R v Evelyn[2022] QCA 211

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with the reasons of Dalton JA for dismissing the application.  The applicant’s submissions incorrectly characterised the learned sentencing judge’s selection of the parole eligibility date at one-third of the sentence imposed for possessing a dangerous drug in excess of 200 grams as “attaching” to that sentence.  Totality considerations were the focus of the sentencing submissions before the sentencing judge.  The sentencing judge addressed them by imposing the sentence to overlap with the existing sentences imposed in April 2020.  The sentencing judge was cognisant of the period of imprisonment that would result with the partial cumulation of the sentence for the aggravated possession with the sentences imposed in April 2020, including when the sentencing judge observed in the course of the sentencing remarks:

“I have to follow principles of the Penalties and Sentences Act 1992 (Qld) that also require me to have regard to periods of imprisonment that you are currently serving, in what might loosely be described as a totality principle, that the total period of your imprisonment should reflect your overall criminality.”

2. [2]
   In the circumstances that were under consideration by the sentencing judge in sentencing the applicant, the date selected as the parole eligibility date for the period of imprisonment calculated after the applicant would have served one-third of the partly cumulative sentence of nine years’ imprisonment for the aggravated possession meant that date fulfilled the description of being “a date relating to the offender’s period of imprisonment” within the meaning of s 160F(2) of the Penalties and Sentences Act 1992 (Qld).
3. [3]
   DALTON JA:  On 21 April 2022 the applicant was convicted on his own plea of: (1) possessing 218 grams of pure methylamphetamine in 296 grams of substance for a commercial purpose, and (2) contravening an order of the Magistrates Court that he provide police with access to his mobile phone.  He was 56 at the time.  He had previously been convicted of 97 offences on his own plea on 28 April 2020 but other than that had no criminal history.
4. [4]
   The 97 offences dealt with in April 2020 included two counts of trafficking over two periods: 11 May–19 June 2016 and 16 February– 9 March 2017.  There were 35 other drug offences, as well as 51 offences for fraud or dishonesty.  The sentence imposed was one of seven years.  The structure of the sentence was that concurrent terms of four years were imposed on each of the trafficking charges and cumulatively with that, a sentence of three years was imposed on the most serious of the fraud charges.  Individual sentences were imposed on the other offences, all were concurrent.  A declaration of 810 days pre‑sentence custody was made and it was declared to be time already served under the sentences.
5. [5]
   The applicant was released on parole under the April 2020 sentence on 7 December 2020.  At that point he still had three years and 10 months of the April 2020 sentence to serve.
6. [6]
   On 19 June 2021 the applicant purchased two plane tickets to travel from Brisbane to Cairns; one was for a co‑offender and one was for himself, under a false name.  He arrived in Cairns and checked into a hotel room.  Police searched it the same day.  They found the drug described above, $3,230 in cash, nine mobile telephones in a suitcase, a laptop and digital scales.  The applicant declined to provide the access code to a tenth mobile telephone which he was carrying on his person.  An order was sought from a magistrate.  After it was obtained the applicant still refused to provide the access code for his mobile telephone, thereby contravening the order.
7. [7]
   The applicant was taken into custody and by the time he was sentenced by the primary judge had spent 304 days in custody for the reasons that he was on remand for this offending, and serving the April 2020 sentence.
8. [8]
   There was no requirement under s 156A of the Penalties and Sentences Act 1992 (Qld) for the sentence imposed by the primary judge to be cumulative on the April 2020 sentence.  Although the applicant was on parole at the time he committed the offences before the primary judge, he was charged with possession, which is not an offence listed in schedule 1 to that Act.
9. [9]
   The applicant had an unremarkable childhood and schooling.  He had a good work history.  He married and had children.  At about age 50 there was emotional upheaval in his life.  He began an irresponsible, drug‑using life on the Gold Coast, the products of which can be seen in the 97 charges he pled to in April 2020.
10. [10]
    Before the primary judge the applicant said that he struggled with adjusting to life once released on parole in December 2020.  This is notwithstanding he obtained legitimate employment, an apprenticeship with a graphic design firm.  He associated with former prison friends and began using drugs again.  He was prescribed antidepressants by his general practitioner in December 2020, his counsel said of this, “that is reflective of the general struggles that he was having adjusting to his normal life”.  He described himself as feeling anxious and depressed through that time.  He went to a drug rehabilitation centre on two occasions and got a referral from his GP for counselling in April 2021.  However, apart from these relatively slight attempts, it appears that once again he surrendered his life to drugs.  He lost his job and according to what his counsel told the primary judge, decided to take up an opportunity presented by a former prison friend to supply methylamphetamine in Cairns.  He was told that there was a good market for the drug in Cairns.  He sourced drugs the subject of the current offending on tick.  He felt that once they were sold in Cairns he would able to repay his supplier in short order.
11. [11]
    In prison the applicant seems to have been able to bring his behaviour under control.  He has worked and has undertaken some courses.  The applicant suffers from diabetes, some dental issues, and has had a stone removed from his bile duct.  In other words, he has health problems consistent with his age.
12. [12]
    The primary judge sentenced the applicant to nine years for the commercial possession with a concurrent period of three months for failing to comply with the magistrate’s order.  He fixed a parole eligibility date at 20 April 2025.  It is apparent from both the transcript of the hearing and the sentencing remarks that the primary judge was concerned: (1) to fix a suitably condign sentence for serious drug offending committed while on parole for serious drug offending, and (2) to structure the sentence so that it made adequate allowance for totality considerations in circumstances where the offending before him, and the offending which had been dealt with in April 2020 both warranted condign sentences.  He said:

“I have inclined, therefore, to structure the sentence so that you commence the sentence today. That gives you a significant benefit of what I have described to you as concurrency, that you have a period of almost three years until 8 March 2025 to serve out and that overlap means that for every day between now and March 2025 that you will be serving, you are getting credit on the sentence that I impose and serving out the sentence that Justice Jackson imposed upon you, so that is a real benefit. If I grant you that real benefit, and I will, I do not consider that you should get the additional benefit of having the pre‑sentence custody declared.”

13. [13]
    The applicant raised three grounds as showing that he ought to be allowed to appeal the sentence:

3. “1.
   The sentence imposed is manifestly excessive in all the circumstances;

3. 2.
   The Sentencing Judge erred in calculating the parole eligibility date (‘PED’) by reference to the sentence imposed on 21 April 2022, rather than the total period of imprisonment to be served as a result of sentences imposed on 29 April 2020 and 21 April 2022;

3. 3.
   The sentence imposed did not adequately reflect the applicant’s mental health conditions.”

14. [14]
    Dealing with those proposed grounds in reverse order, there is almost no evidence to suggest that the applicant had a mental health condition, and no evidence that he had any condition which lessened his moral culpability for the offending or which in some way was significant enough to warrant a reduction in his sentence because his time in jail will be significantly more difficult for him than for other people.  No such arguments were put before the primary judge.  The only relevance of this material in my view was the relevance advanced by the applicant’s counsel on sentencing: that he made some (relatively slight) efforts to halt his descent into drug use after he was released on parole.  There is nothing in this proposed ground.
15. [15]
    The second ground is said to be based on s 160F of the Penalties and Sentences Act.  That section is as follows:

“160F Significance of an offender’s period of imprisonment

1. (1)
   One of the objects of sections 160A to 160E is to ensure that at any 1 time there is only 1 parole release date or parole eligibility date in existence for an offender.

2. (2)
   When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”

16. [16]
    In my view the argument in support of this proposed ground misunderstands both the reasoning of the primary judge and s 160F.
17. [17]
    First, s 160F does not seek to regulate the substance of a sentence imposed, nor the quantum of time which must be served in actual custody.  It is a mechanical provision designed for the obvious practical purpose of ensuring that there is only one parole date in relation to an offender who may be serving sentences for different offences imposed on separate dates by separate judges.  In R v Degn this Court said:

“[9] Section 160F(2) requires that any parole date be set so that it is operative for the entire period of imprisonment being served by the offender, as opposed to relating only to the term of imprisonment currently being imposed. As Morrison JA observed in R v Bahcehan, the provision:

‘... does not require that the parole eligibility date must be calculated as some proportion of the period of imprisonment’;

and it does not, as Fraser JA pointed out in R v WBK:

“... [prescribe] any sentencing methodology”.^[1]

18. [18]
    It follows that the sentencing judge did not err in calculating the parole eligibility date by reference to the one-third mark of the sentence he imposed, rather than some larger total period of imprisonment.
19. [19]
    In truth the applicant, by this proposed ground of appeal, is complaining that the sentencing judge did not give sufficient effect to totality considerations.  That is, in truth this proposed ground is simply a facet of the first proposed ground, namely that the sentence is manifestly excessive.
20. [20]
    In my view, the sentence was not manifestly excessive.  Between 2016 and 2018 the applicant had committed 97 offences, some of which were very serious.  He was appropriately sentenced to seven years imprisonment.  He was given a parole eligibility release date at under one-third of seven years.  In 2021 he re-offended, again in a serious way whilst still on parole.  The primary judge started with the idea that by itself that offending was worth somewhere in the vicinity of nine to 10 years.  In my view that was not manifestly excessive.^[2]  His parole eligibility was fixed at a point referable to one-third of a nine year sentence.
21. [21]
    The offending dealt with by the primary judge was separated in time from the offending dealt with in April 2020.  It had the distinct aggravating feature that it was committed whilst on parole for the offending dealt with in April 2020.  Further, the fact that it was committed soon after the applicant had spent a considerable time in custody bore negatively upon his prospects of rehabilitation.  For these reasons, this was not a case (as is sometimes appropriate) where the primary judge ought to have considered what a hypothetical sentencing judge would have done had all the offending been dealt with together.  It was however a case where the primary judge had to bear in mind the requirement that the combination of his sentence, and the April 2020 sentence, produce a resulting effective sentence which was just and appropriate, but not crushing in its effect on the offender.^[3]
22. [22]
    In my view, the balance struck by the primary judge was appropriate to do that.  A sentence of seven years for the April 2020 offending cumulative upon the sentence of nine years for the present offending would have resulted in a sentence of 16 years.  The primary judge structured a sentence that involved only a partial cumulation.  It meant that the head sentences amounted to a total period of 13 years.  The judge declined to make any further allowance, most obviously by not declaring the 304 days served between the applicant’s arrest in Cairns and the sentence date.  He expressly considered doing so, but thought that he had made sufficient allowance for totality in the reduction of three years in the effective total of the head sentences.  This did not result in a sentence which was manifestly excessive.
23. [23]
    It is true that the applicant will serve more than one-third of the total of his sentences (13 years), before being eligible for parole.  The judge who sentenced him in April 2020 allowed him parole eligibility before the one-third mark on that sentence.  The primary judge allowed him parole eligibility at the one-third mark on this sentence.  That the applicant will serve more than one-third of the total effective sentence is not due to any error on the part of the sentencing judges, it is due to the applicant’s own behaviour in re-offending, in a very serious way, on parole at a time when he still had a very substantial part of the April 2020 sentence left to serve.
24. [24]
    I would dismiss the application.
25. [25]
    FLANAGAN JA:  I agree with Dalton JA.