R v Gray[2024] QCA 250

[2024] QCA 250

COURT OF APPEAL

MULLINS P

FLANAGAN JA

BROWN JA

CA No 243 of 2024

SC No 38 of 2024

SC No 44 of 2024

THE KING

v

GRAY, Tim JustinApplicant

BRISBANE

TUESDAY, 10 DECEMBER 2024

JUDGMENT

1. [1]
   FLANAGAN JA:  On 12 November 2024, the applicant pleaded guilty to one count of possessing a dangerous drug in excess of two grams (Count 1) and two counts of possessing a dangerous drug (Counts 2 and 3).  He also pleaded guilty to one summary charge of possessing property suspected of having been used in connection with the commission of a drug offence.
2. [2]
   The applicant was sentenced to two years’ imprisonment for Count 1, with a parole release date fixed at 12 March 2025.  For Counts 2 and 3 and the summary charge, the applicant was convicted but not further punished.
3. [3]
   The effect of the sentence in relation to Count 1 meant that the applicant had to serve an actual period in custody of four months.
4. [4]
   If granted leave to appeal, the sole ground of appeal is that the sentence imposed on both the head sentence and requirement to serve actual time in custody rendered the sentence manifestly excessive.
5. [5]
   Whether a sentence is manifestly excessive is not to be decided by reference to a predetermined range of available sentences, but by reference to all of the factors relevant to sentence: R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [5] per Fraser JA.  As observed by the High Court in R v Pham (2015) 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

6. [6]
   It is evident from the consideration of the sentencing remarks that the learned sentencing judge had regard to all relevant sentencing factors in ultimately determining that a head sentence of two years with a period of actual custody of four months was appropriate.  The sentence imposed cannot be considered manifestly excessive and leave to appeal should be refused.
7. [7]
   The facts of the offending are that on the 19 June 2023 police executed a warrant at an address.  The applicant was found to be in possession of two clip seal bags containing 29.836 gross of a substance which contained 22.347 grams of methylamphetamine with a purity of 74.9%.  This constituted the offending for Count 1.  The amount of methylamphetamine possessed was more than 11 times the schedule amount.  For reasons detailed below, it was accepted by the Crown that the applicant’s possession of this amount of methylamphetamine was for personal use only and had no commercial purpose.
8. [8]
   Police also located another clip seal bag which had two tablets containing 0.647 grams of MDMA (Count 2).  Count 3 concerned another clip seal bag which contained 0.67 grams of a substance containing methylamphetamine.  The summary charge concerned the applicant being in possession of a glass pipe, electric scales and a quantity of clip seal bags.
9. [9]
   In the sentencing remarks, his Honour made reference to the following matters.  At the time of the offending the applicant was 33 years of age, and 34 at the time of sentencing.  His plea of guilty was an early plea of guilty.  His Honour considered that the degree of cooperation the applicant showed police at the time of the search warrant being executed, and his early plea of guilty, evidenced remorse on his part.  This remorse was also reflected in a letter written by the applicant to his Honour.
10. [10]
    His Honour considered that the criminality in relation to Counts 2 and 3, as well as the summary charge, should be reflected in the head sentence for Count 1.  This was achieved by his Honour convicting but not further punishing in relation to Counts 2 and 3 and the summary charge.
11. [11]
    His Honour, in imposing the sentence of two years’ imprisonment in relation to Count 1, proceeded on the basis that the methylamphetamine was possessed by the applicant for his personal use.  As was evident from the applicant’s criminal history, he had struggled with drug use for approximately seven to eight years prior to the offending.  At the time of the offending he was using one and a half to three and a half grams of methylamphetamine a day.  The amount of drug he was found to be in possession of for Count 1 was approximately one to two weeks’ supply for personal use.
12. [12]
    His Honour noted that the applicant had five entries in his criminal history consisting of 11 charges, 10 of which were related to possessing dangerous drugs or drug utensils.  He had been dealt with in the Magistrates Court at Proserpine on four different occasions in 2017, 2019, 2021 and 2022.  These offences involved small amounts of methylamphetamine, MDMA and cannabis.  The applicant had had the previous benefit of a good behaviour bond, drug diversion and fines.  No convictions had, however, been recorded in the Magistrates Court at Proserpine.  He had also been dealt with in the Magistrates Court at Mackay for a breach of bail in June 2024.  Again, no conviction was recorded.
13. [13]
    Having noted that the maximum sentences for Count 1 was 25 years, for Counts 2 and 3, 15 years, and for the summary charge, two years, his Honour proceeded on the basis that while there was some evidence of heavy drug use, that evidence did not persuade his Honour to conclude that on the balance of probabilities that the applicant was drug dependant at the time of the offences.  The sentencing, therefore, proceeded on the basis that the maximum sentence for Count 1 was 25 years.
14. [14]
    His Honour accepted that the applicant had taken steps to rehabilitate himself.  He had completed a nine-session course with Drug Arm in which he had undertaken counselling.  The applicant had one session via telehealth on 7 November 2024 with a psychologist, with another session booked for 21 November 2024.  There was evidence that he had abstained from drug use for more than six months from May to November 2024, having undertaken 26 drug tests.  While the sentencing judge accepted there was evidence of rehabilitation, his Honour regarded the applicant’s rehabilitation as being “a work in progress”.  His Honour acknowledged the difficulties of rehabilitation when a person has a background of heavy drug use of such an addictive drug.
15. [15]
    His Honour referred to the possession of a schedule 1 drug in such quantities as constituting serious offending.  His Honour considered that even possession for personal use of such a quantity is serious offending which calls for a stern response.  As I already observed, the quantity of methylamphetamine possessed for Count 1 was more than 11 times the schedule amount.
16. [16]
    His Honour took into account the fact that the applicant was gainfully employed.  He was a qualified electrician, and had been working at the same mine for the last three years.  His Honour noted a reference from the applicant’s employer which was supportive.  His Honour also observed that the applicant was in a relationship with a supportive partner who was understanding of the applicant’s difficulty with drugs.  His Honour noted, however, that the applicant was a mature person.
17. [17]
    Before his Honour, the Crown sought a head sentence of two years with a parole release date set at slightly less than one third.  The defence submission was that a head sentence of two years for Count 1 be wholly suspended with an operational period of two years.  At sentence, his Honour was informed that there was no dispute as to a head sentence of two years having regard to the quantity of drug.  Defence counsel made the following submission in relation to the appropriate head sentence:

“There are many Court of Appeal authorities which support 18 months imprisonment with respect to lower quantities of dangerous drugs.  In the circumstances, I’m not actively seeking a period of 18 months imprisonment… it’s my submission, two years as a head sentence is appropriate.”

In light of this submission, it is entirely understandable why his Honour identified the issue as being the structure of the sentence in respect of the applicant’s release.

18. [18]
    While the parties’ submissions at sentence neither expand nor confine a judge’s sentencing discretion, it is incumbent on the applicant to demonstrate error.  Such error is not established by reference to four single judge decisions in which no actual time in custody was imposed.
19. [19]
    His Honour was of the view that a parole release regime was to be preferred to a suspended sentence.  This was because a parole regime would help reinforce the applicant’s steps towards rehabilitation.  His Honour also considered that immediate release on parole would not adequately reflect the seriousness of the offending and the need for not only personal deterrence, but also general deterrence.
20. [20]
    By reference to all of the above considerations, his Honour arrived at a head sentence of two years with a parole release date fixed at 12 March 2025, which was half of eight months, which would have reflected one-third of the two-year head sentence.
21. [21]
    His Honour was urged, however, to give primacy to the applicant’s rehabilitation and to structure a sentence that allowed the applicant to remain in the community: see s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld).  Defence counsel could not, however, assist his Honour with any authority where an appeal against sentence had been successful in circumstances where a mature person had been found in possession of a substantial quantity of drugs, albeit for personal use, and had been sentenced to serve some period of actual imprisonment.  Nor has this court been referred to any such appellate authority.
22. [22]
    The applicant submits that short terms of imprisonment are problematic, both in a general sense and particularly in the present circumstances.
23. [23]
    It is further submitted that the short term of imprisonment in the present case “grossly undermined” the applicant’s rehabilitation in circumstances where he enjoyed strong protective factors and supports.
24. [24]
    There are circumstances in which a short term of imprisonment will not be justified.  In R v Illin [2014] QCA 285 at [27], Fraser JA, with whom Morrison JA and Henry J agreed, considered that where an applicant had been substantially successful in their efforts at rehabilitation over a period as long as three years, any need to deter the applicant from future offending was not a significant factor and could not justify any period of actual custody.
25. [25]
    R v Illin is distinguishable from the present case, where the sentencing judge considered that the applicant’s rehabilitation was a “work in progress”.
26. [26]
    The sentencing judge took into account all of the relevant sentencing principles and circumstances.
27. [27]
    No error has been demonstrated.

Disposition

28. [28]
    I would propose that the Court order that the application for leave to appeal be refused.
29. [29]
    MULLINS P:  I agree with Justice Flanagan.
30. [30]
    BROWN JA:  I also agree with Justice Flanagan.
31. [31]
    MULLINS P:  The order of the Court is the application for leave to appeal is refused.  We will adjourn.