R v Warren

[2014] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v Warren [2014] QCA 175

PARTIES:

R
v
WARREN, Shane Matthew
(applicant)

FILE NO/S:

CA No 87 of 2014
SC No 69 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

25 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2014

JUDGES:

Muir JA and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found in possession of methylamphetamine – where the applicant was charged with possessing a dangerous drug in excess of two grams – where the applicant pleaded guilty – where the trial judge found the possession was not for a commercial purpose – where the applicant was sentenced to 18 months imprisonment with immediate parole – where the applicant contends that a term of imprisonment should not have been imposed – whether the sentencing judge erred in the exercise of sentencing discretion – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)

R v Armstrong[2005] QCA 116, cited
R v Daly (2004) 147 A Crim R 440; [2004] QCA 385, cited
R v Woods[2004] QCA 204, cited

COUNSEL:

M J Byrne QC, with G T Hansen, for the applicant
B G Campbell for the respondent

SOLICITORS:

Lee Turnbull & Co for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. PHILIP McMURDO J:  This is an application for leave to appeal a sentence of 18 months imprisonment with immediate parole for an offence of the unlawful possession of a quantity of methylamphetamine, with the circumstance that the quantity exceeded two grams.  No time had been spent in pre-sentence custody.  For the applicant, it is submitted that this sentence is manifestly excessive.  The offence was committed in November 2012, when the applicant was then aged 42.  He was sentenced in March this year when he was aged 44.  He pleaded guilty, but there was a factual contest at his sentence hearing, which was whether any of the drug was in his possession for a commercial purpose.

1. The learned sentencing judge was not entirely impressed with the applicant’s evidence, but ultimately was unpersuaded that any of the drug was possessed other than for the applicant’s personal use.  His Honour found that the applicant had a “significant and possibly not properly acknowledged problem with drugs” and did not accept the assurance made by the applicant’s counsel that the applicant was not continuing to use the drug.

1. The applicant had previous convictions for drug offences, but had never been sent to prison.  He had used cannabis and amphetamines.  The most recent of those offences prior to the present one was the possession of drugs, for which he was fined in the Magistrates Court in 2012.  That was preceded by an offence of possession of drugs in 2009, but before that, the latest of the offending was in 1995.  It was submitted here that this showed something of a rehabilitation, albeit a temporary one.  That gap between 1995 and the more recent offences, including this one, is relevant but is relatively insignificant.

1. In the subject offence, the applicant was found in possession of three bags containing methylamphetamine when he was in a car which was stopped by police in suburban Townsville.  In total, there was a total of 4.725 grams of material, containing 2.183 grams of methylamphetamine.  The maximum penalty for this offence was 25 years imprisonment.  The learned sentencing judge acknowledged the applicant’s early plea of guilty.  His Honour referred to the need to balance deterrence and the need to assist genuine attempts at rehabilitation.  No particular part of the sentencing reasons is said to involve an error.  The argument is that the judge must have erred because the sentence is manifestly excessive.

1. The effect of this submission is that it wasn’t open to the judge to impose a sentence of imprisonment, albeit with immediate release on parole. It is submitted that a sentence of imprisonment should only be a last resort, and that a sentence which permits an offender to stay in the community is preferable, having regard to the terms of s 9(2) of the Penalties and Sentences Act 1992 (Qld) as they were at the time of this offence. No case was cited in support of the applicant’s argument. Instead, the applicant’s counsel sought to distinguish two cases which were relied upon by the prosecution at the sentencing hearing.

1. The first of those is the R v Daley,[1] where leave to appeal was sought in respect of a number of sentences, one of which was a term of three years for the possession of methylamphetamine.  The sentencing judge recommended that the prisoner be eligible for post-prison community-based release after serving 12 months of that period.  A total of 347 days of pre-sentence custody was declared.  On the hearing of the appeal, the court substituted a sentence of three years imprisonment, suspended forthwith, because of a complication about his being released in accordance with the recommendation for parole.

   [1](2004) 147 A Crim R 440.

1. Daley’s offence involved the possession of 3.109 grams of powder which included 2.26 grams of methylamphetamine.  The possession was for his own use.  He had a history of drug offending, although had never been to prison before that case.  It is conceded by the respondent here that Daley’s criminal history was worse than that of the present applicant; but ultimately, Daley was required to serve an actual period in custody.

1. The second case is the R v Armstrong.[2]  He was in possession of methylamphetamine of a total weight of 2.711 grams.  His offence was committed during the term of a six-month intensive correctional order for earlier offences of possession of amphetamine or methylamphetamine.  Again, the respondent here concedes that Armstrong’s criminal history was more serious than in the present case.  Armstrong’s original sentence of two and a half years, suspended after 12 months with an operational period of three years, was reduced on appeal to 18 months, suspended immediately.  By then, he had served, it would appear, about nine months of that term.  In the principal judgment, which was given by Justice Philippides with the agreement of the other members of the court, it was said that the authorities indicated that the appropriate head sentence in that case, given the quantity of the drug involved, the early plea of guilty and the lack of commerciality, was one between 12 and 18 months imprisonment.

   [2][2005] QCA 116.

1. In this appeal, the respondent also referred to the R v Woods,[3] where the offender had been found with 5.8 grams of cannabis and 12 grams of powder containing 3.85 grams of methylamphetamine.  There was no element of commerciality and he pleaded guilty.  He was aged 24 at the time of the offences, but he has a criminal history not limited to drug offences and had served some short periods of imprisonment.  His original sentence was 12 months imprisonment on each of the counts of possession of the drugs.  In the judgment of this court, it was said that the head sentence was a proper one, but it was held that the plea of guilty was not given its proper effect in that case and the sentence was varied to be suspended in each case after four months, with an operational period of three years.  Again, that offender had a more serious criminal history, but he was required to serve some time in custody.

   [3][2004] QCA 204.

1. The present applicant must do more than demonstrate that another sentence, not involving a term of imprisonment, might have been imposed.  He must demonstrate that in the circumstances of his case, it was not open to impose this sentence.  In my conclusion, that has not been demonstrated.  The order for immediate release on parole adequately allowed for the mitigating factors, most importantly the plea of guilty and the absence of a commercial purpose.  It was open to impose a term of imprisonment, as the sentencing judge remarked, having regard to considerations of deterrence and denunciation.

1. The length of the term may not have been that which others would impose, but it doesn’t reveal an error in the exercise of the sentencing discretion.  I would refuse the application.

1. MUIR JA:  I agree.

1. PETER LYONS J:  I agree.

1. MUIR JA:  The order of the court is that the application for leave to appeal against sentence is refused.