DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal against the severity of punishment imposed in the Gladstone Magistrates Court on 15 November 2012.

2. [2]
   The appeal is pursuant to s 222 of the Justices Act 1886 (Q).

3. [3]
   Section 222(2)(c) of the Justices Act provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive.

4. [4]
   Section 223(1) of the Justices Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the justices.  There is also provision for the admission of fresh, additional or substituted evidence in certain circumstances.

5. [5]
   Section 225(1) of the Justices Act provides that “on the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”

6. [6]
   In Teelow v Commissioner of Police [2009] QCA 84, Muir JA held at [4] referring to Allesch v Maunz (2000) 203 CLR 172 at 180-181:

“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”

Grounds of appeal

7. [7]
   The grounds of appeal are:

1. (a)
   The sentence was manifestly excessive.

2. (b)
   The co-accused was sentenced to six months probation only.  The defendant had never been subjected to supervised orders including an intensive corrections order.

8. [8]
   On oral argument these grounds were expanded to include:

1. (a)
   The Magistrate erred in failing to take into account the pleas of guilty

2. (b)
   The Magistrate erred in failing to refer to s 9(2)(a) of the Penalties and Sentences Act 1992 (Q)

3. (c)
   The Magistrate erred in dismissing various mitigating factor contained in s 9(4) of the Penalties and Sentences Act 1992 (Q).

9. [9]
   Since the matter was reserved it became clear that the Appellant had spent 4 days in pre-sentence custody from 13 February 2012 until 17 February 2012. This was not declared or taken into account. Further submissions on this topic were sought. The Appellant relied on this as a further error.

Charges

10. [10]
    The appellant pleaded guilty to the following charges:

1. (a)
   That on 13 February 2012 at Longreach in the State of Queensland she unlawfully had possession of a dangerous drug namely methylamphetamine and the dangerous drug was a thing specified in Schedule 1 Drugs Misuse Regulation 1997 and the quantity of the thing exceeded the quantity specified in Schedule 3 Drugs Misuse Regulation 1997 but less than the quantity specified in Schedule 4 Drugs Misuse Regulation 1997. This was contrary to s 9 (b) of the Drugs Misuse Act 1986 (Q)^[1].  

2. (b)
   That on 13 February 2012 at Longreach the appellant possessed electronic scales used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act namely possess dangerous drug. This was contrary to s 10(1)(b) of the Drugs Misuse Act 1986 (Q).

3. (c)
   That on 13 February 2012 at Longreach the appellant unlawfully possessed glass pipes and plastic straws she had used in connection with the smoking of a dangerous drug. This was contrary to s 10(2)(b) of the Drugs Misuse Act 1986 (Q).

4. (d)
   That between 18 March 2012 and 9 June 2012 at Longreach the appellant broke a condition of the undertaking she entered into on 17 February 2012 at the Rockhampton Magistrates Court namely reporting to the officer in charge of the Longreach Police Station and residing at 69 Crane Street.  This was contrary to s 29(1) of the Bail Act 1980 (Q).

5. (e)
   That between 11 June 2012 and 4 July 2012 at Longreach the appellant broke a condition of the undertaking she entered into on 17 February 2012 at the Rockhampton Magistrates Court namely reporting to the officer in charge of the Longreach Police Station and residing at 69 Crane Street. This was also contrary to s 29(1) of the Bail Act 1980 (Q).

11. [11]
    The appellant was sentenced to 15 months’ imprisonment on the first count with a parole release date on 24 December 2012.

12. [12]
    On all other counts the appellant received one month imprisonment with a parole release date on 24 December 2012.

Submissions below

13. [13]
    The prosecutor informed the court that at about 4.20 pm on 13 February 2012 the appellant was intercepted in a vehicle driving on the Landsborough Highway, Longreach.  She was driving the vehicle with her husband, Leigh Willersdorf in the front passenger seat.  Both occupants were detained by the police for the purpose of a search of the vehicle. 

14. [14]
    As a result of the search the police located a black makeup case on the front passenger footwell which contained a set of electronic scales and plastic straws. In the glove box of the vehicle was a black plastic case containing small clipseal bags and glass smoking pipes.

15. [15]
    In the boot of the vehicle the police located numerous clipseal bags containing a white powder substance, a light brown solid rock substance and several capsules containing a brown crystal substance.

16. [16]
    The appellant took part in the record of interview and made full admissions regarding the possession and use of the items listed. She said that she was a regular user of speed and was moving to Longreach with her husband. She did not know anyone in Longreach from whom to purchase speed and had purchased a large quantity to last her while she was in Longreach. She purchased an ounce of speed for $3,000.

17. [17]
    The defendant said she had used the electronic scales to weigh her speed before using it.

18. [18]
    She said she would use about two or three points of speed on each occasion and would weigh it so she didn’t use too much. She said she had used the glass pipes to smoke speed. She was held in custody to appear in the Longreach Magistrates Court the following day.

19. [19]
    Her date of birth was 16 March 1985 and therefore at the time of sentence she was 27 years old.

20. [20]
    The facts concerning the breach of bail condition were that on 17 February 2012 the appellant signed the Bail Act undertaking at the Rockhampton Magistrates Court to reappear on 21 September 2012 in respect of the drug charges.  There was a reporting condition each Monday, Wednesday and Friday to the officer in charge of the Longreach Police Station.  There was also a residential condition that she reside at 69 Crane Street, Longreach.

21. [21]
    Between 19 March 2012 and 8 June 2012 (the first charge) and 11 June 2012 and 4 July 2012 the appellant failed to attend to report to the officer in charge.  Checks revealed for the first period she failed to report 36 times.  Enquiries revealed she was not living at 69 Crane Street, Longreach and had moved towns without informing the officer in charge. 

22. [22]
    The appellant was located by police on 8 June 2012 near North Mackay.  She declined an electronic record of interview but stated to police that she had contacted an unknown officer at Longreach on 8 June 2012 to make enquiries to see if she could change her address. 

23. [23]
    She said she had moved from Longreach to live with her parents in Tannum Sands.

24. [24]
    A criminal history was tendered which disclosed that the appellant had the following offences:

1. (a)
   Mackay Magistrates Court 21 January 2012, contravene a requirement, possessing drugs, possessing utensils – fines imposed.

2. (b)
   Mackay Magistrates Court 28 February 2012 possessing property suspected of having been used in connection with a drug offence, possessing dangerous drugs, possessing utensils – fine and good behaviour bond imposed.

3. (c)
   9 June 2012 Mackay Magistrates Court possession utensils, breach of bail condition – conviction recorded and fine imposed.

25. [25]
    The prosecution submitted that the total amount of methylamphetamine located was 38.782 grams, the pure weight was 5.642 grams.

26. [26]
    It was submitted by the prosecution that the appellant had a previous drug history and it appeared she continued to be involved in drugs after being charged.

27. [27]
    The prosecution placed reliance on R v Armstrong [2005] QCA 116 indicated that a head sentence of 18 months’ imprisonment was sought and it was submitted that it was appropriate the defendant serve in the vicinity of four months actual imprisonment. 

28. [28]
    It was submitted the co-offender had served seven months actual imprisonment and was then ordered to serve a six month probation order.

29. [29]
    The defence submitted that the appellant was 27 years of age. She was the mother of a seven year old child who is presently attending the Tannum Primary School.  She originally lived in Gladstone until she completed year 12 and then relocated to Mackay where she was gainfully employed.  She met the father of the child but the relationship did not work.  She met her present husband about four years prior to the sentence.

30. [30]
    It was submitted that November 2011 was difficult for the appellant. Her brother committed suicide and her husband was sent to gaol because of his drug addiction. He was released on parole in February 2012. They decided to relocate from Mackay to Longreach.

31. [31]
    They had the drugs in their possession because they did not know anybody in Longreach to produce the drugs.

32. [32]
    It was submitted the appellant had never been given the opportunity of probation or grief counselling. Since she relocated from Longreach she has continued to look after her seven year old child.

33. [33]
    It was submitted that although imprisonment was within the range it would be unjust for an actual prison sentence to be imposed.

34. [34]
    It was submitted that perhaps the court might consider an Intensive Correction Order.

35. [35]
    The Magistrate said “yes but I mean an ICO’s worse basically than the prison term does your client realise that.”

36. [36]
    The defence counsel submitted that she would prefer an ICO.

37. [37]
    It was further submitted that the parity principle was relevant in that the other offender received probation although the prosecutor pointed that he had served over seven months pre-sentence custody prior to being sentenced.

38. [38]
    The criminal history of the co-offender was tendered. This showed that he had previously been convicted of drug offences and had previously received terms of probation.

39. [39]
    It was submitted that she had stayed away from drugs since she had been at home with her parents.

40. [40]
    It was pointed out there was an early plea and had been transferred from Longreach to Gladstone and it was submitted that the Intensive Correction Order should be imposed.

The Magistrates’ reasons

41. [41]
    The Magistrate in his reasons referred to a number of decisions including R v Anable [2005] QCA 208, R v Armstrong [2005] QCA 116 and R v Woods [2004] QCA 204. 

42. [42]
    He took into account that whilst there was a large amount of methylamphetamine he accepted it was not for commercial use.

43. [43]
    The Magistrate accepted the personal antecedents of the appellant and but taking into account the previous drug history a deterrent sentence was called for.

Alleged errors

44. [44]
    Turning to the so-called parity issue the Appellant did not really rely on this in oral submissions. There was good cause not to. The co-offender had served 243 days in pre-sentence custody. In those circumstances it was not possible to equate his sentence with the one to be imposed on the appellant.

45. [45]
    Turning to the plea of guilty issue, it is true that the Magistrate did not specifically mention this in his sentencing remarks.

46. [46]
    Section 13 of the Penalties and Sentences Act 1992 (Q) provides:

1. “(1)
   In imposing a sentence on an offender who has pleaded guilty to an offence, a court–

1. (a)
   must take the guilty plea into account; and

2. (b)
   may reduce the sentence that it would have imposed had the offender not pleaded guilty.

3. (2)
   A reduction under subsection (1)(b) may be made having regard to the time at which the offender–

1. (a)
   pleaded guilty; or

2. (b)
   informed the relevant law enforcement agency of his or her intention to plead guilty.

3. (3)
   When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

3. (4)
   A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court–

1. (a)
   that fact; and

2. (b)
   its reasons for not reducing the sentence.

3. (5)
   A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.”

47. [47]
    In R v Mallon [1997] QCA 58 it was held that:

“One result will be that the failure to comply with the statutory obligation will place the imposed sentence in jeopardy.  It will cause the appeal court to examine it closely since it will not clearly appear that the court has in fact taken the plea into account.”

It was noted that the judge in that case hardly overlooked the fact of the plea as it was an ex officio plea (also see R v Liddle [2006] QCA 45 at [18]).

48. [48]
    In this case it is my view that it may be inferred that because the parole release date was one month only the Magistrate took into account the pleas of guilty. He could hardly have ignored them as the defence solicitor specifically mentioned this fact.

49. [49]
    The next error is the failure of the Magistrate to refer to s 9(2)(a) of the Penalties and Sentences Act 1992 (Q). This provides:-

1. “(2)
   In sentencing an offender, a court must have regard to–

1. (a)
   principles that–

1. (i)
   sentence of imprisonment should only be imposed as a last resort; and

2. (ii)
   a sentence that allows the offender to stay in the community is preferable…”

50. [50]
    In R v Dance [2009] QCA 371 at [56] the Court of Appeal allowed an appeal on the basis that this section was not referred to at the sentence.

51. [51]
    The Respondent relied on the decision in R v Clemments [2010] QCA 38.  In that decision while the judge did not refer to s 9(2)(a) there was no basis in that case for thinking that the judge overlooked that principle.

52. [52]
    It is my view that in the present case section 9(2)(a) was overlooked. There is certainly no indication in the decision or in argument that His Honour had regard to that principle.

53. [53]
    It is my view this constitutes an error here.

54. [54]
    The appellant submitted the Magistrate erred by failing to take into account the mitigating factors here.

55. [55]
    I do not consider an error occurred in this case in that regard. It was the topic of discussion during argument and no doubt was reflected in the “low” release date.

56. [56]
    The Appellant spent 4 days in pre-sentence custody. This was not taken into account. This was an error. The Respondent has conceded this error in the further outline of submissions.

57. [57]
    Finally the parole release date on 4 of the charges exceeded the terms of imprisonment. In my view as the terms were ordered to be served concurrently with the 15 months, the parole release date related to the period of imprisonment. This was not an error.

Resentence

58. [58]
    As it is my opinion that as errors have occurred a resentencing should take place (see AB v R (1998) 199 CLR 111 at [130]).

59. [59]
    For this purpose I exercise my discretion to accept the affidavit of the appellant and the up to date criminal history of the appellant.

60. [60]
    During the hearing of the appeal the tape of Mr. Willesdorf’s sentencing hearing was played. He pleaded guilty to possession of the drug. It may be concluded as was submitted to me that both were in joint possession of the drug. The funds used to acquire it were joint funds. This fact was not made clear to the sentencing Magistrate.

61. [61]
    The appellant in her outline of submissions submits that s 9(1)(b) of the Penalties and Sentences Act 1992 refers to rehabilitation as a sentence in purpose. 

62. [62]
    She further relies on s 9(2)(a)(i) which establishes that imprisonment is to be imposed and as the last resort. 

63. [63]
    It is submitted the appellant suffered from an addiction to methylamphetamine which arose as a result of her having to deal with her emotions following the incarceration of her spouse and sudden death of her brother.

64. [64]
    It is submitted the appellant’s criminal history is relatively limited as indicative of a recent and significant drug addiction. It is submitted that the appellant has never previously been sentenced to a period of probation or an Intensive Correction Order which would provide her with the assistance she clearly needs to address her drug dependence.

65. [65]
    The affidavit of the appellant swears that since her arrest she has not used illicit substances. This was corrected during oral submissions to note that she had not used illicit substances since 9 June 2012- almost 12 months ago.

66. [66]
    It became clear to her that she would continue to get into serious trouble if she continued using. She was supported by her mother. She says that she has completely rehabilitated herself from what she was like in 2012. Her son is doing well in school, is happy and has acquired a group of friends. She and her husband had settled into a happy, stable and respectable family life in the Longreach area. Her partner, a user of drugs, has also attempted to rehabilitate himself. He is employed full time in the building industry. The appellant has been attempting to get back to work, although she has had to disclose the fact of her conviction which has made it difficult to get back to work. She has undertaken a certificate course in business communication.

67. [67]
    She says that she has changed her life for the better.

68. [68]
    Counsel for the Crown conceded in argument that in light of the fact the drugs were for the personal use of the appellant then an immediate parole release date was within range. This concession appears to be a correct one. The Crown though submitted that an actual term of custody was also within range. That is so too.

69. [69]
    In R v Kitson [2008] QCA 86 the offender was sentenced to 15 months’ imprisonment with release after six months.  He possessed 22 bags of the drug weighing a total of 2.115 grams pure.  The plea was in the week before the trial was due to commence, although a supply charge was dropped.  He had previous drug convictions and had previously breached probation.  He was sentenced on the basis that the possession was a commercial one.

70. [70]
    In R v Armstrong [2005] QCA 116 the offender received 18 months’ imprisonment.  Eight months of pre-sentence custody could not be declared.  He was 34 years of age.  The total gross weight of the drug was 24.023 grams, pure 2.711 grams.  He had previously received an Intensive Correction Order for drug offences and had an extensive history.  The drugs in that case were for his own use.  His previous convictions seemed to be instrumental in the outcome. 

71. [71]
    In R v Woods [2004] QCA 204 the offender received 12 months, suspended after four months.  3.85 grams pure was involved, although the offender had previously been sent to gaol. 

72. [72]
    In R v Sartori [2006] QCA 284 the offender received 18 months, to serve five months.  There was 10.67 grams of pure MDMA.  There was an admission of sales by the offender.  There was clearly a possession for a commercial purpose. 

73. [73]
    In R v Chinmaya [2009] QCA 227 the offender received 12 months with an immediate parole release date.  4.78 grams gross of the drug (.111 pure) was found in his room, together with 25 ecstasy tablets weighing 6.8 grams – 1.56 grams pure.  Eighty-eight tablets of MDMA, namely 23.8 grams (6.027 grams pure), were found in an adjacent room.  The appellant pleaded guilty to personal possession of the first mentioned drugs but claimed he did not know of the 88 tablets, but pleaded on the basis of s 129(d) of the Drugs Misuse Act.  He had minor previous convictions not involving drugs.  It was accepted the drugs were for his own use.

74. [74]
    Taking into account the fact that a deterrent sentence is necessary and the fact the courts must denunciate this sort of conduct, it is my opinion that 15 months’ imprisonment is the appropriate head sentence.

75. [75]
    Taking into account:

1. (a)
   the pleas of guilty

2. (b)
   the importance of rehabilitation

3. (c)
   the fact the appellant had not previously spent time in gaol

4. (d)
   the fact the appellant has not previously undergone probation or other community based orders

5. (e)
   the 4 days pre-sentence custody

6. (f)
   the principles mentioned in s 9(2)(a) of the Penalties and Sentences Act

7. (g)
   the other mitigating factors relied on by the defence

it is my opinion that an immediate parole release date be set.

76. [76]
    Accordingly my orders are as follows:

1. Appeal allowed.

2. Sentences are varied so the appellant is released on parole immediately.

3. Sentences otherwise confirmed.

4. Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q).

5. Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day.

6. If the appellant fails to do so, she will be unlawfully at large.

7. Legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).

8. Pursuant to section 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the Appellant has spent 4 days in pre-sentence custody. I declare this time to be imprisonment already served. The dates between which the Appellant was held in pre-sentence custody are 13 February 2012 and 17 February 2012.