R v Stallan[2022] QCA 40

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  This is an application for leave to appeal against a sentence of four years’ imprisonment, which was imposed in the Trial Division for an offence of trafficking in methylamphetamine.  The sentence was ordered to be served cumulatively upon a sentence of five and a half years’ imprisonment for a previous offence of trafficking in the same drug.  According to a pre-sentence custody certificate, the full time discharge date under that previous sentence was 6 July 2023.  That date was fixed by the judge as the new parole eligibility date.
2. [2]
   The application is made upon two bases.  The first is that the judge fixed the parole eligibility date only by reference to the four year term which his Honour imposed, rather than by reference to the entire period of imprisonment.  The second is that the sentence is manifestly excessive, having regard to the amount of time which the applicant would have to spend in custody, relative to his period of imprisonment of nine and a half years.^[1]  Neither of those arguments should be accepted.
3. [3]
   However, there is another reason for granting leave to appeal, and varying this sentence.  Unfortunately, the judge was not assisted with the correct date for the expiry of the five and a half year term, which is 15 November 2023.  His period of imprisonment will be at least four months longer than the judge intended.  In my conclusion the sentence should be varied to a term of three years and eight months, but with the parole eligibility date brought forward by two months.
4. [4]
   Before discussing the relevant facts and circumstances of this offending, it is necessary to say more about the components of the period of imprisonment which resulted from this sentence.  The term of five and a half years’ imprisonment was ordered on 19 November 2018.  Under that sentence, the court declared 340 days of pre-sentence custody as served from 14 December 2017 until the date of the order, and the applicant’s parole eligibility date was fixed as 14 August 2019.
5. [5]
   The applicant was released on parole by an order of the Parole Board on 14 August 2019.  His parole was suspended indefinitely on 6 May 2020 and he was returned to custody on 29 May 2020.  According to the pre-sentence custody certificate which was presented to the sentencing judge in the present case, that period of 23 days from 6 to 29 May 2020 was not to be counted as time served under the original sentence, but the rest of the time from 14 December 2017 was to be counted.  In consequence, the full time discharge date under the original term was certified at 6 July 2023.
6. [6]
   However that certificate was overtaken by the applicant’s conviction of the present offence, which occurred when he pleaded guilty at the sentencing hearing.  By s 209(1) of the Corrective Services Act 2006 (Qld), if a prisoner is sentenced to another period of imprisonment for an offence committed during the period of the prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred.  And by s 211(1)(f) and (2)(c) of that Act, the time for which the applicant was released on parole is counted as time served only until he committed the subject offence, which he commenced to do in this case on 26 December 2019.
7. [7]
   The charge to which he pleaded guilty was that he carried on the business of unlawfully trafficking in the drug between 25 December 2019 and 2 May 2020.  The Court has the assistance of submissions from the parties which agree that the applicant is to be taken to have committed the offence, for the purposes of s 211(2)(c), as and from the first date of the trafficking period: see R v Ianculescu.^[2]  Consequently, the 132 days for which the applicant was not in custody from his beginning to commit this offence until the original suspension of his parole should not be counted as time served, and the correct expiry date of the five and a half year term is 15 November 2023.
8. [8]
   The sentencing judge did not refer to the operation of s 159A of the Penalties and Sentences Act 1992 (Qld).  From the time the applicant was returned to custody on 29 May 2020 he was on remand for the present charge, a total of more than 12 months.  According to s 159A, that was to be taken to be imprisonment as time already served under the present sentence, unless the Court otherwise ordered.
9. [9]
   However, the present sentence had to be made cumulative upon the five and a half year term, because of s 156A of the Penalties and Sentences Act.  That section applied because the applicant was convicted of an offence against a provision mentioned in schedule 1 of that Act, which was committed while he was released on parole.  Section 156A(2) requires that in such a case, a sentence of imprisonment which is being imposed must be ordered to be served cumulatively with another term of imprisonment the offender is liable to serve.  The interrelationship between s 156A and s 159A was recently determined by this Court in R v Braeckmans.^[3]  According to that judgment, in the present case (had the judge’s attention been drawn to s 159A), the sentencing judge would have declared that the applicant was held for a total of 377 days of pre-sentence custody between 29 May 2020 and 10 June 2021 but that none of that time was to be taken to be imprisonment already served under the sentence which his Honour was imposing.  As it happens, that was the basis upon which the applicant was sentenced in this case.
10. [10]
    I go then to the applicant’s antecedents and the facts of the present offence.  The applicant was aged 48 at the time of this offending, and 49 when sentenced.  He had a lengthy criminal history, including for drug offending.  His previous trafficking offence, for which he received the five and a half year term, involved trafficking over a 10 month period, predominantly at a street level, but with some wholesale supplies.  The presently relevant trafficking commenced a little over four months after his release on parole in August 2019.  He regularly supplied drugs to 27 customers, who on-sold drugs to others.  On 1 May 2020, when police executed a search warrant at the applicant’s house, they found various quantities of methylamphetamine in clip seal bags.  The total weight of the powder was 7.994 grams and the total weight of pure methylamphetamine was 5.285 grams.  At the same time as this four year term was imposed, the applicant was convicted of an offence of possession of methylamphetamine, for which no punishment was imposed.
11. [11]
    The sentencing judge described this trafficking as relatively sophisticated, with the applicant employing several persons some of whom were also his customers.  In the four month period of his trafficking there were 158 acts preparatory to supply, 40 offers to supply and 250 actual supplies.  It was estimated that the actual supplies yielded about $150,000.
12. [12]
    The sentencing judge took into account the fact that this was an early plea of guilty.  But his Honour said that this was a “gross breach”, which demonstrated “a complete lack of concern about the requirements that a prisoner on parole has …”.  The judge said that had the applicant not been obliged to serve a further two years before his full time release date on the earlier sentence, the applicant would have been sentenced for this offence to a term of six years’ imprisonment.  But taking that into account, his Honour reduced the term to four years’ imprisonment.
13. [13]
    As I have said, the first of the applicant’s grounds is that, it is suggested, the sentencing judge fixed the parole eligibility date for the four year term which was being imposed, rather then by reference to the period of imprisonment.  By s 160F(2) of the Penalties and Sentences Act, a parole eligibility date “must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment”.  However, it does not seem to me that the judge fixed the eligibility date in this case inconsistently with that provision.  The fact that the date was fixed to coincide with the intended commencement date of the four year term does not demonstrate the error which the applicant’s argument suggests.
14. [14]
    The second ground is that by setting the parole eligibility date as the judge did, his Honour failed to give due weight the applicant’s plea of guilty.  The argument is that the outcome here is markedly inconsistent with the general practice, as it was described by White JA in R v Ungvari,^[4] of fixing a parole eligibility date at the one-third mark of a sentence for a drug trafficker who has pleaded guilty.  However as White JA also said in that case, the one-third mark “may be adjusted up or down as the particular circumstances warrant”.  The circumstance of that kind here is that the applicant committed the offence whilst he was on parole.  This did not mean that he had to serve the remainder of his five and half year term in custody.  But the consequence of his parole being cancelled was that he was to spend more of that term in actual custody than a prisoner who was not burdened by that circumstance.
15. [15]
    The effect of the judge’s orders was that of a period of imprisonment of nine and a half years, he would be required to serve at least a total of approximately four years, nine months^[5] in custody.  In other words, he would have been required to serve in actual custody about one-half of his total period of imprisonment of nine and a half years.
16. [16]
    The applicant’s counsel does not challenge the four year term of itself.  Rather the argument is that an earlier parole eligibility date ought to have been fixed.  However, in the circumstance of this offence having been committed whilst on parole, with the consequential loss of some time on parole which otherwise he would have enjoyed under the five and a half year term, a result whereby he would have served in actual custody about half of the period of imprisonment is not manifestly excessive.
17. [17]
    Nevertheless, it is necessary for this Court to re-sentence the applicant because the judge’s attention was not drawn to the consequence of ss 209 and 211 of the Corrective Services Act.  I agree with the judge that a term of four years would appropriately reflect the facts and circumstances of this offence, with appropriate moderation for the fact that the sentence will be served cumulatively upon the earlier term.  But the judge meant to impose a four year term which commenced in July 2023, rather than one which commenced in November 2023.  Therefore I would vary the sentence by reducing the four year term to one of three years and eight months’ imprisonment.  I would bring forward the parole eligibility date by two months in order to reduce the period of time necessarily to be spent in custody to about one half of the period of imprisonment.
18. [18]
    I would order as follows:

1. Grant leave to appeal.
2. Allow the appeal.
3. Vary the orders made in the Trial Division on 10 June 2021 by:

1. varying the term of imprisonment of four years, imposed on count 1 on the charge by the indictment, to a term of three years and eight months’ imprisonment;
2. varying the applicant’s parole eligibility date from 6 July 2023 to 6 May 2023;
3. declaring that the applicant was held for a total of 377 days of pre-sentence custody between 29 May 2020 and 10 June 2021 and that none of that time is taken to be imprisonment already served under the sentence.

19. [19]
    MULLINS JA:  I agree with McMurdo JA.
20. [20]
    BODDICE J:  I agree with McMurdo JA.