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- Unreported Judgment
R v McNamara QCA 73
SUPREME COURT OF QUEENSLAND
R v McNamara  QCA 73
McNAMARA, Nicholas Michael
CA No 292 of 2021
SC No 1214 of 2021
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 20 October 2021 (Martin J)
10 May 2022
11 February 2022
Fraser and McMurdo and Bond JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of possessing dangerous drugs – where a sentence of five years’ imprisonment was imposed on count 1, a sentence of 12 months’ imprisonment was imposed on count 2, and a sentence of 12 months’ imprisonment was imposed on count 3 – where the applicant appeals the terms imposed on counts 1 and 3, each upon the basis that the sentence is manifestly excessive – where the respondent concedes that the sentence imposed on count 3 is manifestly excessive – whether the sentence imposed on count 1 is manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAISNT SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to three counts of possessing dangerous drugs – where a sentence of five years’ imprisonment was imposed on count 1, a sentence of 12 months’ imprisonment was imposed on count 2, and a sentence of 12 months’ imprisonment was imposed on count 3 – where 231 days of pre-sentence custody served by the applicant was time in custody in relation to proceedings for the offence, although the applicant was also serving a previous sentence of imprisonment – where s 159A(1) of the Penalties and Sentences Act 1992 (Qld) requires time held on remand for an offence to be taken to be imprisonment already served under the sentence, unless otherwise ordered by the court – where the sentencing judge moderated the head sentence to allow the applicant the benefit of the period of pre-sentence custody – where, when s 159A(1) is engaged, the court must make an order under s 159(A)(3) or s 159(A)(3B) of the Penalties and Sentences Act 1992 (Qld) – whether the applicant should be re-sentenced
Penalties and Sentences Act 1992 (Qld), s 159, s 159A
R v Brunning  QCA 263, cited
R v Gray  QCA 322, cited
R v Hawke  QCA 179, considered
R v Nicholson  QCA 315, cited
R v Vella  QCA 88, cited
S J Hedge for the applicant
S L Dennis for the respondent
Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders his Honour proposes.
- McMURDO JA: This is an application for leave to appeal against sentences imposed in the Trial Division on 20 October 2021 for the possession of dangerous drugs.
- The applicant pleaded guilty to three counts on an indictment and to some summary offences. He challenges the sentences imposed on counts 1 and 3.
- Count 1 charged an offence of the possession of 12.893 grams gross of methylamphetamine (9.653 grams pure) which was found on his person when he was apprehended, having collapsed in the street in the Brisbane CBD, on 12 August 2020. He accepted that this was partly for his own use and partly for a commercial purpose. For that offence he was sentenced to four years, three months’ imprisonment. At the same time, he was found in possession of two plastic bottles containing 4-hydroxybutanoic acid lactone and 1,4-butanediol, for which a term of 12 months’ imprisonment was imposed (count 2).
- On 14 February 2021 police intercepted a vehicle in which the applicant was a passenger, when he was found in possession of 0.1 grams of methylamphetamine. For that offence, a term of 12 months of imprisonment was imposed. That offence was charged by count 3.
- There were also summary offences involving the possession of items relating to the use of drugs and the possession of a knife in a public place. For these offences he was convicted but not further punished.
- All of the terms were ordered to be served concurrently with each other, and with existing terms of imprisonment for drug offending which had been imposed in 2019. His full time release date became 20 January 2026, and his new parole eligibility date was fixed at 20 June 2023. No time was declared as pre-sentence custody.
- He applies for leave to appeal against the terms imposed on counts 1 and 3, in each case upon the basis that the sentence is manifestly excessive. The respondent concedes that to be the case for the sentence on count 3. Although the reduction of that term is unlikely to have any benefit for the applicant in a practical sense, that sentence should be varied to one which is appropriate, at least because it might affect subsequent cases if left to stand.
- The applicant was 41 years old at the time of count 1. He had an extensive criminal history, comprised almost entirely of drug offences, which commenced in 2013. The judge described this as an appalling history and as the most concerning part of the relevant facts and circumstances.
- In 2017, the applicant was sentenced by Dalton J to a term of two and half years, but with immediate parole (having served 557 days before the sentence), for trafficking in dangerous drugs. After being convicted for offences of drug possession in the Magistrates Court, he was again sentenced in the Trial Division (Burns J) in February 2019 on a number of offences of the possession of drugs, the most serious of which resulted in a sentence of five years’ imprisonment with a parole eligibility date of 7 February 2020. Burns J said that he would have imposed a term of six years but for 401 days of pre-sentence custody which could not be declared.
- The applicant was released on parole on 10 February 2020 and he was thereby on parole when he committed this offence. He was returned to custody on 14 February 2021 (when he committed the offence charged by count 3). According to a pre-sentence custody certificate which was tendered at the sentencing hearing, he was on remand for this charge from 5 March 2021 until the date of the sentence, a total of 231 days. The sentencing judge referred to that period of approximately seven and half months and said that there was a query as to whether or not it could be declared as time served under these sentences. He said that he would deal with it in another way. He said that had that time not been served, he would have imposed a sentence on count 1 of five years, and that he had reduced that term by nine months to allow for the time served before the sentence and “for the early plea and other matters”.
- He said that he also took into account the early plea of guilty in setting a parole eligibility date at 20 June 2023. That required the applicant to serve at least 20 months from the date of the order, representing a third of the five year sentence which would have been imposed. However the effect of that parole release date was that of a notional head sentence of five years, the applicant would spend at least a period of two years and four months in custody before being eligible for parole. I will return to that part of the sentence.
- The applicant’s principal argument is that the judge’s starting point of a five year sentence was an error which can be seen from a comparison with comparable cases. It is submitted that two of the cases provided to the judge by the prosecutor, R v Gray and R v Vella, are distinguishable because the offender in each of those cases was being sentenced for two separate occasions of the commercial possession of methylamphetamine in significant quantities. The present case involves only one such occasion (count 1), for which the better comparisons are said to be R v Nicholson and R v Brunning.
- In Gray, a term of five years was imposed on one count of the unlawful possession of methylamphetamine of a quantity of 11.827 grams. A separate count involved the possession of 1.918 grams of methylamphetamine on a different occasion, and for which a concurrent term of one year was imposed. Those sentences were not disturbed on appeal.
- In Vella, this Court refused leave to appeal against concurrent terms of four years imposed for two separate occasions of the possession of methylamphetamine (2.605 grams in one case and 11.609 grams in another).
- In Nicholson, a sentence of three years and nine months was imposed for the possession of 42.873 grams of substance containing 29.078 grams of methylamphetamine. Like the present applicant, he had a long and serious criminal history for drug offences. This Court accepted that he had been sentenced on an error of fact, but confirmed the sentence.
- In Brunning, a term of two years and two months’ imprisonment for possession of 6.762 grams of substance containing 5.098 grams of methylamphetamine, as well as some other drugs and related items, was not disturbed on appeal.
- It is correctly submitted that the present case was more serious than that in Brunning, but less serious than that in Nicholson, having regard to the quantities of methylamphetamine involved. What is not so clear is that the authorities markedly distinguish between a single offence of possession of at least 2 grams and sentences for repeated offences of that order.
- Comparable cases were extensively reviewed by Applegarth J in R v Hawke, in an analysis with which the President and I agreed and which I need not repeat here. As Applegarth J there said, the quantity of drugs is certainly one consideration in these cases, and another the presence or absence of a criminal history. Each of the cases which I have discussed, unlike Hawke, involved an offender with an extensive criminal history comparable to that of the present applicant. In Hawke, a substance of 41.612 grams containing 30.533 grams of methylamphetamine was involved, together with the possession of MDMA. Her sentence of three years’ imprisonment was held to be an appropriate sentence to reflect the quantity of drugs possessed, the commercial element of the possession and the absence of a recorded criminal history.
- It is submitted that the applicant’s sentence failed to properly account for totality considerations. The argument is said to be supported by the absence of any direct reference to the totality principle. However, as is acknowledged, the judge did say that his intention was not to impose a crushing sentence. Although these offences were committed whilst the applicant was on parole, they were not offences against a provision mentioned in schedule 1 of the Penalties and Sentences Act 1992 (Qld), so that s 156A was not engaged so as to require the sentences to be served cumulatively upon the 2019 sentence. As I have said, they had to be served concurrently. The effect of this sentence was to delay the applicant’s full time release date by almost 18 months. Of course, that has to be considered with the extensive amount of time he had spent in custody over the last seven years or so.
- In my opinion it is not demonstrated that the head sentence is manifestly excessive. This Court’s decision in Gray provides support for the notional five year term from which the judge proceeded, and considerations of totality did not make this an excessive sentence.
- However there is the further matter of the parole eligibility date. As I will now explain, this involved an error which resulted in an outcome under which the applicant was required to serve, at a minimum, nearly 50 per cent of the sentence, notwithstanding the judge’s stated intention to give the applicant credit for his early plea of guilty by setting the parole eligibility date which he did.
- The circumstances of this case engaged s 159A of the Penalties and Sentences Act. The applicant was sentenced to a term of imprisonment for an offence for which he had spent time in custody in relation to proceedings for the offence, although he was also serving a previous sentence of imprisonment. By s 159A(1), the time for which he was held on remand for this offence had to be taken to be imprisonment already served under the sentence, unless the court otherwise ordered. Where s 159A(1) is engaged, the court must make an order under subsection (3) or an order under subsection (3B).
- The evident intent of the judge was to allow the applicant the benefit of that period of 231 days which was described in the certificate as pre-sentence custody. Consistently with that intention, the judge could have declared that time to be imprisonment already served under the sentence: s 159A(3). Proceeding in that way, a five year term would have resulted in effectively the same full time release date as resulted from the sentence which was imposed. However, had the judge proceeded that way, consistently with his intention to provide parole eligibility at the one third mark of the sentence, the eligibility date would have been set at 5 November 2022.
- Alternatively, the judge might have decided to allow the applicant the benefit of that period of pre-sentence custody by imposing a lesser head sentence, as he did. In that event the judge would have been required to make an order under s 159(3B), declaring that no time was taken to be imprisonment already served under the sentence. However had he proceeded that way, the (undeclared) pre-sentence custody would still have required him to fix an earlier eligibility date than he did.
- Either way, the applicant will have to be re-sentenced. An appropriate order now would be one which keeps the head sentence of four years and three months, but which varies the parole eligibility date to 5 November 2022. That has the practical advantage, in an appeal, of not having to increase the head sentence, albeit with a declaration of pre-sentence custody. At the same time, that earlier parole eligibility date would allow the applicant the benefit of his time in remand for these offences, and adequately allow for his early pleas of guilty and considerations of totality.
- I would order as follows:
- Grant leave to appeal.
- Allow the appeal.
- Vary the parole eligibility date to 5 November 2022.
- On counts 1, 2 and 3:
- declare that the applicant was held in pre-sentence custody from 5 March 2021 to 21 October 2021, a total of 231 days;
- declare that none of that time is taken to be imprisonment already served under the sentence.
- Vary the term imposed on count 3 to three months’ imprisonment.
- BOND JA: I agree with the reasons for judgment of McMurdo JA and with the orders proposed by his Honour.
 AR 54.
  QCA 322.
  QCA 88.
  QCA 315.
  QCA 263.
  QCA 179.
 R v Hawke  QCA 179 .
 R v Wilson  QCA 18 at ; R v Braeckmans  QCA 25 .
 Or perhaps something slightly less than five years given the judge’s comment of the relevance of the early plea and other matters for the head sentence.
- Published Case Name:
R v McNamara
- Shortened Case Name:
R v McNamara
 QCA 73
Fraser JA, McMurdo JA, Bond JA
10 May 2022