R v HCY[2025] QCA 107

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  The applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine between 15 January and 13 June 2022 (count 1), five counts of supplying dangerous drugs (counts 2-6), possessing a relevant substance 1,4-Butanediol (count 7) and contravening order about device information from digital device (count 8).  He was sentenced in October 2024 to imprisonment for four years for count 1, six months’ imprisonment for each of counts 2-7 and eight months’ imprisonment for count 8.  He was ordered to be eligible for parole on 24 July 2026 after serving a little over 21 months from the date of sentence.  The applicant also pleaded guilty to a summary charge of possess property suspected of having been used in connection with the commission of a drug offence (a mobile telephone) for which he was convicted and not further punished.  Each of the sentences was concurrent with the others but cumulative on the unexpired term of a previous sentence imposed on the applicant of which 343 days remained to be served.
2. [2]
   There are two grounds on which the applicant seeks leave to appeal.  The first is that the sentence imposed was manifestly excessive.  The second ground that the sentencing judge erred in proceeding on an incorrect maximum penalty arose as a result of the respondent’s submissions pointing out that the statement of facts (exhibit 4) tendered by the prosecutor before the sentencing judge set out the wrong maximum penalty for the offence of trafficking.  The exhibit showed the maximum was life imprisonment when that only applied to trafficking committed after 2 May 2023.  The maximum penalty that applied to the sentencing of the applicant for trafficking was imprisonment for 25 years.

Applicant’s antecedents

3. [3]
   The applicant was 36 to 37 years old during the offending.  From 2014 he had a problem with methylamphetamine use.  His dependency escalated after the death of a close relative at the end of 2021.  He had a prior criminal history in Queensland and New South Wales.  The Queensland history comprised minor property, drug and other offending dealt with in the Magistrates Court generally by fines until a series of offences were dealt with in the Magistrates Court on 5 March 2018.  On that occasion the applicant was given probation of 18 months which was subsequently revoked on 14 February 2019 when he was re-sentenced to short periods of imprisonment at the same time he was sentenced to short periods of imprisonment for possess utensils, imposition and contravention of a domestic violence order from which he was released on parole on the date of sentence after having served 28 days in pre-sentence custody.  On 5 April 2019, he was given a wholly suspended sentence of four months’ imprisonment for stealing, possessing drugs and unlawful possession of weapons and also fined for minor drug offences.
4. [4]
   The most serious entry on his Queensland criminal history was imposed in the District Court on 3 February 2021 when he was sentenced to imprisonment for two years and 10 months for the offence of choking suffocation strangulation domestic relationship that was committed on 25 February 2020.  He was released on the day of sentence as a pre-sentence custody declaration was made in respect of 344 days spent on remand.  That offence also resulted in the suspended sentence imposed on 5 April 2019 being fully invoked to be served concurrently and for which he was also released on parole on 3 February 2021.  He was dealt with in the Magistrates Court on 24 January 2022 for stealing on 20 June 2021 for which he was fined.  On 29 August 2022 the applicant was sentenced for possessing the drugs and the utensils located on 12 June 2022 and for wilful damage that had been committed on 25 February 2022.  He was fined for these offences and ordered to pay restitution for the wilful damage.  The applicant’s New South Wales criminal history dates between 2005 and 2015 and is for minor drug offences, traffic offences and other minor offending which were mainly dealt with by fines.
5. [5]
   The report from Community Corrections dated 1 October 2024 in respect of the applicant’s response to supervision under parole between 3 February 2021 and 24 December 2022 was mixed.  He was identified as having rehabilitation needs in the areas of employment, substance abuse, mental health and as a domestic violence perpetrator.  He attended courses to address his substance abuse and domestic violence behaviours and engaged with the in-house psychologist to address mental health issues.  Four urinalysis tests between 29 April 2021 and 23 November 2022 all had presumptive positive results for benzodiazepine, methamphetamine, cannabis and amphetamines.  The further offending he committed for which he was dealt with in court on 24 January and 29 August 2022 was noted but no formal action was taken in respect of his parole order.  (Even though this report is dated after the applicant was charged with trafficking, it can be inferred that it was written without consideration of the trafficking charge for which he was not charged until at least 12 January 2023 which was after he was discharged from the parole order.)
6. [6]
   Upon his release from prison on 3 February 2021, the applicant had worked as a gardener and in disability support.  He had positive references from his partner with whom he had been in a relationship since mid-2021 and from the mother of a friend who had engaged him as a gardener and was encouraging his aspirations in disability care.
7. [7]
   Between July and October 2023, the applicant had undertaken withdrawal and detox support programs with Lives Lived Well.  He obtained a mental health care plan from his general practitioner on 25 September 2024.  For the purpose of the sentencing, the applicant underwent a urinalysis drug screen on 2 October 2024 that was negative.

Circumstances of the offending

8. [8]
   On 8 June 2022 the police seized the mobile phone of one of the applicant’s associates (the associate).  When that was examined, messages between the applicant and the associate were located in relation to supplying dangerous drugs.  As a result, on 12 June 2022 the police executed a search warrant at a unit where the applicant resided on occasion.  The police found some methylamphetamine, drug related items and a mobile phone.  The possession of the methylamphetamine and drug related items were the subject of summary charges dealt with on 29 August 2022.
9. [9]
   The police searched the phone seized from the applicant on 12 June 2022 as well as the associate’s phone which showed that the applicant was trafficking methylamphetamine at street level in the period particularised for count 1 which was approximately five months.  The full extent of the applicant’s trafficking, including his customer base, turnover, frequency of transactions and suppliers was not known because of the use of encrypted phone applications where the conversations were set to disappear or delete after five minutes.  From what could be ascertained, the applicant had about 14 customers to whom he supplied methylamphetamine and two of those customers onsold to their own customer base.  The applicant supplied quantities ranging from 0.5 g up to 7 g.  His price for 0.5 g was $200 and for 3.5 g was between $1,000 and $1,100.  His price for 7 g was between $1,800 and $2,200.  The applicant had three suppliers and would source quantities of methylamphetamine in up to ounce quantities.  The applicant’s suppliers supplied the applicant on credit and the applicant would also supply his customers on credit and allowed his customers to pay him electronically.  A video located on the applicant’s phone showed him in his car holding a large of bundle of cash and stating that it was a quick $20,000.
10. [10]
    On 12 January 2023 the police executed a search warrant at the applicant’s home and located a glass vial containing 30.78 g of colourless liquid in which 1,4-Butanediol was detected (which was the subject of count 7).  An Apple iPhone which was the subject of the summary charge before the sentencing judge was seized from the applicant.  The police instructed him to provide his passcode.  He provided police with the initial access code but a second access code was required and the applicant stated that he could not remember it.  Failure to provide the code was the subject of count 8.  Each of the supply counts (counts 2-6) was charged as a result of messages located by the police in the part of the applicant’s phone to which access was obtained.  Count 2 was the result of the applicant doing acts preparatory to supply alprazolam to another person for an unknown cost.  Counts 3-5 which were committed between 1 and 6 January 2023 related either to the supply or acts preparatory to the supply of methylamphetamine.  Count 6 was an offer to supply an unknown quantity of methylamphetamine to another person on 9 January 2023.  The applicant was charged with count 1 when he was charged with counts 2-8.  The supply counts concerning methylamphetamine were committed after the period which was particularised for the trafficking count.

Sentencing remarks

11. [11]
    In addition to summarising the applicant’s antecedents and the circumstances of the offending, the sentencing remarks included the following.  It was an early plea of guilty.  The delay in the sentencing was taken into account.  The applicant demonstrated some capacity or intention for rehabilitation in the period of the delay in bringing the matter on for sentence during which he had been on bail.  Because the trafficking was committed whilst the applicant was on parole, the sentencing judge noted that, if the applicant were sentenced to imprisonment (other than wholly suspended imprisonment), the parole would be cancelled as of 16 January 2022 and the applicant would be liable to serve 343 days and any sentence imposed on the trafficking must be served cumulatively on that period of 343 days.  Although the sentencing judge took that requirement into account, he noted that it did not mean there was an automatic discount in the sentence on that basis alone.  The trafficking was a different type of offence committed while the applicant was on parole and the requirement for the trafficking offence to be served cumulatively was “simply a consequence of [his] own criminal offending”.  It was appropriate that it be taken into account when considering the overall nature and result of any punishment imposed.  The trafficking while on parole aggravated the criminality of the applicant’s offending.
12. [12]
    It was common ground at the sentencing that a significant mitigating factor was the applicant’s cooperation with the administration of justice.
13. [13]
    [Redacted].
14. [14]
    [Redacted].

Applicant’s submissions

15. [15]
    The effect of the applicant’s submissions in this Court is that, when all factors in mitigation were considered, including the delay before the applicant was eventually sentenced during which the applicant showed positive signs of rehabilitation and was not charged with any further offences, the requirement that the applicant serve 21 months in custody before being eligible for parole meant that the sentence was neither just nor appropriate.
16. [16]
    As to the second ground of appeal, the applicant’s counsel conceded that the only reference to the incorrect maximum penalty was in the statement of facts but it had significance as it was mandatory for a court in sentencing an offender to have regard to the maximum penalty prescribed for the offence (pursuant to s 9(2)(b) of the Penalties and Sentences Act 1992).

Was the misstatement as to the maximum penalty material?

17. [17]
    The maximum penalty was not a matter on which there was any express discussion during the sentencing hearing and all comparable authorities that were relied on by the prosecutor before the sentencing judge related to trafficking when the maximum penalty was 25 years’ imprisonment.  Those authorities were R v Connolly [2016] QCA 132, R v McLean [2021] QCA 70 and R v Staines [2022] QCA 187.  The prosecutor before the sentencing judge submitted those authorities supported a range of four to five years’ imprisonment for the drug offending with a further cumulative period of six months’ imprisonment for count 8.  In respect of count 8, the prosecutor relied on Ross v Commissioner of Police (2019) 278 A Crim R 159.  The applicant’s counsel before the sentencing judge did not demur from any of the authorities relied on by the prosecutor and accepted that a head sentence of four to five years’ imprisonment was appropriate for the applicant’s offending conduct.  The focus of the submissions on behalf of the applicant before the sentencing judge was on the structure of the sentences to avoid the effect of s 156A of the Penalties and Sentences Act 1992.
18. [18]
    In R v Kelly [2018] QCA 307 the sentencing judge was informed by the prosecutor that the maximum penalty for all counts was 14 years’ imprisonment when the maximum penalty for counts 1 and 2 was 12 years and it was only for count 3 that it was 14 years.  In that case, it was held (at [10]) that a misapprehension of the maximum penalty for an offence was a material error which vitiated the sentencing decision and required consideration to be given on appeal to the re-exercise of the sentencing discretion.
19. [19]
    As there was no dispute between the parties before the sentencing judge based on applying the comparable authorities for trafficking when the maximum penalty was 25 years’ imprisonment (which was the maximum that applied to the applicant’s trafficking offence), the misstatement in the prosecutor’s written submissions as to the maximum penalty was not material in the circumstances of the sentencing of the applicant.  The applicant does not succeed on this ground of appeal.

Was the sentence manifestly excessive?

20. [20]
    The applicant argues that the sentence was manifestly excessive due to the custodial component of almost 21 months before being eligible for parole.
21. [21]
    It was apparent from the applicant’s criminal history and the Community Corrections’ report that the applicant had a problem with illicit substance abuse when he committed the trafficking offence.  He was a mature offender who trafficked in methylamphetamine for almost five months.  The sentence imposed for count 1 was at the lower end of the sentencing range supported by the authorities put before the sentencing judge.  As the sentence imposed for count 1 reflected the criminality of the applicant for all the offending for which he was being sentenced, he was effectively given a sentence a little less than four years’ imprisonment for the trafficking alone.  It was beneficial for him that the sentence imposed for count 8 was imposed concurrently rather than cumulatively.  See Ross at [43] and [60]-[63].  Because of the nature of the offence of contravening order about device information from digital device that was the subject of the observation in Ross at [43], the Court in R v Wilson [2023] QCA 132 at [34] noted there were good reasons in the circumstances of the offending in that case for the sentence imposed on that offence to be cumulative on the other sentences.
22. [22]
    As the sentencing judge recognised, it was a significant aggravating factor that the trafficking offence was committed whilst the applicant was being supervised under the parole order.  The applicant came to the attention of police on 12 June 2022 and was charged with minor drug offences as a result of the search on that date, but that did not have the effect of putting an end to the applicant’s offending conduct.  The supply offences (counts 3-7) were committed after that search (which marked the end of the trafficking period for the purpose of count 1) and therefore slightly increased the applicant’s criminality otherwise attributable to the trafficking offence.
23. [23]
    The applicant emphasised the delay between being charged and sentenced.  That was expressly considered by the sentencing judge but it also benefitted the applicant as he was able to rely on remaining offence free during that period and the activities in which he engaged during that period to demonstrate his capacity for rehabilitation.
24. [24]
    [Redacted].
25. [25]
    Just over half of the period which must be served by the applicant in custody before being eligible for parole is attributable to the cancellation on 16 January 2022 of the parole order that applied to the choking offence on the commencement of his trafficking offending, as a result of being sentenced for the subject offences.  That is a mandatory requirement that followed when the sentencing judge determined that the seriousness of the applicant’s trafficking whilst on parole precluded the imposition of a wholly suspended sentence.  The applicant also relies on the totality principle to submit that the sentence imposed on him was “crushing” in its effect, as to call for intervention in reliance on R v Degn (2021) 7 QR 190 at [11].  The effect of the sentence for the subject offences being cumulative on the outstanding period the applicant had to serve in respect of the choking offence was considered by the sentencing judge and the date fixed for the applicant’s eligibility for parole was approximately one-third of the period of imprisonment.  That could not be said to be out of proportion for a sentence imposed after a guilty plea and taking into account the requirement that eligibility for parole must relate to the period of imprisonment rather than the last sentence imposed on the applicant: s 160F of the Penalties and Sentences Act 1992.  When balancing the mitigating factors with the aggravating factors, the custodial component of almost 21 months before the applicant is eligible for parole did not make the sentence manifestly excessive.
26. [26]
    [Redacted].

Order

27. [27]
    The applicant has not succeeded on either ground.  The order which should be made is: Application for leave to appeal against sentence refused.
28. [28]
    [Redacted].
29. [29]
    BODDICE JA:  I agree with Mullins P.
30. [30]
    CALLAGHAN J:  I have had the advantage of reading in draft the reasons provided by Mullins P.  I gratefully adopt her Honour’s account of the factual circumstances, the applicant’s antecedents and the procedural history of this matter.  I have, however, reached a different conclusion.  I would have granted leave and allowed the appeal on both grounds.

A flaw in the process

31. [31]
    With commendable fairness Mr Lehane, for the respondent, drew attention to the error which is the basis for ground 2.  As Mullins P explains,^[1] the functionally relevant maximum penalty was mentioned only once in the entire proceeding.  That submission was wrong.  From that point, only two constructions of events are open.  The learned sentencing judge either:

    1. accepted and applied that aspect of the law as it was presented to him,^[2] in which case the proceedings were tainted by error, or
    2. did not consider the applicable maximum penalty at all, in which case there was a failure to comply with a statutory mandate.^[3]
32. [32]
    In the case of someone as experienced as the learned sentencing judge, there is comfortable certainty that (b) is not applicable, but it is not necessary to choose.  The inescapable inference is that, for one of those reasons or the other, the proceedings were flawed.
33. [33]
    It is true that, during submissions before his Honour, reference was made to cases in which the same maximum penalty was engaged.  I regard that as an insufficient basis on which to forgive apparent breach of a compulsory requirement.
34. [34]
    It is also true that no axiomatic consequence flows from the flaw.  However, the applicant’s liberty was at stake and more exactitude should have attended the process.  Offenders are entitled to understand that their case has been treated in the same way that Parliament intended for all cases to be treated.  There is nothing about this case to remove it from the “general rule”,^[4] which holds that careful attention to maximum penalties is required and that failure to provide it is a material error.  The objective record is one of flawed proceedings; the orders made should be quashed.  The sentencing discretion should be re-exercised.

Manifest excess

35. [35]
    That process should occur in any event because the sentence imposed was manifestly excessive.  Its “plain unreasonableness” is laid bare by reference to the period that the applicant will be required to spend in prison before he becomes eligible for parole.
36. [36]
    [Redacted].
37. [37]
    The compelling case in favour of early eligibility for parole was supported by a 21 month period of sobriety during which the applicant had re-engaged in employment.  The applicant deserves the chance to rejoin the community at a time much earlier than would otherwise have been applicable.  He should do so under supervision and expecting the parole authorities to take action if he does not take advantage of this opportunity.

Conclusion

38. [38]
    The calibration of a just sentence in this case demands application of relevant principles which were not mentioned by his Honour.  This failure is not pleaded as a specific error, and would not of itself amount to one, but the omission may explain how an excessive sentence came to be imposed.  In any event, and although I would affirm the head sentence, the applicant’s circumstances were distinctive enough to demand a different approach to the prospect of his early release.
39. [39]
    Having regard to the time that has passed since the sentence, I would have adopted Mr Bain’s submission and ordered that the applicant should immediately become eligible for parole.  My view is not shared, so it is unnecessary to consider the form of any orders.