release should be fixed.
50. [50]
    The general issue raised by the applicant is whether the endpoint in this case, which required her to serve one-third of her sentence before release on parole, was manifestly excessive in all the circumstances.
51. [51]
    A more specific issue is whether a period of actual custody of that duration was required to meet the demands of general deterrence and denunciation.  The applicant’s case is that the sentence of three years imprisonment, with the prospect of being required to serve the balance of that sentence after release on parole in the event of parole being suspended or cancelled, sufficiently meets the demands of deterrence and denunciation.
52. [52]
    In my view, and contrary to the prosecution submissions at the sentencing hearing, specific or personal deterrence does not loom large in this case.  The applicant had been a valuable member of the community for about 45 years of her life.  Her only prior criminal conviction coincided with her descent into drug use.  It resulted in a good behaviour bond.  In addition, the applicant’s self-rehabilitation under difficult circumstances, her motivation to remain drug-free in order to resume care of her 12-year-old boy and the support of family and friends upon her release suggest that personal deterrence is not a weighty factor.
53. [53]
    A period of actual custody in the order of 12 months was not required to provide conditions to aid her rehabilitation.  This is not a case of someone whose continuing drug use at the time of the sentence required removal from access to illicit drugs in the community in order to become drug-free and thereby aid their rehabilitation.  By the time she came to be sentenced, the applicant was drug-free and well advanced in her rehabilitation.
54. [54]
    The argument that a 12 month period of actual custody jeopardised, rather than aided, her rehabilitation is compelling.
55. [55]
    In my view, a period of actual custody of that duration in her circumstances:

    1. (a)
       was not required to provide additional general deterrence and denunciation;
    2. (b)
       did not aid her rehabilitation; and
    3. (c)
       did not reflect her personal circumstances before her drug addiction or her noteworthy and productive steps towards self-rehabilitation in difficult circumstances during the COVID-19 pandemic.

Comparable cases and the quantity of drugs

56. [56]
    It is often said that a sentence of between two-and-a-half years and four years imprisonment is warranted for a case like this involving possession of a substantial amount of methylamphetamine that is possessed partly or predominantly for a commercial purpose.  The frequently cited passage in Hesketh^[6] to that general effect continues to echo and to provide guidance.  What some describe as a “range” of between two-and-a-half and four years reflects a well-established sentencing pattern.
57. [57]
    It should be self-evident that someone in possession of X grams of methylamphetamine for a mixed personal and commercial use has twice the potential to feed drug abuse in the community, with resultant misery and social decay, than another person in practically identical circumstances found in possession of half that amount.  This is one reason why the quantity of drugs found in an offender’s possession is an important factor in arriving at the most appropriate sentence in any case.
58. [58]
    Simply stated, quantity counts.
59. [59]
    Still, the amount of drugs is one of a number of determinants in arriving where, on a suggested range, a head sentence should fall.  The quantity of drugs in the case at hand and in comparable cases does not allow for different quantities to be calibrated over such a range.
60. [60]
    All other things being equal, a large quantity of drugs will warrant a significantly longer head sentence than a relatively smaller amount.  Rarely, however, are all things equal.
61. [61]
    Because the three year head sentence imposed in this case is not criticised as being manifestly excessive, it is unnecessary to say more about the range of two-and-a-half to four years mentioned by defence counsel and noted in Hesketh.  It is, however, necessary to have regard to the other cases that were deployed as “yardsticks” at the sentencing hearing and on appeal.

The “yardsticks” deployed in this case

R v Hesketh; Ex parte Attorney-General (Qld)^[7]

62. [62]
    Ms Hesketh’s house was searched by police who located nine bags containing methylamphetamine.  The total amount of pure methylamphetamine was 57.347 grams.  One bag that contained 82.248 grams of powder had a pure weight of 50.418 grams.  Other bags contained methylamphetamine of varying ranges of purity.  The police also located a total amount of $3,550 in cash hidden in various places.
63. [63]
    At once, the comparisons with the applicant’s case are evident, despite Ms Hesketh possessing about twice the amount of pure methylamphetamine.  Ms Hesketh also had a larger amount of cash even before adjustments are made for the value of money, her offending having occurred almost 20 years ago.
64. [64]
    There are other points of comparison.  Ms Hesketh pleaded guilty at an early stage.  She was aged 39 at the time of the offence.  She cared for a five-year-old child and her mother who was in poor health.
65. [65]
    By comparison, there was a contest over the parenting of the applicant’s 12-year-old boy.  By the time she came to be sentenced, the applicant was in residential rehabilitation.  Earlier in 2020 she had sought to resolve the issue of post-separation parenting through a family dispute resolution practitioner in accordance with the Family Law Act 1975.  Her former husband refused to attend the dispute resolution meeting.  Their relationship remained tumultuous.  By the time the applicant came to be sentenced her ex-husband was on parole and concerns were expressed by the applicant’s mother and the applicant’s daughter that since the breakdown in the applicant’s marriage and during the time he had been in the care of his father the child was suffering from neglect.  The relevant point of comparison is that, like Ms Hesketh, the applicant had parenting responsibilities for a young child.  The applicant’s child was in need of care.
66. [66]
    Ms Hesketh had sought assistance from a drug addiction help agency and a psychologist.  Those steps towards rehabilitation were not as significant as the applicant’s.
67. [67]
    A critical difference between Hesketh’s case and the applicant’s is that Ms Hesketh had a lengthy criminal history.  Her mostly minor offences were over a period between 1980 and 1999, the last being assault occasioning bodily harm, entering a dwelling and committing an indictable offence.  It was committed a few years before her possession of methylamphetamine in November 2002.  She had a number of previous convictions for drug offences.
68. [68]
    Ms Hesketh was initially sentenced to imprisonment for 12 months to be served by way of an intensive correction order with the condition that she undergo such psychiatric, psychological, medical testing and other treatment and drug testing as may be directed.  The Attorney-General appealed that sentence and by the time the appeal was decided Ms Hesketh had served about four-and-a-half months under the intensive correction order.  That order enabled her to remain in the community.  As Williams JA observed, the reference to imprisonment by way of an intensive correction order is the consequence of a “statutory fiction”.^[8]
69. [69]
    The Attorney-General’s appeal was allowed.  Critically, it was Ms Hesketh’s “criminal history and the extremely large quantity of Schedule 1 drug found in her possession” that required her to serve an actual period in custody.^[9]  Her “attempts at rehabilitation” and her caring for a five-year-old child and ailing mother warranted keeping the custodial sentence to a minimum.^[10]
70. [70]
    Williams JA, with whom McPherson JA and Holmes J (as the Chief Justice then was) agreed, stated:^[11]

“The broad range of imprisonment for an offence such as that involved here would be from about two and a half years to about four years imprisonment.  Given all the circumstances of this case the appropriate sentence would be two and a half years imprisonment suspended after nine months with an operational period of five years.”

71. [71]
    Because the period spent under an intensive correction order was to be regarded as a term of imprisonment, Ms Hesketh had “notionally been imprisoned” since 27 November 2003.  A nine month period would expire on 27 August 2004.  The court thought it desirable to suspend the sentence from that date.  In the end result, Ms Hesketh was required to serve several months in the community under an intensive correction order and then a period of about four months in custody before the balance of her two-and-a-half year term of imprisonment was suspended.
72. [72]
    The prosecutor in this case invited the sentencing judge to put Hesketh “to one side”, seemingly on the basis that it did not have the same level of commerciality as the applicant’s whose possession was said to be “predominantly for a commercial purpose”.  That prosecutor also noted that the cash in Hesketh’s possession was explained by her counsel as proceeds from a garage sale.  However, the sentencing judge in Hesketh did not accept that explanation because the large denomination of notes did not seem to be the typical proceeds of a garage sale.  Ms Hesketh had also tried to explain her access to large sums of money by referring to a damages award, but the sentencing judge was not prepared to accept that the money in her possession was from an award of damages so long ago.  In short, Ms Hesketh was not frank and honest about the $3,550 found in her possession.
73. [73]
    As here, she was sentenced on the basis that her possession was a mixed one, to satisfy her own addiction and to trade to support her addiction.  Given the court’s rejection of her explanation for the cash that was found in her possession, the Court of Appeal observed that there was “at least a commercial element to the possession”.
74. [74]
    In summary, Ms Hesketh’s offending was broadly similar to the applicant’s.  In both cases there was an apparent and significant commercial element to the possession based on the quantity involved, its storage and the possession of cash.  However, Ms Hesketh had twice the quantity of pure methylamphetamine and a lengthy criminal history.  By comparison, the applicant’s only prior conviction was a few months earlier for possession of two grams of cannabis and a utensil for which she received a good behaviour bond.  Ms Hesketh’s criminal history was an important reason why she was required to serve an actual period in custody.  For these reasons, Hesketh supported defence counsel’s submission to the sentencing judge for a sentence of up to three years imprisonment, with an early parole date, rather than the prosecution’s submission for a sentence of approximately four years.

R v Fahey^[12]

75. [75]
    Mr Fahey pleaded guilty to various drug offences committed over a period between June and October 2017.  The most serious concerned his supply of dangerous drugs by sending a parcel from Brisbane to Darwin which contained nearly 15 grams of pure MDMA in an overall quantity of nearly 27 grams of substance, possession of three bags containing a total pure weight of 22.77 grams of MDMA and, on another occasion, four clip seal bags containing a total pure weight of 12.868 grams of cocaine.  He was sentenced on an eight-count indictment together with various summary offences.  The head sentence was four years imprisonment, suspended after serving six months in actual custody, with lesser concurrent terms.
76. [76]
    The applicant in that case was 23 when he offended and 25 when sentenced.  He had no criminal history.  He suffered from anxiety and depression and other conditions acquired during his army service.  He became addicted to drugs and to some extent self-medicated by using them.^[13]
77. [77]
    As in this case, after the intervention of police he took significant steps to rehabilitate himself, returned negative drug tests, and had favourable references.
78. [78]
    It is unnecessary and difficult to grade his drug offences committed over a period and involving different Schedule 1 drugs to that of the applicant’s possession on a particular date.  The total quantity of MDMA and cocaine on counts 4, 5 and 6 was 50.638 grams, in excess of that possessed by the applicant.  Mr Fahey was much younger than the applicant “but not so young that the special approach sometimes taken by the court was warranted”.^[14]  The seriousness of his offending was reflected in the sentence of four years imprisonment, with mitigating circumstances in relation to his character and steps to rehabilitate himself taken into account in requiring him to serve six months of actual custody.
79. [79]
    Mr Fahey’s application for leave to appeal confronted the difficulty of arguing that the custodial period of six months was too severe, indeed manifestly excessive, and that a shorter period not exceeding three months should have been imposed.^[15]  As Fraser JA observed:^[16]

“A proposition that three months actual imprisonment was within but six months imprisonment was outside the sentencing discretion must be a very difficult one to sustain both in the context of a head sentence of four years imprisonment and in the context of the applicant’s submission that a three year head sentence is consonant with the comparable cases.”

80. [80]
    This court concluded that the sentence was not excessive and that “the mitigating factors were not inadequately reflected in the provision for release from custody after six months”.^[17]  A sentence requiring six months of actual custody was not outside the sentencing discretion.
81. [81]
    The case is authority for the proposition that in a broadly comparable case such as this where there are significant mitigating factors, requiring a person to serve a period of actual custody in the order of six months will not be excessive.  It is not authority for the proposition that a period of actual custody of 12 months or more would have been appropriate in that case.  Fahey tends to indicate that mitigating circumstances including an early plea, an absence of criminal history (or a minor or irrelevant one as in this case), together with very significant steps towards rehabilitation which demonstrate that the offender is no longer using drugs and is able to receive counselling and other support in the community, should be reflected in a relatively short period of actual custody, substantially less than the one-third period recognised for the guilty plea, in cases in which actual custody is required.

R v Power^[18]

82. [82]
    This case which was relied upon by the prosecution as comparable was more serious.
83. [83]
    The applicant was convicted of possessing a substantial quantity of cocaine along with other drugs.  He also had $7,795 cash in his pocket when police searched the “party bus” on which he and others were travelling.  The total weight of substance  containing cocaine was 51.281 grams (18.148 grams pure).  The weight of substance containing methylamphetamine, amphetamine and other drugs was significant although the purity was low.  Police also located bags containing 464 grams of cannabis.  While some of the drugs would have been distributed to other people on the bus, “the variety of the drugs, the possession of the significant quantity of cash, and the presence of the various paraphernalia clearly indicated a commercial aspect to the possession of the drugs”.
84. [84]
    Mr Power was 50 years old at the time he offended.  He had had a difficult childhood.  He also had what was described as “a long criminal history”, including prior, but dated, convictions for drug offences.  He was sentenced to four years imprisonment with parole eligibility after 16 months.  He argued that the head sentence was manifestly excessive.  This court was not satisfied that he had demonstrated that it was.
85. [85]
    In urging the sentencing judge in this case to impose a sentence “in accordance with Power” the prosecutor placed emphasis on the fact that although the total quantity of substance possessed by Power was greater it had a substantially lower purity level than the methylamphetamine possessed by the applicant.  The purity of the drugs found in Mr Power’s possession was relevant, however, this does not distract from their total quantity and diversity.
86. [86]
    Unlike the applicant, Mr Power had a lengthy and relevant criminal history.  This was a significant point of distinction which, in my view, did not support the submission that Mr Power’s criminal history was “balanced out” by the lesser purity of the drugs found in his possession.
87. [87]
    There was another important point of distinction which did not justify the contention that the applicant in this case should receive the same or a similar sentence to Mr Power.  Although a psychiatrist diagnosed Mr Power as having a substance dependency and abuse disorder in remission and “good prospects for rehabilitation”^[19] there was no evidence that he stopped using drugs when he claimed or even by the time he came to be sentenced.
88. [88]
    The distinguishing features between Power’s case and the applicant’s case supported a head sentence in this case in the order of the three years that were imposed.

R v Nicholson^[20]

89. [89]
    This case was also more serious than the applicant’s.  Mr Nicholson was 37 years old when he was sentenced for possessing a large quantity of methylamphetamine.  Various amounts of substance were found.  One clip seal bag contained 42.143 grams of substance, which had a calculated purity of 29.078 grams.  Therefore, the quantity of pure methylamphetamine and the total amount of substance were similar to this case.  However, there were marked differences.
90. [90]
    As McMurdo P noted, Mr Nicholson had been a methylamphetamine addict for half his life and had a “lamentable history of drug-related offending”.^[21]  His various attempts at rehabilitation had been unsuccessful.  His criminal history included trafficking in methylamphetamine, for which he received a sentence of five years imprisonment with a recommendation for release on parole after serving two years.  Whereas McMurdo P would have imposed a sentence of three years imprisonment with a parole release date slightly later than the one-third point commonly given in recognition of cooperation and a timely guilty plea, the other members of the court (Morrison JA and Mullins J) concluded that the sentence of three years nine months was not manifestly excessive.  It took into account 67 days spent in prison as custody that was not declarable.  Mr Nicholson’s early plea of guilty deserved to be reflected in a date for eligibility for parole at one-third of the sentence.^[22]
91. [91]
    The differences between the personal circumstances of Mr Nicholson and the applicant in this case are telling.  He had a lamentable and serious criminal history.  He had not managed to rehabilitate himself and was in custody at the time he came to be sentenced.

R v Nguyen^[23]

92. [92]
    Mr Nguyen was 27 years old at the time of his offending and was found in possession of 26.636 grams of substance of about 50 per cent purity constituting 13.051 grams of pure methylamphetamine.  He was also in possession of some MDMA tablets, $2,100 in cash, a set of scales and three mobile phones.  Although the methylamphetamine was available for his personal use, most of it was to be used for a commercial purpose.
93. [93]
    He was sentenced to two-and-a-half years imprisonment for his possession of methylamphetamine and a parole release date was fixed after he had served nine months.  His application to this court did not contest the head sentence, but argued that the sentence was manifestly excessive in not paying sufficient regard to his psychological vulnerability in prison and the strain placed on him by his wife’s mental illness.  It was also said that too much weight was placed on his prior offending.  About nine years before the subject offences, Mr Nguyen had been sentenced to five years imprisonment for trafficking.  These offences had been committed when he was a 17 year old.  Nevertheless, his history of serious drug offending was found to warrant a period of actual custody.  This court was unpersuaded that the sentencing judge failed to give appropriate weight to the two personal factors identified.  The sentence was not manifestly excessive.

What may be drawn from these decisions?

The appropriate use of comparable cases

94. [94]
    Sentences which are found not to be manifestly excessive or manifestly inadequate, or which are re-sentenced on appeal if they are, create a pattern.  The pattern provides guidance for comparable cases.  The cases assist in ensuring reasonable predictability and, more importantly, equality before the law.  Cases that are similar should receive a similar sentence, whereas cases that are different should receive different sentences.
95. [95]
    The range of sentences disclosed by an analysis of comparable cases is not necessarily the correct range or determinative of the limits of the sentencing discretion.^[24]  This court has deprecated the course of seeking to “grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence.”^[25]
96. [96]
    Still, consistency in sentencing is often assisted by identifying a range within which an appropriate sentence that is open in the case at hand should fall.  Reasonable consistency also is achieved by practices, or what some might regard as rules of thumb.  For example, an early or timely guilty plea is often reflected in a parole release or eligibility date or a date after which the sentence is suspended.  The starting point is a date after one-third of the term to be served.  By these means, disparities between near similar cases are reduced.^[26]
97. [97]
    Both the term of imprisonment and the period of actual custody to be served before possible or actual release into the community need to be assessed in determining whether the overall sentence is manifestly excessive.

The ‘range’ of head sentences in the comparable cases

98. [98]
    The comparable cases in which there was a substantial commercial element disclose a range of between two-and-a-half years and four years for possession of Schedule 1 drugs in quantities similar to the quantity possessed by the applicant.  I use the word ‘range’ with some hesitation, but for convenience in the context of a discussion of comparable cases and a pattern of sentences marked out by them.
99. [99]
    Neither the comparable cases nor principles of sentencing suggest that there is one correct number within that range.  The aim is not to strike a particular, correct number, as if that number was on a dartboard or some other kind of target.  The aim is to arrive at the most appropriate sentence in the circumstances.  In many cases, principles of deterrence, both general and specific, and rehabilitation pull in different directions.  It may, however, be possible to say that a sentence is excessive or inadequate in the circumstances.

The relevance of weight

100. [100]
     If, in a case like this, there is no one correct number within the range of two-and-a-half years and four years to reflect all the circumstances of the case, it follows that there is no one correct number to reflect the weight of the drug.  As discussed, the weight of the drug, both the total substance and the calculated pure amount, is important.  Points of distinction, such as the fact that Ms Hesketh had about twice the weight of drugs found in the possession of the applicant, should be noted.  However, over-analysis of the total weight of substance and the pure weight in comparable cases may not be of great assistance.

The relevance of a prior criminal history

101. [101]
     The presence or absence of a relevant or lengthy criminal history is an important determinant.  The applicant’s lack of prior recorded convictions (along with the fact that her sole prior offence was a minor one) placed her in a different category to Hesketh, Power, Nicholson and Nguyen.  That feature supported a head sentence towards the bottom of the range, not towards its top.

The relevance of a timely plea of guilt

102. [102]
     The applicant’s early plea of guilt and other aspects of her cooperation warranted a starting point of one-third of the head sentence.  Notably, comparable cases gave similar recognition of a plea of guilt in cases in which the offender’s rehabilitation or prospects of rehabilitation were poor or far less advanced than the applicant, who was proven to be drug-free at the time of sentence.

The relevance of rehabilitation

103. [103]
     The applicant’s noteworthy rehabilitation was highly relevant.  Unlike in some other cases, a substantial period of actual custody was not required for her to become drug-free and, hopefully, to do drug and other programs in custody.
104. [104]
     In a case like hers, personal deterrence had a lesser claim on the sentencing discretion than for someone with a lengthy criminal history or who had not progressed to being drug-free.
105. [105]
     Self-rehabilitation of the kind demonstrated by the applicant and good prospects of continuing rehabilitation in the community warrant recognition in a tangible way.  Just as there is no single way to recognise an early plea of guilt, rehabilitation may be taken into account in different ways.  It may be reflected in a reduction of what otherwise would be the head sentence or by fixing a date for release earlier than the one-third starting point on account of a timely guilty plea.  In the shorthand of sentencing courts, it may be taken into account “at the top” or “at the bottom”.  However, it should be reflected in more than words.
106. [106]
     If proven rehabilitation (not simply the absence of further offending) is treated as justifying some kind of reward, the reward of a very substantial reduction below the one-third starting point or even an immediate release on parole may be offset in some cases.  For example, a sentence of two-and-a-half years with parole release after 10 months in the absence of proven rehabilitation, might warrant in some cases a slightly higher head sentence of say three years to warrant an immediate release on parole.  In other cases, the head sentence will remain the same and the benefit accorded for rehabilitation may not be so great.
107. [107]
     One should not treat the head sentence in Fahey as the product of a rigid formula that dictated a head sentence of four years for possession of Schedule 1 drugs in a quantity similar to that possessed by the applicant.  The comparable cases show that possession of quantities in a similar or greater quantity than that possessed by the applicant may attract a sentence of two-and-a-half years (Hesketh; Nguyen).  On one view, Mr Fahey received a head sentence at the top of “the range” because he had the benefit of the suspension of his sentence after serving six months on account of “the very significant steps to rehabilitate himself”.^[27]  The period of sixth months of actual custody was one-eighth of his sentence or one-sixth of a three-year sentence.  By any measure, it reflected a substantial recognition of the absence of a criminal history and proven rehabilitation.
108. [108]
     Both those features are present in this case.

Application of features derived from the comparable cases

109. [109]
     The comparable cases that were relied upon as “yardsticks” suggest a range of between two-and-a-half years and four years.  The quantity of drugs is a determinant in placing a case such as this within that suggested range.  However, the quantity of drugs possessed by the applicant did not determine that she should be sentenced at the top of that suggested range.
110. [110]
     The comparable cases and principles of sentencing, including personal deterrence, show that another significant determinant is the presence or absence of a criminal history.  The applicant had no recorded criminal history, and only one very minor entry on her history for which she received a good behaviour bond.
111. [111]
     This is not a case in which the comparable cases, the quantity of drugs or a criminal history placed the applicant’s case at the top of the suggested range, before account was taken of her rehabilitation.
112. [112]
     An analysis of the comparable cases reveals points of distinction from cases such as Power and Nicholson.  Cases such as Hesketh and Nguyen permitted a head sentence as low as two-and-a-half years.
113. [113]
     The head sentence that was imposed of three years was an appropriate sentence to reflect the quantity of drugs possessed, the commercial element of that possession and the absence of a recorded criminal history.

Was a period of actual custody of 12 months before release on parole manifestly excessive in the circumstances?

114. [114]
     The applicant’s early plea and cooperation with the criminal justice system at the time of the search and thereafter needed to be recognised with the starting point for release on parole being after one-third of her sentence.
115. [115]
     Her proven rehabilitation warranted additional mitigation in fixing a parole release date.
116. [116]
     A period of actual custody of 12 months or close to it was not required to provide additional deterrence and denunciation.  Any immediate period of actual custody was not the only period of actual custody that the applicant might be required to serve.  If the applicant’s parole was to be suspended or cancelled then she stood to serve a lengthy period in actual custody.  The interests of deterrence, both general and specific, and denunciation were served by the head sentence of three years imprisonment.
117. [117]
     A period of actual custody of 12 months or close to it was not required to aid the applicant’s rehabilitation.  Such a period of actual custody jeopardised, rather than aided, her rehabilitation.
118. [118]
     If the applicant was to be sentenced to a period of actual custody before she completed her residential rehabilitation, then the period of actual custody should have been as short as possible so as to provide whatever additional deterrence and denunciation was necessary beyond the three-year term of imprisonment itself and to provide conditions that aided the applicant’s rehabilitation.^[28]
119. [119]
     A period of actual custody substantially less than 12 months was required in order to:

     1. (a)
        reflect in a tangible way the applicant’s self-rehabilitation to a point where she was drug-free and well on the way to resuming life as a productive member of society; and
     2. (b)
        allow her to resume the residential rehabilitation program on which she had progressed or similar programs in the community.

This conclusion is reinforced by the absence of any evidence that, whilst in custody, the applicant was likely to receive the kind of counselling or intensive support she had been receiving, or, indeed, any counselling or programs.

120. [120]
     A much earlier parole release date should have been fixed.
121. [121]
     As a result, the sentence which required her to serve 12 months of actual custody before release on parole was manifestly excessive in the circumstances of the applicant’s case.

Other points raised by the applicant

122. [122]
     Before turning to the appropriate orders by way of resentencing, a few other matters raised by the applicant’s submissions should be mentioned.

A violent domestic relationship

123. [123]
     The applicant submits that her circumstances at the time of offending had a mitigating effect.  Reference is made to her “heavy drug dependency and addiction, which in turn, acted as a Band-Aid effect for anxiety, fear and the appellant’s post-traumatic stress disorder from the domestic violent relationship”.  Reference is made to ongoing abuse from her estranged husband during 2020.
124. [124]
     If these assertions are true then they were taken into account by the sentencing judge.  More generally, the reasons that the applicant began to self-medicate with methylamphetamine are not exceptional.
125. [125]
     The tragic fact is that many offenders self-medicate with illicit drugs for the same or similar reasons.  Their reasons include childhood sexual abuse, other trauma, breakdowns in relationships, pain from physical injuries, the demands of intolerably long work hours, trying to save a failing business, and mental illness.  The list goes on.  This is the sad daily experience of the criminal justice system.
126. [126]
     Some understanding may be given for individuals who self-medicate to cope with domestic violence or other trauma, compared to those who resort to drugs for purely recreational reasons.  That understanding must be tempered, however, by the recognition that possession of substantial quantities of a drug like methylamphetamine to both self-medicate and to sell to support an addiction creates more misery.  The drug is available for others in difficult circumstances to self-medicate, and thereby to ruin their lives and the lives of others, including children.

The effect of imprisonment on the applicant’s young child

127. [127]
     The applicant expressed remorse for what her resort to drugs had done to others, particularly her young son.  During her period of residential rehabilitation and imprisonment the child had been in the custody of his father.  The child is now aged 13 and was said to have struggled mentally without his mother being there.  The boy’s father was said to be facing multiple charges and imprisonment.  The applicant submits that the child’s best interests would be served by her release so she can care for him.
128. [128]
     The material before this court does not allow it to conclude what parenting or care arrangements are in the child’s best interests.
129. [129]
     The effects of the applicant’s imprisonment on her child’s welfare (and indirectly on the harshness of being separated from her child by imprisonment, knowing of her child’s predicament) are relevant, but cannot be given excessive weight by a sentencing judge or by this court.  Hardship to families is the tragic, but inevitable, consequence of imprisonment.^[29]

COVID-19 restrictions

130. [130]
     Reference was made to lockdowns in custody and the effects of restrictions on prison visits, including by counsellors.  The sentencing judge was said to have failed to mitigate the sentence to account for the effect of COVID-19 restrictions on prison conditions and the applicant’s mental health.
131. [131]
     The implications of restrictions that are necessary for the health of prisoners and correctional staff were discussed in R v Rose^[30] and the applicant does not question its correctness.
132. [132]
     This application is not the vehicle to discuss the broader issue of prison overcrowding and its possible relevance.

Residential rehabilitation

133. [133]
     At first instance it was submitted that the time spent at Moonyah could be taken into account.  Authorities were cited in support of this.^[31]  They suggest some account may be taken of the restriction on liberty of being confined in such a place for a lengthy period.  That confinement cannot, however, be equated with imprisonment.
134. [134]
     In this case, the applicant’s confinement, including moving from Central Queensland and being separated from family, was a commendable, personal choice, not a condition of bail.  It was an opportunity to rehabilitate herself for her own good and the good of her family, including her young child.  She deserves credit for seeking out a place in such a facility and persisting until she was offered a place.
135. [135]
     The rehabilitation did her and society good.  She should have been given greater credit at sentence for that self-rehabilitation.  However, she does not warrant further, separate credit for the fact that she was confined for many weeks in residential rehabilitation.

Leave to appeal

136. [136]
     The issue raised by this application is whether requiring the applicant to serve 12 months actual custody before being released on parole was manifestly excessive in the unusual circumstances of her case.  In my view, it was.
137. [137]
     It is unnecessary to decide on this application whether the applicant’s circumstances would have warranted an order for immediate release on parole if the applicant had been able to complete her residential rehabilitation program before being sentenced.

Resentencing

138. [138]
     We were told by the applicant on the hearing of the application on 27 July 2021 that she had not received any counselling or programs while in custody.  It seems that programs of the kind upon which she had embarked at Moonyah were not available to her in custody.
139. [139]
     The applicant planned upon her release to relocate away from Central Queensland to the Sunshine Coast, where her parents and siblings reside.  She planned to re-engage with drug counselling and get other help from a support network should she need it.  She is enrolled to further her formal education, and plans to develop a financially secure and healthy future for herself and her child who is now aged 13.
140. [140]
     The period of eight months spent in custody since being sentenced, and her exposure in the event of being returned to custody to a substantial period of additional actual custody, are sufficient to advance the important principles of deterrence and denunciation.^[32]
141. [141]
     These are my reasons for joining in the orders that were made by the Court on 27 July 2021.  Those orders are:

1. Application to seek leave to appeal granted.
2. Appeal allowed.
3. Vary the sentence imposed on count 1 of the indictment by ordering that the date for the applicant’s release on parole be 27 July 2021.