R v. Schluter

[2007] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:	R v Schluter [2007] QCA 125
PARTIES:	R v SCHLUTER, Paul Edward (applicant)
FILE NO/S:	CA No 12 of 2007 SC No 202 of 2004 SC No 669 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2007
JUDGES:	McMurdo P, Jerrard JA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant's previous sentence of 18 months imprisonment was fully suspended for an operational period of 3 years – where a 12 month sentence was activated due to further offences within the 3 year operational period – whether the sentence was manifestly excessive
COUNSEL:	S W Barclay for the applicant M J Copley for the respondent
SOLICITORS:	Noel Woodall & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. MCMURDO P:  The application for leave to appeal should be refused for the reasons given by Jerrard JA.

1. JERRARD JA:  This application for leave to appeal is against an order made on 14 December 2006 by a judge of this Court, activating 12 months of a suspended 18 month sentence of imprisonment previously ordered to be served.  The applicant argues that no more than about five months of that 18 month term ought to have been activated, and that the sentence imposed was crushing upon Mr Schluter and detrimental to his prospects of rehabilitation.  His counsel contended it was manifestly excessive in the circumstances.

1. Mr Schluter had pleaded guilty on 11 October 2004 to three counts of offences involving drugs committed on 2 May 2003 at Gympie, and to three further counts of offences involving drugs committed at Gympie on 2 April 2004.  The offences committed in May 2003 were possession of cannabis, possession of methylamphetamine, and production of methylamphetamine; the April 2004 offences were production of methylamphetamine, possession of cannabis, and possession of glassware, chemicals and medication for use in connection with the commission of the crime of production of methylamphetamine.  The sentencing remarks of the learned judge imposing the wholly suspended term of 18 months imprisonment on 11 October 2004 record that a very small amount of methylamphetamine had been found in Mr Schluter’s possession in a car in May 2003, as well as a small amount of cannabis, and that in the boot of the car was a rudimentary laboratory for the production of methylamphetamine.  That included glassware, hoses, chemicals, a pH tester, and an empty Sudafed packet.  The prosecution accepted in October 2004 that that rudimentary laboratory was for the production of methylamphetamine for Mr Schluter’s own use.

1. Mr Schluter was committed for trial in October 2003 on those charges.  In April 2004, while on bail, the same situation recurred.  He was again found in a car in which there was quite a degree of cannabis, possessed for his own use; a small amount of methylamphetamine, also for his own use; and once again another rudimentary laboratory, consisting of glassware, precursor chemicals, and a butane stove.  The prosecution accepted in October 2004 that that laboratory had not been used by Mr Schluter, but that he had possession of it in preparation for its use to manufacture methylamphetamine. 

1. The learned judge imposing sentence in 2004 recorded that Mr Schluter had some criminal history, which included offences of dishonesty, and some convictions for minor drug offences consistent with a user of cannabis and one who also injected with methylamphetamine.  Because Mr Schluter had served 190 days on remand, had a supportive family, and had other people who spoke highly of him, the judge was prepared to impose a suspended sentence.  The judge somewhat presciently remarked that:

“You also seem to have this long standing problem with drug use.  That does make me pause a bit in imposing a suspended sentence, because you are at serious risk of re-offending and the sentence almost certainly would come into operation.”[1]

However, the judge imposed a sentence of 18 months imprisonment with an operational period of three years, completely suspended, on the counts of production, and imposed no other sentences on the remaining matters, although recording convictions.  Mr Schluter then, over time, committed offences during that operational period.

[1]At AR 13.

1. The first was an offence of possessing cannabis, committed on 28 July 2005, and the next an offence committed on 27 March 2006, and constituted by his driving away from a service station at Dingo without paying for $56.54 worth of diesel with which he had filled up his vehicle.  He was dealt with for those two matters in the Gympie and Duaringa Magistrates Court on 19 December 2005 and 5 April 2006, respectively.  He was placed on a recognisance to be on good behaviour on the first occasion, and fined $150 on the second.

1. He next appeared in the Gympie Magistrates Court on 9 October 2006.  He pleaded guilty to one count of possession of cannabis, one count of possessing a document containing instructions for the production of methylamphetamine, one count of possession of a metal pipe that he had used in connection with the smoking of a dangerous drug, and one count of possession of a hypodermic syringe and needle used in connection with the administration of a dangerous drug and which he had not disposed of in accordance with procedures prescribed.  All those offences were committed on 11 September 2006; the learned judge who activated 12 months of the 18 month suspended sentence on 14 December 2006 was informed by Mr Schluter’s counsel that Mr Schluter admitted possession of those items which were located in his car, but contended that they were not his and indeed were the property of a former girlfriend.  The same submission had been made to the Magistrate who sentenced Mr Schluter on 9 October 2006, and the learned judge was informed that the Magistrate had accepted that submission.

1. The judge was also told that another offence involving drugs was dealt with on 6 November 2006, and that police had found “Some items at a particular address”, and that Mr Schluter said that those were items which had previously been associated with his drug use at an earlier time, and of which he was still in possession.  The learned judge remarked when activating the 12 months that it seemed somewhat implausible that items would have been missed on a previous occasion by the police, but nevertheless it might be that that explanation was correct, and he would give Mr Schluter the benefit also of the possibility that the explanation of some of the other offences might be true.  It follows that the learned judge passed sentence on grounds which accepted the submission that Mr Schluter was not shown to have been using drugs himself in September 2006.

1. There were other offences dealt with by the Magistrate on 9 October 2006, which also breached the operational period of the suspended sentence.  Those were seven counts of breaches of restraining orders imposed under the Domestic and Family Violence Protection Act 1989 (Qld), committed between 5 August 2006 and 9 September 2006. There were also two offences of having unlawfully entered or remained in a dwelling or yard, respectively committed between 2 and 4 September 2006, and between 7 and 9 September 2006. In respect of all of the offences dealt with on 9 October 2006 in the Gympie Magistrates Court, Mr Schluter was sentenced to three months imprisonment, and it was ordered that time already spent in custody from 12 September 2006 be time already served. Mr Schluter had served that three months and been on bail for two days when sentenced to the activated 12 months on 14 December 2006.

1. On this application Mr Schluter’s counsel places emphasis upon genuine attempts Mr Schluter had made to rehabilitate himself, including gaining employment as a carpenter from September 2005 until April 2006, and the fact that the Magistrate had accepted the submission that his possession of drugs and of instructions on the manufacture of drugs was based on his knowledge of their existence and his control of them, rather than his intention to consume drugs.

1. The difficulty for the applicant is that he was admittedly in possession of cannabis, and obviously for his own use, nine months after being placed on the suspended sentence, and another nine months later he stole some diesel.  Then he committed offences against restraining orders, and offences of being in possession of drugs and instructions on their manufacture.  It was conceded before the learned sentencing judge that even the latter explanation necessarily meant that Mr Schluter had continued to associate with his then girlfriend despite, on his account, what must have been her involvement in the possession and manufacture of drugs.

1. The learned judge was satisfied it would have been unjust to activate the whole of the 18 month term of imprisonment.  Mr Schluter had continued to offend against the law throughout the period of the suspended sentence, including by possessing drugs and instructions on making them, and by repeatedly disobeying other court orders.  It was not a manifestly excessive penalty to activate 12 months of the sentence suspended for two sets of offences involving producing or preparing to produce amphetamines.  I would dismiss the application.

1. WILSON J:  I agree with the reasons for judgment of Jerrard JA and with the order His Honour proposes.