R v Denton [1999] QCA 343

Court of Appeal (Qld)|1999-08-20|Before: Murdo P, Pincus JA, Thomas JA

THOMAS JA: This is an application for leave to appeal against sentences imposed in the Supreme Court in respect of seven offences. The Court, at the time of imposing sentences on these matters also imposed sentences on six charges pending in the Magistrates Court, but they are not the subject of this appeal. The criminal conduct in those matters, however, may be relevant in considering whether the total of the sentences imposed was commensurate with the total of the criminality for which he fell to be sentenced.

The offences with which we are concerned are his breach of a suspended sentence of 12 months for the unlawful use of a motor vehicle, three drug offences involving his possession of methylamphetamine and things for use in connection with its production, and three further subsequent drug offences involving the production of methylamphetamine and his possession of things connected with its production.

The applicant was 23 years old at the time of the offences and is now 24. He has a criminal history that includes various offences of dishonesty, unlawful damage, unlawful use of a motor vehicle and drug offences which include possession of a dangerous drug, production of a dangerous drug and some other drug-related offences.

He was sentenced in October 1997 to 12 months for his unlawful use of a motor vehicle and because he breached the Bail Act subsequently he was dealt with for breach of the terms of that suspended sentence to the extent that he was required to serve one month of it. However, 11 months of that sentence still remained suspended and unserved when he committed the further breaches with which we are now concerned.

The circumstances of the drug offences may be briefly stated. On 5 March 1999 police called at the applicant's premises and apprehended him as he attempted to flee from the rear of the premises. 24 grams of ephedrine were found in the house. Ephedrine is a substance used in the manufacture of amphetamine. A bag of 5.185 grams of white powder which on analysis contained .3 of a gram of methylamphetamine was also found in the house. A green trunk located under a piece of wood in the back yard contained a large quantity of glassware, funnels and chemicals used in the production of amphetamines. The applicant told police that he had allowed a person named Dowd to manufacture amphetamines on the premises.

The applicant was arrested and was granted bail. Some four months later police raided the house in which the applicant was living. He was then caught in the act of cooking a batch of amphetamine in the kitchen. He had a set of instructions, equipment and sufficient materials to produce some 27 grams of amphetamine which is said to be worth thousands of dollars.

The second series of offences was committed while the applicant was on bail in relation to the first series. Both series of offences were committed while he was the subject of the suspended sentence earlier mentioned.

The summary offences included possession of tainted property which he stated he had obtained from an unknown person at a hotel and possession of a shortened fire-arm.

The maximum penalty in relation to the first three drug offences is 15 years imprisonment, while the maximum on count 3 of the second indictment is 20 years imprisonment.

The matters urged in mitigation include the following - the applicant's youth at the time of sentence and at the time of committing the offences; the fact that he completed his schooling until year 10 after which time he was employed as a trade assistant by various tradesmen; the fact that he was a user of amphetamine at the time of the offences; the fact that the amphetamine found in his possession on the first occasion was amphetamine purchased for his own use; and the fact that the applicant had set up a small somewhat rudimentary set of equipment. He was using an electric hot plate and a tripod with a bunsen burner as well as a microwave oven. It was therefore described as a not very sophisticated operation.

The applicant also proceeded by way of hand-up committals and the pleas of guilty were reasonably timely although the learned sentencing Judge expressed some reservation about this. It was submitted that the totality principle should be applied and that the imposition of the suspended sentence might more properly have been ordered to run concurrently with one or more of the other sentences.

The total effect of the sentences is certainly severe for an offender who is not yet 25 years old. The learned sentencing Judge noted that the applicant had done well at school and had been in employment and expressed a hope that in the future when he had done his time he might mend his ways.

The difficulty faced by the applicant is that because of his persistent re-offending, including further production of methylamphetamine when he was already bailed on earlier similar charges, some cumulative component in the sentence was not only justifiable but was overall a necessary consideration. The appropriate total sentences would rightly be greater than the level that might be found in a sentence of a comparable offence for a single series of similar offences.

Prior to this series of criminal activities, the applicant had only been in gaol once for a period of two months in respect of breach of bail. The sentences that have been imposed - almost six years by way of head term and as much as four years before parole could be considered - are certainly very severe. We are referred to The Queen v. Lynch, CA 36 of 1999, 23 July 1999 which also involved a series of offences including breach of a suspended sentence. Overall Lynch would seem to be at least as serious and possibly more serious than the present combination of offences. The Court in Lynch reduced the overall effect of the sentences to four and a half years with consideration of parole after one and a half years. It may be noted that there was a cumulative component there and although the Court could have imposed a structure of three cumulative sentences as the learned Judge did in the present case, it was considered on appeal that one order of cumulative effect was sufficient.

This applicant is a young man with some prospect of rehabilitation. A sentence of this length at this stage of his life - he is now 24 - would probably have an unduly bad effect on his rehabilitative prospects. Counsel for the Crown submitted that the structure of the sentences is defensible, although it must be admitted that it has already produced some confusion in interpretation by the Corrective Service Authorities in that an interpretation different from what His Honour's stated intention was appears, so far, to have been placed upon it.

More importantly, counsel for the Crown conceded that the sentence total seems a little high and that he could not defend four years as the date by which consideration of parole might occur if that was the proper construction of the sentences.

I recognise that there are many ways in which the present sentences could validly be structured. However in my view the best way to formulate the sentences in this case is to look at the individual and collective seriousness of the offences, fix the terms and then decide what part of the total the applicant must serve. In my view the overall sentences were manifestly excessive. I consider that a sentence of four years with respect to those offences in the second indictment sufficiently embodies recognition of the total criminality for which he had to be sentenced. That sentence may be seen as the operative term and should be fixed in respect of those three offences.

I would agree that the 11 months of the suspended sentence should be ordered to be served, but consider that it should be concurrent, having regard to the overall effective sentence that I have nominated. Similarly the sentences for the first indictment concerning drug offences should be concurrent sentences of two and a half years. I would therefore grant the application, allow the appeal and vary the sentences in the manner that I have stated, recognising that the declaration in respect of time already served should remain as part of the sentence.

THE PRESIDENT: I agree with the orders proposed by Justice Thomas and with his reasons.

THE PRESIDENT: The orders are as outlined by Justice Thomas.

MS McGINNESS: Just to confirm that there's no parole date that Your Honour set in relation to those matters.

THOMAS JA: I beg your pardon. With the recommendation that he be considered for parole after 18 months.

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