R v Thompson - [2016] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thompson [2016] QCA 196

PARTIES:

R
v
THOMPSON, Mitchell Bernard David
(applicant)

FILE NO/S:

CA No 40 of 2016
SC No 18 of 2016
SC No 819 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 15 February 2016

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2016

JUDGE:

Morrison and Philippides JJA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   Other than the recording of convictions, the sentences imposed on counts 2 to 5 of Supreme Court indictment No 819 of 2015 be set aside and the applicant not be further punished on those counts.

4. It is declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that the period of three days during which the applicant was held in custody from 17 January 2015 to 19 January 2015 was time served under the sentences of imprisonment imposed on 15 February 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – WHETHER JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of one count of trafficking methylamphetamine and cannabis and 19 counts of supplying a dangerous drug, in addition to four other indictable offences and 13 summary offences – where the applicant was sentenced to four years and six months imprisonment for trafficking to be suspended after serving 18 months for an operational period of four years and six months, two years imprisonment for each count of supply with a parole eligibility date coinciding with that suspension, lesser concurrent terms of imprisonment for the other indictable offences and convicted but not further punished for the summary offences – where the sentencing judge was not made aware that the applicant had served three days of presentence custody with respect to the offences – where the sentencing judge was not made aware that four of the counts of supplying a dangerous drug were relied on by the Crown, in part, as particulars of the trafficking offence – whether the period of three days of presentence custody should have been declared as time already served pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – whether concurrent terms of imprisonment for the supply counts that were relied on, in part, as particulars of the trafficking offence should have been imposed – whether there was a failure to take account of the applicant’s early pleas of guilty – whether the sentencing discretion ought to be re-exercised

Drugs Misuse Act 1986 (Qld)
Penalties and Sentences Act 1992 (Qld), s 159A

R v Blumke[2015] QCA 264, considered
R v Challacombe[2009] QCA 314, considered
R v Clark[2016] QCA 173, considered

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thompson

Details

AGLC: R v Thompson [2016] QCA 196
Case: [2016] QCA 196
Decision Date: 5 August 2016

CaseChat Overview and Summary

In R v Thompson, the applicant appealed against his sentence following a conviction for trafficking methylamphetamine and cannabis and various drug-related supply offences. The applicant contested the legality of his sentencing, arguing that the sentencing judge had acted on incorrect principles. Specifically, the applicant argued that his three days of presentence custody should have been recognised as time already served and that concurrent terms of imprisonment for certain supply counts should not have been imposed. Additionally, the applicant claimed that his early pleas of guilty were not adequately considered.

The court considered whether the sentencing judge had erred by not recognising the three days of presentence custody as time already served under s 159A of the Penalties and Sentences Act 1992 (Qld). It also examined whether the concurrent terms of imprisonment for the supply counts, which were relied on as particulars of the trafficking offence, should have been imposed. Furthermore, the court assessed whether the sentencing judge had failed to appropriately account for the applicant’s early pleas of guilty.

The court found merit in the applicant's argument that the imposition of concurrent terms of imprisonment for the supply counts was an error, as these counts were partially used as particulars of the trafficking offence. The court noted that the sentencing judge had not been made aware of this during the sentencing process. The court also determined that the complaint regarding the failure to consider the applicant's early pleas of guilty was without substance, as the pleas were acknowledged and had a significant impact on the sentence. The court granted leave to appeal, allowed the appeal, and set aside the sentences imposed on the specified counts, declaring the period of three days of presentence custody as time already served.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Other than the recording of convictions, the sentences imposed on counts 2 to 5 of Supreme Court indictment No 819 of 2015 be set aside and the applicant not be further punished on those counts.

4. It is declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that the period of three days during which the applicant was held in custody from 17 January 2015 to 19 January 2015 was time served under the sentences of imprisonment imposed on 15 February 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant did, however, make one point of substance. He referred to the Supreme Court indictment and to the feature that he had been punished for a number of counts of supply that occurred during the period of trafficking for which he was of course also punished. He submitted that this must have been an error and, for the reasons that immediately follow, that submission should be accepted.Consideration Count 1 on the Supreme Court indictment alleged that the applicant unlawfully trafficked in methylamphetamine and cannabis between 8 September 2014 and 18 September 2014. Counts 2 to 5 alleged that the applicant unlawfully supplied cannabis on 12 and 16 September 2014. Count 6 alleged that the applicant unlawfully supplied a dangerous drug (LSD) on 13 September 2014. Each of counts 2 to 6 were therefore alleged to have been committed during the period of trafficking alleged in count 1. Count 6 is of no relevance to the applicant’s point because it concerned a drug that was different to those alleged in count 1. However, it was accepted by the Crown at the hearing of this application that the supplies alleged in counts 2 to 5 were relied on, in part, as particulars of the trafficking offence. It was therefore inappropriate to impose sentences on those supply counts,[12] but each attracted concurrent terms of two years imprisonment with a parole eligibility date of 13 August 2017. Unfortunately, despite the sentencing judge having specifically canvassed the structure of the sentences at the submission stage, her Honour was not alerted to this feature of the Supreme Court indictment in the court below. Indeed, quite to the contrary, the submission was made that lesser concurrent terms of imprisonment should be imposed for the supply counts in question. Be that as it may, the imposition of sentences of imprisonment on counts 2 to 5 was an error and it must be corrected.[12]See R v Ianculescu [2000] 2 Qd R 521 at 528, [46]; R v Elhusseini [1988] 2 Qd R 442 at 455; R v Kiripatea [1991] 2 Qd R 686 at 701-2; R v Dang [1999] QCA 414 at [21]; R v Connolly [2016] QCA 132 at [16]-[17]. I turn then to the proposed grounds of appeal appearing in the applicant’s Outline. There is no substance to the complaint that the applicant’s pleas of guilty were not taken into account by the sentencing judge. For the reasons already expressed,[13] his pleas were rightly regarded by her Honour as the only real manifestation of cooperation in this case. They were expressly referred to in her Honour’s sentencing remarks and had a significant reducing effect on the period of actual custody that the applicant was ordered to serve. Indeed, there was little else to justify such a reduction. In that regard, although it may be accepted that the applicant supplied the PIN for his mobile telephone when he was first arrested (27 February 2014), the reason he advanced to the police for being in possession of the five clip seal bags of powder was hardly credible. Furthermore, his participation in the record of interview that followed was of negligible assistance, and he declined to be interviewed on both occasions when he was subsequently arrested (17 September 2014 and 17 January 2015). When his vehicle was stopped by police on 28 November 2014 and the applicant was asked whether he had anything to declare, he directed them to the bag in the boot in which the items seized that day were contained but, apart from that and the provision of his PIN on 27 February 2014, it cannot be said that the applicant provided much in the way of positive assistance to the police in their investigation of his offending. It follows that the applicant’s assertion that there was “full cooperation with police during the whole process” must be rejected.[13]At [22].

CITATION:	R v Thompson [2016] QCA 196
PARTIES:	R v THOMPSON, Mitchell Bernard David (applicant)
FILE NO/S:	CA No 40 of 2016 SC No 18 of 2016 SC No 819 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 15 February 2016
DELIVERED ON:	5 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2016
JUDGE:	Morrison and Philippides JJA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. Other than the recording of convictions, the sentences imposed on counts 2 to 5 of Supreme Court indictment No 819 of 2015 be set aside and the applicant not be further punished on those counts. 4. It is declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that the period of three days during which the applicant was held in custody from 17 January 2015 to 19 January 2015 was time served under the sentences of imprisonment imposed on 15 February 2016.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – WHETHER JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of one count of trafficking methylamphetamine and cannabis and 19 counts of supplying a dangerous drug, in addition to four other indictable offences and 13 summary offences – where the applicant was sentenced to four years and six months imprisonment for trafficking to be suspended after serving 18 months for an operational period of four years and six months, two years imprisonment for each count of supply with a parole eligibility date coinciding with that suspension, lesser concurrent terms of imprisonment for the other indictable offences and convicted but not further punished for the summary offences – where the sentencing judge was not made aware that the applicant had served three days of presentence custody with respect to the offences – where the sentencing judge was not made aware that four of the counts of supplying a dangerous drug were relied on by the Crown, in part, as particulars of the trafficking offence – whether the period of three days of presentence custody should have been declared as time already served pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – whether concurrent terms of imprisonment for the supply counts that were relied on, in part, as particulars of the trafficking offence should have been imposed – whether there was a failure to take account of the applicant’s early pleas of guilty – whether the sentencing discretion ought to be re-exercised Drugs Misuse Act 1986 (Qld) Penalties and Sentences Act 1992 (Qld), s 159A R v Blumke[2015] QCA 264, considered R v Challacombe[2009] QCA 314, considered R v Clark[2016] QCA 173, considered