R v Ponsonby[2024] QCA 229

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with the orders proposed by Callaghan J and the reasons of his Honour.
2. [2]
   The error made by the Court of Criminal Appeal that was identified in R v Hatahet (2024) 98 ALJR 863 was to accept the sentence imposed by the sentencing judge was not otherwise manifestly excessive and then reduce it by one year to overcome the statutory parole scheme applicable to Mr Hatahet and the speculation that parole was unlikely to be granted to him.  As the joint judgment of Gordon ACJ and Steward and Gleeson JJ observed at [27], sentencing does not include a consideration of the prospects of release on parole, as that is for the executive branch of government.
3. [3]
   There can be flexibility for sentencing in Queensland under the Penalties and Sentences Act 1992 (Qld).  A sentencing judge may have available two or more alternative sentencing structures in exercising the instinctive synthesis approach to sentencing in imposing an appropriate sentence for the offender’s offending and circumstances.  By way of example and without intending to limit available options where eligibility for parole would apply, a sentencing judge may consider one sentence structure where the head sentence is reduced for guilty pleas without any further mitigation of the halfway mark of the sentence at which the statutory eligibility for parole would apply.  Another sentence structure that may be considered for the same offender may not result in a reduction of the head sentence for the guilty pleas but could factor the mitigation for the guilty pleas into the setting of an eligibility for parole date at a date earlier than the halfway mark of the head sentence, such as after one-third of the sentence has been served.  Provided the sentencing judge does not stray into taking account of considerations irrelevant to the sentencing process, the decision in Hatahet does not preclude the sentencing judge’s selection of an available sentencing structure that is appropriate in all the circumstances for the sentencing of the offender.

4. [4]
   BOND JA:  I agree with the reasons for judgment of Callaghan J and with the orders proposed by his Honour.

5. [5]
   CALLAGHAN J:  The applicant entered pleas of guilty to three charges on indictment — the most serious of which alleged that he had possessed more than 200g of pure methylamphetamine — and to a number of summary offences.  He was sentenced to seven years imprisonment for the aggravated possession, which was count 1 on the indictment, and lesser terms of imprisonment for all of the other offences.  All terms of imprisonment were ordered to be served concurrently.  So too was a sentence of nine months imprisonment that had been suspended but was invoked in full.
6. [6]
   No further order was made, with the result that the applicant will be eligible for parole after serving three and a half years of the sentence imposed.^[1]
7. [7]
   The notice of appeal avers that the sentence imposed was “manifestly excessive”.
8. [8]
   That contention was not pressed.  Rather, it was suggested, when this matter was before the court on 8 May 2024, that his Honour, the learned sentencing judge, made a particular error in the course of sentencing the applicant.
9. [9]
   Specifically, leave to appeal was sought on the basis that his Honour erred when he reflected the applicant’s plea of guilty only by reducing the head sentence, rather than setting a parole eligibility date at “one third of an appropriate head sentence.”

The applicant

10. [10]
    The applicant was born in 1976 and aged 45 to 46 at the time of his offending.  He suffered a difficult childhood during which it was asserted his father was unpredictably cruel and violent.  He suffered abuse whilst at school.  He nevertheless obtained an OP 5 and qualified for university.  However, by the age of 21 he was “hopelessly addicted” to drugs.  His escalating substance abuse issues rendered him “unemployable”; that had been the case for “decades” prior to his sentence.^[2]
11. [11]
    He had, during those years, accumulated a lengthy criminal history that contained many entries for offences of dishonesty (including housebreaking and robbery) and, of course, drug offences.  He had experienced the full range of sentencing options (probation, fines, community service and suspended imprisonment).  He had, also, on numerous occasions, been required to serve periods of actual imprisonment.
12. [12]
    He was described as having a “young child” but little detail was provided.  He had the support of his mother.
13. [13]
    His own counsel adopted his Honour’s assessment of the applicant as being a “bit of a broken sparrow”.

The offending

14. [14]
    In the course of his drug afflicted lifestyle the applicant became associated with others who were conducting a business of trafficking in methylamphetamine.  Evidence suggested that the applicant had sent money to one of these individuals.  After this (in April 2021) a package was sent through the mail to the applicant’s PO Box.  It contained 373.3g of pure methylamphetamine.  In a search of the defendant, police located a small amount of methylamphetamine and cannabis as well as some scales and cash.  About six months later, whilst driving without a licence, the applicant “gave the finger” to some police officers.  This led to a search of his vehicle.  A further .5 g of pure methylamphetamine was located, along with, scales, $1,000 cash and other drug-related paraphernalia.
15. [15]
    On 9 March 2022, during execution of a search warrant at a house at which the applicant happened to be present, he was found with a very small amount of cannabis.^[3]

Mitigation

16. [16]
    There was one item of evidence that weighed in the applicant’s favour, even if slightly.  It was a report entitled “Previous Community-Based Supervision”.  Prepared on 8 May 2023, it recorded the applicant’s behaviour whilst subject to a probation order that began on  21 July 2021 and concluded on 20 July 2022.  The applicant was sentenced almost a year later, on 21 June 2023, and no more recent information of this kind was tendered.
17. [17]
    The conclusion in the report was positive, in that it was said that “based on his overall response to supervision it is deemed that he is considered suitable for further community corrections orders, if necessary, in the future.”
18. [18]
    However, this opinion was expressed, on balance, after noting that the applicant had failed to report on numerous occasions throughout the term of the order and been charged with further offences on four different occasions during its currency.^[4]
19. [19]
    The report was one in a sequence of documents tendered by the Crown Prosecutor, who was then invited by his Honour to take a seat.  It can be inferred that his Honour read these documents at that time.  The Crown Prosecutor mentioned it by noting that his Honour “[had] the benefit of that report in relation to the defendant’s engagement with (probation) or lack thereof”, to which his Honour responded “yes”.
20. [20]
    The applicant’s counsel at the sentence did not refer to the document, but it is now said to demonstrate “burgeoning signs of an intention to rehabilitate.”
21. [21]
    Otherwise, there was really very little to be said on the applicant’s behalf.  His plea of guilty was taken into account as “very timely”.^[5]  The case proceeded on the basis that this was really the only unambiguous point to be made in the applicant’s favour.  The argument in this court now focuses on the way in which this should have been reflected.

Approach to sentence

22. [22]
    The learned sentencing judge indicated his intention to take the approach referred to in R v Nagy [2003] QCA 175, rather than imposing cumulative sentences for the separate instances of offending.
23. [23]
    This issue was canvassed specifically, first with the Crown Prosecutor:

Crown Prosecutor: In my submission it’s also a matter in which given the defendant’s criminal history and his performance upon court orders that it would be open to your Honour to not set a parole eligibility date or set it at one half of the sentence as allowed by statute.

His Honour: Well it, on one view would be potentially a period sort of discount to give him a bottom in circumstances where he can’t be thought to be a particularly good parole prospect at the first opportunity. It might be safer for him it’s all taken off the top and just let the statute do the work.

Crown Prosecutor: Yes. And really, that’s where the benefit of his plea of guilty should be attached to it, in my submission, especially in circumstances…

24. [24]
    There was then this exchange with the applicant’s counsel:

His Honour: If he maintains or recovers some good health, he still has potentially a long life ahead of him.

Defence Counsel: Yes.

His Honour: Not if he keeps on the downward spiral that he’s been -

Defence Counsel: No.

His Honour: Well, it’s not – it’s “spiral” is a little generous. He’s spiralled down quite a long time ago now. He just hasn’t got above bottom.

Defence Counsel: No. And your use of that word was going to lead me to this submission ultimately, about the question of a parole eligibility date. I’d originally thought about making a submission that the Parole Board would treat any application with a fair degree of circumspection, because of his criminal history there would be [difficulties] there. So any parole eligibility date that would be set would be a difficult one for him to achieve.

His Honour: Yes. I mean my concern is if I give him – basically the only discount he’s entitled to is a plea.

Defence Counsel: Yes.

His Honour: In terms of the source. Everything else is not good.

Defence Counsel: No.

His Honour: The risk is that if I factor in an earlier than normal – the halfway release than the statutory point, to allow for that discounting effect and he doesn’t get it, then he’s deprived of about the one thing he’s got going for him.

Defence Counsel: Yes.

His Honour: Whereas if I take it at the top it’s at least locked in, that they can’t take that away from him.

Defence Counsel: No, that’s right.

His Honour: If you follow what I mean. It does seem to be the more sensible course, even – I mean I’m not sure whether he’s instructed you that he wants to take that course. Many prisoners don’t have the willpower to actually do that.

Defence Counsel: No.

His Honour: They… are unrealistic. But whether they want something or not is how I decide to sentence anyway.

Defence Counsel: Yes.

His Honour: But in terms of assessing realistically his interests, the risk of him not getting the benefit is fairly significant, I should think.

25. [25]
    When it came to sentencing the applicant, his Honour recorded his approach to this issue as follows:

His Honour: In any event, though, consistent with this being transactional, I will make sure that I discount the penalty to allow for your cooperation with the administration of justice by pleading guilty, so you know that you today will get less than you most assuredly would have otherwise.

I have been referred to a variety of decisions, as I say. I see some of them, even though they impose significant jail terms, opted for a parole eligibility date. With your bad criminal history, it is not really in your interests to do that, because the prospect of you getting parole when you first apply is by no means assured in light of your criminal history. And there is a risk that if I reward you with a discount by setting a lower than 50 per cent bottom on the sentence, that you will be deprived of the benefit of that if I use that method if you do not get parole, and as I say, in light of your criminal history, there has got to be every concern there that that is a possibility. The preferable course, and the course I intend to adopt, then, is to apply all discounting off the top, so that whatever head sentence I impose will not be accompanied by the setting of any parole eligibility date, and the rule that is in the Act that means you will be eligible to apply after 50 per cent of the time will cut in.

Now, how much one reduces what would have been a very significant sentence, even allowing for your plea of guilty, to allow for that, is not a mathematical exercise; but it needs to reflect a realistic and fair discount to make it plain that you have received the benefit of it. I can tell you now that your counsel’s end submission, about five to six years, on that mathematics, was respectfully, unrealistic. It seems to me that the reasonable outcome, applying as much discounting as is apt for someone with your background, and in all the circumstances of this case, is to get a figure of seven years, which will give you a halfway point of three and-a-half years.

26. [26]
    At the hearing of this application (on 8 May 2024) Mr Edwards KC allowed that his Honour had adopted an “orthodox approach”.  He conceded that the applicant’s “appalling criminal history… was a matter strongly in favour of the approach that his Honour took” and, he accepted, could not maintain that there was any error of principle involved.
27. [27]
    This submission was correct.  The course adopted by his Honour has, indeed, been an “orthodox approach” to sentencing in this State.  In fact, the ability to take prospects of parole into account was of critical importance in recent times, when the processing of applications was attended by notorious delay.

The King v Hatahet

28. [28]
    Since the hearing of the application, the High Court delivered judgment in R v Hatahet.^[6]
29. [29]
    Hatahet committed an offence against Commonwealth legislation.  He was sentenced pursuant to the regime established under the Crimes Act 1914 (Cth).
30. [30]
    The NSW Court of Criminal Appeal decided that the likely application of an executive practice was a relevant consideration in determining the length of an appropriate sentence.  Specifically, the expectation that parole would be refused was something which was said to warrant a reduction in the sentence.
31. [31]
    The High Court held that the Court of Criminal Appeal was wrong to adopt this approach.  Included in the court’s reasons are the following observations:

“There is a fundamental distinction between the judicial function of sentencing an offender and the executive function of determining whether an offender should be released on parole. As earlier explained, the judicial function requires consideration of both the appropriateness of a sentence of imprisonment and the appropriate length of such a sentence, including the fixing of a non-parole period where appropriate. That function is exhausted upon the making of the order which sentences the offender…

The general principle is that the prospect of securing release on parole or of obtaining remissions is not relevant to the judicial task of sentencing…

The differing and distinct functions of the judicial and executive branches, adverted to above, have also been seen to support a conclusion that the function of a judge in sentencing does not include a consideration of the prospects of release on parole.”^[7]

32. [32]
    The judgment also included this paragraph:

“As the Director submitted, the principle which prevails in New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, the United Kingdom and New Zealand is that a sentencing judge should also not take into account the likelihood of a release on parole in fixing a sentence of imprisonment.”

33. [33]
    The footnote to this paragraph contains the unanonymised citation for R v BH; Ex parte Attorney-General (Qld).^[8]  That is the only specific reference made by the court to Queensland authority, and the Director’s submission does not reflect the effect of the judgment.
34. [34]
    Nevertheless, the language of the court does not permit a conclusion that the effect of the decision ought to be confined to the Commonwealth sentencing regime.  The observations made are broad, unambiguous and apparently intended to be of general application.  When applied to this case, they foreclose the option of taking into account the irrelevant consideration of the applicant’s parole prospects.  Retrospectively, it was an error to do so.  The applicant, who was permitted to recast his argument in light of this decision, therefore succeeds in his application for leave.
35. [35]
    This court should now sentence afresh.  In doing so it will take account of the report, discussed at [12], above.  In submissions called for and received following the High Court’s decision, the applicant pressed for a sentence “in the range of eight to nine years with parole eligibility after between two years and four months and three years”.  The court confirmed, in correspondence with the parties, that if it was to proceed in accordance with such a submission that the applicant did not seek to be heard further, such that no issue of the kind identified in Neal v The Queen^[9] would be enlivened.  In the circumstances as outlined at [10]-[21] above, the submission is realistic.  There is nothing about the case that warrants adopting the approach suggested by the respondent, and delaying parole eligibility beyond one third of the head sentence.
36. [36]
    The formal orders which should be made are:

1. 1. Application for leave to appeal granted.
2. 2. Appeal allowed.
3. 3. The sentences imposed on 21 June 2023 are varied only to the following extent:

1. a. For count 1 on the indictment, “eight and one-half” is substituted for “seven”; and
2. b.The date on which the applicant is eligible for parole is fixed at 20 April 2026.