R v Betts

Case [2023] QCA 75

SUPREME COURT OF QUEENSLAND

CITATION:

R v Betts [2023] QCA 75

PARTIES:

R
v
BETTS, Gregory Peter
(applicant)

FILE NO/S:

CA No 144 of 2022
SC No 20 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 15 June 2022 (Bowskill CJ)

DELIVERED ON:

24 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2023

JUDGES:

Mullins P and Boddice AJA and Bradley J

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal against sentence be allowed.

3.   The sentences below on counts 1 and 7 be set aside.

4.   The applicant be sentenced to eight years imprisonment for count 1 and 12 months imprisonment for count 7, such sentences to be served cumulatively on each other and cumulatively on the applicant’s existing sentences.

5.   The court declares that the applicant was in pre-sentence custody for 817 days between 20 March 2020 and 14 June 2022 and declares that no time is taken to be imprisonment already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of attempting to pervert the course of justice, and other drug offences committed during the trafficking period – where the applicant was on parole when he committed the subject offences – where the applicant was sentenced to nine years and nine months imprisonment for the trafficking count and a further period of 12 months imprisonment for the count of attempting to pervert justice – where those sentences were cumulative on each other and on terms of imprisonment imposed in 2012 and 2019 – where the applicant submits, inter alia, that as the sentences imposed were to be served cumulatively, a further adjustment downward was required to allow for totality – whether the sentencing judge had no or no sufficient regard for the principle of totality in imposing cumulative sentences – whether the sentences imposed were manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld), s 209(1), s 211

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Braeckmans (2022) 10 QR 144; [2022] QCA 25, distinguished
R v Cook (2021) 9 QR 101; [2021] QCA 209, cited

COUNSEL:

G R Rice KC for the applicant
G J Cummings for the respondent

SOLICITORS:

Cullen Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  For the reasons given by Boddice AJA, I agree that the applicant must succeed on the ground that the learned sentencing judge did not have sufficient regard to the principle of totality in imposing the sentences.  The totality principle as described in Mill v The Queen (1988) 166 CLR 59, 63 has been extended to cover a variety of circumstances where sequential sentences have been imposed on…

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AGLC
R v Betts [2023] QCA 75
Case
[2023] QCA 75
Decision Date

CaseChat Overview and Summary

The applicant, who has a substantial criminal history, sought leave to appeal against his sentences. The applicant had pleaded guilty to one count of trafficking in a dangerous drug, one count of attempting to pervert the course of justice, and other drug offences committed during the trafficking period. The applicant was on parole when he committed the subject offences. He was sentenced to nine years and nine months imprisonment for the trafficking count and a further period of 12 months imprisonment for the count of attempting to pervert justice. The sentences were cumulative on each other and on terms of imprisonment imposed in 2012 and 2019. The applicant submitted that the sentences were manifestly excessive and the sentencing judge had no or no sufficient regard for the principle of totality in imposing cumulative sentences. The court was required to determine whether the sentences imposed were manifestly excessive in all the circumstances and whether the sentencing judge had no or no sufficient regard for the principle of totality in imposing cumulative sentences. The court considered that the applicant's overall criminality supported a conclusion that the cumulative sentences imposed were crushing. The court found that the sentences imposed were manifestly excessive in all the circumstances. The court further found that the sentencing judge had no or no sufficient regard for the principle of totality in imposing cumulative sentences. The court concluded that the sentences imposed were manifestly excessive in all the circumstances. The court granted leave to appeal and allowed the appeal against sentence. The sentences below on counts 1 and 7 were set aside. The applicant was sentenced to eight years imprisonment for count 1 and 12 months imprisonment for count 7, to be served cumulatively on each other and cumulatively on the applicant’s existing sentences. The court declared that the applicant was in pre-sentence custody for 817 days between 20 March 2020 and 14 June 2022 and declared that no time was taken to be imprisonment already served under the sentence.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal against sentence be allowed.

3. The sentences below on counts 1 and 7 be set aside.

4. The applicant be sentenced to eight years imprisonment for count 1 and 12 months imprisonment for count 7, such sentences to be served cumulatively on each other and cumulatively on the applicant’s existing sentences.

5. The court declares that the applicant was in pre-sentence custody for 817 days between 20 March 2020 and 14 June 2022 and declares that no time is taken to be imprisonment already served under the sentence.

Background

Background to the litigation

The applicant seeks leave to appeal those sentences. Should leave be granted, the applicant relies on three grounds: first, that the sentence was manifestly excessive in the circumstances; second, that the sentencing judge had no or no sufficient regard for the principle of totality in imposing cumulative sentences; and third, the sentencing judge assessed parole eligibility by reference to an irrelevant consideration.Background The applicant was born in 1975. He was aged 44 at the time of the offences and 47 at sentence. The applicant had a substantial criminal history for drug and other offences. His previous offending included convictions for trafficking in 2004 and 2012. The 2012 sentence was imposed on 15 June 2012. The applicant was sentenced to nine years imprisonment. Parole eligibility was set after serving four years. On 13 February 2019, whilst the applicant was subject to that sentence, the applicant was sentenced to a further six months imprisonment, for possession of a dangerous drug. That sentence was ordered to be served cumulatively upon the 2012 sentence. As a consequence, the applicant’s full-time discharge date for the 2012 and 2019 sentences was 26 November 2020.Offences The applicant was released on parole, in respect of the 2012 and 2019 sentences, on 26 August 2019. He had been released on parole on three prior occasions. Each time he was returned to custody after a short period. Less than four months after that release on parole, the applicant commenced trafficking in methylamphetamine. That trafficking was for a period of three months. It was undertaken by the applicant as the sole proprietor of what was a sophisticated trafficking business. The applicant’s offending was not deterred by contact with police. He avoided detection by using encrypted phones. Whilst the applicant sold the drug in small quantities, it was an intense period of trafficking. The remaining drug counts were committed within that trafficking period. They involved the possession of other dangerous drugs, a supply of methylamphetamine and cocaine to himself, the supply of cannabis, and the aggravated possession of methylamphetamine. The attempt to pervert justice count was also committed during the trafficking period. It involved the applicant procuring another person to falsely claim ownership of drugs found in the applicant’s possession.Sentencing remarks The sentencing judge recorded that the applicant had pleaded guilty and that those pleas were taken into account in his favour in reducing the penalty, on the basis the pleas showed he had taken responsibility for his actions and exhibited a willingness to assist the course of justice. The sentencing judge did not, however, proceed on the basis that the pleas were indicative of remorse. The sentencing judge recorded that the offences were very serious and there was a need for both denunciation and deterrence. The sentencing judge also recorded that the applicant had a very serious criminal history involving very serious drug offending, including two previous convictions for trafficking in dangerous drugs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, the respondent submits that the sentences imposed were neither plainly unjust nor unreasonable. They properly reflected the applicant’s overall criminality.Consideration The applicant pleaded guilty to serious criminal conduct. Although the trafficking period was relatively brief, it had an intensity and involved the cynical use of others in a sophisticated effort to avoid detection. A further aggravating feature of the applicant’s criminality was that it was engaged in by the applicant shortly after being released on parole for serious drug offending, in circumstances where the applicant had been afforded parole on earlier occasions, but returned to custody for various breaches of that parole. The applicant’s offending also involved separate criminality that struck at the heart of the justice system, in the form of the attempt to pervert justice count, as it involved having another falsely take criminal responsibility for drugs found in the applicant’s possession. Such offending properly attracted a substantial sentence, to be served cumulatively. However, totality was relevant when fixing the sentences, particularly in the context of determining that the overall effect of the sentences imposed was not crushing and properly reflected the applicant’s overall criminality. A consideration of the applicant’s overall criminality supports a conclusion that the cumulative sentences imposed were crushing. That had the effect of sentencing the applicant to 10 years and nine months imprisonment, to be served cumulatively on what was, effectively, nine years of actual imprisonment, with a requirement that he serve a further six years in custody prior to being eligible for parole. Such sentences did not reflect the need to consider totality. In that respect, the sentences imposed were manifestly excessive in all the circumstances. This conclusion renders it unnecessary to consider the remaining grounds of appeal. In re-exercising the sentencing discretion, it is necessary to have due regard for the fact that the sentences to be imposed in respect of both the trafficking count and the attempt to pervert justice count are properly to be served cumulatively, having regard to the distinct difference in the nature of the offending. Further, it is necessary to have regard to the fact that those sentences are required to be served cumulatively on the remaining portion of the 2012 and 2019 sentences. Those factors necessitate a moderation of the sentences to be imposed for the trafficking and the attempt to pervert justice counts. Taking into account the 565 days served on remand, which I would not declare as time served, and having regard to the overall time served in actual custody, the applicant’s criminality is properly to be reflected in an overall head sentence of nine years imprisonment.[1] That sentence is made up of a sentence of eight years imprisonment for the trafficking count and a sentence of 12 months imprisonment in respect of the attempt to pervert justice count, to be served cumulatively on each other. The period of 12 months is a reduction of what otherwise would be a significantly higher sentence for conduct striking at the heart of the justice system, to allow for the fact the sentence is to be served cumulatively.[1]The period between 27 November 2020 and 14 June 2022 is 565 days, not 563 days.