Whyte v State of Queensland[2008] QDC 256

HER HONOUR: On the 26th of February 2008, the appellant pleaded guilty to the following three offences: firstly, that on the 17th of October 2007 at Toowoomba, she unlawfully had possession of a dangerous drug, namely methylamphetamines; secondly, that between the 1st of July 2007 and the 17th of October 2007, she, being the occupier of a place, namely 10 Blake Street, Toowoomba, did permit such place to be used for the commission of a crime defined in part 2 of the Drugs Misuse Act, namely possession of a dangerous drug; and thirdly, that on the 17th of October 2007, she unlawfully had in her possession things, namely two pipes, for use in connection with the smoking of a dangerous drug.

By pleading guilty to these three offences, the appellant was in breach of a two-year probation order which was imposed on her on the 20th of June 2007 for two drug-related offences committed on the 16th of May 2007. One was for possession of a small amount of cannabis and the other for possession of a water pipe. The two-year probation order was also the penalty imposed when an 18-month probation order which had been imposed on the 2nd of April 2007 was revoked and the appellant was resentenced for the original offences relating to that. Those original offences were, one, that on the 6th of March 2007 she had possession of a dangerous drug, namely cannabis sativa, another that on the 6th of March 2007 she had possession of a dangerous drug, namely methylamphetamine and a third that on the 6th of March 2007 she had possession of a glass pipe and three water pipes that she'd used in connection with the smoking of a dangerous drug.

For each of the three most recent offences and for the original offences for which the appellant was placed originally on probation, the Magistrate imposed sentences of four months' imprisonment, to be served concurrently. The Magistrate fixed a parole release date of the 25th of June 2008 and thereby effectively ordered that the appellant serve the whole of the term of imprisonment without any parole.

The appellant argues that although the head sentence of four months' imprisonment is within range, given the appellant's criminal history, the sentence is nevertheless manifestly excessive and the Magistrate should have ordered her immediate release on parole or, alternatively, should have suspended the term of imprisonment.

The facts of the most recent offences were placed before the sentencing Magistrate by the prosecuting police sergeant, and I will read those facts into the record from the transcript: "On the 17th of October 2007, 3.15 p.m., police executed a search warrant at 10 Blake Street, Toowoomba. Nobody was home at the time. Police went into the dwelling via an open side window, conducted the search. Located in the main bedroom, six clip-seal bags, in a bedside table, containing a clear white substance. Police located on top of this bedside table a pipe, a large of quantity of clip-seal bags in the bedroom. Identification and name of the defendant was located in the room. Located in the lounge room was a water pipe, about half a gram of cannabis and a pair of scissors. Located in the bathroom cupboard was a clip-seal bag containing a clear substance and two clip-seal bags containing sugar. At the conclusion of the search, the defendant's friend arrived and witnessed what property the police had seized. The police attempted to contact the defendant at this time where a phone went to MessageBank. The defendant was eventually contacted. She attended the Toowoomba Police Station on the 24th of October. She took part in a record of interview. She admitted she was a user of methylamphetamine however has not used for about three months, being the time she moved into her current dwelling. She stated that clip-seal bags containing the small quantity of amphetamines was only about .2 of a gram, your Honour, located in her bedside drawers; probably hers, however she cannot be certain. She said she moved the bedside drawers into her bedroom a few days earlier as it had been sitting in her garage for some time. She said she recalls seeing the clip-seal bags, was going to throw the items in the garbage but it wasn't bin night for a couple of days so she decided to wait. In relation to cannabis located, she denied any knowledge. When questioned about the pipe and water pipe located, she said that she has never used them for herself but however she keeps them for friends who come to her house and who want to smoke cannabis. She said she has never thought to throw the items out as they are expensive and she likes to think she can produce them to her friends if needed. She said she couldn't state how many times she had given these items to friends in the past three months for them to smoke cannabis. She said she was aware it was an offence to allow her friends to smoke cannabis in a dwelling, however she wanted to be a good friend by supplying the pipe when they were required. In relation to the cannabis, water pipe and scissors, apparently the defendant's boyfriend was in drug diversion in relation to those matters, your Honour."

On behalf of the appellant, the following submissions were made as factors that should be taken into account in her favour:

• That she admitted the facts alleged by the prosecution
• That she admitted the bags contained amphetamines and therefore there was no requirement for the prosecution to analyse the contents of the bags
• She was not in fact using amphetamines at the time and the bags had been in her possession for some time and she'd only recently come across them in the bedside table and intended to throw them out
• She was no longer in a relationship with the boyfriend who was a user of drugs
• She was 26 years of age
• She had finished senior at school and gone straight into the workforce
• She had married at 19 and had a child shortly thereafter
• She became pregnant again but unfortunately split up with her husband
• She's not worked since she's had the children and is now a full-time, single mother of two children aged five and six
• She has a good relationship with her parents who help her with her children
• She is willing to engage in drug rehabilitation treatment
• A lot of her drug use arises from the fact that she suffers rheumatoid arthritis in her knees and to the extent that on some days it is so bad that she cannot get out of bed
• She's not happy to take morphine-based prescribed painkillers because of the side effects and
• She sings in bands around Toowoomba during the week but is not otherwise working

A representative of the Probation and Parole Office appeared at the sentencing hearing in the Magistrates Court and the Magistrate had before him a Court report dated the 6th of December 2007 prepared by Probation and Parole Officer Rhyl Ffinch. The report indicated that the appellant had reported as directed and advised that office of any changes as they had occurred, but "However, her overall response to supervision has been unsatisfactory, as she has committed further offences on two separate occasions."

The report also stated that the appellant had been referred to ATODS but did not attend, and concluded that the appellant "clearly demonstrated a complete lack of commitment to probation and to addressing any substance relation issues". The recommendation of the Probation and Parole Office was that the probation order be revoked and the appellant be resentenced for the original offences.

In his sentencing remarks, the Magistrate described the appellant's pleas of guilty to the three most recent offences as "not early, not timely", apparently because the matters had been adjourned on a number of prior occasions. However, the matters had never been set down for trial. The Magistrate regarded her plea of guilty to the breach of probation as an early one. He noted that imprisonment would affect her young children who were five and six years of age and that the appellant herself was only 26. He referred to the appellant's "ongoing problems with your knees". As against those personal circumstances, however, the Magistrate referred to the appellant's criminal history which includes convictions for drug-related offences on the 31st of August 2006, the 26th of October 2006, the 2nd of April 2007, the 16th of May 2007 and the 20th of June 2007. And the Magistrate noted that penalties of a good behaviour recognisance for drug diversion, fines and probation had had "no determinative effect".

The Magistrate referred to the Probation and Parole Court report and stated at page 4 of the transcript of his decision, "You continue to commit drug offences. You are the prime mover of all of these offences. The offences have been for your personal gain. The prevalence of the offences, the need for a deterrent penalty, both to you and others, and the overwhelming need to protect the community generally from your persistent criminal activity, and you are being resentenced here today for breach of a previous community-based order. That is the probation order that you have squandered all attempts offered to you by the Courts to rehabilitate. You have had probation orders on probation orders and you continued to commit offences while still on a probation order. I find you are a person not suitable for further community-based orders."

The Magistrate referred generally to the "sentencing guidelines" and the sentencing options open to him and also to the principle that imprisonment is a sentence of last resort but considered that "a custodial sentence is the only real option and must be imposed". Given the appellant's criminal history, the Magistrate did not consider it appropriate to suspend any part of the term of imprisonment.

The appellant was not granted bail pending the determination of this appeal until the 24th of April 2008 and has therefore already served 59 days or approximately half of the four-month term of imprisonment. A condition of her bail undertaking was that she report to Toowoomba Police Station three days per week.

The factual basis of the offences committed on the 6th of March 2007 and the 16th of May 2007 for which the appellant was placed on probation were not provided to the Magistrate, and the respondent here concedes that this failure amounts to a miscarriage of the sentencing process. Those facts have now been placed before this Court and essentially those offences involved the appellant pleading guilty to possession of very small amounts of cannabis and having in her possession various implements such as glass pipes, bucket bongs and other instruments used for the smoking of cannabis.

Mr Davies for the appellant argues that the Magistrate failed to give adequate recognition to the appellant's pleas of guilty and that he should have done so by either fixing a parole release date or ordering a full or partial suspension of the term of imprisonment. MsMeisenhelter for the respondent argues that the pleas of guilty are adequately reflected in the head sentence of four months' imprisonment.

Mr Davies referred to the recent Court of Appeal decision of Rv Kitson [2008] QCA 86 which was a sentence appeal from a Supreme Court Judge for more serious drug offences. In that case, the original sentence was one of 12 months' imprisonment with a parole release date after serving eight months.

With respect to the principle to be applied when fixing parole release dates, Fraser JA at paragraph 17 said, "In a case such as this where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence, in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the mid-point of the head sentence is very unusual. Refer to Rv Norton [2007] QCA 320 per Douglas J. So much was not in contention in this application. If such an unusual order is to be made, in my opinion, the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it."

The Court of Appeal decision of Kitson is also authority for the proposition that where postponement of the parole release date beyond the mid-point of a sentence is contemplated, a sentencing judicial officer should advert to it and give the parties an opportunity to be heard. This was not done in the sentence of the appellant. The order made by the sentencing Magistrate in this case was an unusual order in that despite the appellant's pleas of guilty and her personal circumstances, a parole release date beyond the mid-point of the head sentence was imposed. In fact, as I've said, the parole release date was the very last day of the term of imprisonment.

For these reasons also, the sentence of the Magistrate should be set aside and this Court should exercise the sentencing discretion afresh. In this case, the appellant must be given full credit for her pleas of guilty. Regard must also be had to the fact that the newer offences involved miniscule amounts of dangerous drugs and were relatively trivial offences. Regard must also be had to the admissions to and the cooperation with the police which the appellant gave. The facts relating to the original offences for which the appellant is to be resentenced are also relatively minor, involving, as they do, very small amounts of dangerous drug and unsophisticated or crude pipes and utensils.

Weight must also be given to the appellant's relatively young age and, most importantly, to the fact that she is the sole carer of two very young children. All of these factors support a conclusion that although imprisonment is called for, the sentence of imprisonment should include a provision either for immediate release on parole or release on parole after a short period has been served. In this case, some 59 days have been served and it is appropriate, therefore, to order the parole release date for today. I will, therefore, set aside the parole release date of the 25th of June 2008 which the sentencing Magistrate ordered and fix the parole release date at the 22nd of October 2008.

So, as I understand it, that should have the effect of your client being on parole now for approximately two months.

MR DAVIES: Yes, your Honour, and just so there's absolute clarity, would your Honour also make a declaration of time served within the dates that we know that she's served on the sentence?

HER HONOUR: Yes.

MR DAVIES: Thank you.

HER HONOUR: I will make an order that the appellant has been in pre-sentence custody between the 26th of February 2008 and the 24th of April 2008, a total of 59 days, and that is imprisonment served pursuant to the original order.

MR DAVIES: Thank you.

HER HONOUR: And I'll finally make an order that your client report to the Probation and Parole Office here in Toowoomba by 4 p.m. today.

There shouldn't be any problem with that?

MR DAVIES: No, your Honour, it's just up the road, thank you.

HER HONOUR: Okay. All right. Anything further?

MSMEISENHELTER: No, thank you.

MR DAVIES: No, thank you.