R v Herberts[2023] QSC 157

SUPREME COURT OF QUEENSLAND

1. [1]
   Ms Herberts, you appear before the Court today for breach of the suspended sentence imposed on you in this Court on 15 November 2021.  On that day, you were sentenced to 2 years and 6 months’ imprisonment for possession of methylamphetamine.  That sentence was ordered to be suspended, for an operational period of three years, after you had served 105 days.  As you had already served that 105 days by the date of the sentence, you were released from custody on that day. 
2. [2]
   I note that, in fact, you had served more than 105 days in the lead up to that sentencing hearing.  You were in custody for about 14 months all up, which came about because you had breached a parole order in relation to an earlier sentence. 
3. [3]
   It is relevant to note that the drug possession offence that you were sentenced for was possessing 5.256 grams of methylamphetamine in just under 7.5 grams of substance, and that was on the basis that you possessed the drugs for your personal use, not commercial sale or distribution.  But you were also being sentenced for other offences, including attempting to pervert the course of justice and driving dangerously and without a licence.  Given your age then, 42 to 43, and lengthy criminal history, the penalty for the drug offending was somewhat increased to account for all of your offending.  I suspended the sentence because I could only then have given you an eligibility date, because you had committed offences in breach of your parole, and there were then very lengthy delays in those applications being dealt with.  To try to balance that, I made a probation order for three years as the penalty for the other offences. 
4. [4]
   Turning to the breach, I am satisfied the breach is proven as you were convicted, on 22 December 2022, of further offences including three charges of possessing drugs, one charge of possessing money suspected of being related to drug offending and possessing certain drug paraphernalia.  For the possession offences, you were given six months’ imprisonment, with three months concurrent on the others, and immediate release on parole. 
5. [5]
   The circumstances of those offences are quite similar to the previous ones.  You were stopped in a car at 5.15 pm on 29 June 2022, which was about seven months after I sentenced you.  Thankfully, you were a passenger, not the driver.  You tried to walk away, but were stopped by the police and searched and found to have on you a small quantity of cocaine, a small quantity of methylamphetamine, 20 diazepam tablets, scales and clipseal plastic bags as well as $1800. 
6. [6]
   The magistrate sentencing you on that occasion made the observation that you had been subject of supervision on probation or parole for about three years, and it was troubling that you were still committing drug offences. 
7. [7]
   Your conduct on parole or probation has not been all that good.  You have reported as directed but you have not engaged in any meaningful substance abuse intervention.  The report says that you said that was because you had abstained from using drugs for two years, but that is plainly not correct.  You were also reported as having told them that you were continuing to engage with Dr Eshys, the psychologist, but that was not correct either, because they checked, and you had not seen that psychologist since June 2021. 
8. [8]
   On the positive side, you have been working full time since the end of January 2022 as a cook and deckhand on a trawler, and your boss, Mr Brooks, who is also a friend, speaks very highly of you. 
9. [9]
   What you really need to do, though, is stop lying to yourself and to the probation officers and engage in the programs or interventions, including with a psychologist, that are available.
10. [10]
    The question is what to do about the breach. 
11. [11]
    The starting point under section 147 of the Penalties and Sentences Act 1992 (Qld), is that the Court must order that you serve the whole of the remaining portion of the sentence – which in your case is about two years, two months and 15 days – unless satisfied that is unjust. 
12. [12]
    On one view, the fact that you have breached the suspended sentence by again possessing drugs – this time in fact possessing three different drugs, as well as drug paraphernalia and money – means it would not be unjust to order you to serve the remaining part of the sentence.  In short, you have let down your side of the bargain by committing further offences.
13. [13]
    But in considering this issue, a relevant factor is what orders regarding parole would be available to the court.  That this is a part of determining whether it is unjust to order you to serve part or all of the remainder of the suspended sentence was confirmed by Holmes JA, as her Honour then was, in R v Norden [2009] QCA 42 at [13] to [15]. 
14. [14]
    Both the prosecutor and your solicitor submitted that it was open to the court to fix the date that you be released on parole.  I was not sure that was right, which is why I took some time to think about it. 
15. [15]
    In R v Norden, at [14], Holmes JA noted that a judge acting under section 147 is not re-sentencing an offender, but dealing with them for a breach of suspended sentence. 
16. [16]
    If I make an order today, under section 147, requiring that you serve part or all of the suspended term of imprisonment, that is “imposing a term of imprisonment on an offender for an offence”, within the meaning of section 160A(1) of the Penalties and Sentences Act.  This is clear, having regard to the meaning of “impose” in section 160. 
17. [17]
    Even if I ordered you to serve the whole, section 160B of the Act would apply – because that would be a term of imprisonment less than three years and not a serious violent offence or a sexual offence. 
18. [18]
    Under section 160B(2), “if the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole”.  But otherwise, the court must fix the date for the offender to be released on parole. 
19. [19]
    You did have a parole order cancelled under section 209 of the Corrective Services Act, as a result of the conviction on 15 November 2021.  That was why, then, I could not fix a parole release date. 
20. [20]
    But the question is whether today, when I impose a term of imprisonment on you, by ordering that you serve part or all of the suspended sentence, section 160B(2) applies. 
21. [21]
    The phrase “period of imprisonment” is defined in section 4 of the Penalties and Sentences Act to mean “the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether ordered to be served concurrently or cumulatively or imposed at the same time or different times, and includes a term of imprisonment”.
22. [22]
    In my view, in cannot now be said that you have had a parole order cancelled during your period of imprisonment.  That happened in the past.  But as section 145 states, where the court makes an order under section 144 of the Act, suspending the term of imprisonment, the offender only has to serve the suspended imprisonment if they are ordered to do so under section 147.  That is, while the term of imprisonment is suspended, and until an order is made under section 147, the offender is not “serving” the term of imprisonment.  Consequently, it cannot be said, when I impose a term of imprisonment today, that there is an “unbroken duration of imprisonment”.  It has been broken, while suspended. 
23. [23]
    It follows that, in my view, section 160B(2) does not apply, and therefore I must fix the date that you be released on parole.  See also R v Newman [2008] QCA 147 at [22]. 
24. [24]
    Returning to section 147 of the Act, section 147(1)(b) provides that where the court is dealing with an offender for breach of the suspended imprisonment, the court must make an order that the offender serve the whole of the suspended imprisonment unless satisfied it is unjust to do so. 
25. [25]
    I am not satisfied it is unjust to do so, having regard to the nature of the original offending, the nature of the breaching offending, and your poor performance on the probation order.  
26. [26]
    So I will order that you serve the whole of the suspended imprisonment, which is, as I have said, two years, two months and 15 days. 
27. [27]
    However, for the reasons I have given, I will fix today as the date that you be released on parole.  I could have ordered that you serve some time in actual custody, but I am satisfied that it is appropriate to give you this opportunity, another chance, at least having regard to the fact that you have full time work which you have had since the beginning of 2022, and that you are likely to lose that if you were sent to prison today.  So I am effectively giving you another chance to engage properly with the probation and parole authorities.  But you must understand that if you breach your parole by committing further offences, you will be taken into custody.  There is no argument like we have been having today.  So it is up to you.  And I strongly urge you to take a more proactive, positive and honest approach, in your own interests as much as anything else, to your engagements with the parole authorities than you have to date.