//
[2011] QCA 29
General information, not legal advice.
Court of Appeal (Qld)
2011-02-25
Margaret McMurdo P and Fraser and Chesterman, JJA, Separate reasons for judgment of each member of the Court, each, concurring as to the order made
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Doraho [2011] QCA 29
PARTIES: R v DORAHO, Omar Bin (applicant)
FILE NO/S: CA No 315 of 2010 / SC No 90 of 2010
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON: 25 February 2011
DELIVERED AT: Brisbane
HEARING DATE: 16 February 2011
JUDGES: Margaret McMurdo P and Fraser and Chesterman JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Application for leave to appeal against sentence is refused
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to possessing more than 500 grams of the dangerous drug cannabis sativa – where the applicant was sentenced to six months’ imprisonment without early release on parole – where the applicant had a significant criminal history in relation to misusing drugs – whether the sentencing judge failed to take into account the applicant’s plea of guilty – whether the sentencing judge placed too much weight upon the applicant’s criminal history – whether the sentence was manifestly excessive / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge fixed the last day of the sentence as the date for the applicant to be released on parole – whether the sentencing judge gave insufficient reasons for delaying the parole release date beyond the mid point of the sentence – whether the sentencing judge erred in failing to alert counsel to the proposed release date / Penalties and Sentences Act 1992 (Qld), s 13, s 13(4), s 13(5), s 160B(3), s 160G, s 160G(1) / R v Christie (2000) 115 A Crim R 461; [2000] QCA 165, considered / R v Kennedy [2000] QCA 140, considered / R v Kitson [2008] QCA 86, explained / R v Meid [2006] QCA 124, distinguished / R v Oldfield [1999] QCA 85, considered / R v Smith [2005] QCA 398, distinguished
COUNSEL: M J Power for the applicant / M J Copley SC for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: I agree with Chesterman JA's reasons for refusing this application for leave to appeal against sentence.
True it is that the sentence imposed in this case was unusual: a term of six months imprisonment with a parole release date fixed on the last day of that term. But it was a lawful sentence under s 160B(3) and s 160G(1) Penalties and Sentences Act 1992 (Qld). The judge's reasons for this unusual sentence emerge plainly enough from his sentencing remarks in the context of the preceding exchanges between counsel and the judge.
The applicant's criminal history was highly relevant to the sentence imposed. It demonstrated that he remained a recidivist marijuana user, despite the lenient sentences previously imposed which offered him the opportunity to rehabilitate. He was fined without conviction for possessing marijuana when he was 17. In 2006, aged 22, he was convicted and placed on 12 months probation for offences including supplying, producing and possessing marijuana. In August 2008, aged 23, he was again convicted for drug offences including the supply of marijuana. He was convicted and sentenced to four months imprisonment wholly suspended for a period of two years. Later that year, after he turned 24, he was convicted of drug offences including possession of marijuana, and sentenced to a further four months imprisonment. His suspended sentence of four months imprisonment was activated but he was released on parole immediately.
The present offence also occurred during the operational period of the suspended sentence imposed in August 2008. This then was the applicant's second series of offending involving marijuana during that operational period.
The applicant was 25 at sentence and 24 when he committed the present offence. His growing maturity has not brought with it the willpower necessary to stop flouting the law and committing offences against the Drugs Misuse Act 1986 (Qld).
The present offence is punishable by a maximum term of 20 years imprisonment.
The judge clearly understood the applicant had pleaded guilty and cooperated with police. He stated as much in his sentencing remarks. His Honour also considered defence counsel's submission that an intensive correction order should have been imposed. But his Honour rejected that option because the applicant had not taken advantage of past community based orders, including suspended sentences and parole. His Honour considered that the only solution was an actual period of imprisonment. It is clear from his Honour's sentencing remarks, even without adverting to the judge's preceding exchange with counsel, that he determined the applicant required a period of six months actual imprisonment to break his cycle of dependency on marijuana and to deter him from re-offending. The sentence imposed does not involve community supervision, but such sentences had not assisted the applicant in the past in ending his unlawful use of and dependence on marijuana. Whilst not stated in terms, it can be clearly inferred from the judge's comments that, at this time, this was achievable only by the applicant's commitment to stop offending.
(a) The sentencing judge did not give sufficient reasons for requiring the applicant to serve the full term of imprisonment;
(b) The sentencing judge did not alert counsel to the prospect that a parole release date beyond the mid point of the sentence might be imposed;
(c) The sentencing judge failed to take into account the applicant’s plea of guilty;
(d) The sentencing judge placed too much weight upon the applicant’s criminal history; and
(e) The sentence is manifestly excessive.
On 18 October 2009 the applicant was the occupant of a room in a hotel at Spring Hill in Brisbane. Hotel staff who smelt burnt cannabis in the room called police. Their search found 2.1 grams of cannabis leaf in a packet of cigarettes. More significantly the applicant had 384.4 grams of the drug in a clip seal bag placed in the pocket of a pair of shorts. In the other pocket was a clip seal containing 194.9 grams of cannabis. The total weight of cannabis in the applicant’s possession was 582.4 grams. The police also found a number of empty plastic bags in a bin. The applicant said he had transferred the cannabis from the smaller bags into the two larger bags. He had used a pair of scissors to cut up some cannabis before smoking it. The applicant told police that the cannabis was hydroponically grown and he had bought it for about $3,000. He said the drug would have a value of about $6,000 in Cairns. The applicant was also found to be in possession of $478.65.
The applicant has a significant criminal history. He has convictions for stealing, possessing dangerous drugs, obstructing police officers, committing a public nuisance, entering premises and committing an indictable offence, supplying, producing and possessing dangerous drugs and possessing utensils in connection with the use of drugs and possessing property suspected of being the proceeds of an offence against the Drugs Misuse Act. It is, obviously, the previous convictions for misusing drugs which are of particular relevance.
On 14 May 2002 the applicant was convicted of possessing dangerous drugs. He was fined $300. On 12 December 2006 he was convicted of supplying dangerous drugs, producing dangerous drugs and possessing dangerous drugs. On each charge he was sentenced to 12 months’ probation. Then on 12 August 2008 the applicant was convicted of supplying dangerous drugs and causing a dangerous substance to be carried by post. On each charge he was sentenced to four months’ imprisonment wholly suspended with an operational period of two years. Within that operational period, on 9 December 2008, he was convicted of possessing dangerous drugs and possessing utensils in connection with the possession of drugs. Those convictions put him in breach of the suspended sentence imposed on 12 August 2008. He was re-sentenced for the offences he had been dealt with on that date to a term of four months’ imprisonment and, as well, sentenced to four months’ imprisonment, to be served cumulatively, for the more recent charge of possessing dangerous drugs. He was released immediately on parole.
The present offence was committed during the operational period of the suspended sentence imposed on 12 August 2008, and two months after the expiration of the applicant’s parole on 9 August 2009. The breach of the suspended sentence did not require a further order because it had been activated on 9 December 2008, though the applicant had been immediately released on parole.
In passing sentence the learned judge noted that the applicant was at the time of his arrest, and earlier, a “heavy user” of cannabis and perhaps dependant on it. His Honour accepted the submission that the drug was intended for the applicant’s personal use. His Honour thought that the amount of the drug and the applicant’s prior convictions for supplying cannabis gave rise to a suspicion that he had bought the cannabis to re-sell some or all of it, but he could not be satisfied to the requisite standard that it was not intended for personal use. He gave the applicant “the benefit of the doubt”.
“So you’ve had three chances and the time has come for those chances to stop. Mr Curtin has said what could be said on your behalf, asking me to make an order for imprisonment but one that would keep you in the community. That cannot happen. If you keep offending the penalties must increase. If you keep not taking advantage of the Courts giving you suspended sentences, then the only solution is that you’ll serve actual time in gaol. That’s what will happen to you today.
My orders will be that a conviction be recorded. I sentence you to six months’ imprisonment.
And there will be no parole release date in six months. That’s the term of imprisonment that should be served … let there be no doubt about this – that he serve six months in actual custody. And if I’m required to fix a parole release date within that time, it will be the 17th of May 2011.”
The applicant was 24 years old at the time of the offence and 25 when sentenced. He had lived on Thursday Island where he worked as a deckhand and diver on cray fishing boats. He had worked in that occupation since leaving school. All of the offences, save for the last, were committed on Thursday Island.
The first ground of appeal is that the primary judge failed to give sufficient reasons for delaying the parole release date beyond the halfway point of the sentence. Reliance was placed upon the judgment of Fraser JA in R v Kitson [2008] QCA 86 at [17] and [19]. His Honour said:
“[17] First, in a case such as this, where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the midpoint of the head sentence is very unusual: cf R v Norton [2007] QCA 320 per Douglas J. So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it.
[19] The reasons given by a sentencing judge for choosing the particular structure of a sentence in preference to others, and for explaining the length of the sentence, need be neither elaborate nor long. It is enough if they reveal, even in outline, why the particular sentence was imposed. Amplification of the reasons given when passing sentence may be found in the exchanges between counsel and judge which precede the imposition of the sentence.
In this case the trial judge made it plain that he thought the level of the applicant’s offending considered against his history of offences of drug misuse required him to serve six months of actual custody. His Honour noted that the applicant had been a persistent offender and that his offending was increasing in seriousness. The applicant had disregarded, or not benefited from, a suspended sentence, probation and parole. His Honour’s remarks clearly indicated his assessment that the applicant would be best punished and deterred from further offending by a short term of imprisonment to confront him with the seriousness of his conduct and the fact that the courts would not indefinitely permit him to go at large while he continued to buy and/or sell dangerous drugs.
The submission misunderstands the point that Kitson addressed. This was not a case in which the offender had a claim upon the discretion of the court to be released after serving less than half a head sentence. The primary judge approached the sentence by determining what was the appropriate period of actual custody which the applicant should serve and imposed that as the sentence. His Honour made it as clear as language permits that the applicant was to serve six months. In his Honour’s assessment that was the appropriate term to address the applicant’s offending, and pattern of offending, and that any shorter sentence would be an inadequate response.
The terms of s 160B(3) of the Penalties and Sentences Act 1992 (“PS Act”) obliged the judge to “fix a date for the offender to be released on parole”, because the applicant was to be sentenced to three years or less and was neither a violent offender nor a sexual offender. In conformity with his reasons the judge fixed the last day of the sentence as the date for the applicant to be released on parole.
The form of the order is perhaps unusual, but it is expressly permitted by s 160G of the PS Act by which, if the court must fix a parole release date, it may fix “any day of the … sentence … .”
As the respondent points out in its submissions the judge could have achieved the same result by imposing a longer term of imprisonment and fixing a parole release date at about the halfway mark. That would have exposed the applicant to the risk that he might breach his parole by re-offending after release. The sentence imposed, was in that regard, beneficial to the applicant. The reasons for the sentence imposed were adequately revealed by the judge’s remarks. It is true that the judge did not explain why he chose the particular mechanism for requiring the applicant to serve six months’ incarceration but that is beside the point. What had to be explained was why a sentence of six months’ custody was imposed, and that was done.
The next complaint is that the judge did not notify the applicant’s counsel of the possibility that the applicant might be sentenced to a term of imprisonment without parole. The judge did not do so explicitly but I do not see why he had to. The applicant’s counsel was given a full and uninterrupted chance to make submissions on his behalf and to argue, as he did, for the imposition of an intensive correction order or, if imprisonment was to be imposed, a sentence “at the bottom of the range”. In the course of those submissions the primary judge said explicitly that he intended to impose a term of imprisonment, going as far as to mention “gaol for six months”.
R
Doraho [2011] QCA 29
Ms M J Power on behalf of the applicant capably put forward in her oral and written submissions everything that could be argued on the applicant's behalf. It is true that the sentence suggested by defence counsel at sentence, a 12 month intensive correction order, particularly with drug testing and drug counselling requirements, would also have been open. But the judge was entitled to conclude that a short, sharp, wake-up call of six months actual imprisonment without any community supervision was required in this case. The sentence was neither manifestly excessive nor based on any error.
FRASER JA: I agree with the reasons for judgment of Chesterman JA and the order proposed by his Honour.
CHESTERMAN JA: On 19 November 2010 the applicant pleaded guilty in the Supreme Court at Cairns to possessing more than 500 grams of the dangerous drug cannabis sativa. He was sentenced to six months’ imprisonment without early release on parole. He seeks leave to appeal the sentence on the grounds that:
His Honour rehearsed the applicant’s relevant criminal history and pointed out that within 10 months of being dealt with for drug offences in December 2008, which involved the breach of a suspended sentence imposed earlier for drug offences, he was “caught again with this large amount of the drug.” The judge went on:
There was no unfairness in the sentencing process.
The next point taken is that the primary judge failed to take the applicant’s plea of guilty into account as required by s 13 of the PS Act which provides that the court before whom an offender pleads guilty must take the plea into account and state “in open court that it took account of the guilty plea in determining the sentence imposed”.
The judge did not refer to the plea of guilty but it cannot be thought his Honour who has vast experience in sentencing, did not appreciate that the applicant had pleaded guilty, and that the plea had to be considered in the assessment of the appropriate sentence. The applicant pleaded guilty very shortly before he was sentenced. The sentencing remarks commenced with a reference to the applicant’s conviction “of your own confession”.
Section 13(5) provides that a sentence is not invalid merely because of the failure of the court to make the statement required by s 13(4), but the failure to make the statement may be considered on an application for leave to appeal against sentence. There is no need, in this case, to consider the oversight, which has no significance.
The applicant’s fourth point is that the primary judge gave excessive weight to his criminal history “in contrast to the absence of consideration of the … plea of guilty”. The applicant has a subsidiary complaint that the trial judge ignored his need for assistance to overcome his drug dependency by structuring a sentence “in such a way as to provide no supervision or assistance upon … release.”
The applicant’s prior criminal history was the most relevant factor in determining an appropriate sentence. Without that prior offending the applicant may well not have been sentenced to actual imprisonment despite the large amount of cannabis found in his possession. The criminal history showed some degree of antisocial behaviour but, more significantly, a persistent and stubborn pattern of possessing, producing and supplying cannabis. The history showed the applicant to be obdurate in his offending and to have disregarded earlier cautions and opportunities for rehabilitation. There can be no doubt that the earlier sentences were accompanied by warnings of the dangers of further offending. The applicant’s disregard of those earlier convictions, warnings and opportunities to cease involvement with drugs was the critical factor in this case. The primary judge was right to emphasise the criminal history.
The subsidiary point that the sentence provided the applicant with no supervision or assistance upon his release misses the entire thrust of what the judge said when passing sentencing. His Honour made it clear that the time for coddling the applicant was past. He was a man no longer young who regularly misused drugs and dealt in them. He had not learned from past leniency to give up his criminal activity, although he had undergone probation, parole and had had the benefit of a suspended sentence. His attitude, as revealed by his counsel’s submissions at sentence and on appeal, is that as often as he offended he should be counselled but not punished.
The trial judge took the view, as His Honour explained, that the appropriate means to deter the applicant from further offending and to end his disdain for the court’s orders and warnings was to require him to spend a brief time in custody to impress upon him the seriousness of his offending and to confront him with the result of further re-offending.
The course taken by the primary judge was open to him and, in my respectful opinion, was plainly right.
The last point, that the sentence was manifestly excessive has been largely addressed in what I have said in relation to the earlier points. The applicant relies upon cases in which offences of possessing more than 500 grams of cannabis resulted in non-custodial sentences. R v Meid [2006] QCA 124 and R v Smith [2005] QCA 398 were relied upon. Neither case is helpful. Smith had no previous convictions. Meid failed to obtain an extension of time within which to appeal against an extraordinarily lenient sentence. The respondent relied upon cases of the possession of methylamphetamine (at the time a Schedule 2 drug) in which terms of 18 months’ imprisonment and three and a half months’ imprisonment were imposed. The cases are R v Kennedy [2000] QCA 140, R v Christie [2000] QCA 165 and R v Oldfield [1999] QCA 85. The respondent’s cases are more helpful than the applicant’s but are not really comparable because of the different drug.
The applicant must demonstrate that the sentence imposed was beyond that permitted by the sound exercise of a sentencing discretion. In my opinion he has failed to do so. It was conceded on his behalf at sentence that a term of imprisonment was within range. The concession, even if reluctant, was correct. Once the concession was made the applicant’s only point is that it was manifestly excessive, and beyond the permissible range, to impose a sentence of six months rather than two months, which the applicant suggested. The maximum penalty is 20 years’ imprisonment. Six months was not excessive. The sentence imposed by way of response to the offence, and the pattern of offending, was sensible and appropriate.
The application for leave to appeal against sentence should be refused.