Hiscock v. Young

[2007] QDC 334

DISTRICT COURT OF QUEENSLAND

CITATION:

Hiscock v Young [2007] QDC 334

PARTIES:

MATTHEW RICHARD HISCOCK
Appellant
v
MALCOLM YOUNG
Respondent

FILE NO:

BD2184 of 2007

DIVISION:

Civil

PROCEEDING:

ORIGINATING COURT:

District Court

DELIVERED ON:

13 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

11 December 2007

JUDGE:

Skoien SJDC

ORDER:

Appeal dismissed

CATCHWORDS:

Appeal against sentence; passport and drug offences; parity and totality principles

COUNSEL:

Mr S Lewis for appellant

Mr J Hanna for defendant

SOLICITORS:

Ryan & Bosscher for appellant

Commonwealth Director of Public Prosecutions for defendant

1. This is an appeal by Mr Hiscock against the severity of two sentences imposed on him on 29 June 2007 by His Honour Magistrate Sarra.

1. Count 1, under the Criminal Code (Cth) ss.11.1 & 307.3 alleged the offence of attempting to export border controlled drug (4.3 methylamphetamine). Count 2, under the Foreign Passports (Law Enforcement & Security) Act 2005 (Cth) s.21(2) alleged the offence of using a false foreign travel document.

1. Both offences were dealt with summarily, in accordance with section 4J(1) of the Crimes Act 1914 (Cth) (“the Crimes Act”).  When dealt with summarily, the maximum penalty for each offence is 2 years imprisonment and/or a fine of up to $13,200 (ibid (3)(b)).

Sentences Imposed

1. The sentence imposed in count 1 was 12 months imprisonment commencing 22 February 2008, release on recognisance of $2,000 after 3 months, on condition of good behaviour for 3 years. In count 2 the sentence was 14 months imprisonment commencing 22 February 2008, release on recognisance of $2,000 after 6 months, on condition of good behaviour for 3 years. Each was imposed under s.20(1)(b) of the Crimes Act.

1. The sentences were fixed to commence on 22 February 2008, at the conclusion of a sentence currently being served by the appellant.

Prior Criminal History

1. Mr Hiscock has a lengthy criminal history dating from 1997.  His history includes a large number of convictions for drug offences, as well as convictions for property offences, fraud, and escaping lawful custody.

1. On 25 May 2006, he was convicted at Southport Magistrates Court of offences of possessing dangerous drugs (x4), possession of a thing used in connection with a drug offence, possession of suspected property, receiving stolen property, possession of tainted property (x2) and fraud.  The offences were committed on various dates between 2002 and 2005.  He was sentenced to imprisonment for 285 days (being equivalent to time served) and ordered to probation for a period of 2 years.

1. On 19 September 2006, he was sentenced in the Brisbane Supreme Court on one count of possessing dangerous drugs and one count of possessing a thing used in the commission of a drug offence (a set of scales).  On the first count, he was sentenced to imprisonment for 2 years, wholly suspended for 3 years.  On the second count, he was sentenced to imprisonment for 12 months, with immediate parole release.

1. Mr Hiscock’s response to probation and parole proved less than satisfactory.  He failed to report and failed urinalysis testing.  At the time the present offences were committed, a warrant had been issued in relation to breach of his probation.

1. On 19 October 2006, his parole was revoked and a second warrant was issued for his return to custody.  He was returned to custody on 11 March 2007 after being apprehended for the present offences.

1. The custodial sentence imposed on 19 September 2006 for the second count will conclude on 22 February 2008, the date when His Honour ordered imprisonment for the present offences to commence.

1. The present offences were therefore committed while Mr Hiscock was on probation, on parole, and during the operational period of a suspended sentence, and after a warrant for his return to custody had been issued.

Circumstances of the Offences

1. About 1.40pm on Saturday, 10 March 2007 Mr Hiscock with his co-offender Joanne Hewetson, presented himself to the P&O Terminal at Hamilton, Queensland with the stated intention of travelling to Noumea on board the P&S Ship Pacific Star and then flying back to Sydney on board a Qantas flight QF362.

1. Officers of the Australian Customs Service (Customs) asked to see his travel documentation.  He produced a passport and driver’s licence purporting to be issued by the United Kingdom of Great Britain and Northern Ireland (UK) in the name of Jack Michael Forbes.  Later enquiries failed to find any trace of a man of that name entering Australia.

1. Customs were suspicious of Mr Hiscock’s intended travel and of his identification documents and took him to the Customs office where they searched him and his baggage.

1. In the arm of a woollen pullover found in his suitcase, Customs found a press-seal bag containing 11.3 grams of a pale pink moist crystalline substance which has been identified as methamphetamine with a calculated pure weight of 4.3 grams (38.1%).

Grounds of Appeal

1. It is argued on behalf of Mr Hiscock that the sentences are manifestly excessive.  It is submitted that the learned magistrate, having decided to make the sentences cumulative, should have ameliorated them further and that the pleas of guilty called for even greater amelioration.  It is submitted that the fact that on Ms Hewetson’s 14 month sentence for the same offence as Mr Hiscock’s count 2, the release date was ordered to be after 3 months, compared with the later release date ordered for Mr Hiscock (6 months), offended the principle of parity.

1. In my opinion it was totally appropriate that these sentences be made cumulative on Mr Hiscock’s current imprisonment.  That imprisonment is being served because he did not take advantage of the opportunity for reform which was extended to him when he was granted parole.  So he was taken into custody.  The current offences were committed in circumstances quite distinct from the offence which led to his parole.  They were properly made concurrent with each other (and it must be remembered that this was itself an act of leniency).  However to make them concurrent with the breach of parole imprisonment would have had the effect of imposing a completely inadequate penalty for these two serious offences.

1. Pleas of guilty properly call for amelioration of a penalty, probably, in this case, not because the pleas indicated remorse (it is difficult to see that pleas of not guilty would have succeeded) but to recognise the saving of court time and public expense associated with trials.  Assuming for the moment that the head sentences were appropriate, release from an effective head sentence of 14 months after 6 months is well within the sentencing discretion on a plea of guilty.

1. As to the complaint of lack of parity, the material put before His Honour showed that Ms Hewetson had a minor criminal history and a history of fleeing a long-standing abusive relationship which led to the commission of these offences.  That background is vastly less serious than that of Mr Hiscock.  The parity principle has not been offended.

1. In cases such as this the totality principle is to be considered.  His Honour expressly did that and displayed some care to leave Mr Hiscock a light at the end of the tunnel.  But on the other hand His Honour had before him a man with a lamentable criminal history, pleading to two offences which carried a maximum term of 2 years, committed while on probation, parole and in breach of a suspended sentence.  In the light of that, and applying the principles laid down by the High Court in R v Mill (1988) 166 CLR 59 at paras [8]-[9], when I “look at the totality and ask myself whether it was too much” I cannot say that it was. On the contrary, the sentences were clearly within His Honour’s sentencing discretion.

Conclusion

1. The sentences were not manifestly excessive.  The appeal is dismissed.