R v McPherson[2024] QCA 33

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  For the reasons given by Kelly J, I joined in the order of the Court made on 4 March 2024 refusing the application for leave to appeal against sentence.  As the reasons of Kelly J demonstrate, there may have been other ways in which the sentences could have been structured, but the applicant failed to show that the sentence that was imposed was manifestly excessive.
2. [2]
   The sentencing was complicated by the need for the Court to deal with the suspended imprisonment that had been imposed only one month before he committed the subject offences.  It is implicit in the learned sentencing judge’s explanation in the sentencing remarks for selecting a sentence of two years’ imprisonment for count 1, that the sentencing judge contemplated that, but for the activation of the suspended period of imprisonment, the sentences for counts 1 and 2 would have been cumulative.  Even though the possession of the cocaine that was the subject of count 1 was for personal use and the possession of the cannabis that was the subject of count 2 in the applicant’s possession but was being held for another, the offending of possession of both drugs was committed by the applicant at the same time which did not necessarily warrant cumulative sentences.
3. [3]
   The approach to sentencing recognised in R v Nagy [2004] 1 Qd R 63 at [39] and [66] is usually applied when sentencing an offender for a number of distinct and unrelated offences.  The approach results in fixing a sentence for the most serious offence which is higher than that which would have been fixed had it stood alone, taking into account the overall criminality, but it should not result in a sentence for the most serious offence which is outside an appropriate sentence for that particular offence.  Lesser concurrent sentences are then usually fixed for the other offences.  There is nothing in Nagy that suggests that the sentencing judge should not have imposed a separate and concurrent sentence on count 2.
4. [4]
   FRASER AJA:  I agree with Kelly J.  I also agree with the additional observations of Mullins P.
5. [5]
   KELLY J:  The applicant applied for leave to appeal against his sentence.  That application was heard on 4 March 2024.  At the conclusion of the hearing, the Court refused the application and ordered that reasons be published at a later date.  These are my reasons.
6. [6]
   On 18 May 2022, the applicant pleaded guilty to, and was sentenced in respect of, a six-count indictment which relevantly included two charges of supplying cocaine, one charge of supplying steroids and one charge of possessing steroids.  He was sentenced to a suspended term of imprisonment of 18 months, with an operational period of 3 years.
7. [7]
   On 19 June 2022, one month into the operational period of the suspended sentence, he committed further offending involving one count of possession of cocaine (in an amount excess of two grams) (“Count One”) and one count of possession of cannabis (in excess of 500 grams) (“Count Two”).  The applicant was arrested that same day and remanded in custody where he remained until being granted bail on 12 October 2022.  At that time, he had spent 116 days or 3 months and 25 days, on remand.
8. [8]
   On 7 February 2024, the applicant pleaded guilty to, and was sentenced in respect of, Counts One and Two.  In respect of Count One he was sentenced to two years imprisonment.  In respect of Count Two he was convicted but not further punished.  The whole of the suspended sentence was activated, and the two years sentence was ordered to be served cumulatively with the suspended sentence.  The applicant’s parole eligibility date was set at 6 June 2024, four months after the sentence date.  The 116 days spent in pre-sentence custody was taken into account as time already served.
9. [9]
   The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.  He contends that the sentencing judge failed to give any, or any adequate, weight to his rehabilitation and that Count Two involved a charge of constructive possession of cannabis.
10. [10]
    At the time of the subject offending, the applicant was 32 years old.  When sentenced, he was 35 years old.  He had a criminal history which began when he was 17.  In 2007, he was sentenced to a nine month term of imprisonment for an offence involving violence which he served by way of an intensive corrective order.  In 2010, he was convicted of offending involving acts intended to cause grievous bodily harm and the dangerous operation of a motor vehicle causing grievous bodily harm.  He was sentenced to five years imprisonment, suspended after 30 months with an operational period of five years.  His drug offending began in around 2010 and initially led to the imposition of fines in 2010 and 2014.  Some six years later, he committed more serious drug offending which gave rise to the six count indictment.  The two counts of supplying a dangerous drug cocaine, involved an amount of 11.492 grams of cocaine in 55.788 grams of substance and an amount of 8.875 grams of cocaine in 27.999 grams of substance.  The applicant had intended to share the cocaine with his friends at a bucks party.  A third count involved the possession of 82.8 grams of steroids for personal use.  A fourth count involved the supply of a steroid for $240.  A fifth count involved possession of a vial of a dangerous drug (trenbolone).  A sixth count involved possession of a vial of a dangerous drug (testosterone).  The head sentence was a term of imprisonment of 18 months which was wholly suspended with an operational period of three years.  On that occasion, the sentencing judge had remarked that “the way to deal with this matter is to reflect the seriousness of your offending in a head sentence that gives you the benefit of a suspended sentence”.
11. [11]
    The subject offending occurred approximately one month later, on 19 June 2022. Police intercepted a utility motor vehicle being driven by the applicant.  He was detained and observed to grasp at a container in the vehicle’s centre console.  The applicant volunteered to the police that the container contained cocaine.  Upon analysis, the container was found to contain 2.3 grams of pure cocaine amongst 2.8 grams of substance.  There were tyres in the tray of the utility which the applicant explained had been removed from the vehicle.  The police observed that the condition of the tyres was not consistent with their recent removal.  The police depressed a valve of one tyre and smelt cannabis.  The tyre was then cut open and was found to contain a cryovac bag containing 4.4 kilograms of cannabis.
12. [12]
    Before the sentencing judge, it was not in dispute that the cocaine was for personal use.  It was accepted that the cannabis did not belong to the applicant and was not his to sell.  Although the cannabis had a commercial destination, the applicant was to be sentenced on the basis that he personally was not going to benefit from its sale.
13. [13]
    The applicant’s counsel submitted that for “obvious reasons” it was not unjust to activate the suspended sentence.  The obvious reasons were identified as being that the offending had occurred very soon after the suspended sentence and was for a similar type of offending.  The sentencing judge made an order under s 147(1)(b) of the Penalties and Sentences Act 1992 (Qld) (“the PSA”), as his Honour was required to do by s 147(2) of that Act.  The applicant does not contend that any error occurred in the activation of the suspended sentence of 18 months.
14. [14]
    The sentencing judge outlined the applicant’s personal circumstances.  The sentencing judge referred to three positive references which had been tendered.  The references were from the applicant’s employer, a fellow worker and one of his friends.  Relevantly to this application, the sentencing judge said the following about the applicant’s drug use:

“I am informed that you have abused cocaine for a number of years. You, in the past, had been primarily a recreational user. You did not use any other drugs. I am informed you are now abstinent and you are regularly drug tested at work, and you have not breached any of those.”

15. [15]
    The sentencing judge considered the subject offending, expressly accepted that the possession of cocaine was for personal use and observed that the Crown accepted that the cannabis was not the applicant’s and the applicant did not stand to profit from its sale.  The sentencing remarks relevantly observed:

“… the schedule 1 drugs are the most serious drugs. You were found in possession of 2.3 grams of pure cocaine. As I have said, the maximum is 25 years, so it is a serious offence. There is a necessity to deter people from using schedule 1 drugs and to denounce the use of them. You have a series of at least two minor drug convictions and one significant drug conviction, and the serious aggravating feature, of course, is that you committed this offence one month and one day after being sentenced in this Court, which is deeply troubling.”

16. [16]
    The sentencing judge took into account a number of matters which were relevant to mitigation.  In a succinct passage, his Honour said:

“In your favour … it is a very early plea of guilty. I accept that you made admissions at the scene with respect to the cocaine. I accept that the cannabis was not yours to be sold. I also accept that the cocaine was personal use. You have a good work history and good prospects.”

17. [17]
    It is apparent from the sentencing remarks, that the sentencing judge considered that, were Counts One and Two to be viewed separately, an appropriate sentence for each count was 18 months. The sentencing remarks explained the structure of the sentence imposed as follows:

“Given that I have activated the whole of the prior 18 months sentence, counsel submit, and I accept, that there needs to be a reduction on all of the sentence due to totality. That is if we simply added the three year and a-half periods together, they would be four and a-half years, which would be plainly unjust.

It does seem to me, therefore, that the head sentences for the possession of the cocaine and the possession of the cannabis, which, in total, would add up to three years ought to, as the Crown prosecutor has submitted, be reduced to a figure of two years. Therefore, in respect of [Count One] on the indictment, you are convicted and you are sentenced to two years’ imprisonment. I have used an approach called Nagy approach, which is to convict you on [Count One], allowing for the criminality involved in [Count Two], the subsequent offence. On the second offence, you will be convicted, not further punished.

The two years is to be served cumulatively with the 18 months, making a total of three and a-half years. Now, as a consequence I must order a parole eligibility date. With respect to the parole eligibility date, you have been held in pre-sentence custody for a little under four months, three months and 25 days, 116 days. I intend to use the usual rule of thumb of a third, and a third of two years is eight months. I will give you some extra credit for a few days such that your parole eligibility date is set four months hence, which is the 6^th of June, this year, 2024. You will be made eligible for parole that day.

I am required to state you have been held in pre-sentence custody from the 19^th of June 2022 to the 12^th of October 2022. I calculate that as 116 days and declare that is time served upon the sentence that I have imposed upon you.”

18. [18]
    Some matters may be observed of that sentencing approach and structure.  The sentencing judge did not sentence the applicant by imposing sentences for Counts One and Two to be served concurrently.  The Crown, on this application, accepted that it would have been within the sentencing discretion for the sentencing judge to impose concurrent sentences.  The sentencing judge’s application of the approach in R v Nagy [2004] 1 Qd R 63 resulted in the applicant being, unusually, convicted but not further punished in respect of Count Two, which itself was a serious offence.  When fixing the parole eligibility date, although the sentencing judge adopted what his Honour described as the usual one third rule of thumb, the usual rule being reflective of credit for an early plea, the one third apportionment was applied to the two year head sentence for Count One and not to the 3 and a half years period of imprisonment which the applicant was being ordered to serve, that period being the relevant period pursuant to s 160F(2) of the PSA.
19. [19]
    The applicant did not contend that the sentencing judge committed an error in relation to the application of the principle of totality as recognised by the High Court in Mill v The Queen (1988) 166 CLR 59.  The applicant’s complaint was that the starting point for the application of the principle of totality was in error because the sentencing judge attributed a notional 18 month sentence to each of Counts One and Two.
20. [20]
    The applicant did not suggest that a sentence of 18 months was an improper or inappropriate sentence to impose in respect of Count One. Plainly, such a sentence was not inappropriate or improper having regard to the authorities to which the sentencing judge was taken, namely R v Armstrong [2005] QCA 116 at p 11 and R v Warren [2014] QCA 175 at [1], [8] and [11].  Notably in R v Armstrong, the applicant, 34 years old at the time of offending involving possession of 2.71 grams of methylamphetamine, had served nine months in custody by the time of his appeal.  The offending occurred during the term of a six month intensive correctional order for earlier drug possession offences.  Philippides J (with whom McMurdo P and Keane JA agreed) observed that a sentence of 18 months imprisonment suspended forthwith for an operational period was appropriate in the circumstances of that case.  Her Honour relevantly said, “[s]uch a sentence adequately addresses issues of deterrence, bearing in mind the custodial period already served and the heavy consequences which attend the applicant should he further offend during the remainder of the operational period”.
21. [21]
    The applicant suggested error was revealed in the sentencing judge’s identification of 18 months as an appropriate sentence for Count Two.  It was argued that the sentencing judge “made no reference to the nature of the possession of the cannabis” and failed to make allowance for the fact that the authorities relied upon by the Crown involved possession of cannabis for commercial purposes.  There is no substance in the first argument.  The sentencing remarks include more than one reference to the nature of the possession.  As to the second argument, the sentencing judge was referred to a number of authorities regarding cannabis including R v Kalaja [2002] QCA 508 which involved possession of 4.51 kilograms of cannabis purchased by an offender who was sentenced to 18 months imprisonment to be suspended after serving six months.  That was obviously a different case as the facts involved a different kind of possession.  However, in dismissing the application for leave to appeal that sentence, Jerrard JA, with whom McPherson JA and Philippides J agreed, referred with apparent approval to an earlier decision of this Court in R v Clarke [1995] QCA 111.  In Clarke this Court dismissed an application for leave to appeal against a sentence of 18 months imprisonment, suspended entirely for a period of four years, where a 32 year old had been found in possession of a bag of cannabis weighing 1.2 kilograms.  The applicant in Clarke was sentenced on the basis that he was looking after the cannabis for another unidentified person in circumstances where the applicant knew the other person intended to sell it.  Jerrard JA observed that the applicant “was not sentenced by either the original sentencing judge or this Court on the basis that he himself was to make any commercial gain from his possession of that cannabis”.  Clarke provided a yardstick in support of the primary judge’s apparent conclusion that a sentence of 18 months would have been appropriate for Count Two.  In that regard, it should not be overlooked that Count Two involved offending by a mature person with a significant criminal history engaged in within roughly a month of having received the significant benefit of a suspended sentence for drug related, serious offending.  The label “constructive” possession does not detract from the reality, demonstrated by the applicant’s plea, that he was unlawfully in possession of a significant quantity of cannabis.
22. [22]
    The applicant also argued that the sentencing judge failed to give any, or any appropriate, weight to his rehabilitation.  It may be accepted that the applicant’s noteworthy rehabilitation was a relevant consideration. The sentencing remarks acknowledged the applicant’s rehabilitation.  Relevantly, the sentencing remarks referenced the applicant’s abstinence from drugs and his successful participation in regular drug and alcohol testing, made specific note of the applicant’s references which had commended his work performance, and noted that the applicant had “a good work history and good prospects”.
23. [23]
    The applicant placed significant reliance upon this Court’s decision in R v Hawke [2021] QCA 179. What is presently noteworthy about Hawke is the recognition by Applegarth J at [105] (with whom Sofronoff P and McMurdo JA agreed) that “rehabilitation may be taken into account in different ways” but “should be reflected in more than words”.  In the present case, the sentencing judge made clear reference to the applicant’s rehabilitation.  It can be inferred from that clear language that the sentencing judge intended to give credit for the applicant’s rehabilitation.  His Honour was not obliged to give such credit in any particular way.  One aspect of the sentence structure is that his Honour applied the usual one third apportionment for an early plea but to the two years head sentence for Count One and not to the 3 and a half years period of imprisonment which the applicant was being ordered to serve.  The applicant did not contend for error in that approach.  That approach resulted in significant mitigation of the sentence in addition to the usual mitigation afforded for an early plea.
24. [24]
    To succeed on the ground that a sentence is manifestly excessive, the applicant was required to show that the sentence was unreasonable or plainly unjust such that it might be inferred that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance: R v Neto [2016] QCA 217 at [28].  It is not sufficient that the applicant merely demonstrates that another sentence might have been imposed.  Ultimately, the weight to be given to relevant considerations was always a matter for the sentencing judge in the exercise of the sentencing discretion: R v Coutts [2016] QCA 206 at [4].  In the present case, the length of the overall period of imprisonment and the amount of time required to be spent in actual custody may not have been imposed by another sentencing judge exercising the same discretion but that of itself is not an indicia of error in the exercise of the sentencing discretion.  By reference to the matters which he relied upon and argued on this application, the applicant has failed to demonstrate that there is any proper basis upon which this Court could be driven to conclude that there has been some misapplication of principle by the sentencing judge.
25. [25]
    The application for leave to appeal must be refused.