R v Wilson[2023] QCA 132

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 6 December 2022, Mr Wilson pleaded guilty to eight counts on an ex officio indictment and eight summary charges.  The summary charges will be referred to by the numbering given to them on the verdict and judgment record.  With the exception of count 8 that was committed on 27 April 2022, all offences were committed on 25 April 2022.  For the purpose of imposing the sentences, the learned sentencing judge grouped the offences into four groups of vehicle related offending, count 8, weapon related offending and the remaining offences.  The sentences within each group were ordered to be served concurrently but cumulatively upon the terms of imprisonment already being served and with the other terms of imprisonment under the sentences imposed at the same time in respect of the other groups.
2. [2]
   In relation to the first group of vehicle related offending, Mr Wilson was sentenced to two years’ imprisonment for each dangerous operation of a vehicle while adversely affected by an intoxicating substance (counts 1 and 2), 12 months’ imprisonment for the evasion offence (summary charge 3), two months’ imprisonment for obstruct police (summary charge 4), convicted and not further punished for obstruct police (summary charge 5) and 18 months’ imprisonment for disqualified driving (summary charge 7).  In addition, for the last-mentioned offence, Mr Wilson was disqualified from obtaining or holding a driver’s licence for a period of five years.
3. [3]
   In respect of the second group that was comprised of one offence of contravening order about device information from digital device (count 8), Mr Wilson was sentenced to six months’ imprisonment.
4. [4]
   In relation to the third group of weapon related offending, Mr Wilson was sentenced to 15 months’ imprisonment for count 3, 12 months’ imprisonment for count 6 and three months’ imprisonment for authority required to possess explosives (summary charge 6).
5. [5]
   For the fourth group of the remaining offences (which could have also been described as the drug and related offending), Mr Wilson was sentenced to 18 months’ imprisonment for possessing a dangerous drug in excess of 2 grams (count 4), imprisonment of three years and six months for possessing property obtained from trafficking (count 5), imprisonment of two years and six months for possessing a dangerous drug in excess of 500 grams (count 7) and six months’ imprisonment for each receiving tainted property (summary charges 1, 2 and 8).
6. [6]
   It was declared the period served on remand was 225 days from 25 April 2022 to 5 December 2022 and it was declared not to be time already served under the sentences.  The effective total sentence was imprisonment for seven years and three months (the accumulation of the longest sentence within each group of offences) to be served cumulatively on the sentence he was already serving.  The sentencing judge did not fix a parole eligibility date.
7. [7]
   There are two grounds of appeal:

   1. The sentencing judge erred in failing to fix the date on which the applicant would be eligible for parole as required by s 160C(2) of the Penalties and Sentences Act 1992 (Qld) (the Act).
   2. The sentence was manifestly excessive in circumstances where:
      1. a.
         insufficient recognition was given to the applicant’s pleas of guilty to an ex officio indictment;
      2. b.
         the cumulative effect of the penalties imposed was not sufficiently ameliorated so as to reflect totality considerations.
8. [8]
   The respondent concedes that a specific error was made by the sentencing judge in failing to impose a parole eligibility date as required by s 160C(2) of the Act.  Where the parties differ is on the consequences that follow from that error.

Circumstances of the offending

9. [9]
   The offending on 25 April 2022 occurred in the context of a police pursuit of the vehicle being driven by Mr Wilson and the search of the vehicle.  Police were conducting patrols in a marked police vehicle in an industrial suburb of Cairns at 4.28 am when they approached Mr Wilson’s Toyota Landcruiser utility that was stationary in an off-road parking area.  As the police approached, Mr Wilson drove away; police activated their police lights and Mr Wilson did not stop.  He drove out of the suburb and entered into the intersection of Lyons Road and Ray Jones Drive (which is a major arterial road providing access to Cairns city from the south).  At this point Mr Wilson drove dangerously by accelerating quickly away from the police and driving through a right hand turn against the red light that was facing him.  He drove between two oncoming vehicles and then drove at excessive speed along the southbound lanes of Ray Jones Drive.  Police lost sight of the vehicle and did not attempt a pursuit.  Later testing of Mr Wilson revealed the presence of methylamphetamine in his blood.  This episode of dangerous driving resulted in count 1.
10. [10]
    Mr Wilson’s vehicle was then located by other police in Edmonton.  A tyre deflation device was deployed which was successful in deflating the vehicle’s front tyres but Mr Wilson continued to drive for 3.5 kms with the police in pursuit in a marked car with lights flashing and sirens sounding.  He drove with deflated tyres through suburban streets where he was weaving from one side of the road to the other and colliding with parked cars.  This was the second episode of dangerous driving (count 2).  His conduct through both episodes of driving involved an attempt to evade police and a failure to comply with police directions to stop which constituted summary charge 3.  Mr Wilson was also disqualified from driving at the relevant time pursuant to a court order and this constituted summary charge 7.  After crashing his vehicle into a parked car, Mr Wilson left the vehicle and was chased by two police officers.  He was tackled a short distance from the vehicle and arrested and summary charges 4 and 5 arose out of his obstructing the two police officers in the performance of their duties.  During the second episode of dangerous driving, an automatic rifle fell from the tray of the vehicle and was later recovered by police.  That resulted in count 6.  The storage of the rifle in the tray at the back of the vehicle was consistent with Mr Wilson’s assertion that it was being held for sale.
11. [11]
    A search of Mr Wilson and the vehicle disclosed a 9 mm handgun on the road near the driver’s side door of the vehicle which was loaded with one round of ammunition in the clip of the magazine.  That constituted count 3 which was possession of a category H weapon with the circumstance of aggravation that it was a short firearm possessed in a public place without a reasonable excuse.  The holster for the gun was found wedged in the console area around the gear stick of the vehicle.  Even though Mr Wilson said to the police that he had the handgun to sell, that was not accepted by the prosecution.  The sentencing proceeded on the basis that the handgun was for Mr Wilson’s use.  A clip seal bag was located in the right pocket of Mr Wilson’s pants.  It contained a total quantity of 13.84 grams of which 9.688 grams were pure methylamphetamine (at a purity of 70 per cent).  That constituted count 4.  Count 5 resulted from the location of $130,200 in cash within a backpack inside the vehicle’s cabin and a further amount of $3,080 inside the right pocket of Mr Wilson’s pants, making a total of $133,280.  Mr Wilson admitted to police that it was his money.  There was one large plastic bag containing 17 individually bagged quantities of cannabis in the rear tray of the vehicle.  The gross weight of the cannabis was 7.66 kgs and each of the individual bags contained approximately one pound of cannabis which meant it was packaged in a commercial wholesale quantity.  This constituted count 7.  There was a collection of stolen items valued at more than $13,484 that constituted the offences of receiving tainted property that were summary charges 1, 2 and 8.  Bullets for the handgun and for the automatic rifle were the subject of summary charge 6.  An order was issued in the Magistrates Court on 27 April 2022 pursuant to s 154(2) of the Police Powers and Responsibilities Act 2000 (Qld) requiring Mr Wilson to provide access to a mobile phone which the police seized from him on 25 April 2022.  His failure to provide the PIN code resulted in count 8.

Mr Wilson’s antecedents

12. [12]
    Mr Wilson was 31 years old when he committed the offences.
13. [13]
    He was educated until grade 10 and completed an apprenticeship as a boilermaker.
14. [14]
    His criminal history commenced with street offences committed from April 2009.  He was dealt with in the Magistrates Court in August 2014 for unlawful use of motor vehicles and contravene direction or requirement for which he was fined.  Between 12 November 2014 and the date of sentencing for the subject offences Mr Wilson had been continuously in custody or on parole.  He committed a series of offences between August and November 2014 for which he was sentenced in the District Court on 28 August 2015.  He pleaded guilty to dangerous operation of a vehicle and adversely affected by an intoxicating substance committed on 12 November 2014, serious assault police officer whilst pretending/is armed with a weapon committed on 15 August 2014 and 53 summary offences including three charges of dangerous operation of a motor vehicle, seven charges of failing to stop a motor vehicle when required to do so, 10 charges of driving whilst disqualified, nine charges of stealing and four unlawful use of motor vehicles.  He was sentenced to an effective head sentence of imprisonment for four and one-half years with a parole eligibility date of 11 May 2016.  He had 289 days of presentence custody that backdated the sentence to commence on 12 November 2014.  His full-time discharge date was 11 May 2019.
15. [15]
    Mr Wilson was released on Board ordered parole on 11 May 2016.  He committed a variety of offences, including dishonesty, authority required to possess explosives, dangerous operation of a motor vehicle, unlawful use of motor vehicles and evasion offences, whilst on parole mainly between May and July 2018.  His parole was suspended on 31 May 2018, but he was not arrested and returned to custody until 11 July 2018.  He was sentenced in the Magistrates Court on 9 May 2019 where a sentence of two and one-half years’ imprisonment was imposed for the most serious offence of dangerous operation of a motor vehicle with two prior convictions that was cumulative on the previous sentence.  That meant he was serving a period of imprisonment of seven years.  His parole eligibility date was 5 November 2019.  He was released on Board ordered parole on that date.  He committed further offences between 11 and 19 February 2021, including an evasion offence, injuring animals and possessing dangerous drugs, and was returned to custody on 19 February 2021.  He was sentenced in the Magistrates Court on 20 April 2021 to another 12 months’ imprisonment that was cumulative on the previous sentences which meant the period of imprisonment he was serving was then eight years.  His parole eligibility date was 20 July 2021.  Mr Wilson was given a concurrent sentence of imprisonment of six months with the same parole eligibility date of 20 July 2021 when he was dealt with in the Magistrates Court on 24 May 2021 for receiving tainted property on a date unknown between 3 January and 18 February 2021.  He was released on Board ordered parole on 6 December 2021.
16. [16]
    The subject offending was therefore committed within five months of his release on parole.  Mr Wilson was returned to custody on 25 April 2022 and his parole was suspended on 26 April 2022.  From the time that his period of imprisonment commenced on 12 November 2014 until his return to custody on 25 April 2022, he had been in actual custody for about three years and eight months and had been in the community on parole for about three years and eight months.
17. [17]
    Since his return to custody, Mr Wilson completed the Helping Men Recover program to address his addiction that was conducted by ATODS over 18 weekly sessions between 23 August and 1 November 2022.  He also participated in a further two day course conducted by ATODS called Brain Matters.
18. [18]
    Before being sentenced for the subject offending, his full-time discharge date for his existing period of imprisonment was 30 December 2022.

Sentencing remarks

19. [19]
    Apart from reciting the circumstances of the offences and setting out Mr Wilson’s antecedents, the sentencing remarks included the following.  The early pleas of guilty were a significant consideration in Mr Wilson’s favour.  Because of Mr Wilson’s poor parole history, the discounting that was appropriate to allow for the early guilty pleas would be reflected by moderation of the head sentence.  No early parole eligibility date would be fixed as that would be left to the operation of the statute and the decision of the Parole Board.  Mr Wilson was not being sentenced for trafficking in dangerous drugs, as there was no evidence to conclude that the money that was the subject of count 5 was from trafficking by Mr Wilson or another person or a combination of both.
20. [20]
    The sentencing proceeded on the basis that Mr Wilson was drug dependent at the time of the offending.  It was an aggravating consideration that Mr Wilson’s offending was committed whilst he was on parole.  Mr Wilson’s resumption of using methylamphetamine was a contributing factor to his return to a criminal lifestyle, he “embraced the criminal lifestyle at a level involving serious potential harm to the community, exemplified by the dangers of [his] driving whilst drug-addled, [his] possession of weapons and bullets, and most concerningly, [his] possession of a loaded handgun, and, of course, clear signs of [his] commercial connection with drugs”.  Mr Wilson’s recidivism was a concerning feature.  Community protection and personal deterrence were dominant sentencing principles in Mr Wilson’s case.  His prospective rehabilitation was taken into account as a relevant consideration, as he was still only 31 years old and that consideration was “bound up with arriving at a sentence that is not too crushing and still leaves some hope for the future for [Mr Wilson]”.
21. [21]
    It was not accepted that Mr Wilson was remorseful.  It was accepted that he regretted his behaviours and that he presently aspired not to reoffend but the most realistic chance of that occurring was if Mr Wilson was “much more serious about avoiding further drug use” than he had been when previously released on parole.
22. [22]
    There was some cooperation with the administration of justice that was described as “only a minor discounting consideration” relative to the overall criminality for what Mr Wilson was being sentenced.
23. [23]
    The offences will be grouped into four groups and the head sentence in each group will be discounted to allow for the mitigating considerations and the fact that the four groups of sentences will be cumulative upon each other, but internally concurrent.  Because Mr Wilson was being sentenced for offending committed whilst he was on parole, the sentences statutorily had to be cumulative and that meant that the time spent in presentence custody could not be the subject of a presentence custody declaration as time served under the sentences to be imposed for the subject offending.  The fact that those sentences will be cumulative upon the longer term of imprisonment being served by Mr Wilson would also be taken into account in arriving at a sentence that was “just in all of the circumstances”.

Was there an error in failing to fix a date for eligibility for parole?

24. [24]
    The respondent joins with Mr Wilson in the submission that the sentencing judge was obliged to impose a parole eligibility date pursuant to s 160C(2) of the Act which applies when s 160D of the Act does not apply and the offender’s period of imprisonment is more than three years (which was the case for Mr Wilson).  Section 160C(2) states:

“If the offender had a current parole eligibility date, the court must fix the date the offender is eligible for parole.”

25. [25]
    The question is whether Mr Wilson had a current parole eligibility date when he was sentenced for the subject offending, as he had been released on parole on 6 December 2021 in respect of the period of imprisonment that he was then serving for which there was a parole eligibility date of 20 July 2021.  The answer is resolved by the definition of “current parole eligibility date” set out in s 160 of the Act:

“current parole eligibility date, in relation to the imposition of a term of imprisonment mentioned in section 160A on an offender, means a parole eligibility date –

1. (a)
   previously fixed for the offender in relation to another term of imprisonment; and
2. (b)
   cancelled under section 160E on the imposition of the term of imprisonment.”

26. [26]
    A parole eligibility date remains a current parole eligibility date when the prisoner is released on parole, even if that parole is suspended and the prisoner is returned to prison to continue serving the period of imprisonment for which the parole eligibility date had been fixed.  In the circumstances that applied to Mr Wilson, his current parole eligibility date was automatically cancelled under s 160E(2)(b)(ii) of the Act on the imposition of the terms of imprisonment for the subject offences.  It was therefore necessary for the sentencing judge to fix another parole eligibility date, as required by s 160C(2).
27. [27]
    Mr Wilson succeeds in showing that a specific error was made by the sentencing judge in failing to fix the date on which Mr Wilson would be eligible for parole as required by s 160C(2) of the Act.  It should be noted that this error was made at the specific urging of the prosecutor who appeared at the sentencing hearing (who was not the respondent’s counsel on this application) who submitted that the primary judge should consider whether in the circumstances it was the type of case where the community might be best served by the Parole Board’s identifying the date on which Mr Wilson might be suitable for release rather than the sentencing judge.  This submission overlooked s 192 of the Corrective Services Act 2006 (Qld).  The sentencing judge’s attention was also not drawn to s 160C(2) of the Act which requires a sentencing judge to fix a new eligibility for parole date in lieu of the current parole eligibility date when imposing the new sentence.
28. [28]
    It was common ground that this Court should proceed to re-sentence Mr Wilson: cf R v Braeckmans (2022) 10 QR 144 at [9].

Re-sentencing

29. [29]
    It is for this Court on re-sentencing to undertake the separate and independent exercise of the sentencing discretion.  Even though it is not necessary to consider Mr Wilson’s second ground, the issues raised in the submissions concerning whether the sentence was manifestly excessive and whether sufficient recognition was given to totality considerations are relevant to the fresh exercise of the sentencing discretion.
30. [30]
    Mr Trevino of King’s Counsel for Mr Wilson submits that, in re-sentencing, greater emphasis could be given to totality considerations, in addition to selecting an appropriate date for Mr Wilson’s eligibility for parole.  Those submissions did not seek to dismantle the structure of the sentencing applied by the sentencing judge but sought to vary the orders made in two respects.  The first was reduction of the sentence imposed on count 5 (possessing property obtained from trafficking) by six months and the second was the imposition of the sentence of six months’ imprisonment on count 8 (contravening order about device information from digital device) concurrently rather than cumulatively.  That would result in the head sentence being reduced by 12 months.  It is suggested that the parole eligibility date be fixed at 9 June 2025.
31. [31]
    The respondent submits that this Court in the independent exercise of the sentencing discretion would for the reasons articulated by the sentencing judge conclude that no different sentences should be imposed.  The respondent submits that the parole eligibility date should be fixed at 1 April 2026.
32. [32]
    The device used by the sentencing judge to group the subject offences into four groups where the sentences within each group were concurrent but cumulative on the sentences imposed in the other groups was for the purpose of achieving an appropriate sentence that reflected the overall criminality in circumstances where no one offence was sufficiently serious for a sentence to be imposed consistent with the approach in R v Nagy [2004] 1 Qd R 63 at [39] that reflected the overall criminality.  Even though the sentencing judge expressly acknowledged that moderation was required to the head sentence within each group of offences, the selection of four groups of sentences for the accumulation of the sentences had the inherent tendency to inflate the outcome of the sentencing.
33. [33]
    The principle of totality had direct application to Mr Wilson’s sentencing, as the sentences for the subject offences were cumulative on his existing period of imprisonment that commenced on 12 November 2014.  See Mill v The Queen (1988) 166 CLR 59 at [63], R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177 at [18]-[19], R v WBK (2020) 4 QR 110 at [13]-[15] and R v Cook (2021) 9 QR 101 at [25]-[30].
34. [34]
    There were good reasons in the circumstances of Mr Wilson’s offending for the sentence imposed on count 8 to be cumulative on the other sentences.  The offence under s 205A of the Criminal Code (Qld) was committed as Mr Wilson failed to comply with an order made under s 154(2) of the Police Powers and Responsibilities Act 2000.  As was explained by Wilson J (with whom Gotterson and McMurdo JJA agreed) in Ross v Commissioner of Police (Qld) (2019) 278 A Crim R 159 at [43]:

“The gravamen of a s 205A Criminal Code offence lies in the fact that it stymies an investigation and potentially conceals more serious offending, and has the potential to deflect a police investigation into potentially very serious offences.” (footnotes omitted)

35. [35]
    There was some overlap between the weapon offences and the drug related offences, as the inference was that the most serious of the weapon offences which was the possession of the loaded handgun (count 3) was held for use by Mr Wilson in connection with his drug and cash possession.  The criminality for the weapon offences could be reflected in the head sentence for the drug related offences.  Applying the Nagy approach to the sentencing for these two groups of offences was opposed by Ms Dennis (who appeared with Mr Hancock on behalf of the respondent) on the basis that only the handgun was clearly related to the drug offending, as the sentencing for the automatic rifle proceeded on the basis that it was held for sale and therefore was a commercial possession.  That submission overlooks that the offence that was committed in relation in the automatic rifle (count 6) was possession and not supply and that the sentence imposed for count 6 was less than the sentence imposed for count 3 which objectively was the most serious of the weapon offences that also attracted the mandatory minimum sentence.
36. [36]
    It was arbitrary that the sentencing judge divided the offences into four groups in the first place.  On re-sentencing, it is necessary to find a way of dealing with the variety of offences in keeping with the totality principle.  One solution that results in the least interference with the sentences imposed by the sentencing judge is to group the weapon offences with the remaining offences (which was the description given by the sentencing judge to the drug related offences), keep the respective sentences imposed for each of the weapon offences (counts 3 and 6 and summary charge 6), but make them concurrent with each other sentence imposed for the weapons offences and the other sentences imposed on the day of the sentence, and increase the sentence for count 5 by six months to reflect the overall criminality for the offences within the group of the remaining offences and the group of weapon offences.  The sentences for each of counts 3 and 6 and summary charge 6 will be concurrent with the other sentences imposed on the day of sentence by removing that part of the order of the sentencing judge that required the terms of imprisonment of each of the weapon related offending to be served cumulatively on the other terms of imprisonment ordered on the day of the sentence.
37. [37]
    As the above variation in the sentences that was flagged by the Court during the submissions in this Court would result in an increase to the sentence imposed for count 5, Mr Wilson’s lawyers were requested to obtain Mr Wilson’s instructions on the proposed increase to the sentence imposed on count 5 to facilitate an overall reduction in the effective head sentence by a period of nine months.  Mr Wilson’s solicitors subsequently informed the Court that there was no issue taken by Mr Wilson with the increase to the sentence for count 5.
38. [38]
    The effect of the orders proposed on the re-sentencing is that the effective head sentence for the subject offences is reduced from seven years and three months to six years and six months which gives appropriate recognition to the totality considerations that arise from the aggregation of the sentences imposed on Mr Wilson that took effect from 12 November 2014.
39. [39]
    The full-time discharge date for the effective head sentence of six years and six months will be 30 June 2029.  In suggesting possible parole eligibility dates, both parties had regard to the fact that Mr Wilson’s most recent imprisonment commenced on his return to custody on 25 April 2022 to finish serving the period of imprisonment that commenced on 12 November 2014.  In all the circumstances, a parole eligibility date after Mr Wilson has served an additional three years and seven months from his return to custody which is approximately half of the period between his return to custody and his full-time discharge date would be appropriate.  That would fix the date for eligibility for parole at 24 November 2025.

Orders

40. [40]
    The orders which should be made are:

    1. Application for leave to appeal granted.
    2. Appeal allowed.
    3. The order that the respective sentences imposed on the weapon related offending (comprising counts 3 and 6 and summary charge 6 (authority required to possess explosives)) be served concurrently with each other but cumulatively on the term of imprisonment already being served and the other terms of imprisonment ordered on the day of sentence be varied to the extent only of deleting that part of the order that required the terms of imprisonment to be served cumulatively on the other terms of imprisonment ordered on the day of sentence.
    4. The sentence imposed on count 5 is varied by substituting “4 years” for “3 years and 6 months”.
    5. All other sentences imposed and orders made by the sentencing judge on 6 December 2022 are confirmed.
    6. The date for eligibility for parole is fixed at 24 November 2025.