R v Sharp[2023] QCA 253

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 8 November 2022 the applicant was convicted of arson following a trial in the Supreme Court at Townsville.  That offence was committed on 10 August 2019, at which time the applicant was on parole for unrelated offences.
2. [2]
   On 22 November 2022 the applicant pleaded guilty in the Supreme Court at Townsville to five drug offences.  The offences were committed on 18 February 2020, whilst the applicant was subject to parole for unrelated offences.
3. [3]
   The sentences are summarised below.

Arson – CA 286 of 2022

4. [4]
   The applicant was sentenced by Callaghan J on 9 November 2022 to 2 years imprisonment with an immediate parole eligibility date.  It was declared that the period of 994 days spent in pre-sentence custody between 18 February 2020 and 7 November 2022^[1] was time not taken to be imprisonment already served under the sentence.  However, the time was taken into account.
5. [5]
   At the time of that sentence, the applicant was serving other sentences for which the full-time release date was then 23 March 2023.
6. [6]
   The sentence imposed by Callaghan J was ordered to be concurrent with the sentences the applicant was already serving.  As a result, the applicant’s full time discharge date became 8 November 2024.  The practical effect of the sentence imposed was to extend the applicant’s incarceration by 596 days (one year, eight months and 20 days).^[2]

Drug offences – CA 267 of 2022

7. [7]
   The pleas of guilty were considered timely, after being entered on what was to have been day two of a trial, and following the presentation of a new indictment which replaced a previous indictment which included the more serious offence of trafficking in a dangerous drug.
8. [8]
   The applicant was sentenced on 24 November 2022 and the following terms of imprisonment were imposed:

   1. count 1 – possessing property obtained from supplying in a dangerous drug – 5 years;
   2. count 2 – possessing a dangerous drug in excess of 200 grams – 11 years;
   3. count 3 – possessing a dangerous drug in excess of 500 grams – 4 years;
   4. count 4 – possessing a thing used in connection with supplying a dangerous drug – 2 years; and
   5. count 5 – contravening order about device information from digital device – 2 years.
9. [9]
   Those sentences were ordered to be served concurrently with each other, and with the other sentences the applicant was already serving (including the sentence of 2 years imprisonment imposed for the arson offence).  A period of 1,010 days pre-sentence custody (between 18 February 2020 and 23 November 2022) was taken into account but not declared to have been time already served under the sentence: s 159A(3A) of the Penalties and Sentences Act 1992 (Qld).
10. [10]
    A parole eligibility date of 23 November 2026 was ordered, that is, after the applicant had served four years from the date of sentence.  Consequently, the full-time expiry of the applicant’s sentence was 23 November 2033.^[3]
11. [11]
    The applicant seeks leave to challenge the sentences imposed on a number of grounds which I have summarised below.

CA No 267 of 2022

12. [12]
    In respect of the sentences imposed on the drug offences, the proposed grounds of appeal are as follows:

    1. manifestly excess when setting the parole eligibility and full-time dates;
    2. the sentence structure did not adequately reflect the 1,010 days spent in PSC;
    3. totality of sentence was not taken into account;
    4. failing to give due consideration to sentencing principles; and
    5. failing to take into account delays in trial availability due to covid-19 restrictions, which extended the pre-sentence custody time period.

CA No 286 of 2022

13. [13]
    The sentence on the arson count should have been delayed until after the drug offences trial had occurred.

The offending conduct – arson – CA 286 of 2022

14. [14]
    The offending conduct on the arson count was referred to in the Crown’s submissions on sentencing and from that the following summary emerges:

    1. TC was the applicant’s son;
    2. MF and TC were involved in a night-time altercation with AX, and a stolen Mercedes car was used by TC to follow AX home; MF was a passenger in the Mercedes;
    3. at some point seven bullets were fired by MF into AX’s car, using a .45 calibre handgun at close range;
    4. AX drove off and the Mercedes, driven by TC, followed it; at some point AX drove his car at the Mercedes; in the course of the collisions TC was significantly injured;
    5. the applicant then arrived on the scene; he was distressed by the injury to his son;
    6. because the Mercedes had been involved it was set on fire to escape detection; in that respect the applicant was assisting TC and MF; however, it could not be found that the applicant lit the fire; and
    7. the Mercedes was valued at around $132,000; harm to others was unlikely to result from the arson.

The offending conduct – drug charges – CA 267 of 2022

15. [15]
    An agreed schedule of facts was tendered at the sentencing hearing.^[4]  What follows is a synopsis of those matters.
16. [16]
    In November 2019, police commenced an operation related to the trafficking of cannabis and methylamphetamine in the Townsville region.  The operation involved a range of investigative technics such as telephone intercepts, search warrants, surveillance, tactical intercepts and mobile telephone extractions.
17. [17]
    Two persons were the primary targets of that operation and from 17 December 2019 to 26 February 2020, three mobile phones were the subject of surveillance.  From those intercepted telecommunications the applicant was believed to be a supplier of methylamphetamine to two persons.
18. [18]
    Through intercepted calls police obtained a further warrant for two mobile phones used by the applicant.  Each of those phones was not registered in his name.  The devices were monitored from 23 January 2020 to 19 February 2020.  Through those calls it was identified that the applicant communicated with a person named Barclay.  Barclay was subservient to the applicant.
19. [19]
    The applicant was in receipt of a Newstart Allowance at the relevant time.  Between 17 December 2019 and 18 February 2020, the applicant made twelve aeroplane trips between Brisbane and Townsville.  He did not have the legitimate financial income to purchase those flights.
20. [20]
    On 21 January 2020, the applicant and Barclay travelled together to Brisbane.  On 25 January 2020 the applicant telephoned his supplier, who resided on the Sunshine Coast.  They arranged to meet later that day.
21. [21]
    On 27 January 2020, the applicant telephoned Barclay.  At the applicant’s direction, Barclay purchased flights for the both of them to return to Townsville later that day, which they did.
22. [22]
    On the morning of 2 February 2020, the applicant telephoned Barclay and advised that he was on his way to see him, within 30 minutes of arriving in Brisbane.  The applicant telephoned his supplier multiple times throughout the day and they arranged to meet.  The applicant asked his supplier how many he had, and if there were “two”.
23. [23]
    On 3 February 2020, the applicant again called his supplier.  The supplier advised the applicant that he had another “prezzy” for him and that the applicant would like it.  On the same day the applicant called Barclay and asked if he had started building a box.  The applicant advised Barclay to hold off on the box until they met, as he might need the box to be built larger.
24. [24]
    On 4 February 2020, the applicant flew from Brisbane to Townsville.  On that day police executed a search warrant at a particular address in South Townsville.  There they located approximately 40 pounds of cannabis and 200 grams of methylamphetamine.  It was not alleged that the applicant was responsible for those drugs.  However, the search of that unit made the applicant anxious.  At 9.14 that night, the applicant spoke to Barclay, who was still in Brisbane.  Barclay told the applicant that “it’s all done”, that “he’s loaded and ready to go”.  The applicant directed Barclay not to come to Townsville and instructed him to “get rid of ‘that’ somewhere”.  The applicant said that he would get a new telephone number and warned Barclay that he should “watch himself”.  The applicant told Barclay that he would give it a few days to “see what happens”, and suggested to Barclay that they might have to “change it up, the whole lot, everything”.  The applicant told Barclay that they will work it out by the end of the week or next week.  The applicant concluded the call, advising Barclay that if he was arrested, he should speak to his daughter about what to do.
25. [25]
    On 9 February 2020, the applicant telephoned his supplier and suggested that he would see him in the next few days and they should meet in Brisbane. 
26. [26]
    On 11 February 2020, the applicant travelled to Brisbane.  Barclay met him at the airport.  The applicant advised Barclay that the reason they were to meet at the airport was because he had a “heavy suitcase” that he did not want to drive around with.  The applicant hired a car at the Brisbane airport.  He advised Barclay that he was “slipping up” to the Sunshine Coast to meet his supplier.  Upon arriving at Brisbane the applicant sent a message to his supplier and arranged a meeting.
27. [27]
    On 12 February 2020, the applicant directed Barclay to bring the “suitcase” to him.  Then, on 14 February 2020 the applicant returned to Townsville.
28. [28]
    On 15 February 2020, the applicant called Barclay who advised the applicant that he did not finish the tank until 2.00 am.  The applicant inquired of Barclay how far off he was from being “ready”.  Barclay responded that everything was done but the tank was not full.  He said he was running behind schedule.  At 6.46 pm the applicant again called Barclay and asked where he was at.  Barclay responded that he was “about to rock and roll”.  The applicant instructed Barclay to “put a fucking hold on it”.  He told Barclay the reason for that was that his supplier “can do it with a days’ notice”.  The applicant said he would wait for the notice and that there was no point in being ready beforehand.  He told Barclay that “they reckon they can have a two V motor there, just the two V not the five V” that the applicant wanted.
29. [29]
    On 16 February 2020, the applicant called Barclay and told him he would travel to Brisbane in the morning.  He told Barclay that he needs a “185” and a tyre.  They agreed to meet the next day.
30. [30]
    On 17 February 2020, the applicant flew to Brisbane on the first flight.  He hired a car at the airport and sent a message to the supplier, requesting that he call him.  The supplier called the applicant and they discussed direction to the supplier’s property.  The applicant travelled to meet the supplier.
31. [31]
    At 5.26 pm that day the applicant called Barclay and told him that he was to travel north to meet the applicant.  The applicant confirmed that Barclay was ready to drive at short notice.  He said he was a bit “delayed” but Barclay should be ready.  Barclay confirmed that he was “fully loaded and even has a full tank of fuel”.  Barclay asked the applicant if he should “pop” the “bead” and have it ready.  The applicant told Barclay they should wait and that they would do that when Barclay travelled north.
32. [32]
    At 8.02 pm the applicant messaged Barclay that he was ready and Barclay advised the applicant that he was on the move.  Barclay drove a Holden Colorado north to meet the applicant on the Sunshine Coast.
33. [33]
    At 12.42 pm on 18 February 2020, the applicant and Barclay exchanged a series of messages arranging a meeting.  The meeting was at a roadworks.  The applicant advised Barclay that he was in front of him and Barclay agreed to follow the applicant in his car.  The applicant arranged for his hire car to be returned to the Sunshine Coast airport.
34. [34]
    The police obtained a search warrant for the Holden Colorado.  On 18 February 2020, they set up a vehicle intercept.  They suspected that Barclay and the applicant would be travelling by car from Brisbane to Townsville, with a commercial quantity of methylamphetamine.
35. [35]
    At about 3.50 pm the applicant and Barclay were intercepted and the search warrant of their vehicle was executed.  Barclay told the police that he was driving, that he owned the car, and that it was registered in his wife’s name.  He confirmed that he lived in Brisbane and that they had driven up from there.
36. [36]
    Barclay told police they would find a pound and a-half of cannabis in the toolbox.  He advised that everything of relevance in the car was in the toolbox and that there was nothing else to declare.  He said he did not know who owned the cannabis or how it got into the toolbox.  When questioned about how he knew it was there, Barclay advised that he did not want to say anything further.
37. [37]
    Police searched the vehicle and found the following:

    1. locked in the external toolbox was 633 grams of cannabis;^[5]  the cannabis was wrapped in glad wrap in two bundles, one about twice the size of the other;
    2. in the centre console was a wallet belonging to the applicant containing $400 in cash, some coins and cards; further, there was a Samsung mobile telephone,^[6] and an Optus mobile phone, as well as an Apple mobile phone in respect of which Barclay claimed ownership; in addition there was $130 cash which Barclay claimed;
    3. in a bag fount in the utility there were three red tablets which Barclay claimed to own, advising they were sexual performance enhancing drugs; in addition there was an inoperable Apple mobile phone claimed by Barclay;
    4. on Barclay himself there was a wallet containing $1,050.00 in cash and some cards; and
    5. under the rear tray, in the spare tyre cavity was a fully inflated spare tyre in which was $192,700.00 cash (bundled into 10 individual sealed bags),^[7] and four clip-sealed bags containing methylamphetamine;^[8] the bags contained varying quantities of methylamphetamine but all at a proportion of 75 to 76 per cent.
38. [38]
    Police had to cut open the tyre to access the cash and methylamphetamine.  The cash was exclusively in $100 and $50 dollar notes.
39. [39]
    Police noticed a large aluminium fuel tank on the tray of the utility which appeared to contain diesel fuel.  They did not then realise that the fuel tank had a substantial concealed compartment between 100 and 150 litres in volume.  The concealed compartment was not searched at that point.
40. [40]
    The applicant advised that he did not own any of the phones that were located and that he did not know the pin numbers.^[9]  That was not accepted by the Crown at sentencing.  He otherwise refused to answer any questions about the items that were located.
41. [41]
    Barclay provided a pin to his phone and declared the cannabis in the toolbox.  He said he did not know anything about the methylamphetamine or the cash.  That also was not accepted by the Crown.
42. [42]
    Barclay and the applicant were arrested and charged.  Each declined to participate in interviews and were remanded in custody.
43. [43]
    At the time of the seizure, the methylamphetamine would have an estimated street value of:

    1. between $340,000.00 and $476,000.00, if sold by the ounce (28 grams);
    2. between $962,000.00 and $1,539,200.00, if sold by the gram; and
    3. $1,924,700.00, if sold by the 0.1 grams.
44. [44]
    After being remanded, the applicant had a series of telephone conversations with one of his clients, directing him to collect and strip the Holden Colorado.  He directed him to “rip all that shit out the back of it for scrap”, to retrieve the “gear” if necessary, and to remove the plates and hide them.
45. [45]
    When the operation was brought to a close, police executed several search warrants at other places.  At one of them they found the Holden Colorado and the large fuel tank which had been on the back of it when it was intercepted.  The fuel tank was made of two separate cavities, one of which had a 10 litre capacity full of fuel.  The second was not connected to a fuel line and had a capacity of between 100 and 150 litres.  That compartment was well secreted and could only be accessed by taking the fuel tank off the back of the Colorado and removing a number of screws.
46. [46]
    Barclay made a number of incriminating telephone calls from the Townsville Correctional Centre.
47. [47]
    In terms of criminal liability, the applicant was liable for counts 1-3 as a principal offender.  The methylamphetamine cash and cannabis belonged to the applicant, and he had arranged to on-sell it to suppliers in Townsville.

The approach of the sentencing judge – CA 267 of 2022

48. [48]
    During the course of sentencing submissions, the learned sentencing judge was referred to the fact that the applicant had gone to trial on the charge of arson before Justice Callaghan.^[10]  His Honour was informed that the sentencing remarks by Callaghan J were not available and that it could not be determined if the applicant was the person who lit the fire.
49. [49]
    In the course of sentencing submissions, the prosecutor submitted that totality was a very relevant consideration, given the significant amount of time he had spent on remand since his arrest in February 2020.^[11]  In that context the submission was made that “the range falls somewhere, considering issues of totality, between 10 and 12 years”.^[12]
50. [50]
    In the course of his submissions, counsel for the applicant at the sentencing hearing identified only two mitigating factors.  The first was the utilitarian nature of the plea of guilty, and the second was the timeliness of that plea.^[13]  Further, counsel for the defence at the sentencing hearing endorsed the approach taken by the prosecutor, namely, to make the new sentences concurrent with one another and concurrent with existing sentences, together with recognition that the applicant had been in custody for 1,010 days.^[14]  Counsel agreed that that approach would “address the totality considerations”.^[15]
51. [51]
    The learned sentencing judge commenced by identifying that the applicant was 52 at the time of offending, and 55 at the time of sentence.  His Honour referred to the applicant’s criminal history as “appalling” and there being a “history of… violence, including attempted murder, and … a history of serious drug offending”.  Not only did his Honour have regard to exhibit 3 (the criminal history), but also the sentencing remarks of two prior occasions, one in 1999 and the other in 2018.  His Honour observed:^[16]

“The history of serous offending, the seriousness of the offending that I am sentencing you for and your maturity, suggest to me that the prospects of your ultimate rehabilitation must be regarded as illusory. You are a confirmed criminal set in your ways”.

52. [52]
    The learned sentencing judge then set out the circumstances of the offending conduct, as drawn from the agreed schedule of facts.  His Honour then referred to the following matters:

    1. that the plea could be considered “timely” even though it was not entered until what was intended to be the second day of the trial; that was because the Crown withdrew a trafficking allegation in the previous indictment, after which the plea of guilty came promptly; his Honour explained that he would give “some benefit for your timely plea in the way in which I structure the sentence”;^[17]
    2. aspects of general deterrence were relevant, as well as the need to denounce such serious offending;
    3. the difference between the prosecutor and defence counsel in terms of what was suggested to be an appropriate sentence; the prosecutor submitted that a range could be between 10 and 12 years, whilst defence counsel suggested a range of between 8 and 11 years; then in oral submissions counsel for the defence submitted a range of between 9 and 11 years, and having regard to totality principles, at the bottom end of that range;^[18]
    4. the issue of totality, which arose “because of the circumstance of the fact that you are in custody and have been in custody for quite some time”; his Honour then noted the 1,010 days in custody, and the fact that the applicant had been in custody because the offending occurred while he was on parole; his Honour observed “I should not overlook the fact that you have served a long time in custody”;^[19]
    5. the fact that both the prosecutor and defence counsel had joined in a submission that the pre-sentence custody of 1,010 days should not be declared as time served but rather taken into account by making all sentences to be imposed to be served concurrently with each other, and in turn, concurrently with other sentences still being served;^[20]
    6. aspects of the applicant’s antecedents which, his Honour observed, explained how he came to have such a bad criminal history, but which did not relieve him of criminal responsibility for the subject offending; and
    7. that two matters were the subject of focus in submissions; the first was the sentence that should be imposed on count 2, and secondly, the structure of the sentence and, in particular, when a parole eligibility date might be set.
53. [53]
    When his Honour imposed the sentences, that was preceded by his Honour stating that he took into account “the seriousness of your offending, your antecedents and the public interest”.^[21]  His Honour stated the sentences imposed were to be served concurrently with each other, and, in turn concurrently with existing sentences.  His Honour referred to the 1,010 days of pre-sentence custody, but said “it is declared that no time is to be taken to be imprisonment or any served under the sentence”.^[22]
54. [54]
    When referring to the parole eligibility date his Honour said:^[23]

“I have determined to fix your parole eligibility date as at 23 November 2026, which is four years from today. I have decided that it is an appropriate allowance in mitigation, reflecting your cooperation by way of the timely plea. My view was that your parole eligibility should be left to the legislation at 50 per cent, which would have been five and a-half years, but for the fact of your plea. So taking that into account, I have reduced your parole eligibility date to four years.”

CA 286 of 2022 – should the arson sentence have been delayed?

55. [55]
    The contention here was that the sentence in respect of the count of arson should have been delayed until after the drug offenses trial had taken place.  There are a number of difficulties confronting that contention.
56. [56]
    First, the applicant had the same counsel in each case.  No application was made before Callaghan J to delay that sentencing until after the drug trial.  The arson sentencing hearing was on 9 November 2022, and the sentencing for drug offences was on 24 November 2022.  On the drug counts there were clearly negotiations between defence and prosecution prior to the new indictment being presented on 22 November 2022.  That new indictment dropped the count concerning trafficking and prompted the plea of guilty.  The matter had been the subject of a number of reviews throughout 2022 and was set for trial on 24 October 2022.  Plainly defence counsel would have been very well aware of the two matters and that a conviction on the arson count would become part of the criminal history for the purposes of the sentencing for the drug offences.
57. [57]
    Secondly, at the sentencing hearing for the arson count, the prosecutor made it plain that he was not seeking to delay the arson sentence.^[24]  Even then no application was made by defence counsel.  The applicant contends^[25] that his counsel “made submissions to Justice Callaghan that sentencing should be deferred until after trial for drug offences”, but that was refused.  The transcript does not support that.
58. [58]
    Thirdly, no disadvantage flowed to the applicant because, as it happened, he effectively got a double benefit resulting from the pre-sentence custody.  Callaghan J had dealt with the applicant’s sentence on the arson count by making it concurrent with sentences already being served and taking the time served into account though not declaring it as time served under the arson sentence.^[26]  In a practical sense that meant that a substantial proportion of the time which was taken into account, though not declared, on the sentencing for the drug offences had already been taken into account in the applicant’s favour, albeit on the sentence for arson.
59. [59]
    The applicant’s submission was that the learned sentencing judge did not have the benefit of the sentencing remarks of Callaghan J, may be accepted.  However, that was to the benefit of the applicant.  Had they been provided it would have been clear that the applicant had in fact already received the benefit of 994 days spent in pre-sentence custody being taken into account in setting the head sentence and the parole eligibility date of the arson sentence.

CA 267 of 2022 – totality not taken into account?

60. [60]
    This contention must fail for three reasons.
61. [61]
    First, the learned sentencing judge expressly adverted to the totality issue and why it arose: see paragraph [52](d) above.
62. [62]
    Secondly, his Honour referred to the submissions made as to the impact of totality considerations on the selection of the parole eligibility date.^[27]
63. [63]
    Thirdly, both the prosecutor and defence counsel submitted that totality could be addressed by making the sentences to be imposed concurrent with one another, and also concurrent with existing sentences, and then by taking into account the pre-sentence custody though not declaring it as time served: see paragraphs [49]-[50] above.  That approach was, in fact, adopted by the learned sentencing judge.
64. [64]
    Fourthly, in so far as the submission was that the sentence imposed was crushing, it confronts the difficulty that the applicant’s history of offending was the reason why he spent such a long time incarcerated.  As was said in R v Kendrick:^[28]

“Azzopardi identified that a sentence is said to be ‘crushing’ when it is of such a length that it would provoke a feeling of helplessness in the applicant if and when he or she is released, or which would result in the destruction of any reasonable expectation of useful life after release. Whilst the need to avoid a sentence of that character is separate and distinct from the need to have regard to the principle of totality, nonetheless as a matter of practicality, the two principles are often conflated, and considered together.”

65. [65]
    The applicant’s history of serious criminal offending meant that his reasonable expectation of life after release was an attenuated one.  His Honour referred expressly to the appalling nature of the applicant’s criminal history: se paragraph [51] above. That history was relevant, as explained in R v Hill:^[29]

“In considering and applying the totality principle, appropriate regard must be had to the need to impose sentences which are not an affront to the community, given the seriousness of the offending and the applicant’s criminal history and recidivism.”

66. [66]
    His Honour’s conclusion was that “the prospects of [the applicant’s] ultimate rehabilitation must be regarded as illusory”.  Plainly, rehabilitation was of less weight than the call for deterrence, denunciation and punishment.
67. [67]
    The applicant’s criminal history^[30] suggests that conclusion was justified.  The applicant was sentenced to imprisonment when he was 18, 19, 23 and 25.  At 28 he was sentenced to three and a-half years’ imprisonment for stealing with actual violence.  While in jail he falsely obtained a government benefit.  At 32 he was sentenced for serious charges including attempted murder for which he received 17 years, and six rapes for which he received 12 years.  While serving those terms he was convicted of drugs, weapons, forgery and other dishonesty offences when he was 51.
68. [68]
    As was the case Hill,^[31] the learned sentencing judge was confronted with a stark fact, namely that the applicant had spent most of his life in jail.
69. [69]
    Given the matters above, the concurrent sentences imposed were not crushing but rather a reflection of the fact that the applicant’s offending was serious and while on parole.  The parole eligibility date was set after the applicant had served four years of the 11-year head sentence (slightly more than one-third).  Pre-sentence custody was reflected in the order that the sentences be concurrent.

CA 267 of 2022 – failing to give due consideration to sentencing principles?

70. [70]
    The applicant contends the learned sentencing judge failed to have regard to the sentencing principles at s 9(2)(j) and (l) of the Penalties and Sentences Act 1992 (Qld), which oblige a sentencing court to have regard to:

“(j) time spent in custody by the offender for the offence before being sentenced; and ...

(l) sentences already imposed on the offender that have not been served.”

71. [71]
    This contention must be rejected.
72. [72]
    As explained above, there is no doubt that the learned sentencing judge took the applicant’s time spent in custody, and the sentences already imposed on the applicant, into account.  The sentence fell within the range urged by the applicant’s counsel and supported by comparable authorities.^[32]  Further, there was the significant benefit of the sentence being concurrent with the other sentences and the setting of the parole eligibility date at only slightly greater than one-third of the head sentence.

CA 267 of 2022 – failing to take into account delays in trial availability?

73. [73]
    The difficulty that this contention faces is that the applicant was serving existing sentences throughout the time of the suggested delay.  In the face of that consideration, delays while waiting for a trial date are not persuasive.
74. [74]
    Further, in my view, there is no real reason to conclude that had the sentence taken place earlier there was a realistic prospect of a different outcome.  The sentencing court could have exercised its discretion to order the sentence be imposed cumulatively on his 2018 sentence.
75. [75]
    In any event, the extra time delay was a factor taken into account when imposing the concurrent sentences.

CA 267 of 2022 – manifestly excessive sentence?

76. [76]
    In R v Eaton^[33] this Court said:

“[71] In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. The mere fact the sentence imposed is different from other sentences, and even markedly different from other sentences, does establish that it is manifestly excessive. As was said by this Court R v MCT:

‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’”.

77. [77]
    No misapplication of principle is evident, nor can it be said that the sentence is unreasonable or plainly unjust, particularly in light of: (i) the circumstances of the offending, both in the case of the arson and the drug charges; (ii)  the fact that the arson was committed while on parole; (iii)  the fact that the drug charges were also committed while on parole; (iv) having regard to the applicant’s appalling criminal history; and (v) the comparable authorities.  The sentencing discretion did not miscarry.
78. [78]
    In my view, it cannot be demonstrated that the sentences imposed were manifestly excessive.

CA 286 of 2022 – error in the Verdict and Judgment Record

79. [79]
    The dates during which the applicant spent time in pre-sentence custody were incorrectly stated as “between 18 February 2020 and 7 November 2022”.^[34]  Given that the sentence was imposed on 9 November 2022, the relevant period was in fact until 8 November 2022.  In other words, the time should have been calculated as 995 days, rather than the 994 as stated in the certificate.  That led the learned sentencing judge in CA 286 of 2022 to state the incorrect period of pre-sentence custody.  The same error appears in the Verdict and Judgment Record.^[35]
80. [80]
    Though technical in nature and de minimis in its impact, the error should be corrected.  Before this Court the Crown accepted that it was error that should be corrected by this Court rather than compelling the reopening of the sentence.  Therefore, there should be an order that the Verdict and Judgment Record be amended to record the period served as between 18 February 2020 and 8 November 2022, and 995 days, rather than 994. 
81. [81]
    I would therefore order:

1. In CA 267 of 2022, leave to appeal against sentence is refused.
2. In CA 286 of 2022, leave to appeal against sentence is refused.
3. In CA 286 of 2022 the Verdict and Judgment Record be amended to record the period of pre-sentence custody as occurring between 18 February 2020 and 8 November 2022, and 995 days instead of 994.

82. [82]
    APPLEGARTH J:  I agree with the reasons of, and the orders proposed by, Morrison JA.
83. [83]
    WILLIAMS J:  I have read the draft reasons of Morrison JA in respect of both applications for leave to appeal against sentence and agree with the reasons and proposed orders.