R v Staines

In this application for leave to appeal against sentence, the Court clarifies two areas of sentencing practice: first, the scope of application of its decision in Braeckmans [2022] QCA 25 in relation to pre-sentence custody declarations; and secondly, the extent to which quasi-custody can be taken into account in fixing a sentence.

Mullins P, Dalton JA and Williams J

27 September 2022

Background

On 16 June 2022, the defendant, Mr Staines, pleaded guilty to one count of trafficking in dangerous drugs, and other drug related offending. For the trafficking, he was sentenced to three years and six months imprisonment, with a parole eligibility fixed eight months after the date of the sentence. [2]. That sentence was ordered to be served cumulatively upon a sentence imposed upon him on 7 November 2019, for which he had been given immediate parole release, and during the currency of which he had committed the subject offending. [1].

Between 16 March (when Mr Staines was arrested for the subject offending) and 24 May 2021 (when he was released on bail to a residential rehabilitation program) Mr Staines spent 70 days in pre-sentence custody. As the November 2019 sentence had expired in November 2020, this period was time served on remand for the subject offending alone.

In the learned sentencing judge’s remarks, her Honour accepted a submission from the prosecutor that the Court of Appeal decision of R v Braeckmans [2022] QCA 25 (“Braeckmans”) precluded her from declaring the 70-day period as imprisonment already served under the sentence, pursuant to s 159A Penalties and Sentences Act 1992 (“PSA”). [2], [27].

Ground of appeal

Mr Staines’ sole ground of appeal was that the sentence imposed for the trafficking was manifestly excessive. [3]. The focus of Mr Staines’ submissions advancing manifest excess was the requirement that he spend eight months in actual custody, “despite his extensive rehabilitation in quasi-custodial environments after being granted bail for the subject offences”. [20].

Reasons of the Court

Pre-sentence custody.

The Court began by observing that the prosecutor’s submission that the 70-day period was not declarable, was incorrect. [23].

The Court clarified that the issue in Braeckmans was whether the discretion under s 159A PSA could be exercised to declare pre-sentence custody as time served in circumstances where: the offender was held on remand for the subject offences, while also serving a sentence for which he had previously been parolled, and where the subject offences were committed whilst the offender was on parole for those previous offences. [24].

In those circumstances, a sentencing judge should not declare the time under s 159A, as this would circumvent s 156A PSA which directs that a sentence of imprisonment for an offence committed while a prisoner is serving a term of imprisonment must be served cumulatively upon the balance remaining of the previous sentence. [25].

The decision in Braeckmans did not apply to Mr Staines’ 70-day period, because it was not served at the same time as any part of the November 2019 sentence (which expired in November 2020). [26].

This notwithstanding, the Court found that Mr Staines was not prejudiced by that error: “[T]he 70 day period was expressly taken into account by the sentencing judge in setting the effective head sentence and the part of the sentence to be served in actual custody”. [27].

Was the sentence manifestly excessive

The second question for the Court was how time spent in quasi-custody ought to be reflected in the sentence.

Mr Staines relied upon s 9(2)(a) PSA (that a sentence that allows the offender to stay in the community is preferable) and s 9(2)(o) PSA (that it is a relevant factor that an offender had successfully completed a rehabilitation program) to submit that the applicant’s circumstances did not require a sentence that returned him to custody. [22].

In considering this submission, the Court observed that there are two aspects of residential rehabilitation which might be relevant to sentence:

- the punitive aspect of quasi custody (because of the restrictions imposed on the offender’s liberty whilst undertaking the residential rehabilitation program as a condition of bail); and

- the rehabilitation aspect (in that the program might be relevant to a favourable assessment of the offender’s prospects of rehabilitation). [21].

In the Court’s view, “[b]ecause of the serious nature of the offending, there was little, if any, scope for invoking s 9(2)(a) PSA, even taking into account the lengthy period spent in residential rehabilitation programs, and the 70 day period of pre-sentence custody”. [29].

Further, while it was relevant for the sentencing judge to take into account the rehabilitation aspect of the program under s 9(2)(o) and the punitive aspect of it under s 9(2)(r) PSA (which allows any other relevant circumstance to be considered): [29]:

- “Care must be taken … so as not to overcompensate the offender for undertaking the rehabilitation program. The punitive and rehabilitation aspects overlap, as the benefit of the rehabilitation is not obtained without the restrictions on liberty of a residential rehabilitation program”. [30].

- “There is no strict equivalence between the period spent in the residential rehabilitation programs and the reduction of the head sentence and/or the custodial component of the sentence, as it is one of many factors taken into account by the sentencing judge”. [31].

Disposition

The application for leave to appeal against sentence was refused. [34].

Z Brereton of Counsel