R v. Michelbourgh
[2008] QSC 109
•6 May 2008
SUPREME COURT OF QUEENSLAND
CITATION:
R v Michelbourgh [2008] QSC 109
PARTIES:
R
v
JOHN EDWARD MICHELBOURGH
(Defendant)FILE NO/S:
Indictment No 427 of 2008
Indictment No 420 of 2008
Indictment No 977 of 2007DIVISION:
Trial
PROCEEDING:
Sentence
COURT:Supreme Court at Brisbane
DELIVERED ON:
6 May 2008
DELIVERED AT:
Brisbane
HEARING DATE:
6 May 2008
JUDGE:
Fryberg J
ORDER:
1. In respect of indictment 977 of 2007, sentence the prisoner to imprisonment for four years suspended after 541 days for an operational period of four years;
2. In respect of the count in the ex officio indictment, sentence the prisoner to imprisonment for three years;
3. In respect of summary counts 1, 2, 5 and 6, sentence the prisoner to imprisonment for nine months for each count;
4. In respect of summary count 3, sentence the prisoner to imprisonment for six months;
5. All of the imprisonment to be served concurrently;
6. Declare that the period of 541 days from 12 November 2006 until 6 May 2008 be imprisonment already served under the sentence;
7. A parole release date is fixed for 6 May 2008;
8. Plea of guilty and conviction entered on 6 May 2008 for summary count 4 set aside and count 4 dismissed;
9. No order made in relation to the suspended imprisonment
CATCHWORDS:
Criminal law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Breach of suspended sentence – Mitigating factors – Pre-sentence custody – Current offences differed from offences subject to suspended imprisonment – Effect of s 147 Penalties and Sentences Act ineffective and unjust
Criminal law – Jurisdiction, practice and procedure – Finding that prisoner did not breach bail condition – Criminal Code
ss 651 and 652 – Exercise of power to dismiss such countCriminal Code 1899 (Qld) s 651, s652
Penalties and Sentences Act 1992 (Qld) s147COUNSEL:
Crown: T Fuller
Defendant: A DonaldsonSOLICITORS:
Crown: Director of Public Prosecutions (Queensland)
Defendant: Burns Law
SUPREME COURT OF QUEENSLAND
CRIMINAL JURISDICTION
[2008] QSC 109
FRYBERG J
Indictment No 420 of 2008
Indictment No 427 of 2008
Indictment No 977 of 2007
THE QUEEN
v.
JOHN EDWARD MICHELBOURGH
BRISBANE
..DATE 06/05/2008
SENTENCE
HIS HONOUR: John Michelbourgh, you have pleaded guilty to one count of possessing dangerous drugs in circumstances where one of the drugs was methyl amphetamine and the amount exceeded two grams, the other drugs being cocaine, MDMA and cannabis; to a second count of possession of dangerous drugs being methyl amphetamine and MDMA; to four counts of summary offences related to drugs, that is, possessing property, failing to take reasonable care of a syringe and similar offences and two offences under the Bail Act; one of failing to report and one of failing to reside at the nominated address.
In addition, by committing these offences you have placed yourself in breach of a suspended sentence which means that you can be required to serve the outstanding amount of that suspended sentence some, I think, one year and four months.
You have a criminal history which extends over some two pages but it is an unusual criminal history for someone who appears before this Court on drug offences.
It began in 1983 when you were 17 years of age and it continued for 10 years with a series of offences of violence, disorderly behaviour, entering a dwelling house at night with intent to commit an offence, some aggravated assaults when you were still only 17, possession of a firearm, insulting words and the like. There were no drug offences and the assaults seemed to have been very minor assaults.
You were, in that period, once sentenced to imprisonment, the longest sentence of the three imposed on that one occasion being for two months and that was in respect of firearms offences.
From 1993 until 2003 you had no offences. Then you were convicted of a series of related offences involving stalking, damage to property and entering a dwelling and committing an indictable offence and an assault therein. Shortly afterwards, you were convicted in the Magistrates Court of breach of a domestic violence order. All of those convictions arose out of the break-up of your relationship and your distress at losing continued access of substance to your children.
You impressed the sentencing Judge in 2003 sufficiently to have him impose orders for suspended sentences after you had served eight months' imprisonment. In imposing that sentence his Honour took into account the views of the complainant, your wife. She showed a maturity and wisdom in the attitude which she took in realising that imprisonment was not necessarily the best answer in terms of her future safety and your needs for counselling. His Honour was quite right to do so. That was an offence somewhat different from those which you had previously committed and certainly different from those which bring you now before the Court.
You remained free of committing any offences until the present offending. You explained that in a letter which you have written to the Court as being the result of your being depressed after your release from prison in 2004, of forming a new relationship 2006 with a person who was interested in you and who introduced you into ecstasy. You eventually became habituated to that and apparently other drugs.
Your conduct has shamed you and your family particularly since there is really no explanation - no satisfactory explanation - for your selling of the drug and it is perfectly clear that your possession was possession for the purposes of selling the drugs.
On the first occasion in September 2006 you were found in possession of 396 grams of cannabis, 18.4 grams of methyl amphetamine in 137 grams of powder, 1.427 grams of MDMA ecstasy in about five grams of powder and .296 grams of cocaine in about 3.3 grams of powder.
You had a book which recorded your financial transactions and there were messages on your telephone. You were clearly taking part in a number of commercial transactions and you are fortunate that you are not charged with trafficking. Having been charged with those offences in September of 2006 you were granted bail.
As your counsel put it your drug habit, if anything, got worse after your release on bail. In November you were again found with methyl amphetamine .564 grams in 12.5 grams of powder and MDMA .667 grams in 10.7 grams of powder. On this occasion, unlike the first, you took part in an interview with the police during which you made some, albeit limited, admissions.
This offending, of course, is aggravated by the fact that you were on bail at the time of those offences. That bail also gave rise to the two bail offences with which you have been charged in the Magistrates Court. One relates to a failure to report in accordance with your undertaking, the other failure to reside at the address given in your undertaking, a matter to which I shall return shortly.
Committal proceedings were held in April 2007 in relation to the first charge, the one in indictment 977 of 2007 and you pleaded guilty at those proceedings. The second charge arises by way of ex officio indictment. The summary offences are related to one or other of those charges apart, of course, from the bail offences.
Your sentencing is made difficult by the fact that you have served a total of 541 days in prison in respect of these matters. That is over 17 months. When one considers the total criminality of your offending and takes into account the mitigating factors of which I have already spoken that level of imprisonment would reflect a head sentence of in excess of four years.
In addition, there would be the potential for the suspended sentence to be imposed cumulatively and for punishment for the bail offences to be imposed cumulatively. That would add up to a total period of in excess of six years in prison. That, in turn, would be excessive. The Crown does not suggest that your total criminality would find a reflection in such a sentence. That concession is rightly made.
There is difficulty in structuring a sentence which does reflect your total criminality which at the same time denounces on behalf of the community the conduct that you engaged in.
You said in your letter to the Court that you were always against drugs, "anti-drugs all my life" as you put it. There is a good reason for that. These things ruin people's lives. They kill them, they tip them into mental illness, they make them sick, they make them criminals to support drug habits. When you supply drugs to other people when you have them in your possession for commercial purposes and then give effect to those purposes you put yourself in the position of being a person who causes other people to suffer those terrible effects, potentially death; serious illness, mental or physical, or criminality.
Have you seen a serious methyl amphetamine addict? They become hollow people, gaunt, losing weight, their faces pock-marked and scarred through the effects of the drug. Your conduct potentially put you in the position of being someone who could cause that to other people. That is why the community denounces that sort of conduct.
There are, as I have said, a number of mitigating factors. There are also different considerations which arise in relation to the breach of the suspended sentence. Section 147 of the Penalties and Sentences Act requires that I order you to serve the whole of the suspended imprisonment unless I am of the opinion that it would be unjust to do so.
In deciding whether it would be unjust to do so I must have regard to whether your subsequent offence is trivial having regard to a number of matters - I do not think I need to list them since it cannot be said that your subsequent offending is trivial - the seriousness of your original offence and any special circumstances arising since the original offence was imposed that make it unjust to impose the whole of the term.
In your case I think there is special circumstance arising since your original suspended sentence was imposed. That special circumstance is the fact that you have served 541 days in custody on the current sentences, that the current offences are of a quite different nature from that for which you were sentenced to suspended imprisonment and that the total imprisonment to be imposed would be unduly inflated were I to increase it by activating the whole of that sentence.
The question then becomes what course I should take in relation to that suspended imprisonment. The most appropriate course would be for your term of imprisonment to be further suspended, in other words, to extend the operational period of your earlier suspended imprisonment.
Unfortunately, due to a drafting error in the legislation which has been drawn to the Parliament's attention nearly two years ago but has not been rectified, it would be futile to do that. It is just not effective. I am not prepared to make an order which has no effect. It does not seem to me appropriate that you serve any part of that imprisonment when I have regard to the other imprisonment which it seems to me is appropriate for your punishment today.
I therefore find that it would be unjust to order you to serve the whole of the suspended imprisonment pursuant to section 147 but in the exercise of my discretion I make no further order under that section.
In respect of the count which is count 4 of the summary offences before me, that is, the count for failing to reside at the appropriate address you have pleaded guilty but the facts which have been put before me do not, in my judgment, disclose an offence. They were that you left the address where you were living on a Friday in order to go to Toowoomba to see your children. You stayed overnight at Toowoomba. You were found in a motel the next day which was when you were arrested in November for the offences in that month.
There is no reason to suppose you were not intent upon returning to your place of residence. It seems to me that while I have not had extensive argument about the matter a condition on bail that you reside at a certain address does not operate as a curfew and does not prevent your having one night away from that address. There is no suggestion that you had ceased to reside at your parent's address or at the address at which you were living and on the face of the material put before me it is my view that you have not committed any offence.
The Crown prosecutor indicated some doubt about whether I had jurisdiction to deal with the matter in the event that I took that view. Section 651 and 652 of the Criminal Code confer the jurisdiction and it is a jurisdiction to hear and decide summarily any charge of a summary offence. In my view that expression is sufficient for me to exercise any of the powers which the Magistrate hearing the matter, could exercise. That includes the power to order that your plea of guilty be set aside and that the complaint be struck out. That is what I propose to do on that count.
I am satisfied from the references put before me and from your own letter and from your otherwise drug-free history that there is every reason to suppose you can turn your life around, that you can go and live somewhere where you will not be exposed to drugs, where you will have a worthwhile life and where you can get over this episode in your past.
Notwithstanding the fact that you committed a second set of offences whilst on bail for the first, I am satisfied that you should serve no longer than today in prison, that is, no longer actual imprisonment than the 541 days that you have already served. I propose to achieve that outcome by a structured variety of sentences.
On indictment 977 of 2007 I sentence you to imprisonment for four years suspended after 541 days for an operational period of three years.[1] That will have the effect that you are released in relation to that sentence forthwith. You have served the 541 days under it. However, if you commit another offence punishable by imprisonment in the next three years1 you can be brought back and required to serve the balance of that offence.
[1] Subsequently amended to four years.
In respect of the count in the ex officio indictment I sentence you to imprisonment for three years. In respect of the summary counts 1, 2, 5 and 6, on each I sentence you to imprisonment for nine months.
In respect to the summary count number 3 the breach of the reporting condition, I sentence you to imprisonment for six months. All of that imprisonment is to be concurrent. I fix a parole release date of the 6th of May 2008, that is, today.
The effect of that is that you are required to report to a probation and parole office and obtain a copy of the parole order between 9 a.m. and 5 p.m. either today or tomorrow. If you fail so to report you will be unlawfully at large and committing a further offence for which you may be arrested.
I direct that the plea of guilty and the conviction thereon entered today for summary count number 4 be set aside and that that count be dismissed. As I have said I make no order in relation to the suspended imprisonment.
I declare that the period of 541 days from the 12th of November 2006 until today is time served in relation to the offences for which I have sentenced you today and that it is imprisonment already served under that sentence. I direct that the Chief Executive Corrective Services be advised in writing of the declaration and its details. Anything else?
MR FULLER: No thank you, your Honour.
MR DONALDSON: Thank you, your Honour.
HIS HONOUR: Thank you for your help in what is, I think, quite a difficult matter.
‑‑‑‑‑
SENTENCE DELIVERED ON 15/5/2008
HIS HONOUR: I direct that the sentence be reopened. I set aside the operational period of 3 years imposed on the 6th of May 2008 and in lieu thereof fix the operational period of 4 years.
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