R v WBT[2022] QCA 215

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 13 July 2022, the applicant pleaded guilty to two counts of possession of a dangerous drug, methylamphetamine, in excess of 2.0 grams.  The first of the offences was committed on 13 May 2020 when the applicant was found to be in possession of two roughly equal bags containing a total of 56.706 grams of substance which included a total of 34.407 grams of methylamphetamine.  The applicant was charged and released on bail.
2. [2]
   The second offence was committed on 22 February 2021.  On this occasion, the applicant was found to be in possession of a number of bags which, in total, contained 19.643 grams of substance including 14.575 grams of methylamphetamine.
3. [3]
   The applicant also pleaded guilty to 10 summary charges which comprised:

   1. on the indictment, possession of dangerous drugs^[1] and possession of drug paraphernalia;^[2]
   2. three charges of possessing dangerous drugs^[3] on 26 September 2019 (charges 1, 2 and 3) and possession of drug paraphernalia (charges 4 and 5);
   3. possession of a dangerous drug^[4] (charge 6) and possession of drug paraphernalia (charge 7) on 16 February 2020;
   4. on 5 May 2020, possession of a dangerous drug^[5] (charge 8).
4. [4]
   [The applicant] was sentenced on the basis that she possessed the drugs on each of the occasions for personal use, rather than for commercial purposes.  The sentencing judge was “not satisfied to the requisite standard that the prosecution ha[d] established the allegation that [the applicant] had a commercial purpose.”
5. [5]
   The applicant was also sentenced on the basis that her sentence should be reduced pursuant to s 13B of the Penalties and Sentences Act 1992 (Qld) because she had significantly cooperated with a law enforcement agency.  In accordance with s 13B, the court was closed for submissions regarding the applicant’s cooperation.

The Sentence

6. [6]
   The sentencing judge imposed the following sentence:

   1. Count 1: Possessing a dangerous drug in excess of 2.0 grams (methylamphetamine) – 2 ½ years imprisonment;
   2. Count 2: Possessing a dangerous drug in excess of 2.0 grams (methylamphetamine) – 2 years imprisonment;
   3. Summary charges 1 to 3: - Possessing a dangerous drug (methylamphetamine, MDMA and cannabis) – 3 months imprisonment;
   4. Summary charge 6: - Possessing a dangerous drug (methylamphetamine) – 3 months;
   5. Summary charge 8: - Possessing a dangerous drug (methylamphetamine) – 3 months;
   6. On the remaining summary charges, the applicant was convicted but not further punished;
   7. All sentences of imprisonment were ordered to be served concurrently, with a parole release dated fixed at 13 January 2023, after serving 6 months in actual custody.
7. [7]
   The sentencing judge stated that the nominal sentence his Honour would have imposed in the absence of the cooperation was a head sentence of 4 years’ imprisonment on count 1.
8. [8]
   The applicant applies for leave to appeal the sentence on the following grounds:

   1. The sentencing judge erred in law by proceeding on the incorrect maximum penalty;
   2. The sentence was manifestly excessive in all the circumstances;
   3. The sentencing judge erred in law by not having regard to the principle that a sentence that allows the offender to stay in the community is preferable.

Ground 1

9. [9]
   The applicant contends that the sentencing judge erred in framing the sentence with reference to the maximum penalty for counts 1 and 2 as being 25 years imprisonment.^[6]  For those two serious charges, a maximum of 25 years’ imprisonment was the correct starting point.  However, the effect of s 9 of the Drug Misuse Act 1986 (Qld) is that the maximum penalty for counts 1 and 2 must be reduced from 25 years to 20 years if the person convicted “satisfies the judge… that when the person committed the offence the person was a drug dependent person”.
10. [10]
    In their oral submissions, neither counsel addressed the maximum penalty.  Counsel for the applicant did come close.  He submitted to the sentencing judge that the applicant was “a user of methylamphetamine at the time of the offending” and that she had made efforts at rehabilitation.  The submission that the applicant was a ‘user’, of course, is some way short of a submission that, at the time of her possession of the drugs the subject of counts 1 and 2, the applicant was a drug dependent person and that therefore the maximum penalty was 20 years and not 25 years.
11. [11]
    In the written submissions for the applicant there was a submission to the sentencing judge that raised the issue of drug dependence:

“The following are the salient features in mitigation:

• Early pleas of guilty;

• Remorse;

• Substantial admissions to the offending when interviewed by Police;

• Past co-operation of great value provided to Police in the prosecution of other offenders;

• Substance dependence at the time of offending;

• Rehabilitative efforts since charge;

• Rehabilitative prospects given employment, abstinence and family supports;

• Imprisonment remains a sentence of last resort and a sentence that allows the defendant to remain in the community is preferable.”^[7] [emphasis added]

12. [12]
    That was a submission that the applicant’s substance dependence ought to be taken into account as one of eight mitigating factors.  It was not a submission that the applicant was a drug dependent person and that, consequently, the maximum penalty was 20 years and not 25 years.
13. [13]
    There were detailed submissions by counsel about a number of guideline cases.  In a number of those cases the maximum penalty was reduced from 25 to 20 years by reason of s 9 of the Drug Misuse Act 1986 (Qld) and so it may be that the sentencing judge’s consideration of the appropriate penalty, using those cases as yardsticks, was within appropriate bounds.  It may also be the case that the sentencing judge and counsel all assumed that the reduced maximum applied.
14. [14]
    In his sentencing remarks, his Honour commenced by identifying the maximum penalty:

“The offences for which you are to be sentenced are of various degrees of seriousness. Counts 1 and 2 on the indictment, which each involve the serious of methylamphetamine in excess of 2 grams, are the most serious offences. They each carry maximum penalties of 25 years’ imprisonment. Maximum penalties for the various summary offences range from 15 years’ imprisonment for possession of dangerous drugs, to two years imprisonment for possession of the other items that are the subject of those charges.” [emphasis added]

15. [15]
    The sentencing judge also expressly referred to and relied on the statement of facts for counts 1 and 2.^[8]  That document records the maximum penalty as 25 years for both counts 1 and 2.
16. [16]
    It seems clear that the sentencing judge was conscious that the applicant had battled drug addiction:

“Your history, [applicant], reflects the matters that I have already outlined regarding your antecedents and your background. You have obviously grappled with drug addiction over the years, from a teenager onwards. It appears that when the probation order was made in 1999, you were able to control your addiction, be a law-abiding citizen, be gainfully employed and be a mother. But it does appear, consistent with the ending of your second relationship and the domestic violence which was a feature of that, and the abuse suffered by you, that you then relapsed and again began using dangerous drugs, to the point where it was again an addiction which you were not able to control, and that has led you back before the Court again on this occasion to be dealt with for these offences.” [emphasis added]

17. [17]
    That is, as counsel for the applicant submits, effective finding that the applicant was a drug dependent person at the time of these offences.
18. [18]
    The problem, though, is that having expressly stated that the maximum penalty was 25 years, the sentencing judge did not return to that topic.  And so, whilst there may be a strong suspicion that, having made the finding that the applicant was addicted at the time of these offences, the sentencing judge intended to proceed on the basis of the reduced maximum penalty, there is no objective evidence that is so.  Certainly, if at the end of the sentencing remarks, counsel had raised the fact that his Honour had referred to the 25-year maximum then it may be that the sentencing judge would have indicated that he accepted that the reduced maximum was appropriate.  But his Honour’s reference to the maximum of 25 years was not raised by counsel.
19. [19]
    Counsel for the Crown submits that the sentencing judge’s remarks about the 25-year maximum were made before considering the applicant’s drug use and making any finding about the applicant being drug dependent.^[9]  Counsel submits that a 25-year maximum was the correct starting point.  That is correct.  As explained, the problem is that, having explicitly stated the start point of 25 years, there was a finding of drug dependency but no clarity about the end point.  Having explicitly stated the maximum of 25 years, and then having made an implicit finding that he was satisfied of the applicant’s drug dependency at the time of these offences, it was necessary for the sentencing judge to state that the reduced maximum applied.
20. [20]
    There was no obligation resting on the sentencing judge to explicitly state the maximum penalty.  However, having stated that the maximum penalty was 25 years’ imprisonment, and being satisfied of the applicant’s drug dependency, the sentencing judge did not return to the issue of the maximum penalty either expressly or implicitly.  Thus, there is an error on the face of the reasons.
21. [21]
    Counsel for the Crown also submits that, if there was an error, the error did not make a material difference to the sentence imposed.  One cannot be confident about that.  The maximum sentence sets the boundaries within which the sentencing discretion is to be exercised.
22. [22]
    Because there is an error, the sentencing discretion must be exercised afresh.  It is also unnecessary to consider the remaining two grounds for leave to appeal.
23. [23]
    Counsel for the applicant has usefully summarised the relevant factors:

    1. The applicant pleaded guilty.
    2. The applicant demonstrated remorse and insight.
    3. The applicant possessed 34.407 grams of pure methylamphetamine on 13 May 2020 (Count 1) and 14.575 grams of pure methylamphetamine on 22 February 2021 (Count 2).  Count 2 was committed whilst on bail.
    4. The sentencing judge found that the Crown had not proved that the applicant had possession of those drugs for a commercial purpose; consequently, the applicant was to be sentenced on the basis that she possessed the drugs for her personal use.
    5. The applicant was between 49 and 50 years of age at the time of the offending, and 51 at the time of sentence.
    6. The applicant had a difficult upbringing and limited education, attending school only to grade 8.  She was first exposed to illicit drug use as a teenager, while she was homeless.
    7. The applicant undertook various forms of employment and at times held positions of responsibility, including running her own cleaning business, performing other factory work and working in retail and other stores.
    8. In 2017, while working at the Steggles factory, the applicant sustained an injury to her shoulder.  This resulted in a compensation payment of $200,000 in August 2020.  The applicant used part of that money for the purposes of pursuing her drug addiction.
    9. The applicant has been married twice and suffered domestic violence.  She was single at the time of sentence.
    10. The applicant has six children, aged between 17 to 33, and seven grandchildren.
    11. The applicant began using methylamphetamine at the end of her last relationship in 2015.  This escalated to the point of dependence following the shoulder injury that left her unable to work.
    12. The applicant has a relevant criminal history, significantly:

    1. (i)
       On 18 August 1999, convicted and sentenced to two years' probation in the Supreme Court for possessing a dangerous drug (approximately 7.4 grams of methylamphetamine);
    2. (ii)
       On 18 December 2017, convicted and fined $750 in the Beenleigh Magistrates Court for possessing a dangerous drug;
    3. (iii)
       On 16 August 2018, convicted and fined $1,800 in the Beenleigh Magistrates Court for drug related offending, including one count of possessing a dangerous drug;
    4. (iv)
       On 5 April 2019, convicted and sentenced to six months' probation in the Beenleigh Magistrates Court for two counts of possessing a dangerous drug.

    13. The sentencing judge found that her offending related to her addiction in the circumstances of adversity.
    14. Importantly, the applicant demonstrated prospects of rehabilitation and at the time of sentence she was drug free.
    15. The applicant had the support of her adult children and friend.
    16. The applicant cooperated with police and made admissions and the applicant provided significant cooperation to police pursuant to s 13B of the Penalties and Sentences Act 1992 (Qld).
24. [24]
    One of the difficulties with the cases used as yardsticks in these possession cases is that most of the similar cases involve possession for a commercial purpose.^[10]  Here, it is significant that the sentencing judge made a finding that, notwithstanding the quantity of methylamphetamine, the applicant’s possession was for personal use.  That makes R v Sabine^[11] a useful guide.  Mr Sabine, a 30-year-old^[12] subcontractor with Queensland Rail, was convicted after a trial of possession of 15.877 grams of methylamphetamine in 21.75 grams of substance.  As is the case here, his possession of the drug was not found to be for a commercial purpose.  He had a relevant criminal history and performed poorly on a probation order.  Mr Sabine was sentenced to imprisonment for two years with a date fixed for parole after 11 months and one week.  The sentence of two years was found not to be manifestly excessive.
25. [25]
    R v Sabine differs from this case in two respects.  First, R v Sabine was a sentence after a trial, with no evidence of remorse or cooperation with authorities.  In this case, there was remorse and a plea of guilty and cooperation pursuant to s 13B of the Penalties and Sentences Act 1992 (Qld).  Second, rehabilitation was virtually absent in R v Sabine.  In that respect the contrast with this case is stark.  The strong presence of rehabilitation makes deterrence and the other purposes for which sentences may be imposed on an offender less significant.^[13]
26. [26]
    Counsel for the Crown referred this court to the decisions of R v Watkins^[14] and R v Sutton.^[15]  Neither case was referred to the sentencing judge.  No element of commerciality attached to the possession of methylamphetamine in R v Watkins.  However, the collection of offences in that case was substantially different, as Burns J explained:

“The indictment to which the applicant pleaded guilty contained three counts.  Count 1 was possession of methylamphetamine in a quantity exceeding two grams.  Count 2 was possession of cannabis.  Count 3 was possession of a category R weapon within the meaning of the Weapons Act 1990 (Qld), namely, a taser.  Each of those offences was committed on 8 January 2014.

In addition, the applicant was dealt with for 38 summary offences committed over a 17 month period between 8 January 2014 and 18 May 2015.  Ten of those offences related to the possession of dangerous drugs or drug accoutrements, five for contravening the terms of a domestic violence order, five for breaching the conditions of his bail, two for possession in a public place of, respectively, a trident spear and a machete and one for the unauthorised possession of ammunition.  As well, there were numerous driving offences, including driving under the influence of a drug, unlicensed driving and two charges of dangerous operation of a motor vehicle.”^[16]

27. [27]
    That collection of offences, including weapons and domestic violence offences, makes a comparison with this case difficult.  Another distinguishing feature is that there were no realistic prospects of rehabilitation and so the most relevant sentencing objectives were the protection of the public, denunciation and general deterrence.  In any event, the court found that the sentence, an effective head term of three years’ imprisonment, with parole fixed at the 15-month mark, was not excessive.
28. [28]
    R v Sutton is also difficult to use as a yardstick.  In that case the possession of cocaine^[17] was for a mixed commercial and personal purpose and there was no evidence of rehabilitation or that the offender had overcome his addiction.^[18]  The sentencing judge imposed a head sentence of two years with a parole release date after 8 months.  The Court of Appeal found that the sentencing judge’s approach to the sentencing discretion miscarried in that there was a failure to take into account the applicant’s significant mental health issues.  However, in re-exercising the sentencing discretion the Court of Appeal did not impose a head sentence different from those imposed by the sentencing judge.
29. [29]
    Taking into account those cases, the strong element of rehabilitation, the applicant’s substantial cooperation, and the other material before the sentencing judge, the appropriate sentences are 2 years’ imprisonment for count 1, and 18 months’ imprisonment for count 2.
30. [30]
    It is necessary to mention the applicant's cooperation pursuant to s 13B of the Penalties and Sentences Act 1992 (Qld).  The cooperation was significant.  That cooperation led to the seizure of a significant quantity of methylamphetamine.  The cooperation can be reflected in both the head sentence and the parole eligibility date.  An early parole eligibility date is called for given the cooperation and rehabilitation.  In the circumstances, the parole eligibility date will be fixed at today (meaning that the applicant will have served 114 days of the sentence).
31. [31]
    The following orders should be made:

1. Application for leave to appeal against sentence granted.
2. Appeal allowed.
3. Set aside the sentence imposed below in relation to counts 1 and 2.
4. The applicant is sentenced as follows:
   1. Count 1 - the sentence be altered to 2 years’ imprisonment;
   2. Count 2 - the sentence be altered to 18 months’ imprisonment; and
   3. The applicant’s parole release date be altered so that it is fixed at today, and it be declared pursuant to s 159A of the Penalties and Sentences Act 1992 that the 114 days spent in custody between 13 July 2022 and 4 November 2022, be deemed time already served under the sentence.