R v Staines[2022] QCA 187

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 16 June 2022 Mr Staines pleaded guilty to one count of trafficking in dangerous drugs, (count 1) four counts of possessing a dangerous drug (counts 2 to 5) and one count of possessing a thing for use in connection with trafficking in dangerous drugs (count 6).  He also pleaded guilty to two summary charges.  The trafficking was carried on over a period of eight months and 24 days between 21 June 2020 and 17 March 2021.  For the trafficking offence, he was sentenced to imprisonment of three years and six months cumulative upon the sentences imposed on him on 7 November 2019 in the Magistrates Court for which he had been given a parole release date of 7 November 2019 (the November 2019 sentence).
2. [2]
   The date that he is to be eligible for parole for the sentence imposed for the trafficking offence was fixed at 15 February 2023 which was eight months after the date of sentence.  He was convicted and convictions were recorded and he was not further punished in respect of the other five counts and the summary charges.  The period of 70 days spent in presentence custody between 16 March and 24 May 2021 (the 70 day period) was ordered not to be taken into account as imprisonment already served under the sentence pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) (PSA).
3. [3]
   There is one ground of appeal that the sentence imposed for the trafficking offence was manifestly excessive in the setting of a parole eligibility date after Mr Staines had served eight months in custody.

The applicant’s antecedents

4. [4]
   Mr Staines was aged 30 to 31 years during the offending period.  He was in a relationship with his co-offender.  They lived together.
5. [5]
   Mr Staines had an unsettled childhood.  He completed year 10.  He had a number of relationships that did not last and struggled with alcohol misuse and abuse.  He has an irrelevant New South Wales criminal history.  His Queensland criminal history was minor until he was dealt with in the Magistrates Court on 7 November 2019 for offences including possessing dangerous drugs on 29 December 2018, 1 January 2019, 20 April 2019 and 20 August 2019.  The most serious offence was the possession committed on 29 December 2018 that involved 4.9 grams of methylamphetamine for which he was sentenced to 14 months’ imprisonment.  The effective sentence on that day was 14 months and 28 days.  A presentence custody declaration was made in respect of the 80 days in custody prior to the sentence.  The parole release date was fixed as the date of the sentence.
6. [6]
   The report of the Community Corrections office that supervised Mr Staines’ parole under the November 2019 sentence stated that he had “a mixed response to supervision” that appeared to be “influenced by his unstable mental health and substance misuse, which impacted his capacity to report as directed and undertake identified interventions”.  The report noted that Mr Staines reported ongoing drug use during the period of supervision and a urinalysis test on 7 July 2020 was positive to methylamphetamines and amphetamines.
7. [7]
   When Mr Staines was arrested and charged with the subject offences on 16 March 2021, he was held in custody until he was released on bail on 24 May 2021 to a rehabilitation facility on the Sunshine Coast.  As the parole order imposed by the November 2019 sentence had expired on 16 November 2020 before Mr Staines was taken into custody on 16 March 2021 for the subject offences, the 70 day period on remand related only to the subject offences.
8. [8]
   Mr Staines changed to the residential rehabilitation treatment program conducted by Lighthouse Services (associated with the Baptist Church) at Palm Beach on or about 25 August 2021.  It was a condition of his bail that he remain at that rehabilitation service.  He did so for a period of slightly less than 10 months as at the date of sentence.  But for being sentenced, he was due to complete the program at the end of July 2022.
9. [9]
   The sentencing judge was provided with information about the Lighthouse program and references favourable to Mr Staines from the managing director, the program coordinator, the psychologist and the facilitator of the anger management and other personal development courses at the Lighthouse.  The Lighthouse program can be summarised as involving the following elements.  The foundation stage of the residential program lasts for three months where the participants are involved in household therapy systems and complete various courses relating to anger management and other personal development courses and commence engaging in work therapy activities where the participants go into the community and carry out jobs.  During the second stage which also lasts three months, the participants continue with courses that are more specific to their individual situation and with the work therapy component and the participants have more freedom with respect to contact with family members and free time activities.  The final stage of three months focuses on relapse prevention and transition into independent living.  The typical week day timetable for the program shows that on three days per week the participants walk as a group to the beach and on each day (other than Sunday) they participate in group Bible devotions and undertake work therapy for two hours before lunch and courses for 90 minutes after lunch before free time and dinner with group meetings held after dinner.  The participants attend church as a group on Sunday and are also taken on group activities such as hiking, fishing and camping.  The participants have free time after church on Sunday and from midday on Saturday.  Participants must complete a White Card before or within two weeks of commencing the final stage of the program.  The consumption of alcohol or the use of illegal drugs is prohibited and mobile phones are not permitted until the final stage.  Participants must put their relationships on hold while in the program.
10. [10]
    The references from the Lighthouse personnel were positive about the progress of Mr Staines’ rehabilitation.  Random urine tests were carried out regularly and Mr Staines never returned a positive result for a random urine test.  His participation in work therapy groups progressed to organising the works and managing his co‑workers.  There was a gradual positive change in his behaviour and attitude as he applied himself to the program and by the final stage he was acknowledging the impact his behaviour had on his family and society.

The offences

11. [11]
    Mr Staines’ offending was detected in the course of a police operation that had as its main target the person who supplied methylamphetamine to Mr Staines for on-sale to his customers.  The police executed a search warrant at Mr Staines’ home on 16 March 2021 during which various drugs and drug related paraphernalia were found that are the subject of counts 2 to 6 on the indictment and the summary charges.  Mr Staines declined to participate in an interview.
12. [12]
    The telephones and other electronic devices that had been seized by police were analysed and contained messages that supported the prosecution case that Mr Staines and his co-offender were trafficking in dangerous drugs.  The trafficking was described as being “in predominately street level quantities of methylamphetamine”, and that Mr Staines and his co-offender could source and supply larger amounts when requested and sourced cannabis on request.  Mr Staines and his co-offender completed at least 44 actual supplies of which 43 were methylamphetamine and one was cannabis and 14 offers to supply and did acts preparatory to the supply of methylamphetamine on five occasions.  The frequency of the trafficking increased from occasional sales to every day or second day from November 2020.
13. [13]
    Mr Staines and his co-offender had 19 repeat customers.  Mr Staines and his co‑offender discussed debts owed by customers and pursued debts.  They transferred money to each other after payments were made by customers.  During the trafficking period the total amount of unexplained money transferred into the co-offender’s bank accounts was $47,385 of which Mr Staines had transferred to his co-offender the sum of $31,356.  Mr Staines’ bank records indicated a total sum of $30,667 was obtained during the trafficking period of which the co-offender had transferred $1,720 into his account.  The prosecution was unable to quantify the profit made by Mr Staines and his co-offender.

Sentencing remarks

14. [14]
    The prosecutor at the sentencing hearing (who was not the respondent’s counsel on this application) and Mr Morgans of counsel (who also appeared for Mr Staines at the sentencing hearing) had relied on different comparable authorities before the sentencing judge, but there was consensus that the authorities supported an effective head sentence imposed after a guilty plea for the trafficking count of between four to five years’ imprisonment, before taking into account the mitigating factors in favour of Mr Staines.  The focus of the submissions made to the sentencing judge on Mr Staines’ behalf was to persuade the sentencing judge to impose a wholly suspended sentence of imprisonment on the trafficking offence (which would have the consequence of avoiding the operation of s 209 of the Corrective Services Act 2006 (Qld) (CSA)) and to make a probation order for a period of two to three years on one of the other counts.
15. [15]
    Apart from summarising the agreed schedule of facts and Mr Staines’ antecedents, the sentencing remarks of the learned sentencing judge included the following.
16. [16]
    The plea of guilty was timely.  The offending was committed during “the grip of drug addiction”.  Mr Staines went into rehabilitation on his release on bail.  The rehabilitation at the Lighthouse facility required Mr Staines “to be effectively under home detention on a 24-hour, seven day a week basis, subject to being only permitted to leave on escort”.  It was to Mr Staines’ credit that he completed the rehabilitation.  The sentencing judge took into account the traumatic experiences that Mr Staines had during childhood and that Mr Staines had complied with very strict bail conditions.  The sentencing judge had regard to the sentence imposed on his co-offender, but also took account of the different circumstances between the co-offender and Mr Staines.  It was an aggravating feature that the trafficking was committed during the period between 21 June and 16 November 2020 when he was on parole for the November 2019 sentence.  The sentencing judge described accurately that Mr Staines had yet to serve the period of four months and 27 days that remained to be served of the November 2019 sentence in consequence of the operation of s 209 and s 211 of the CSA.
17. [17]
    The sentencing judge was not satisfied that a wholly suspended sentence reflected the sound exercise of the sentencing discretion for the offence of trafficking in a schedule 1 drug, taking into account the schedule of facts and that Mr Staines had a relevant criminal history, even though there was much to Mr Staines’ credit, including that he had engaged in approximately 13 months of inhouse residential rehabilitation which the sentencing judge regarded “as being quasi-custodial” within the meaning of R v Delaney (2003) 59 NSWLR 1 at [22].
18. [18]
    The sentencing judge expressly took account of the period of inhouse rehabilitation as well as the two months in custody which was stated to be not declarable (which was the reference to the 70 day period which the prosecutor who appeared at the sentencing had submitted was not declarable) in determining the appropriate sentence.  The sentencing judge was mindful of not circumventing the legislative intention for cumulative sentences for schedule 1 offences committed whilst on parole (which was a reference to schedule 1 of the PSA for the purpose of the application of s 156A of the PSA) and formed the view that some actual custody beyond the period of four months and 27 days outstanding in respect of the November 2019 sentence was required.  The sentencing judge then stated:

“Taking into account all the circumstances, including the sentence imposed on your co-accused, the principle of parity, totality, all the features in mitigation and your very good work in your rehabilitation, I have arrived at a head sentence of 3.5 years, reduced from a range of four to five years taking into account totality. If the one-third from today approach were adopted – that is 14 months – that would see a parole eligibility date of the 16^th of July 202[3]. Ultimately, I do not consider that gives sufficient weight to the non-declarable pre‑sentence custody but more importantly, to that very lengthy period of intensive inpatient rehabilitation for which you have shown real success. In the end, I have arrived at a parole eligibility date of eight months from today which is, on my calculations, the 16^th of February 2023.”

19. [19]
    The sentencing judge observed that Mr Staines had put himself in a position of stability where he was a good candidate for parole.

The applicant’s submissions

20. [20]
    The feature of the sentence that was the focus of the submissions on behalf of Mr Staines on this application was the requirement for Mr Staines to serve eight months in actual custody, despite his extensive rehabilitation in quasi-custodial environments after being granted bail for the subject offences.
21. [21]
    The two aspects of residential rehabilitation undertaken by an offender relevant to sentencing were identified by James J (with whom Santow JA agreed) in Delaney at [23] as the punitive aspect of quasi-custody (because of the restrictions imposed on the offender’s liberty whilst undertaking the residential rehabilitation program) and the rehabilitation aspect in that the program might be relevant to a favourable assessment of the offender’s prospects of rehabilitation.  The Victorian Court of Appeal recognised in Akoka v R [2017] VSCA 214 at [105]-[107] that these two aspects of a residential rehabilitation program were relevant to sentencing an offender who was undertaking a residential treatment program as a bail condition.
22. [22]
    Mr Staines relies specifically on paragraphs (a) and (o) of the s 9(2) of the PSA to submit there was a sound legislative basis  in the principle (under paragraph (a)) that a sentence that allows the offender to stay in the community is preferable and that (under paragraph (o)) it is a relevant factor that an offender had successfully completed a rehabilitation program that was a condition of the bail order for supporting the submission that the applicant’s circumstances did not require a sentence that returned him to custody.

Presentence custody

23. [23]
    The prosecutor who appeared at the sentencing hearing had submitted to the sentencing judge that the 70 day period was not declarable in accordance with R v Braeckmans [2022] QCA 25.  For the reasons explained below, that submission was incorrect.  The submission was not disputed by Mr Morgans at the sentencing and was acted on by the sentencing judge.
24. [24]
    The issue in Braeckmans was whether the discretion under s 159A of the PSA to declare that presentence custody was to be taken to be imprisonment already served under the sentence could be exercised in favour of making the declaration where the offender was held on remand for the subject offences and at the same time serving a sentence which had been imposed previously for which he had been paroled (the 2017 sentence) and the subject offences were committed whilst the offender was on parole for the 2017 sentence.  That parole had been suspended when he was returned to custody after being charged with the subject offences.  Pursuant to s 156A of the PSA, the sentence for the subject offences had to be served cumulatively upon the balance remaining of the 2017 sentence.  If the declaration were made pursuant to s 159A as the sentencing judge in Braeckmans had purported to do, it precluded giving effect to the requirement in s 156A of starting the sentence for the subject offences from the end of the period of imprisonment the offender was serving.
25. [25]
    McMurdo JA (with whom Sofronoff P and Kelly J agreed) therefore found in Braeckmans (at [31]) that in the exercise of the power under s 159A in relation to presentence custody which was served at the same time as the offender had been serving the sentence upon which the sentence for the subject offences was required to be cumulative pursuant to s 156A, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term.  It was on that basis that a declaration of presentence custody should not have been made in Braeckmans.
26. [26]
    The decision in Braeckmans therefore did not apply to the 70 day period served by Mr Staines in presentence custody which was not served at the same time as any part of the November 2019 sentence which, apart from the effect of s 209 and s 211 of the CSA, had expired on 16 November 2020.
27. [27]
    Although the sentencing judge exercised the discretion not to declare the 70 day period as imprisonment already served under the sentence for the reason put forward, wrongly, by the prosecutor, no prejudice was caused to Mr Staines, as the 70 day period was expressly taken into account by the sentencing judge in setting the effective head sentence and the part of the sentence to be served in actual custody.  The sentencing judge also complied with s 159A(3B) of the PSA to the extent of declaring the 70 day period that Mr Staines was held in presentence custody and declaring that no time was taken to be imprisonment already served under the sentence.  On the hearing of the application by this Court, Mr Staines did not seek to add as a ground for the application the error of the sentencing judge in accepting the submission about the effect of Braeckmans as the reason for not declaring the 70 day period as imprisonment already served under the sentence.

Was the sentence manifestly excessive?

28. [28]
    The ground of manifest excessiveness requires the Court to consider the whole sentence that was imposed rather than one feature in deciding whether the sentence was unreasonable or plainly unjust in the circumstances.  That is consistent with the process of instinctive synthesis which a sentencing judge undertakes in weighing all the relevant factors and arriving at the appropriate sentence in a particular case: Markarian v The Queen (2005) 228 CLR 357 at [37].
29. [29]
    Because of the serious nature of the offending for which Mr Staines was being sentenced which involved trafficking in methylamphetamine over a period of nearly nine months for profit that commenced whilst he was on parole under the November 2019 sentence, there was little, if any, scope for invoking s 9(2)(a) of the PSA, even taking into account the lengthy period spent in residential rehabilitation programs and the 70 day period.  It was relevant for the sentencing judge to take into account the rehabilitation aspect of the residential rehabilitation program pursuant to s 9(2)(o), and the punitive aspect pursuant to s 9(2)(r) of the PSA which allows any other relevant circumstance to be considered.  The sentencing remarks show the sentencing judge took both aspects into account.
30. [30]
    Care must be taken by a sentencing judge when giving credit for the period of quasi‑custody associated with a residential rehabilitation program undertaken before being sentenced and the credit given to the offender for improved prospects of rehabilitation, as a result of undertaking that program, so as not to overcompensate the offender for undertaking the rehabilitation program.  The punitive and rehabilitation aspects overlap, as the benefit of the rehabilitation is not obtained without the restrictions on liberty of a residential rehabilitation program.  This underpinned the observations by Applegarth J (with whom Sofronoff P and McMurdo JA agreed) in R v Hawke [2021] QCA 179 at [133]-[135] which was a case of self-rehabilitation where on appeal the offender was given greater credit for her self-rehabilitation, but it was held there was no warrant for giving her separate credit for the period for which she had been confined in residential rehabilitation.
31. [31]
    There was compulsion in Mr Staines’ undertaking the residential rehabilitation programs as a condition of his bail for the subject offences, but by doing so Mr Staines gained the benefit of addressing the drug addiction that was the underlying cause of his offending and in showing thereby that his prospects of rehabilitation were improved.  There is no strict equivalence between the period spent in the residential rehabilitation programs and the reduction of the head sentence and/or the custodial component of the sentence, as it one of many factors taken into account by the sentencing judge.  In addition, it is apparent from the conditions that applied in the Lighthouse program that the restriction on Mr Staines’ liberty as a participant in the program as part of his bail conditions was not the same as serving presentence custody in prison, as, for example, he had access to work and activities outside the residence and privileges such as using his mobile phone in the final stage of the program.
32. [32]
    Once the sentencing judge rejected the submission made on behalf of Mr Staines that a wholly suspended sentence should be imposed, the period of imprisonment relevant to the fixing of the parole eligibility date was required by s 160F of the PSA to include the outstanding period of four months and 27 days in respect of the November 2019 sentence and the period of the effective head sentence to be imposed by the sentencing judge: R v Degn (2021) 7 QR 190 at [9].  The sentencing judge therefore fixed the parole eligibility date of eight months in relation to a period of imprisonment of three years, 10 months and 27 days.  In view of the serious offending committed by Mr Staines for which he was being sentenced, the allowance for the quasi-custody (in addition to the 70 day period) that was made in respect of the effective head sentence imposed for his offending and the actual custodial component of eight months did not make the ultimate sentence unreasonable.
33. [33]
    Mr Staines does not succeed in showing that the sentence was manifestly excessive.

Order

34. [34]
    The following order should be made: Application for leave to appeal refused.