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R v Stewart QSC 187
SUPREME COURT OF QUEENSLAND
R v Stewart  QSC 187
STEWART, Kody James
SC No 68 of 2021
SC No 87 of 2021
Supreme Court of Queensland
DELIVERED EX TEMPORE ON:
23 July 2021
22 July 2021; 23 July 2021
All of those terms of imprisonment are to be served concurrently with each other and with the sentence you are presently serving.
I fix your parole eligibility date as being 20 November 2021.
Convictions are recorded.
I declare, pursuant to s 159A(3B) the dates between which you were held in pre-sentence custody to be from 6 June 2020 to yesterday, 22 July 2021, a total of 412 days, however, I declare that only part of that time is to be taken to be imprisonment already served under the sentence, namely, from 21 January 2021 to yesterday, 22 July 2021, a period of 183 days.
CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – TIME HELD IN PRESENTENCE CUSTODY TO BE DEDUCTED – whether a recent amendment to s 159A(1) of the Penalties and Sentences Act 1992 (Qld) means that it is open to the court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand solely for the present or other offending – whether such an interpretation is an ‘unreasonable result’ as per s 14B Acts Interpretation Act 1954 (Qld) – whether in a case like the present it is appropriate to make a declaration of the kind now permitted by s 159A
CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – APPROACH TO SENTENCING PROCESS – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES – CUMULATIVE SENTENCES – GENERALLY – where the defendant was charged with evading police pursuant to s 754(2) Police Powers and Responsibilities Act 2000 (Qld) – whether as a matter of principle, an offence of this kind, if the subject of sentencing for other offending around the same era, may properly be the subject of a cumulative sentence
Acts Interpretation Act 1954 (Qld), s 14B
Justice and Other Legislation Amendment Act 2020 (Qld), s 164
Penalties and Sentences Act 1992 (Qld), s 159A(1), s 159A(3B)
Police Powers and Responsibilities Act 2000 (Qld), s 754(2)
R v Whitely  QSC 154, approved
R Boivin for the Crown
M Benn for the defendant
Office of the Director of Public Prosecutions for the Crown
Northern Plateau Legal for the defendant
- HENRY J: Mr Stewart, you have pleaded guilty to 12 offences. The most serious is a charge on the indictment of possessing a dangerous drug in excess of two grams. The other 11 offences are summary offences, including other drug offending.
- The matter was listed for sentence on the occasion the indictment was first presented, so I approach your sentence on the basis that these are early pleas of guilty and take that into account in your favour.
- The offences were committed on two days: 4 and 6 June 2020.
- On 4 June, the police came across you asleep in the driver’s seat of a stolen rental car, still running, parked by the side of the road in Woree, shortly before midnight. You were in possession of methylamphetamine in a gross amount of 6.92 grams and a pure amount of 5.231 grams, conduct giving rise to the sole count on the indictment.
- The vehicle was a stolen rental car, so you were unlawfully using it, resulting in one of the summary charges before me. You had about 0.69 grams of cannabis, which gives rise to another summary charge. You were in possession of two mobile phones, one of which had been stolen in a burglary, thus giving rise to a summary charge of receiving tainted property.
- You had possession of a billy club and a flick-knife, each of which give rise to discrete summary charges. The charge pertaining to the billy club can only be visited with a fine, so, in circumstances where much more significant penalties are to be imposed for the other offences, I propose to convict but not further punish in respect of that summary charge. You were also in possession of a glass pipe and some digital scales, possessions which also give rise to discrete summary charges.
- You were arrested and placed on bail.
- On 6 June, you were driving an SUV in Manoora. The police activated their sirens in order to intercept you. At first, you pulled over but then drove off suddenly and they lost you. This leads to a summary charge of evading police pursuant to s 754(2) Police Powers and Responsibilities Act. As a matter of principle, an offence of this kind, if the subject of sentencing for other offending around the same era, may properly be the subject of a cumulative sentence. Criminals minded to avoid the lawful intervention of police by committing an evasion offence of this type ought be deterred by the prospect of an additional penalty, not merely a penalty served concurrently with those imposed for the other offending.
- You were, on that occasion, only the holder of a learner’s permit to drive and no one was accompanying you. That gives rise to another summary offence punishable only by a fine and, for the same reason as earlier given, I will visit that misconduct with a convict but not further punish sentence.
- When the police finally located you later that day, they discovered you were in possession of 0.15 grams of methylamphetamine and that attracts a summary charge as well.
- It is a feature of the matter I take into account against you that your offending on 6 June was committed whilst on bail. Another consideration against you is that you were on parole at the time you committed these offences.
- You have a bad traffic history, a consideration which is made more than ordinarily relevant by reason of the discretion arising to disqualify you from driving for a disqualification period longer than two years in connection with the evasion offence. It is mandatory that you are at least disqualified for two years. In the end result, because of the other disadvantages you will be under on your release, I will not disqualify you for longer than that minimum period.
- You have a dreadful criminal history, containing a litany of offending, particularly since 2013. Since that time, you have had many opportunities to reform but you continue to offend. You are stuck in a cycle of offending linked with your abuse of drugs, a cycle you have repeatedly failed to break free of, even after periods of imprisonment.
- The last entry in your criminal history shows I sentenced you for trafficking back on 12 February 2019 to a period of three years imprisonment. You had at that time served 161 days of pre-sentence custody which was the subject of a declaration. The practical effect of my sentence was to sentence you to three years imprisonment with parole eligibility after 12 months. You were indeed released on parole after 12 months on or about 3 September 2019, allowing for the declaration, but, after you tested positive for methylamphetamine, you were returned to custody on or about 6 December 2019.
- You were released again on parole on 22 April 2020, so you were reoffending, committing the matters now before me within about one and a-half months of that second release. Since your apprehension on 6 June last year, you therefore have not only been on remand for the matters I am now dealing with you for but have also been serving out your sentence which I had previously imposed. The full-time expiry date thereof is 8 September 2021. The full-time expiry date, then, when reached, would represent an unbroken period of some 15 months since you entered into your present run of custody. That feature of the case is a topic to which I will return.
- There are other matters to consider in arriving at a just head sentence and a just parole eligibility date. I have alluded to the fact that you were on parole at the time. Whilst sometimes described as an aggravating feature, the circumstance that it will be taken into account in ways I will come to shortly tends to mitigate it as a significant aggravating feature and renders it somewhat more neutral.
- I am also urged to have regard to some positive signs of rehabilitation exhibited during your time in custody. It is apparent from my sentencing remarks on the last occasion that you were also then showing positive signs of a reformed attitude. That was, regrettably, a false dawn. You will then understand that material supporting a similar conclusion on this occasion, whilst, relevantly, in your favour, is not a weighty mitigating consideration.
- The materials show you are participating in a number of programmes and are waitlisted to participate in a number of other programmes whilst in custody and demonstrate you successfully completed the Straight Talk Alcohol and Other Drugs Programme. You also engaged in the Parenting Under Pressure Programme and an addictions programme entitled Helping Men Recover. It is also said that you are even more driven than you were on the last occasion when you were before me to participate in parenting your stepchild on account of the incarceration of the child’s mother.
- An exhibit more materially in your favour this time around is the report of Dr Foxcroft. It provides an explanation of a feature of your life circumstances and of your mental health that was not before me when I last sentenced you and which has some relevance in arriving at a just sentence on this occasion.
- Dr Foxcroft opines you have a clinically significant post-traumatic stress disorder and secondary substance use disorder as a consequence of your prejudicial early childhood background. That background included your parents separating when you were young and the presence of an alcoholic stepfather who engaged in regular physical violence and abuse of you and other members of the family. Dr Foxcroft also diagnoses the post-traumatic stress disorder as being a consequence of sexual offences committed against you as a child by a teacher.
- The report alludes to a number of other aspects of your background which were before me on the last occasion, for example, the breakup of a relationship, the timing of which seems to have coincided with your downward of drug and other offending since 2013. The report explains your descent into drug addiction as being part of a broader context of ongoing numbing and avoidance which started when you used cannabis and alcohol in your early teen years but worsened with the further deterioration in your lifestyle and coping mechanisms after the breakdown of the relationship to which I have referred.
- I proceed on the basis that you do suffer, as Dr Foxcroft opined, from post-traumatic stress disorder and polysubstance use disorder. To remove doubt, I also accept you were drug-dependent at the time of the offending with which I am now concerned. Your counsel, unsurprisingly, seizes upon the information in the report as being information which was not before me last time in thus urging the Court towards a lenient approach to sentencing you, notwithstanding the cycle of offending you appear to be stuck in.
- The submission, in effect, is that now you are, for the first time, prepared to speak of your childhood abuse, you will be better placed to grapple with dealing with your PTSD and secondary substance use disorder. I accept that is obviously a positive sign for you. That said, what will really matter is the steps you now will or will not take to finally address your disorders. Dr Foxcroft considers you require long-term psychotherapy for treatment of your PTSD symptoms and to deal with your underlying drug dependence. That is challenging. It is challenging enough for any person who has been drug addicted to pull out of a cycle of drug addiction and drug offending and return to a law-abiding existence. In your case, your return to a law-abiding existence – which you were once capable of – is undoubtedly made more challenging by reason of the matters referred to in Dr Foxcroft’s report.
- The matters identified in his report do, to my mind, call for some tempering of the sentence that I would otherwise impose, although you would appreciate the impact would be more merciful were you a more novice offender. The reality is you have had a lot of time as an adult to try and deal with your personal issues and the offending in which you engaged in June last year cannot be disregarded as minor. The possession offence on the indictment is particularly serious. Your mobile telephone was seized by police and its contents make it even easier to draw the inference – which was already well open and which I do draw – that the possession, whilst in part motivated by a desire for personal use, was also motivated by a commercial purpose.
- In all of the circumstances of the case, taking account of all of the mitigating features, setting aside the issue of tempering the sentence to allow for the need for a just outcome which makes proper allowance for the total overall period of unbroken imprisonment which this sentence will, by accumulation, result in, I would have favoured a total head sentence of 20 months, consisting, in particular, of 18 months for the aggravated possession and two months cumulative for the evasion offence. I would have arrived at that total, in effect, by allowing all discounting from the top and not giving you an earlier than halfway point parole eligibility period. That is to say, I would have set your parole eligibility date at the halfway point, at the 10-month mark.
- I favour the approach of discounting from the top and not really leaving much to the fate of your parole because, you have such poor form as a parolee, to discount the sentence otherwise would present too high a risk of you actually being deprived of the true benefit of the discount to which you are entitled.
- Bearing that picture in mind then, I turn to the further discounting of the sentence that would normally be appropriate in order to temper the overall total outcome, bearing in mind that this sentence will accumulate upon a long, unbroken run of custody.
- The conventional approach in such a situation is that I would moderate the sentence I would now impose in order to allow for that consideration. The ways in which it may be moderated have changed since the amendment to s 159A(1) of the Penalties and Sentences Act. That section now provides:
“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”
- Until last year, after the above words “proceedings for the offence”, there used to appear the words “and for no other reason”. Those words were removed by s 164 Justice and Other Legislation Amendment Act 2020. In R v Whitely  QSC 154, Justice Bowskill concluded, by reason of that amendment, that it is now “open to the Court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand for the present or other offending”.
- I respectfully agree that the ordinary meaning of the words of s 159A(1) as amended has that effect. Minds may differ as to whether the legislature intended to give rise to such a potential effect and whether that effect is, in the sense contemplated by s 14B of the Acts Interpretation Act, an unreasonable result. Two points may be made about that.
- Firstly, even if it were an unreasonable result, resort to extrinsic materials, as would then be allowed by s 14B, does not assist in the interpretation. It may be thought by some criminal lawyers that the amendment was calculated at dealing with the situation where an offender is sentenced in respect of only some of a broader number of offences for which the offender has been held in custody on remand. However, no support for that view is found in either the second reading or the explanatory note of the amending legislation. The second reading speech merely indicates the amendment is:
“To enhance judicial discretion and reduce complexity in relation to pre-sentence custody calculations.”
- The explanatory note merely indicates the amendment:
“[W]ill provide a sentencing Court with increased flexibility in relation to the consideration of pre-sentence custody.”
- Some faint support for the above-mentioned understanding may be found in the first reading speech, which states that the amendment is:
“To enhance judicial discretion and reduce complexity in relation to pre-sentence custody calculations, particularly where there are multiple offences that are not all before the sentencing court.”
- The latter circumstance is obviously the circumstance which some criminal lawyers perceive the amendment was intended to address. However, the use of the word “particularly” makes it difficult to conclude it was the legislature’s sole intention.
- The second point, in any event, is that the ordinary meaning given to the words of the amended section by Justice Bowskill in Whitely cannot be categorised as leading to an unreasonable result. There will, of course, be situations in which it will be inappropriate, when sentencing a prisoner, to declare time served simultaneously on remand with the time served for an earlier imposed sentence of imprisonment as imprisonment already served under the sentence being imposed.
- However, it is not inconceivable that there will be situations when it is reasonable to make a s 159A declaration, even if it does relate to time on remand served simultaneously with a term of imprisonment imposed earlier. Taking a simple example, an offender who, in a short burst of offending, commits 12 offences might be arrested and sentenced for 10 of them. Subsequently, while serving a term of imprisonment for those 10 offences, the police may belatedly charge the offender with a further two offences that were committed during the same period of offending and were well known to investigating police but were not charged earlier because of a bureaucratic delay or oversight. If those two additional offences do not materially change the overall criminality for which the offender was previously sentenced, it could scarcely be regarded as an unreasonable result that the period of imprisonment already served by the time the final two offences are the subject of a sentence, be declared to be time already served in respect of the sentence being imposed.
- The present case involves a scenario that is not new to the Court: one in which the offender is being sentenced for offences committed after the imposition of an earlier imposed sentence of imprisonment, which earlier imposed sentence of imprisonment is still running. It is trite that an offender sentenced to a term of imprisonment must serve that period of imprisonment, whether in actual custody or on parole. Where having commenced and while serving such a term of imprisonment, whether in custody or on parole, the offender commits further offences calling for punishment by sentences of imprisonment, it would, on one view, tend to undermine the sentencing purposes of deterrence and denunciation if the offender is allowed by a s 159A declaration to receive an arguably illusory punishment.
- It would be arguably illusory because it would not, in substance, be additional punishment if the punishment is taken to have been time served while the offender was serving an earlier imposed sentence which the offender was legally required to serve. At first blush, then, such a scenario may be thought to be unsuitable for a declaration of the kind now permitted by s 159A(1). However, a moment’s consideration of what otherwise ordinarily occurs in such a situation suggests that is not necessarily so.
- What would ordinarily have occurred prior to the amendment, in a case like that presently before me, is that I would have imposed a term of imprisonment to be served cumulatively upon the term of imprisonment presently being served. However I would have significantly discounted the quantum of the head sentence of that term of imprisonment and the calculation of the parole eligibility date, such moderation or tempering being appropriate, bearing in mind that the sentence will involve an accumulation upon an already prolonged period of unbroken custody. That discounting process is sometimes characterised as being a product of the totality principle. It may just as easily be explained as consistent with the process of arriving ultimately at a just sentence.
- The reality is that under that process there is, in a sense, some allowance made or credit given for the period of time during which the offender will be serving the other period of imprisonment imposed before the offender reoffended. In other words, that discounting process still gives rise to a reduction. Whatever may be said about it involving a degree of illusion or double-counting because of the service of a previous sentence being allowed for, the authorities are clear that a tempering or moderation of that kind ought occur in order to arrive at a just sentence and avoid too crushing an outcome. Thus whether in a case like the present it is appropriate to make a declaration of the kind now permitted by s 159A will invariably depend upon the circumstances of the case.
- Returning to those circumstances, I have mentioned that setting aside the consideration of a long, unbroken accumulation of custody needing to be considered and the need for consequent moderation to give rise to a just sentence, the apt sentence in total would be a total of two years with parole eligibility after 12 months. I propose to effect the relevant moderation by selecting the point at the halfway point between the date of your re-entering custody and the date of your present sentence expiring. That total period is 15 months, half of which is seven and a-half months. Seven and a-half months since you re-entered custody is 21 January 2021.
- I accordingly propose to declare the period from 21 January 2021 to yesterday, 22 July 2021, as time already served under the sentences I will impose. That is about six months. So I will reduce the total 20-month head sentence I had in mind to a total of 14 months. I will do that by reducing the sentence for the possession with circumstance of aggravation from 18 down to 12 months, which when added to the two months cumulative for evading police gives rise to the total of 14 months which I have mentioned.
- I prefer this course, that is to say, using the discretion which I have under s 159A, to the formerly prevailing methodology, because it at least preserves, for the purpose of general deterrence, a higher head sentence. Were I to use the alternative method to which I have referred, the discounting of the head sentence would need to be even greater to effect the moderation required. That is because, absent a declaration, the sentence would inevitably have to be imposed cumulatively and you would not even begin serving that sentence until much later this year.
- Because I am notionally working to a sentence start point of 21 January 2021 and intending to set a parole eligibility date at the halfway point of 20 months, that is, of 10 months, I would add 10 months to 21 January 2021, taking me to 20 November 2021 as your parole eligibility date.
- Your sentences are as follows: on the sole count on the indictment, possession of dangerous drug with a circumstance of aggravation, 12 months imprisonment; summary charge ending 169, unlawful use of motor vehicle, four months imprisonment; summary charge ending 941, possession of dangerous drugs, one month imprisonment; summary charge ending in 041, obtain property, one month imprisonment; summary charge ending 033, possession of billy club, convicted, but not further punished; summary charge ending 050, one month imprisonment; summary charge ending 050, possession of utensils for use, glass pipe, one month imprisonment; summary charge ending 068, possession of property suspected of being acquired for the purpose of committing a drug offence, clipseal bags, one month imprisonment; summary charge ending 959, possession of flick knife, one month imprisonment; summary charge ending in 157, possession of digital scales, one month imprisonment; summary charge ending 939, holder of C-class licence failing to comply with requirements, convicted, but not further punished; summary charge ending 267, possession of dangerous drugs, one month imprisonment. All of those terms of imprisonment are to be served concurrently with each other and with the sentence you are presently serving.
- In respect of summary charge ending in 882, the evasion offence, I disqualify you from holding or obtaining a drivers licence for two years and sentence you to two months imprisonment, cumulative upon the sentences you are otherwise serving.
- I fix your parole eligibility date as being 20 November 2021. Convictions are recorded. I declare, pursuant to s 159A(3B) the dates between which you were held in pre-sentence custody to be from 6 June 2020 to yesterday, 22 July 2021, a total of 412 days, however, I declare that only part of that time is to be taken to be imprisonment already served under the sentence, namely, from 21 January 2021 to yesterday, 22 July 2021, a period of 183 days.
- Published Case Name:
R v Stewart
- Shortened Case Name:
R v Stewart
 QSC 187
23 Jul 2021
- Selected for Reporting: