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R v Stapleton[2022] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stapleton [2022] QCA 131

PARTIES:

R

v

STAPLETON, Wayne Peter

(applicant)

FILE NO/S:

CA No 310 of 2021

SC No 6 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 12 November 2021 (Brown J)

DELIVERED ON:

Date of Orders: 19 July 2022

Date of Publication of Reasons: 29 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2022

JUDGES:

Mullins P, Bond JA and Henry J

ORDERS:

Date of Orders: 19 July 2022

  1. Application for leave to appeal granted.
  2. Appeal allowed.
  3. Set aside the orders made by the sentencing judge, except for the orders in relation to the serious drug offence certificate and forfeiture order.
  4. Re-sentence the applicant as follows:

Count 1

Order that the applicant be imprisoned for a period of 12 months.

Count 2

Order that the applicant be imprisoned for a period of 4 years and 6 months and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 4 years 6 months, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

Count 3

Order that the applicant be imprisoned for a period of 3 years and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 3 years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

  1. All sentences are concurrent.
  2. It is declared that 408 days spent in pre-sentence custody, namely 158 days between 26 April 2020 and 30 September 2020 and 250 days between 12 November 2021 and 19 July 2022, be deemed time already served under the sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of supplying methylamphetamine (count 1) and two counts of trafficking in methylamphetamine (counts 2 and 3) – where the applicant was sentenced to 18 months’ imprisonment for each of counts 1 and 3 and three and one-half years’ imprisonment for count 2 and the sentencing judge ordered “the term of imprisonment be suspended after serving a period of 15 months imprisonment” – where the sentence for count 3 was ordered to be served cumulatively upon counts 1 and 2 which were ordered to be served concurrently – where the verdict and judgment record could not reflect the sentencing judge’s intention – where the sentencing judge did not sentence in accordance with s 144 of the Penalties and Sentences Act 1992 (Qld) in imposing separate terms of imprisonment for each count and purporting to suspend part of the total period of the imprisonment of five years instead of imposing a sentence of suspended imprisonment for each count – where the applicant was re-sentenced

R v Scott [2006] QCA 76, cited

COUNSEL:

C J Grant for the applicant

C M Georgouras for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  On 19 July 2022 the Court granted Mr Stapleton leave to appeal, allowed the appeal and re-sentenced Mr Stapleton, so that the effect of the resentencing was that the terms of imprisonment imposed on Mr Stapleton on the day the application was heard were suspended on the same day.  These are our reasons for joining in the orders made on 19 July 2022.
  2. [2]
    Mr Stapleton pleaded guilty to one count that on 6 August 2018 he supplied the dangerous drug methylamphetamine to another person (count 1) and two counts of trafficking in the dangerous drug methylamphetamine (counts 2 and 3).  The period particularised in count 2 was between 18 January and 12 April 2019 (about three months) and the period particularised in count 3 was between 23 February and 27 April 2020 (about two months).  He was sentenced to imprisonment for a period of 18 months for each of counts 1 and 3 and for a period of three and one-half years for count 2.  The sentence for count 3 was ordered to be served cumulatively upon the sentences imposed on counts 1 and 2 which were ordered to be served concurrently.  The learned sentencing judge then ordered that “the term of imprisonment be suspended after serving a period of 15 months imprisonment” and Mr Stapleton was informed that he must not commit another offence punishable by imprisonment within a period of five years to avoid being dealt with for the suspended term of imprisonment.  Mr Stapleton had spent 158 days in pre-sentence custody between 26 April and 30 September 2020 and a declaration was made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) (the Act) that the 158 days be deemed to be time already served under the sentence.
  3. [3]
    It is apparent from the sentencing remarks that the sentencing judge intended the total period of imprisonment be treated, in effect, as one sentence of imprisonment of five years that was to be suspended after serving a period of 15 months’ imprisonment.  The power conferred by s 144 of the Act to suspend a term of imprisonment applies to the sentence of imprisonment for a particular offence.  That is because s 144(3) permits an order under s 144(1) to suspend “the whole or a part of the term of imprisonment” and “term of imprisonment” is relevantly defined in s 4 of the Act to mean “the duration of imprisonment imposed for a single offence”.
  4. [4]
    It is awkward under the Act to impose a suspended term of imprisonment in respect of a sentence that is intended to be cumulative upon another sentence.  The awkwardness of doing so is reflected in the verdict and judgment record issued by the registrar to reflect the sentences imposed by the sentencing judge on Mr Stapleton.  The verdict and judgment record used the correct form of words for a suspended sentence for each of the sentences and therefore showed a suspended sentence for each count with each sentence of imprisonment being suspended after a period of 15 months’ imprisonment, including for count 3 that was ordered to be served cumulatively upon the concurrent sentences imposed on counts 1 and 2.  The verdict and judgment record also recorded the pre-sentence custody declaration in respect of 158 days as applicable to each of the suspended sentences.  According to the verdict and judgment record, Mr Stapleton was to serve 30 months in custody less two periods each of 158 days pre-sentence custody before all three sentences were suspended.
  5. [5]
    There was therefore an error in the sentencing judge’s imposing separate terms of imprisonment for each of the counts and purporting to suspend part of the total period of the imprisonment of five years (for which there was no power to do so under s 144 of the Act), instead of imposing a sentence of suspended imprisonment for each count.  Mr Stapleton applied for leave to appeal on the ground the sentence was manifestly excessive, but when the effect of the verdict and judgment record was pointed out to counsel at the hearing of the application, Mr Stapleton’s counsel sought and obtained leave to add an additional ground of appeal that was directed at the error of the sentencing judge in using a sentencing structure that did not accord with the law and resulted in the verdict and judgment record not reflecting the outcome intended by the sentencing judge.  As the error in the formulation of the sentences was apparent, the Court disposed of the application and the appeal on the basis of that error and it was unnecessary to consider separately the ground of manifest excessiveness.

The circumstances of the offending

  1. [6]
    The following summary is taken from the agreed statement of facts.
  2. [7]
    Count 1 was detected when police executed a search warrant in respect of another person whose phone was seized and an analysis of the messages revealed that person had recruited Mr Stapleton to purchase an ounce of methylamphetamine on her behalf and deliver it to her on 6 August 2018.  The inference was that the purchase was to be made by Mr Stapleton using the principal’s money and the supply concerned the delivery by Mr Stapleton to the principal of the methylamphetamine purchased with her money.
  3. [8]
    Mr Stapleton was charged with count 2 as a result of the information revealed by two mobile phones seized from him respectively on 21 February and 11 April 2019.  The text messages showed that he trafficked in methylamphetamine in street level quantities between 18 January and 12 April 2019.  Mr Stapleton attempted to avoid detection by requesting customers to use message services such as Wickr.  It was unknown how frequently Mr Stapleton sourced methylamphetamine, but he purchased it from suppliers in wholesale amounts.  One purchase of 28 grams for $5,750 was made 18 February 2019.  He had a customer base of at least 10 people, most of whom were end users.  During this trafficking period, Mr Stapleton supplied or offered to supply methylamphetamine at least 37 times and supplied in street level amounts ranging from 0.1 grams to 3.5 grams.  The analysis of the messages revealed that, during the first trafficking period, he supplied or offered to supply approximately 21.95 grams of methylamphetamine in total and, in return, received $7,875 in addition to receiving services such as the repair of his phone and with some amounts being sold on credit.  He was arrested for count 2 on 29 July 2019 and released on bail.
  4. [9]
    On 26 April 2020, police intercepted Mr Stapleton in his car and seized a mobile phone, the analysis of which revealed Mr Stapleton trafficked in methylamphetamine in street level quantities between 23 February and 27 April 2020 which was whilst he was on bail for count 2.  During this trafficking period, he had at least three regular customers with an additional one-off customer and supplied or offered to supply methylamphetamine at least 14 times.  He supplied in street level amounts ranging from 0.1 grams to 1.75 grams.  It was impossible to quantify the true extent or quantities of the drugs sold during this trafficking period, but it was identified that he had supplied or offered to supply at least 9.3 grams of methylamphetamine in total and in return received at least $3,320.  The prosecution accepted that Mr Stapleton was a drug user and sold methylamphetamine to support his own habit.

Mr Stapleton’s antecedents

  1. [10]
    Mr Stapleton was aged 53 to 54 years at the time of his offending.  When count 1 was committed, the only entry in Mr Stapleton’s criminal history was a conviction on 15 May 1997 for breach Bail Act (contempt) for which no penalty was imposed.  Prior to the commission of count 1, Mr Stapleton led a law abiding and productive life for almost four decades.
  2. [11]
    Mr Stapleton qualified as a chef and was employed in hospitality around Australia and overseas.  He and his wife started their own business in Port Douglas around 2005.  There are two children of the marriage.  Their business was successful.  A younger brother of Mr Stapleton died in tragic circumstances around seven years prior to the sentencing.  In the same week that he died, Mr Stapleton’s wife gave birth to a stillborn child.  Their grief and loss placed significant stress on the marriage and contributed to its breakdown in 2017.  Their business also came to an end when their marriage broke down.  Mr Stapleton started experimenting with drugs which led to the subject offending.  He also accrued some minor criminal history for offences committed from November 2018 including stealing, unlawful possession of restricted drugs, possessing dangerous drugs and breaches of bail.
  3. [12]
    Whilst on remand after being charged with count 3, Mr Stapleton engaged in six sessions with the prison counsellor which identified that he had repressed his grief and loss arising from the stillborn birth of his child and the death of his brother.  He was referred to the Cairns mental health service on his release.  He was diagnosed with mental and behavioural disorders due to use of stimulants and post-traumatic stress disorder.  A letter was tendered at the sentencing from the mental health service that confirmed Mr Stapleton was a voluntary client and was showing “an ongoing commitment to improve his life since engagement with [the] service”.  Mr Stapleton’s instructions to his counsel at the time of the sentencing were that upon release from prison on 30 September 2020, he sought assistance from Queensland Injectors’ Health Network (QuIHN) for around eight months and he was no longer dependent upon drugs.  He had four drug screening tests between 9 June and 13 October 2021 with negative results that were tendered at the sentencing.  A reference from a mental health support worker at QuIHN dated 8 November 2021 tendered at the sentencing confirmed that Mr Stapleton commenced treatment for substance abuse, depression and mental health trauma in mid-October 2020 and was still being treated in November 2021 by undertaking weekly treatment in the Renewal Health program.
  4. [13]
    Mr Stapleton was working as a truck driver from October 2020.  In October 2021, he underwent emergency surgery to remove his gall bladder during which three tumours were detected in his bowel.  Further investigation of those tumours was required.
  5. [14]
    Mr Stapleton had provided a letter to the sentencing judge explaining the circumstances that resulted in his drug use and criminal offending and expressing regret for the pain he caused to his former wife and children due to this conduct and his intention to repair his relationships and avoid further offending.  The letter revealed a mature insight into the effect of his addiction.

Re-sentencing

  1. [15]
    It was egregious that count 3 was committed by Mr Stapleton whilst he was on bail for like offending (count 2) and also for count 1.  That must be considered in the context of the cause of the offending being Mr Stapleton’s addiction to methylamphetamine.  It was not until Mr Stapleton took steps to address his addiction (that was facilitated by the period on remand after he was arrested for count 3) that the offending was likely to cease.  The trafficking that was the subject of count 2 was at the smaller end of the scale of trafficking businesses and the scale of trafficking for count 3 was even more reduced.  The sentencing also must reflect the good work history and lack of criminal history for almost four decades before his offending.  The sentencing judge had recognised the positive steps taken by Mr Stapleton in rebuilding his life and engaging in rehabilitation after he was released from custody on 30 September 2020 and proposed that Mr Stapleton be released after serving one-quarter of the effective head sentence in custody.  But for the commission of the second trafficking offence, the sentence imposed on Mr Stapleton for count 2 could have been as low as three years’ imprisonment: R v Scott [2006] QCA 76 at p5.
  2. [16]
    The most serious offence committed by Mr Stapleton was count 2, but for concurrent sentences to be imposed, the sentence for count 2 must account for the additional offending reflected particularly by count 3.  At the time of hearing Mr Stapleton’s application for leave to appeal, he had served a total of 408 days in custody on account of these offences which is approximately 13.5 months.  It appeared to the Court that an effective sentence imposed on count 2 that took into account all the relevant mitigating and aggravating factors and the criminality of all offences was imprisonment for four years and six months suspended after the period of 408 days for an operational period of four years and six months.  This preserved the approach of the sentencing judge to the proportion of the sentence to be served in custody.  The sentence for count 1 had to reflect that it was the first serious criminal offence committed by Mr Stapleton and his prior good record was relevant for determining the separate concurrent sentence to be imposed and his offending was as the agent of another.  An appropriate separate concurrent sentence for count 3 was three years’ imprisonment.

Orders

  1. [17]
    The following orders were therefore made by the Court on 19 July 2022:
  1. Application for leave to appeal granted.
  2. Appeal allowed.
  3. Set aside the orders made by the sentencing judge, except for the orders in relation to the serious drug offence certificate and forfeiture order.
  4. Re-sentence the applicant as follows:

Count 1

Order that the applicant be imprisoned for a period of 12 months.

Count 2

Order that the applicant be imprisoned for a period of four years and six months and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of four years six months, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

Count 3

Order that the applicant be imprisoned for a period of three years and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of three years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

  1. All sentences are concurrent.
  2. It is declared that 408 days spent in presentence custody, namely 158 days between 26 April 2020 and 30 September 2020 and 250 days between 12 November 2021 and 19 July 2022, be deemed time already served under the sentences.
Close

Editorial Notes

  • Published Case Name:

    R v Stapleton

  • Shortened Case Name:

    R v Stapleton

  • MNC:

    [2022] QCA 131

  • Court:

    QCA

  • Judge(s):

    Mullins P, Bond JA, Henry J

  • Date:

    29 Jul 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC6/21 (No citation)12 Nov 2021-
Notice of Appeal FiledFile Number: CA310/2129 Nov 2021-
Appeal Determined (QCA)[2022] QCA 13129 Jul 2022-

Appeal Status

Appeal Determined (QCA)

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