The King v Brett James Moore

[2023] QCA 100

[2023] QCA 100

COURT OF APPEAL

FLANAGAN JA
BODDICE JA
RYAN J

CA No 172 of 2022
SC No 653 of 2022
SC No 774 of 2022
SC No 914 of 2022

THE KING

v

MOORE, Brett James  Applicant

BRISBANE

MONDAY, 15 MAY 2023

JUDGMENT

RYAN J:  The applicant pleaded guilty to 11 offences, namely: possessing a dangerous drug in excess of 200 grams – the quantity was 873.9 grams of methylamphetamine; possessing a relevant substance; two offences of possessing a category H weapon, with a circumstance of aggravation; contravening an order about device information from a digital device; possessing a dangerous drug in excess of two grams; possessing a category H weapon; three charges of contravention of an authority required to possess explosives; and one charge of failing to keep a restricted drug in the person’s possession until used.

In more detail: the applicant was found in possession of 753.1 grams of pure methylamphetamine within 993.6 grams of substance – if sold in one ounce lots, its value was somewhere between $159,600 and $180,000; seven clipseal bags holding smaller amounts of methylamphetamine – in total, 164.5 grams of substance containing 120.8 grams of pure methylamphetamine; two boxes of benzodiazepines; empty clipseal bags and digital scales; 780 millilitres of 4-Hydroxybutanoic acid lactone; a category H Smith & Wesson .38-calibre double-action revolver, which was loaded with six rounds; further rounds of ammunition; a Unique K Mikros .25 semi-automatic pistol; $5,000 in cash; a mobile phone; separately, another ounce of methylamphetamine; a .22-calibre Beretta semi-automatic pistol containing ammunition; and further rounds of ammunition for various calibres, including ammunition suitable for the three weapons he possessed.

Those serious drugs, weapons, and other offences, for which the applicant was sentenced by the primary judge, were committed on 4 March 2020 while the applicant was on parole for sentences imposed in August 2018 for other serious similar offences, which included, but not only, the possession of about one ounce of methylamphetamine and weapons.

In August of 2018, the applicant was sentenced to four years’ imprisonment with parole eligibility after 18 months in custody.  Taking into account the time he had served in custody prior to the imposition of that sentence, his parole eligibility date was fixed at 30 March 2019.

He was released on board-ordered parole on 1 April 2019.

He was returned to custody on 4 March 2020 for breaching his parole by committing the present offences.

Thereafter, he served out the balance of the four-year sentence imposed in August 2018 of 570 days – so about eighteen and a-half months – with that sentence concluding on 24 September 2021.  The applicant was then released on bail in relation to the March 2020 offences.

The sentence imposed by the primary judge for the March 2020 offences, the subject of this application, was a sentence of nine years’ imprisonment, with a declaration that 604 days of pre-sentence custody were to be taken as time already served, and with parole eligibility at two years and three months from the date of the entry of the applicant’s pleas of guilty.

The 604 days of declared pre-sentence custody included the 570 days the applicant spent serving out the balance of the sentence imposed in August 2018, together with the 34 days between the entry of his pleas of guilty to the March 2020 offences and the imposition of a sentence by the primary judge.

The issue on this application came down to whether the sentence imposed by the primary judge was manifestly excessive because her Honour did not give the applicant full credit for the 570 days he spent in pre-sentence custody, having been returned to custody after his parole was suspended, in the fixing of his parole eligibility date for the March 2020 offences.  As I have said, her Honour declared those 570 days as time already served under the sentence that she imposed.  They were included in the 604 days which were declared.  So, speaking colloquially, in doing so, her Honour took the 570 days “off the top”.

Indeed, in addition to taking the 570 days off the top, her Honour reduced the head sentence – the top – by 12 months, as she explained in her sentencing remarks, “for totality”.  Her Honour continued by indicating that, at the same time, she wished to impose a sentence which required the applicant to “serve a meaningful amount of extra time in custody for these further offences, which are very serious, involve a lot more drugs than the sentence of 2018, and involve weapons, ammunition, secret panels”.

Her Honour indicated that her goals in sentencing also included ensuring that the applicant had a meaningful period in the community under parole supervision, and that he receive some credit – real credit – for the pre-sentence custody which he had served.  That brought her Honour to the conclusion that the applicant ought to serve an additional two years and three months in custody, from the date he entered his pleas of guilty, before his eligibility for parole arose.

If her Honour had simply applied the not uncommon approach to sentencing on pleas of guilty in this State of setting parole eligibility at one-third of a head sentence, then her Honour would have required the applicant to serve three years in custody before his eligibility arose.  Instead, her Honour reduced that notional three years to two years and three months, a reduction of nine months.  That is about half of the 570 days the applicant spent both serving out the sentence from 2018 and in pre-sentence custody before his release on bail in relation to the March 2020 offences, sometimes called the overlapping period.  So, to again speak colloquially, while her Honour took all of the 570 days “off the top”, her Honour did not take all of the 570 days “off the bottom”; instead, she took half the number of those days “off the bottom”.

The applicant argued that the sentence imposed by her Honour means that the applicant has to serve too much time in actual custody before his parole eligibility arises.  He supported his submission that that was too much time by pointing to the applicant’s efforts at rehabilitation whilst on bail.  The applicant submitted at paragraph 24 of his outline that “it would not have been beyond sound sentencing principles” to, in effect, take all of the 570 days off the bottom by reducing the parole eligibility date accordingly.  That may be true.  Judges have a wide sentencing discretion.  But that is not the question for this Court.

The question for this Court, as argued, reduces to whether the sentence imposed by her Honour is manifestly excessive because her Honour reduced the bottom by only half of the overlapping period, having regard to all relevant sentencing considerations, including the applicant’s antecedents, his criminal history and the seriousness of his offending.  I am not persuaded that it is.

Her Honour’s sentencing remarks reveal that she was well aware of everything that operated in the applicant’s favour.  She was also well aware of his criminal history, his personal history, and the other matters discussed in the report of the psychologist, which was tendered on his behalf, and which included an assessment of his risk of reoffending.  Her Honour took all of those matters into account and balanced them against the seriousness of the applicant’s March 2020 offending in arriving at the sentence imposed.

It cannot be said, in my respectful view, that her Honour’s approach fell outside the sound exercise of the sentencing discretion.

Her Honour was entitled to proceed on the basis that there ought to be some consequence for the applicant of committing offences whilst on parole.  That consequence was, in effect, that the applicant spent about nine more months in custody in relation to the August 2018 sentence than he would have spent had he not breached his parole.  In context, in my view, such a consequence was entirely appropriate and, to use her Honour’s word, meaningful.

The applicant argues at paragraphs 27 and 28 of his outline that the sentence imposed by her Honour means that the applicant will, in fact, spend more than one third of the head sentence in custody before his parole eligibility arises.  However, in making that argument, the applicant has attributed all of the 570 days to the sentence imposed in March 2020.  In other words, the applicant has not allowed for the fact that the 570 days were overlapping days.  When both sentences are considered in totality, the applicant is liable to serve 13 years’ imprisonment – the four years imposed in August 2018 and the nine years imposed in 2022.  And the applicant will serve in custody, at least, the three years he has already served, plus two years and three months before he is eligible for release on parole.

While it might be customary to do so, a sentencing judge is not obliged in every case on a plea of guilty to structure a sentence which allows for a prisoner’s release after serving one-third of the period of custody imposed.  The sound exercise of the sentencing discretion might involve postponing the prospect of release beyond the one-third mark, depending, of course, on a sentencing judge’s view of the circumstances, including the circumstance that very serious offences were committed whilst an offender was on parole for serious offences of the same type, as here.

In the present case, in my view, the sentence imposed cannot be said to fall outside the sound exercise of the sentencing discretion, and I would refuse the application for leave.

FLANAGAN JA:  I agree.

BODDICE JA:  I agree.

FLANAGAN JA:  The order of the Court is that the application for leave to appeal is refused.  The Court thanks counsel for their assistance.  Adjourn the Court.