R v Betts[2023] QCA 75

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P: For the reasons given by Boddice AJA, I agree that the applicant must succeed on the ground that the learned sentencing judge did not have sufficient regard to the principle of totality in imposing the sentences. The totality principle as described in Mill v The Queen (1988) 166 CLR 59, 63 has been extended to cover avariety of circumstances where sequential sentences have been imposed on an offender or there are successive custodial periods. See R v Cook (2021) 9 QR 101 at [25]-[33] and the authorities referred to in those paragraphs.
2. [2]
   I agree with the approach taken by Boddice AJA on the re-sentencing to substitute sentences for counts 1 and 7 that take into account the totality principle, having regard to the approach that was taken before the sentencing judge in dealing with presentence custody.
3. [3]
   It should be noted, however, that both counsel before the sentencing judge were mistaken in advancing the submission that the time the applicant was held in presentence custody between 27 November 2020 and 14 June 2022 was not declarable. The trafficking was committed between 18 December 2019 and 20 March 2020 whilst the applicant was on parole for the sentences imposed on 15 June 2012 and 13 February 2019. He was returned to custody on 20 March 2020 on being charged with the trafficking and his Parole Board ordered parole was suspended on 23 March 2020. He was thereafter held on remand for the trafficking as well as serving the remainder of the outstanding sentences until that period of imprisonment expired on 26 November 2020.
4. [4]
   It was not until the applicant was sentenced on 15 June 2022 that the combined effect of s 209(1) and s 211 of the Corrective Services Act 2006 (Qld) meant that the applicant became liable to serve the 93 days that he had been out on parole between the commencement of the trafficking period and his return to custody on 20 March 2020. The decision in R v Braeckmans (2022) 10 QR 144 at [30]-[31] did not preclude a declaration of presentence custody being made in respect of the 565 days that were spent solely on remand for the trafficking after the expiry of the 2012 and 2019 sentences on 26 November 2020 and before the applicant was required to serve the period of 93 days that was, in effect, reinstated as outstanding from the 2012 and 2019 sentences on the date he was sentenced for the trafficking on 15 June 2022.
5. [5]
   I agree with the orders proposed by Boddice AJA.

6. [6]
   BODDICE AJA: On 15 June 2022, the applicant pleaded guilty to one count of trafficking in a dangerous drug, three counts of supplying a dangerous drug, three counts of possessing a dangerous drug, one count of possessing a dangerous drug in excess of two grams, and one count of attempting to pervert justice.

7. [7]
   On that same date, the applicant was sentenced to nine years and nine months imprisonment for the trafficking count, and a further period of 12 months imprisonment (to be served cumulatively on the sentence for trafficking) for the count of attempting to pervert justice. The applicant was convicted and not further punished in respect of each of the remaining counts.
8. [8]
   The sentence of imprisonment imposed in respect of the trafficking count was ordered to be served cumulatively on terms of imprisonment imposed on 15 June 2012 and 13 February 2019 (for which the defendant had 93 days left to serve). It was declared that some 817 days held in pre-sentence custody was not taken to be imprisonment already served under the 2022 sentences. It was recorded, however, that the Court had taken into account 563 days of the pre-sentence custody in arriving at the sentences. That period of pre-sentence custody was referrable solely to the applicant’s remand for the offences the subject of the 2022 sentence. A parole eligibility date was fixed at 14 June 2028.
9. [9]
   The applicant seeks leave to appeal those sentences. Should leave be granted, the applicant relies on three grounds: first, that the sentence was manifestly excessive in the circumstances; second, that the sentencing judge had no or no sufficient regard for the principle of totality in imposing cumulative sentences; and third, the sentencing judge assessed parole eligibility by reference to an irrelevant consideration.

Background

10. [10]
    The applicant was born in 1975. He was aged 44 at the time of the offences and 47 at sentence.
11. [11]
    The applicant had a substantial criminal history for drug and other offences. His previous offending included convictions for trafficking in 2004 and 2012.
12. [12]
    The 2012 sentence was imposed on 15 June 2012. The applicant was sentenced to nine years imprisonment. Parole eligibility was set after serving four years.
13. [13]
    On 13 February 2019, whilst the applicant was subject to that sentence, the applicant was sentenced to a further six months imprisonment, for possession of a dangerous drug. That sentence was ordered to be served cumulatively upon the 2012 sentence. As a consequence, the applicant’s full-time discharge date for the 2012 and 2019 sentences was 26 November 2020.

Offences

14. [14]
    The applicant was released on parole, in respect of the 2012 and 2019 sentences, on 26 August 2019. He had been released on parole on three prior occasions. Each time he was returned to custody after a short period.
15. [15]
    Less than four months after that release on parole, the applicant commenced trafficking in methylamphetamine. That trafficking was for a period of three months. It was undertaken by the applicant as the sole proprietor of what was a sophisticated trafficking business. The applicant’s offending was not deterred by contact with police. He avoided detection by using encrypted phones. Whilst the applicant sold the drug in small quantities, it was an intense period of trafficking.
16. [16]
    The remaining drug counts were committed within that trafficking period. They involved the possession of other dangerous drugs, a supply of methylamphetamine and cocaine to himself, the supply of cannabis, and the aggravated possession of methylamphetamine.
17. [17]
    The attempt to pervert justice count was also committed during the trafficking period. It involved the applicant procuring another person to falsely claim ownership of drugs found in the applicant’s possession.

Sentencing remarks

18. [18]
    The sentencing judge recorded that the applicant had pleaded guilty and that those pleas were taken into account in his favour in reducing the penalty, on the basis the pleas showed he had taken responsibility for his actions and exhibited a willingness to assist the course of justice. The sentencing judge did not, however, proceed on the basis that the pleas were indicative of remorse.
19. [19]
    The sentencing judge recorded that the offences were very serious and there was a need for both denunciation and deterrence. The sentencing judge also recorded that the applicant had a very serious criminal history involving very serious drug offending, including two previous convictions for trafficking in dangerous drugs.
20. [20]
    The sentencing judge recorded that the applicant had ended up serving all but 93 days of the nine years and six months imprisonment imposed for offending in 2012 and 2019. The sentencing judge considered that prior history complicated the sentence, but also aggravated the applicant’s offending conduct.
21. [21]
    The sentencing judge recorded that the trafficking was a serious example, albeit for a “shortish” period. The starting date was only four months after release on parole and the trafficking was intense, involving a sophisticated business, which included employing three other people to “do the dirty work”. The applicant also took steps to distance himself from the operation by employing those people.
22. [22]
    The sentencing judge recorded that the applicant had sourced methylamphetamine in wholesale quantities, having his employees transport large sums of cash and using other addresses to post the drugs back to the applicant. The known purchases amounted to 637.1 grams, on some nine occasions. There were another eight identified occasions, where the quantity was unknown. The applicant was careful to instruct his employees to sell in small quantities to increase his profit, thereby cynically seeking to make money out of causing harm to other people in the community.
23. [23]
    The sentencing judge recorded that the count of attempting to pervert the course of justice arose in circumstances where the applicant had been found in possession of cannabis and MDMA, and had arranged for an associate to claim ownership. The applicant undertook an involved process of having that associate prepare a statutory declaration, before the applicant took him to a solicitor to formalise that process, all with the intent that that associate took responsibility for that offending.
24. [24]
    The sentencing judge found that the applicant was to be sentenced on the basis of a short period of three months trafficking, involving methylamphetamine at a high, wholesale level; substantial quantities of the drug of at least 650 grams, but probably more like 850 grams to a kilogram of methylamphetamine; substantial quantities of cash; and the ability to employ people to work in his business and to buy the drugs from elsewhere, not limited to the Cairns area.
25. [25]
    The sentencing judge recorded that a complication in the sentence was that although the applicant had served 817 days in custody on remand, a large proportion of that period was serving the previous sentence. The sentencing judge said in those circumstances none of that time would be declared as time served, but that 563 days served only on remand for the 2022 offences, which the court could not declare as time served, would be taken into account. A further relevant factor was that any sentence had to be served cumulatively on the existing sentences, of which there remained about a three-month period for the applicant to serve.
26. [26]
    The sentencing judge found that the starting point, prior to mitigating factors such as pleas of guilty and other considerations, was around 13 years imprisonment for that type of trafficking by a person with his criminal history. Allowing for the plea of guilty, the sentence for trafficking would fall to between 10 and 12 years imprisonment. The sentencing judge found as the applicant had the plea, but not much else, by way of mitigating circumstances, a sentence of around 11 years and six months should be imposed for the trafficking count. However, allowing for the undeclarable time on remand of about 18 months, would reduce that sentence to 10 years.
27. [27]
    The sentencing judge found that as a sentence of 10 years would result in an automatic declaration of a serious violent offence, necessitating that the applicant serve 80 per cent of that sentence, the sentencing judge would be unable to give the applicant any benefit for that 18 months at the other end of his sentence. The sentencing judge reduced the head sentence for the trafficking count by another three months, taking into account the fact that it had to be cumulative on the remaining three months left for the sentences imposed in 2012 and 2019.
28. [28]
    The sentencing judge, after recording that such a sentence allowed a discretion as to how long the applicant would be required to serve in actual custody, said:

“Now, I want to make it clear to you that I would not have had any difficulty with the 10 years but for the fact that I cannot give you any benefit for this undeclarable time. I think your criminal history and the serious nature of this offending and the harm that it causes warrants not only a substantial penalty, but also a substantial period of time in custody. That is what our law provides for, and it is there for a reason. But I am also concerned to impose a penalty that is just in all the circumstances.

So when I get down to that nine years and nine months, I am not doing that on some artificial basis in order to avoid the 80 per cent rule. Iam doing it in order to try to balance all of the factors that I have got to.

…

Eighty per cent of nine years and nine months is 7.8 years, but I am taking a year and a half off that for the undeclarable time, and I get to six years and four months and that, in my view, is a just penalty. It is a bit more than the half, but it reflects the undeclarable time.

And what I am going to do with the attempt to pervert the course of justice charge is sentence you to 12 months for that and make it cumulative. So the big picture is 10 years and nine months on the top. The bottom is going to be six years, until you are eligible for parole. And that is appropriate, in my view, because I have done everything Ipossibly can to give you the benefit of the undeclared time, but I do not think it is appropriate to go too far away from what the legislation would have provided for if you had been sentenced to 10 years imprisonment for the trafficking, and if I had been able to declare the time, you would have been sentenced to 10 years for the trafficking. That is what I am really getting at. The attempt to pervert the course of justice should be cumulative, because it is separate conduct. It strikes at the heart of justice, as the cases say, and it should be marked in that way.”

Applicant’s submissions

29. [29]
    The applicant submits that although a starting point of 13 years for the trafficking count and a reduction of 18 months in recognition of the plea of guilty was appropriate, the sentences imposed were to be served cumulatively, necessitating afurther adjustment downwards to allow for totality. An allowance of only three months reduction on the head sentence for the trafficking count merely took into account a crossover between the 2012 and 2019 sentences. There was no allowance for totality.
30. [30]
    The applicant further submits that the sentencing judge erred in fixing the non-parole period by reference to an 80 per cent proportion of the head sentence. The applicant was not subject to the restrictions of a mandatory serious violent offence declaration.
31. [31]
    Finally, the applicant submits that the sentences imposed were manifestly excessive. The applicant was subject to total cumulative sentences of 21 years and three months imprisonment, of which he was required to serve approximately 15 years before being eligible for parole.

Respondent’s submissions

32. [32]
    The respondent submits that the sentencing judge properly had regard to the undeclarable pre-sentence custody when determining to impose a sentence of nine years and nine months for the trafficking count, without a serious violent offence declaration. Totality had limited relevance as the offences were not closely related in time and nature, and the applicant was a recidivist offender.
33. [33]
    The respondent further submits that the sentencing judge did not err in having regard to the 80 per cent requirement, consequent upon an automatic serious violent offence declaration. The applicant’s counsel at sentence submitted it would be just in the circumstances for the trial judge to set a parole eligibility date at more than halfway, conceding that a parole eligibility of 50 per cent would be a double benefit.
34. [34]
    Finally, the respondent submits that the sentences imposed were neither plainly unjust nor unreasonable. They properly reflected the applicant’s overall criminality.

Consideration

35. [35]
    The applicant pleaded guilty to serious criminal conduct. Although the trafficking period was relatively brief, it had an intensity and involved the cynical use of others in a sophisticated effort to avoid detection.
36. [36]
    A further aggravating feature of the applicant’s criminality was that it was engaged in by the applicant shortly after being released on parole for serious drug offending, in circumstances where the applicant had been afforded parole on earlier occasions, but returned to custody for various breaches of that parole.
37. [37]
    The applicant’s offending also involved separate criminality that struck at the heart of the justice system, in the form of the attempt to pervert justice count, as it involved having another falsely take criminal responsibility for drugs found in the applicant’s possession.
38. [38]
    Such offending properly attracted a substantial sentence, to be served cumulatively. However, totality was relevant when fixing the sentences, particularly in the context of determining that the overall effect of the sentences imposed was not crushing and properly reflected the applicant’s overall criminality.
39. [39]
    A consideration of the applicant’s overall criminality supports a conclusion that the cumulative sentences imposed were crushing. That had the effect of sentencing the applicant to 10 years and nine months imprisonment, to be served cumulatively on what was, effectively, nine years of actual imprisonment, with a requirement that he serve a further six years in custody prior to being eligible for parole. Such sentences did not reflect the need to consider totality.
40. [40]
    In that respect, the sentences imposed were manifestly excessive in all the circumstances.
41. [41]
    This conclusion renders it unnecessary to consider the remaining grounds of appeal.
42. [42]
    In re-exercising the sentencing discretion, it is necessary to have due regard for the fact that the sentences to be imposed in respect of both the trafficking count and the attempt to pervert justice count are properly to be served cumulatively, having regard to the distinct difference in the nature of the offending. Further, it is necessary to have regard to the fact that those sentences are required to be served cumulatively on the remaining portion of the 2012 and 2019 sentences.
43. [43]
    Those factors necessitate a moderation of the sentences to be imposed for the trafficking and the attempt to pervert justice counts.
44. [44]
    Taking into account the 565 days served on remand, which I would not declare as time served, and having regard to the overall time served in actual custody, the applicant’s criminality is properly to be reflected in an overall head sentence of nine years imprisonment.^[1] That sentence is made up of a sentence of eight years imprisonment for the trafficking count and a sentence of 12 months imprisonment in respect of the attempt to pervert justice count, to be served cumulatively on each other. The period of 12 months is a reduction of what otherwise would be asignificantly higher sentence for conduct striking at the heart of the justice system, to allow for the fact the sentence is to be served cumulatively.
45. [45]
    Those sentences are to be served cumulatively on the applicant’s existing sentences.
46. [46]
    Having regard to the applicant’s pleas of guilty and the saving of court time and resources, setting a parole eligibility date later than that provided for in the legislation is not warranted. Such a requirement would be crushing, having regard to the fact that the applicant has served almost all of the 2012 and 2019 sentences in actual custody.
47. [47]
    However, the sentences imposed for the trafficking count and the attempt to pervert justice count fully reflect the applicant’s pleas of guilty, cooperation and the time he has served in actual custody, including the time served solely on remand for these offences. No further amelioration of the sentence is warranted in the circumstances.

Orders

48. [48]
    I would order:

1. Leave to appeal be granted.
2. The appeal against sentence be allowed.
3. The sentences below on counts 1 and 7 be set aside.
4. The applicant be sentenced to eight years imprisonment for count 1 and 12 months imprisonment for count 7, such sentences to be served cumulatively on each other and cumulatively on the applicant’s existing sentences.
5. The court declares that the applicant was in pre-sentence custody for 817 days between 20 March 2020 and 14 June 2022 and declares that no time is taken to be imprisonment already served under the sentence.

49. [49]
    BRADLEY J: I agree with the orders proposed by Boddice AJA and with his Honour’s reasons.