R v Denton

[1999] QCA 343

99.343

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 168 of 1999
THE QUEEN
v.

STEVEN RAYMOND DENTON Applicant

BRISBANE
..DATE 20/08/99
200899 T9-11/RB28 M/T COA200/99
THOMAS JA: This is an application for leave to appeal
against sentences imposed in the Supreme Court in
respect of seven offences. The Court, at the time of
imposing sentences on these matters also imposed
sentences on six charges pending in the Magistrates
Court, but they are not the subject of this appeal. The
criminal conduct in those matters, however, may be
relevant in considering whether the total of the
sentences imposed was commensurate with the total of the
criminality for which he fell to be sentenced.

The offences with which we are concerned are his breach of a suspended sentence of 12 months for the unlawful use of a motor vehicle, three drug offences involving his possession of methylamphetamine and things for use in connection with its production, and three further subsequent drug offences involving the production of methylamphetamine and his possession of things connected with its production.

The sentences imposed were that the applicant serve the
whole of the remainder of the suspended sentence, 11
months, that he serve two and a half years cumulative
with respect to the first three drug charges (on
indictment 504) and that he serve a further cumulative
term of two and a half years with respect to the second
series of drug charges (on indictment 202). His Honour
made a recommendation for consideration of parole seven
months after the commencement of the latter cumulative
term. The effect of the sentences is of total
200899 T9-11/RB28 M/T COA200/99
consecutive imprisonment of five years and 11 months
with a recommendation for consideration of parole seven
months into the final term which, on the face of it, is
four years after the commencement of his custody with
respect to the present matters. A declaration was made
that he had already spent 173 days in pre-sentence
custody and that that should be deemed to be time
already served under the sentences.

The applicant was 23 years old at the time of the offences and is now 24. He has a criminal history that includes various offences of dishonesty, unlawful damage, unlawful use of a motor vehicle and drug offences which include possession of a dangerous drug, production of a dangerous drug and some other drug- related offences.

He was sentenced in October 1997 to 12 months for his unlawful use of a motor vehicle and because he breached the Bail Act subsequently he was dealt with for breach of the terms of that suspended sentence to the extent that he was required to serve one month of it. However, 11 months of that sentence still remained suspended and unserved when he committed the further breaches with which we are now concerned.

The circumstances of the drug offences may be briefly
stated. On 5 March 1999 police called at the
applicant's premises and apprehended him as he attempted
to flee from the rear of the premises. 24 grams of
200899 T9-11/RB28 M/T COA200/99
ephedrine were found in the house. Ephedrine is a
substance used in the manufacture of amphetamine. A bag
of 5.185 grams of white powder which on analysis
contained .3 of a gram of methylamphetamine was also
found in the house. A green trunk located under a piece
of wood in the back yard contained a large quantity of
glassware, funnels and chemicals used in the production
of amphetamines. The applicant told police that he had
allowed a person named Dowd to manufacture amphetamines
on the premises.

The applicant was arrested and was granted bail. Some four months later police raided the house in which the applicant was living. He was then caught in the act of cooking a batch of amphetamine in the kitchen. He had a set of instructions, equipment and sufficient materials to produce some 27 grams of amphetamine which is said to be worth thousands of dollars.

The second series of offences was committed while the applicant was on bail in relation to the first series. Both series of offences were committed while he was the subject of the suspended sentence earlier mentioned.

The summary offences included possession of tainted
property which he stated he had obtained from an unknown
person at a hotel and possession of a shortened fire-
arm.
200899 T9-11/RB28 M/T COA200/99
The maximum penalty in relation to the first three drug
offences is 15 years imprisonment, while the maximum on
count 3 of the second indictment is 20 years
imprisonment.

The matters urged in mitigation include the following - the applicant's youth at the time of sentence and at the time of committing the offences; the fact that he completed his schooling until year 10 after which time he was employed as a trade assistant by various tradesmen; the fact that he was a user of amphetamine at the time of the offences; the fact that the amphetamine found in his possession on the first occasion was amphetamine purchased for his own use; and the fact that the applicant had set up a small somewhat rudimentary set of equipment. He was using an electric hot plate and a tripod with a bunsen burner as well as a microwave oven. It was therefore described as a not very sophisticated operation.

The applicant also proceeded by way of hand-up
committals and the pleas of guilty were reasonably
timely although the learned sentencing Judge expressed
some reservation about this. It was submitted that the
totality principle should be applied and that the
imposition of the suspended sentence might more properly
have been ordered to run concurrently with one or more
of the other sentences.
200899 T9-11/RB28 M/T COA200/99
The total effect of the sentences is certainly severe
for an offender who is not yet 25 years old. The
learned sentencing Judge noted that the applicant had
done well at school and had been in employment and
expressed a hope that in the future when he had done his
time he might mend his ways.
The difficulty faced by the applicant is that because of
his persistent re-offending, including further
production of methylamphetamine when he was already
bailed on earlier similar charges, some cumulative
component in the sentence was not only justifiable but
was overall a necessary consideration. The appropriate
total sentences would rightly be greater than the level
that might be found in a sentence of a comparable
offence for a single series of similar offences.
Prior to this series of criminal activities, the
applicant had only been in gaol once for a period of two
months in respect of breach of bail. The sentences that
have been imposed - almost six years by way of head
term and as much as four years before parole could be
considered - are certainly very severe. We are referred
to The Queen v. Lynch, CA 36 of 1999, 23 July 1999 which
also involved a series of offences including breach of a
suspended sentence. Overall Lynch would seem to be at
least as serious and possibly more serious than the
present combination of offences. The Court in Lynch
reduced the overall effect of the sentences to four and
a half years with consideration of parole after one and
a half years. It may be noted that there was a
200899 T9-11/RB28 M/T COA200/99
cumulative component there and although the Court could
have imposed a structure of three cumulative sentences
as the learned Judge did in the present case, it was
considered on appeal that one order of cumulative effect
was sufficient.

This applicant is a young man with some prospect of rehabilitation. A sentence of this length at this stage of his life - he is now 24 - would probably have an unduly bad effect on his rehabilitative prospects. Counsel for the Crown submitted that the structure of the sentences is defensible, although it must be admitted that it has already produced some confusion in interpretation by the Corrective Service Authorities in that an interpretation different from what His Honour's stated intention was appears, so far, to have been placed upon it.

More importantly, counsel for the Crown conceded that the sentence total seems a little high and that he could not defend four years as the date by which consideration of parole might occur if that was the proper construction of the sentences.

I recognise that there are many ways in which the present sentences could validly be structured. However in my view the best way to formulate the sentences in this case is to look at the individual and collective seriousness of the offences, fix the terms and then decide what part of the total the applicant must serve. 200899 T9-11/RB28 M/T COA200/99

In my view the overall sentences were manifestly

excessive. I consider that a sentence of four years
with respect to those offences in the second indictment
sufficiently embodies recognition of the total
criminality for which he had to be sentenced. That
sentence may be seen as the operative term and should be
fixed in respect of those three offences.

I would agree that the 11 months of the suspended sentence should be ordered to be served, but consider that it should be concurrent, having regard to the overall effective sentence that I have nominated. Similarly the sentences for the first indictment concerning drug offences should be concurrent sentences of two and a half years. I would therefore grant the application, allow the appeal and vary the sentences in the manner that I have stated, recognising that the declaration in respect of time already served should remain as part of the sentence.

THE PRESIDENT: I agree with the orders proposed by

Justice Thomas and with his reasons.

PINCUS JA: I also agree.

THE PRESIDENT: The orders are as outlined by Justice

Thomas.

MS McGINNESS: Just to confirm that there's no parole
date that Your Honour set in relation to those matters.
200899 T9-11/RB28 M/T COA200/99

THOMAS JA: I beg your pardon. With the recommendation that he be considered for parole after 18 months.

THE PRESIDENT: Yes, I agree.

THOMAS JA: I agree.

-----