George v Queensland Police Service
[2015] QDC 163
•26 June 2015
DISTRICT COURT OF QUEENSLAND
CITATION: | George v Queensland Police Service [2015] QDC 163 |
PARTIES: | RYAN DAVID GEORGE |
FILE NO/S: | 4732/14 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 26 June 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 May 2015 |
JUDGE: | Farr SC DCJ |
ORDER: | 1. The appeal is allowed and the sentences imposed in the Brisbane Magistrate’s Court on 27 November 2014 are set aside. 2. The appellant is sentenced as follows: · On the charge of possessing dangerous drugs, schedule 1, quantity of or exceeding schedule 3 but less than schedule 4: 14 months 10 days imprisonment; · On each of the six charges of possessing dangerous drugs: 2 months imprisonment; · On each of the two charges of possessing dangerous drugs schedule 1: 3 months imprisonment; · On each of the two charges of failing to dispose of a needle or syringe: 1 month imprisonment; · On each of the two charges of possess utensils or pipes etc. that had been used: 1 month imprisonment; · On each of the two charges of possess property suspected of having been used in connection with the commission of a drug offence: 1 month imprisonment; · On each of the four charges of receiving tainted property: 3 months imprisonment; · On the charge of breach of bail condition: convicted and not further punished; · On the charge of bringing stolen goods into Queensland: 9 months imprisonment; · On the charge of unlawful possession of suspected stolen property: 1 month imprisonment; · On the charge of unlawful use of a motor vehicle: 1 month imprisonment; and · On the charge of stealing: 1 month imprisonment. 3. All terms of imprisonment are to be served concurrently. 4. I order the appellant be released on parole immediately, that is, his parole release date is 26 June 2015. 5. The appellant must report to a parole officer on 26 June 2015 or on the next business day and failure to do so may render the appellant being unlawfully at large and liable to arrest and return to custody. |
CATCHWORDS: | APPEAL - s 222 Justices Act 1886 – where the appellant submitted that the sentencing discretion miscarried – where the appellant was previously sentenced to a term of imprisonment in New South Wales - where leave given to adduce fresh evidence – where the magistrate erred in imposing identical sentences for each offence– where the appellant submitted that the sentences imposed on him were disparate to the sentences imposed on his co-accused- where the magistrate did not adequately consider the parity principle - where the magistrate did not consider time spent in custody for the New South Wales offending –where the applicant had undertaken significant rehabilitation over a substantial period of time. Justices Act 1886 (Qld) Duncan v R (1983) 47 ALR 746 |
COUNSEL: | Mr A M Christie for the appellant |
SOLICITORS: | Aitken Whyte Lawyers for the appellant |
This is an appeal pursuant to s 222 of the Justices Act 1886 (“Justices Act”) against sentences imposed after the appellant pleaded guilty in the Brisbane Magistrates Court on 27 November 2014 to the following charges:
· 6 x possessing dangerous drugs;
· 2 x possessing dangerous drugs, schedule 1;
· 1 x possessing dangerous drugs, schedule 1, quantity of or exceeding schedule 3 but less than schedule 4;
· 2 x failing to dispose of a needle or syringe;
· 2 x possess utensils or pipes, etc. that had been used;
· 2 x possess property suspected of having been used in connection with the commission of a drug offence;
· 4 x receiving tainted property;
· 1 x breach of bail condition;
· 1 x bringing stolen goods in Queensland;
· 1 x unlawful possession of suspected stolen property;
· 1 x unlawful use of a motor vehicle; and
· 1 x stealing.
On each charge, with the exception of the charge of unlawful possession of suspected stolen property, he was sentenced to 18 months’ imprisonment with a parole release date after he had served 4 months. Three days’ presentence custody was declared as time served under that sentence.
The appellant has submitted that both the head sentence of 18 months’ imprisonment and the 4 month period of actual imprisonment are excessive and that the sentencing discretion miscarried.
Background
Relevantly, the appellant was sentenced to a term of imprisonment in the Lismore District Court on 11 September 2014 after he pleaded guilty to a charge of break, enter and steal. He was sentenced to 2 years 3 months’ imprisonment dating from 12 October 2013 with a non-parole period of 11 months also commencing from that date. He was therefore effectively released on the day of sentence. That offence occurred on 19 March 2013.
The appellant has both a Queensland and New South Wales criminal history. It starts in 2005 in New South Wales when he was convicted of two driving offences for which he was sentenced to a 9 month good behaviour bond. On 23 March 2007 he was convicted in the Brisbane Magistrates Court of failing to appear in accordance with an undertaking. He was convicted and not further punished. Three days later he was sentenced in the Lismore Local Court for a traffic offence for which he was fined. In July 2007 he was convicted of an offence occurring in December 2006 of driving whilst under the influence of alcohol or drugs and was sentenced to a term of 9 months’ imprisonment wholly suspended upon entering into a bond. He next appeared in court on 6 February 2009 for an offence of contravening a direction or requirement and was sentenced to a good behaviour period of 3 months. Then, on 26 November 2012 the appellant was sentenced to a 6 month good behaviour period for a charge of possession of a knife in a public place. Whilst subject to that order, he committed four offences in New South Wales of “goods suspected of being stolen in/on premises (not MV)” and was sentenced in the Lismore Local Court on 20 October 2014 where he was convicted and not further punished. Whilst subject to that 6 month good behaviour bond, the appellant committed drug and drug‑related offences and an offence of contravene a direction or requirement for which he was convicted in the Brisbane Magistrates Court on 29 November 2013 and was placed on a $150 4 month good behaviour bond.
Of the offences the subject of this appeal, the two offences committed on 20 January 2014 of receiving tainted property and failing to properly dispose of a needle and syringe were committed in breach of the 4 month good behaviour bond imposed on 29 November 2013. The seven offences committed on 17 January 2013 were committed in breach of the 6 month good behaviour bond imposed on 26 November 2012.
Circumstances of offences in respect of which the appeal is brought
The offences can be categorised into groups by date of offending.
Overview of offending committed on 17 January 2013
On 17 January 2013, during a search of a car being driven by the defendant, police found a bag containing 32g of cannabis, five clip-seal plastic bags containing 0.628g of substance where heroin was detected, three alprazolam tablets, six diazepam tablets, a syringe and needle, a glass pipe, a quantity of empty clip-seal plastic bags, a set of scales and a silver spoon. He declined to participate in an interview and was released on bail after being charged.
It should be noted that the conviction the appellant received in the Brisbane Magistrates Court on 29 November 2013 related to offences committed after he was released on bail for the offending which occurred on 17 January 2013. It is not known why the 17 January offences were not dealt with at the same time, but totality of sentence has been raised as a relevant issue in relation to this appeal.
Overview of offending committed on 28 May 2013
Whilst on bail, a car being driven by the defendant was again searched and he was found in possession of 64g of cannabis, together with needles and syringes. He was charged and released on bail.
Overview of offending committed on 3 June 2013 – offences committed with co-offender Hoey
On 2 June 2013 the appellant and his co-offender (and then girlfriend) Kerry-Anne Hoey checked into the Kangaroo Point Hotel. The next day, the hotel manager noticed the appellant and Ms Hoey trying to cover the number plates on their car, and he contacted police.
The vehicle was a rental car from Lismore. It had not been returned to the rental company and was several days overdue. A search of the car revealed a number of clip-seal plastic bags containing a total of 6.333g of substance, comprising 4.522g of pure methylamphetamine (amounting on average to 71.15% purity). A further two clip‑seal plastic bags containing 0.896g of substance comprising 0.045g of methylamphetamine (4.2% purity) and 0.016g of amphetamine (1.7% purity) were located. Police also found 43g of cannabis, a pipe and vacuum sealers.
The appellant was charged for these offences and again released on bail.
Overview of offending on or about 15 June 2013
On or about 15 June 2013 the appellant brought into the State of Queensland a large amount of property that was stolen from various addresses in New South Wales. This property included two laptops, portable devices, hard drives, a statue, other electronic equipment and documents. The total value of that property amounted to $10,750.
Overview of offending on 16 June 2013 – offences committed with co-offender Hoey
On 16 June 2013 the appellant and his co-offender Hoey again checked into a hotel in Brisbane. Hotel management contacted police due to the suspicious behaviour of the appellant and his co-offender as the number plates had been removed from their car. Police conducted a search of their unit and found them to be in possession of a number of schedule 1 and schedule 2 drugs.
Those drugs included two tablets containing 4-Bromo-2,5-dimethoxyphenetylamine (2C-B), 0.806g of substance containing heroin and one tablet containing 4-methylmethcathinone. They were also found to be in possession of a large quantity of tainted property including a MacBook laptop computer, a Canon camera, an iPhone 4 and four credit cards. The appellant was also charged with stealing number plates.
The appellant was also found to be in possession of two phones and a phone charger, although the owner of those items could not be identified. He was charged with the offence of unlawful possession of suspected stolen property in relation to those items.
The appellant was again released on bail after being charged for these offences.
Overview of offending between 25 June 2013 and 8 October 2013
The appellant failed to report to the nominated police station as required by the bail undertaking he entered into on 15 July 2013.
Overview of offending in January 2014
Whilst on bail for all of the above mentioned offences, the appellant received $100 from his co-offender Hoey, and had reason to believe at that time that the money was obtained from illegal activity, namely soliciting sexual acts. Hoey had obtained that money from a proposed customer never intending to provide sexual services. She faced one charge of fraud and one charge of trespass for that offending and was convicted on 10 February 2014 and sentenced to 23 days’ imprisonment.
When police searched the premises they also found the appellant to be in possession of a used syringe which he had failed to dispose of properly.
Standard to be met on appeal
An appeal is by way of rehearing on the evidence given in the proceeding below.[1]
[1]Section 223(1) Justices Act 1886.
A judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witness give evidence, but the judge is required to review the evidence to weigh the conflicting evidence, and to draw his or her own conclusions.[2] Of course, this matter proceeded by way of submissions only and no witnesses were called to give evidence.
[2]Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17].
Under s 223(2) of the Justices Act, the Court may give leave to adduce fresh evidence if the Court is satisfied that there are special grounds for giving such leave. In this matter, an application to adduce fresh evidence was made by the appellant and not opposed by the respondent. The application was allowed without the necessity for submissions, it being accepted by the respondent that special grounds existed. The additional evidence is:
(a) a transcript of the sentencing judge’s remarks in the District Court at Lismore on 11 September 2014;
(b) two pathology reports indicating that the appellant had no trace of illicit substances in his urine when samples were taken on 28 January 2015 and 10 February 2015;
(c) two references from the appellant’s current employer dated 12 March 2015 and 19 May 2015; and
(d) a psychologist’s report dated 13 March 2015.
Antecedents of appellant and co-offender
The appellant was 28 and 29 years old when he committed the subject offences. He was educated to a year 10 level and is in steady employment. He voluntarily undertook and successfully completed a six-month residential drug rehabilitation program after serving 24 weeks and 4 days in presentence custody in New South Wales prior to being sentenced on 11 September 2014. A psychologist’s report from that service speaks highly of his efforts whilst at that facility and he is regarded as being a success in dealing with his drug problems.
He took up heroin relatively late in life and quickly became addicted. That addiction was not helped by the fact that he commenced a relationship with Kerry-Anne Hoey, who was also a heroin addict.[3]
[3]Transcript p 1-22 line 12 to p 1 – 38.
As indicated above, Ms Hoey was a co-offender on some of the charges that are the subject of this appeal. She was 25 years of age at the time of offending.
Her criminal history started on 22 August 2005 where she was convicted and fined in the Redcliffe Magistrates Court for some minor drug offences, including possessing dangerous drugs. In September 2005 she was convicted and fined for contravening a direction or requirement. Shortly after those sentences were imposed she was found in possession of a dangerous drug and utensils or pipes and was convicted and fined on 20 October 2005. She was further convicted that year for the offence of wilful damage and for a trespass offence and was again fined.
She next appeared before a court on 17 January 2013 for two charges of possessing dangerous drugs, one charge of failing to take reasonable care and precautions in respect of a needle or syringe and one charge of possess utensils or pipes for use and she was placed on a $500 9 month good behaviour bond.
She was convicted on 10 February 2014 of one charge of trespass, 2 x breach of bail condition and fraud and was sentenced to 23 days’ imprisonment, with 23 days’ presentence custody being declared as time served under that sentence. Some of those offences were committed with the appellant. She then appeared on 29 August 2014 in the Brisbane Magistrates Court for the remaining offences she committed in conjunction with the appellant, they being 1x unlawful use of a motor vehicle, 1x possess utensils or pipes etc. that had been used, 1x possess dangerous drug, 1x possess property suspected of having been used in connection with commission of a drug offence, 3x receiving tainted property and 1x possess dangerous drug, schedule 1, quantity of or exceeding schedule 3 but less that schedule 4. She was sentenced to 9 months imprisonment for the last of those charges and concurrent terms of 1 month imprisonment on the other charges. Three days pre-sentence custody was declared and she was released on immediate parole.
Ms Hoey also has a New South Wales criminal history which does not appear to have been tendered on either her sentence or at the appellant’s sentence. No objection has been taken to this court receiving that criminal history and leave is accordingly given. That history contains an offence of larceny on 8 march 2013 for which she was fined $300. Then on 11 August 2014 she was convicted of four charges of goods suspected stolen in/on premises (not M/V) from 21 March 2013 for which she received a 15 month good behaviour bond. Finally, on 17 October 2014 Ms Hoey was convicted in the Lismore District Court for the offence of aggravated break and enter and commit serious indictable offence between 12 and 13 March 2013. This Court has not been informed of the penalty that was imposed.
Grounds of appeal
The grounds of appeal are:
(a) the sentence imposed was manifestly excessive; and
(b) the discretion of the sentencing magistrate miscarried.
Is has been submitted that the sentencing discretion miscarried when the magistrate:
(a) imposed the same penalty for all offences without objective consideration of the seriousness of each offence;
(b) failed to give any or any adequate consideration to issues of parity between the appellant and Mrs Hoey; and
(c) failed to give any or any adequate consideration to issues of totality.
Imposition of the same penalty for all offences
Although the learned magistrate acknowledged that an individual sentence needed to be imposed for each offence, he considered that he could appropriately impose a head sentence of 18 months’ imprisonment on each of the offences without necessarily considering the objective seriousness of each offence. His Honour reasoned that as he took the view that a head sentence of 18 months’ imprisonment was appropriate, it was futile to impose lesser terms of imprisonment for the other offences given that they were all to be served concurrently.[4] The effect of this is that the magistrate imposed the same sentence for each offence without considering its objective seriousness and without exercising any discretion as to what would be the appropriate sentence for each offence. In other words, he failed to approach the issue judicially and did not exercise the discretion demanded of a judicial officer.
[4]Transcript p 1-29 lines 13-41.
There is no doubt that his approach is contrary to authority.[5] It is also contrary to the provisions of s 9(1) & (2) of the Penalties and Sentences Act 1992. The respondent does not submit to the contrary, and concedes that the sentencing discretion miscarried by virtue of an error of law and that this court should exercise this discretion afresh.
[5]Pearce v R (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at 624.
I note however that the magistrate did appear to objectively assess the seriousness of the charge of possessing dangerous drugs, schedule 1, quantity of or exceeding schedule 3 but less than schedule 4, in determining that a head sentence of 18 months’ imprisonment was appropriate. It was correctly identified during submissions in the court below that that charge in the context of the appellants overall criminality, was the most serious of the charges and it was with reference to that charge that the magistrate specifically determined that a sentence of 18 months imprisonment with a parole release date after four months was appropriate in all the circumstances. In other words, I do not perceive that the magistrate imposed the sentence for that charge for the simple purpose of conformity with the other sentences.
Parity
The appellant has submitted that the sentences imposed on him are disparate to the sentences imposed on Ms Hoey and that the magistrate failed to adequately take into account considerations of parity.
The general principle in relation to parity considerations was enunciated by Gibbs CJ in Lowe v The Queen[6] where his Honour stated:
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason and logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive.”
[6](1984) 154 CLR 606 at 609.
His Honour continued at page 610 to say:
“The reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”
Whilst Ms Hoey was sentenced for only eight offences committed with the appellant, one of those was the serious charge of possessing dangerous drugs, schedule 1, quantity of or exceeding schedule 3 but less than schedule 4. She did not breach court orders in the commission of those offences although she did breach bail conditions for some. In my view, their respective criminal histories are very much on par with each other.
There were significant aggravating features in the appellant’s case that were absent in Ms Hoey’s case, including the fact that for all of his offending he was in breach of numerous bail orders, as well as being in breach of a number of good behaviour bonds.
The magistrate turned his mind to the issue of parity and specifically referred to this consideration during the course of his remarks.[7] He specifically indicated that he had considered parity as far as it was relevant and he also considered that their criminal histories were not so far disparate as to create a difference in penalty, but in terms of the offending, the magistrate decided that the appellant was deserving of more serious punishment due to the matters outlined above. In my view the magistrate’s assessment in that regard is correct, notwithstanding that he did not have Ms Hoey’s New South Wales criminal history at the time.
[7]See transcript p 1-12 lines 4-6; p 1-26; p 2 of the decision, lines 19-38.
It is apparent from this reasoning that the magistrate did not consider all things were equal between the appellant and Ms Hoey and that different sentences were justified. I can find no error in his Honour’s approach in that regard.
However, the degree of the difference in the sentences imposed on the two co-offenders is substantial. As Boddice J said in R v Edwards [2013] QCA 216:
“However, as any sentence must allow for differences in an offender’s circumstances and involvement in the offence, the interference of this court is not warranted unless the disparity is such that the sentence cannot be allowed to stand without it appearing that justice has not been done. In that event, this Court’s powers are wide enough to allow the Court, in its discretion, to reduce a sentence in order to avoid a marked disparity.”[8]
[8]R v Edwards [2013] QCA 216, (delivered ex tempore) at 3.
There is no doubt that the magistrate erred on the issue of parity in relation to the lesser offences. Furthermore, even after taking into account the greater number of aggravating circumstances that were present in the appellant’s case, I am also of the view that the sentence imposed for the most serious drug offence was unacceptably disparate to the sentence imposed on Ms Hoey and that the appellant has a justifiable sense of grievance in that regard.
Accordingly, it is my view that the magistrate has erred in the exercise of his sentencing discretion by failing to give adequate weight to the parity principle.
Totality
The principle of totality is well-established.[9] In accordance with that principle, the aggregate sentence for both the New South Wales offence and the Queensland offences needed to be considered and a determination made in relation to whether the overall sentence was just and appropriate in all of the circumstances.[10]
[9]Mill v R (1988) 83 ALR 1.
[10]R v Baker [2011] QCA 104 at [47], affirmed in R v Kendrick [2015] QCA 027 at [70] by Henry J.
As was said in Mill v R:
“… the proper approach … was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all … offences … in one jurisdiction and had been sentenced at one time.”[11]
[11](1988) 83 ALR 1 at 6.
It is apparent that this process did not occur at the appellant’s sentence. At p 20, lines 19-26, of the transcript of proceedings, the magistrate indicated to the appellant’s counsel that he did not consider that the appellant should receive any credit for his time in custody for the New South Wales offending. The appellant’s counsel then appears to address issues of both parity and totality of sentence at lines 28-37, and submits that the totality of the appellant’s penalty ought to be not far different from that imposed on him for the offence in New South Wales.
At p 21 of the transcript, the magistrate again indicated that he did not see how time in custody for New South Wales offending could be taken into account for offences committed in Queensland.[12] His Honour said, “It might be the same sort of offending and it might have been at the same period of time, but its separate offending under separate jurisdictions, so I don’t know of any basis on which I could take that into account as having any relevant impact on the sentence I have to impose. … Well I mean unless you can point to some authority that says it’s in any way relevant.”
[12]Lines 10-18.
Unfortunately, his Honour was not referred to any authorities on the subject. Then at p 25 of the transcript[13] his Honour again noted that “… I don’t believe that it’s appropriate to take into account the time served in New South Wales, because he was served for – sorry, he was sentenced for that offence, and for that offence alone.”
[13]Lines 28-31.
Whilst the respondent acknowledges that the magistrate specifically stated that he was not taking into account the appellant’s sentence for the New South Wales offence, and therefore did not give appropriate consideration to principles of totality, it is submitted that the error did not necessarily result in the overall sentence being excessive.
I would tend to agree were it not for the issue of parity. Putting that issue to one side however, the seriousness of the appellant’s offending conduct, his criminal history, and the fact that many offences were committed whilst he was subject to a good behaviour bond and/or bail conditions, in my view could result in a head sentence of 18 months’ imprisonment being an appropriate reflection of the true criminality of the appellant’s offending conduct and give due and proper weight to issues of personal and general deterrence and denunciation. It would nevertheless fall very much at the upper end of the sentencing range.
In reaching that conclusion I have relied on R v Armstrong [2005] QCA 116 by way of comparison. Armstrong pleaded guilty to unlawfully possessing the dangerous drug methylamphetamine in a quantity exceeding 2g. He was 34 years of age at the time of his offending and was found in possession of 24.023g of powder with the total weight of methylamphetamine being 2.711g. It was accepted his possession was for personal use. He had an appalling record of offences connected with his drug addiction. The court noted that mitigating circumstances included the fact that he was in a stable relationship and had part-time employment and had taken significant steps towards his rehabilitation by ridding himself of his drug addiction. He had spent eight months in pre-sentence custody and was sentenced to 18 months’ imprisonment suspended immediately with an operational period of 2 years.
Whilst the defendant in that matter was in possession of a lesser quantity of methylamphetamine, his criminal history was substantially worse than the appellant’s. It should be noted of course that that was a matter that was originally dealt with in the Supreme Court whereas this matter was dealt with in the Magistrates Court where the maximum sentence that can be imposed is three years’ imprisonment. Nevertheless, it demonstrates that were it not for the issue of parity, the head sentence imposed in this matter for the most serious of the charges was not excessive.
Similarly, in R v Woods [2004] QCA 204 the offender was convicted upon his pleas of guilty to one count of possession of cannabis sativa and one count of possession of 3.85 grams of methalamphetamine. It was accepted that there was no commercial purpose to the possession. Woods was 24 years old and had a worse criminal history than the appellant. Upon appeal he was sentenced to 12 months imprisonment suspended after 3 months with an operational period of 3 years.
Taking parity considerations into account however, I have concluded that in this matter a head sentence of 15 months imprisonment for the most serious charge would more appropriately reflect all relevant considerations.
I am also of the view that even putting parity considerations to one side, the sentences imposed for the remaining offences were excessive. That excessiveness becomes even more obvious, when comparison is made to the sentences imposed on the co-offender for those charges they had in common.
Of course, that then leaves the issue as to whether the 4 months of actual imprisonment was excessive.
Actual Imprisonment
The appellant submits that if these matters had been dealt with at the same time as the New South Wales charge, it is unlikely that the court would have ordered him to serve any additional imprisonment. The respondent submits to the contrary.
It must be noted that the learned judge in New South Wales was dealing with just one isolated offence. In my view, had his Honour been dealing with the series of offences that are the subject of this appeal he is unlikely to have concluded that a sentence that required the appellant to serve no extra time in custody was appropriate even taking into account the appellant’s commendable efforts at rehabilitation up to that point in time. There can be no doubt that the appellant’s offending conduct for these offences was serious, prolonged, demonstrative of disregard for both the law and orders of the court and deserving of punishment.
In my view, a sentence of 15 months’ imprisonment which required the appellant to serve an actual period of 2-3 months would ordinarily have been the appropriate sentence in these circumstances.
There is however an additional feature of relevance in this matter. As Judge Ellis noted when sentencing the appellant in September last year:
“To send him back into full time custody at this point in time is likely to completely undermine all of the good work which has occurred to date and that would not be of benefit to the community.”
His Honour’s comments reflect well established legal principle. In R v Bell, Dunn J said:[14]
“When it has been demonstrated by evidence that society does not need to be protected from the applicant, should the punitive and deterrent aspects of the sentencing process be allowed to prevail, and possibly destroy rehabilitation which has been shown to have taken place?”
[14][1982] Qd R 216 at 221.
That case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the offender, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.[15]
[15]Duncan v R (1983) 47 ALR 746.
Similarly, in R vMolina[16] the Court said at page 77:
“It must be remembered that the ultimate purpose of all punishment is the protection of society. It will often be in the best interest of society if emphasis is put on rehabilitation, particularly in cases where the offender can genuinely be said to be at the crossroads between a useless, drug-ridden and probably criminal existence and a relatively normal life in society, supported by a caring family: see Davey (1980) 2 A Crim R 255 at 260 – 261 and Channon (1978) 33 F.L.R. 433 at 437.”
[16](1984) 13 A Crim R 76.
In my view, the appellant is at such crossroads. After spending almost six months on remand in New South Wales he then self-admitted to the Bennelongs Haven Rehabilitation program and remained at that program for 185 days. The report from that program and a report from a psychologist (both tendered in the New South Wales sentence hearing) confirmed that he had made significant grounds in terms of substance abuse rehabilitation. Significantly, he has now gone a further period of over 9 months of drug free existence since that appearance before the New South Wales District Court. He is in a stable relationship which has endured the recent tragedy of the loss of a child soon after birth. Notwithstanding that set back, he has not reverted to substance abuse and he and Ms Hoey have acted responsibly and maturely by seeking appropriate grief counselling. A report dated 13 March 2015[17] from the psychologist who conducted the counselling, Mr Brendan Mooney, states:
“Mr George appears to be motivated to move forward in his life with Ms Hoey. In my opinion, he does not exhibit any symptoms that would suggest he might return to his drug-taking lifestyle. In contrast, he appears optimistic about his future and very committed to being employed and raising a family. He appears to be a very sincere and honest man who is keen to make the most of his life with his partner. My prognosis is that he will have a very bright future. He also reports excellent support from his family and advised he no longer uses drugs and drinks alcohol occasionally. Mr George advised he exercises most days at the gym and recently became an owner of a dog.”
[17]Exhibit 1.
Furthermore, he has been in good casual employment since 8 December 2014 and is considered to be a reliable, trustworthy and eager employee.[18] His employer has suggested the possibility of an apprenticeship being offered to him pending the outcome of this matter. I also note that urine tests conducted on 28 January 2015 and 12 February 2015 returned negative findings for illicit substances.[19]
[18]Exhibit 1.
[19]Exhibit 1.
The appellant has therefore demonstrated his efforts towards rehabilitation over the lengthy period of time that has passed since his last offences were committed. Given the fact that any period of actual imprisonment that could be imposed would be for only the short period of 2-3 months, this case in my view is one where the rehabilitative considerations are paramount. There is good evidence to suggest that the appellant is at, or has even passed, the crossroads and there is every reason to hope that he will now continue to lead a productive, law-abiding life.
For that reason, leniency is warranted to the extent of not ordering the appellant to serve any term of actual imprisonment. On the evidence before me, the period of approximately five and a half months that the appellant spent on remand in New South Wales appears to have the desired salutary effect.
Presentence custody
The appellant had served 3 days in presentence custody which the magistrate declared to be time served under the sentences that he imposed pursuant to s 159A(3)(B) of the Penalties and Sentences Act 1992. Counsel for both the appellant and the respondent agree however that this was not a case in which such a declaration could be made and that the correct course would have been to take that 3 days of presentence custody into account.
The appellant was also incarcerated for a further period of 17 days after sentence and prior to receiving appeal bail on 11 December 2014.
In the circumstances it seems to me appropriate that I simply take the total of 20 days custody into account when passing sentence.
Accordingly, the orders are as follows:
Orders
1. The appeal is allowed and the sentences imposed in the Brisbane Magistrate’s Court on 27 November 2014 are set aside.
2. The appellant is sentenced as follows:
· On the charge of possessing dangerous drugs, schedule 1, quantity of or exceeding schedule 3 but less than schedule 4: 14 months 10 days imprisonment;
· On each of the six charges of possessing dangerous drugs: 2 months imprisonment;
· On each of the two charges of possessing dangerous drugs schedule 1: 3 months imprisonment;
· On each of the two charges of failing to dispose of a needle or syringe: 1 month imprisonment;
· On each of the two charges of possess utensils or pipes etc. that had been used: 1 month imprisonment;
· On each of the two charges of possess property suspected of having been used in connection with the commission of a drug offence: 1 month imprisonment;
· On each of the four charges of receiving tainted property: 3 months imprisonment;
· On the charge of breach of bail condition: convicted and not further punished;
· On the charge of bringing stolen goods into Queensland: 9 months imprisonment;
· On the charge of unlawful possession of suspected stolen property: 1 month imprisonment;
· On the charge of unlawful use of a motor vehicle: 1 month imprisonment; and
· On the charge of stealing: 1 month imprisonment.
3. All terms of imprisonment are to be served concurrently.
4. I order the appellant be released on parole immediately, that is, his parole release date is 26 June 2015.
5. The appellant must report to a parole officer on 26 June 2015 or on the next business day and failure to do so may render the appellant being unlawfully at large and liable to arrest and return to custody.
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