R v Kitson

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - where the applicant was convicted on his plea of guilty of one count of unlawful possession of the dangerous drug methylamphetamine, one count of unlawful possession of the dangerous drug methadone and one count of possession of a mobile phone for use in connection with the commission of the crime of supplying a dangerous drug - where the applicant was sentenced to imprisonment for a period of 12 months - where the trial judge ordered that the applicant be released on parole after serving nine months imprisonment

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - where the applicant's parole release date was significantly past the halfway point of his head sentence - whether the trial judge erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point

Corrective Services Act 2006 (Qld), s 199(1)

Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1)

Bawden v ACI Operations Pty Ltd [2003] QCA 293, cited

Camden & Anor v McKenzie & Ors [2007] QCA 136, cited

Crystal Dawn Pty Ltd & Taylor v Redruth Pty Ltd [1998] QCA 373, cited

In re Hamilton; In re Forrest [1981] AC 1038, cited

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited

R v Anable [2005] QCA 208, discussed

R v Armstrong [2005] QCA 116, discussed

R v Assurson [2007] QCA 273, considered

R v Cunningham [2005] QCA 321, cited

R v McDougall & Collas [2006] QCA 365, considered

R v Norton [2007] QCA 320, cited

Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: On 29 November 2007 the applicant was convicted on his plea of guilty to one count of unlawful possession of the dangerous drug methlyamphetamine, one count of unlawful possession of the dangerous drug methadone and one count of possession of a mobile phone for use in connection with the commission of the crime of supplying a dangerous drug. On the same date he was sentenced to imprisonment for a period of 12 months on each count, with an order that he be released on parole on 29 August 2008.

[2] The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive, particularly in relation to the specification of a parole release date after three quarters of the sentence will have been served.

[3] On 28 April 2006 the applicant was apprehended with a total of 22 bags each containing a small quantity of methylamphetamine (a total weight of 2.115 grams, equivalent to 0.217 grams of pure amphetamine), three methadone tablets and a mobile phone. When first questioned, the applicant falsely told police that only one bag, the one found in his wallet, was purchased by him. He said then, but later accepted it was untrue, that he had found the remaining 21 bags and the tablets. Text messages found on the mobile phone included requests for methadone or methylamphetamine by someone else. The fact that the methylamphetamine was contained in a large number of separate clipseal plastic bags was consistent with their possible future sale. It was common ground that the value of each bag was in the order of $50, with a total value of about $1,050.

[4] After a full hand up committal completed in March 2007, an indictment was presented on 21 September 2007 and the matter was listed for trial. In the week before trial the Crown agreed not to proceed with a count of unlawful supply of methylamphetamine and methadone to another person if the applicant pleaded guilty to the remaining three counts. Pleas of guilty to those three counts were entered on the morning of trial. That saved a very short trial, which would have involved only two police witnesses.

[5] The applicant was 49 years of age when he committed the offences, and is 51 years old now.

[6] He has a number of previous convictions for minor non-drug related offences in New South Wales and he has some convictions for drug related offences and other offences in Queensland. In 1995 he was sentenced to 200 hours of community service on charges of possession of a dangerous drug and supply of a dangerous drug, said to be heroin. In August 2004 he was convicted and fined for possession of methylamphetamine type powder and in September 2004 he was convicted and sentenced to six months probation for the possession of a controlled drug in that same month and for failing properly to dispose of a needle and a syringe. He was also convicted of a number of other relatively minor offences. It appears from submissions made on his behalf at the sentencing hearing that he served six months imprisonment in 2007 for a breach of probation resulting from a drink driving offence.

[7] A psychologist's report indicated that the applicant had last worked full time some 10 years before these offences, and had otherwise had some casual short term work but has been in receipt of a disability support pension for about nine years. He was granted that pension on account of his hepatitis C, alcoholism and being on the methadone program. The applicant reported a chronic history of poly-substance abuse and dependency, which had commenced at least by the time he was 20 years of age when he was addicted to heroin and dependent on alcohol. His dependency on amphetamine, with daily use, was said to have commenced from about 1999.

[8] The psychologist diagnosed the applicant's condition as being chronic, but commented that his amphetamine and opoid dependency was in remission at the present time. In that respect, the learned sentencing judge took into account the submission on the applicant's behalf that as a result of the five months he spent in prison earlier in the year he came out released from addiction, at least for a time.

[9] The psychologist also observed that the applicant might benefit from rehabilitation although his prognosis was guarded in light of his chronic addictions, that the applicant might benefit from further drug and alcohol education programs and that he required medical and psychiatric supervision and treatment.

[10] The learned sentencing judge took these matters into account in arriving at the sentence. It is therefore appropriate to consider this application on the premise that the applicant has made some efforts at rehabilitating himself, with some degree of success, and that he might benefit from a sentence that promotes further efforts at rehabilitation.

[11] Both applicant and respondent accepted at the sentencing hearing and in this Court that a head sentence of between 12 months and 18 months imprisonment was within the discretion of the learned sentencing judge. I will return to this topic after considering the issues that were in contention.

[12] It is submitted on behalf of the applicant that the mitigating factors including the plea of guilty, efforts made towards rehabilitation, the applicant's recent period of imprisonment and his personal circumstances should have been recognised by fixing a parole release date at a time earlier than half of the term of the head sentence.

[13] In response, it is submitted on behalf of the respondent that it can be assumed that a head sentence of 12 months, at the bottom of the range, was settled upon to reflect those matters in the applicant's favour. The respondent's contention is that, had the applicant proceeded to trial, he would have been sentenced to a term of 18 months imprisonment, so that his co-operation and other matters in his favour have resulted in him having to serve nine months in custody with a possibility that he might serve 12 months, rather than serving at least nine months in custody and being in jeopardy of having to serve as much as nine months more.

[14] The sentencing remarks do not articulate any such reasoning process. Nor should this Court assume such a construction. It was apparent from the matters accepted by the learned sentencing judge that this applicant might benefit from a parole period that was relatively lengthy, but the effect of the sentence, if constructed in the manner contended by the respondent, was that the factors in favour of the applicant were reflected in a relative reduction of the parole period as against the time required to be served in prison.

[15] The respondent submitted that the Court should distinguish those authorities holding that "good reason" must be demonstrated before fixing a parole release date at a point later than half of the term: R v McDougall & Collas [2006] QCA 365 at [14], [21]; R v Assurson [2007] QCA 273 per Williams JA at [22], per Keane JA at [27], and per Mullins J at [33]-[34]. The point of distinction is that those cases concern offences for which the effect of the legislation is that an offender will be eligible for parole at the halfway point of the sentence unless a contrary order is made. In this case, because the sentence was for a term of less than three years and the offences were not serious violent offences or sexual offences, the date upon which the applicant was to be released on parole was any date fixed by the learned sentencing judge which fell within any day of the applicant's sentence: Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1); Corrective Services Act 2006 (Qld), s 199(1).

[16] The submission accurately records the effect of the legislation, but it is not clear that R v McDougall and R v Assurson are to be distinguished on that basis. In each case, the Court retains a discretion, not relevantly fettered, to fix the relevant date (for eligibility for parole or for release on parole). It is, however, not necessary to consider that issue further in this matter, for two reasons.

[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.

[18] As was said in the joint judgment in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at paragraph [39], accessible reasoning is necessary in the interests of victims, the parties, appeal courts, and the public. Such an explanation might be quite brief in many cases, but here the reasons do not explain at all why the parole release date was postponed until after the mid-point of the sentence.

[19] There are decisions of this Court to the effect that a failure to give reasons that ought to have been given amounts to appealable error: Camden & Anor v McKenzie & Ors [2007] QCA 136; Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29]; Crystal Dawn Pty Ltd & Taylor v Redruth Pty Ltd [1998] QCA 373.

[20] Secondly, the applicant also contends for error in that the possibility of postponement of the parole release date beyond the mid-point of the sentence was not mentioned in submissions or by the learned sentencing judge at the sentence hearing.

[21] In my opinion, that contention must be accepted. Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.

[22] In re Hamilton; In re Forrest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that:

"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication."

[23] The rule applies to sentencing of course, as has been confirmed by decisions of this Court in cases such as R v Cunningham [2005] QCA 321 at [5] and

R v McDougall & Collas [2006] QCA 365 at [19].

[24] For these reasons, my view is that the sentence imposed by the learned sentencing judge must be set aside and this Court is obliged to exercise the sentencing discretion afresh.

[25] The cases primarily relied upon both before the sentencing judge and in this Court as providing guidance were R v Anable [2005] QCA 208 and R v Armstrong

[2005] QCA 116.

[26] In R v Anable the 38 year old offender was sentenced to an effective nine months imprisonment for offences that included the supply of 1 gram of powder containing the same drug for $300 and agreeing to supply more in the following week, in each case to finance his own addiction. He pleaded guilty to an ex officio indictment, had a largely irrelevant criminal history, and apparently had developed a recent drug addiction. That case is of limited assistance here because of those factual differences and also because the only issue was whether the sentence was manifestly excessive: it was held that there was no such error.

[27] The range of 12 to 18 months suggested by counsel was derived from

R v Armstrong. In that case there was an early plea and no commercial element, but on the other hand that offender possessed very much more drugs and a worse criminal record than the applicant. He had some 24 grams of powder which was equivalent to a total weight of the drug of some 2.7 grams. He also had what was described as an "appalling record of offences connected with the applicant's drug addiction". He had previously been given the benefit of an intensive drug rehabilitation course. He had re-offended very shortly after serving 6 months imprisonment by way of the intensive correction order. His personal circumstances were perhaps somewhat more compelling, in that he was 34 years old, younger than this 49 year old applicant, although both fell to be sentenced as mature offenders. Armstrong had also taken some steps towards rehabilitation. After a review of the comparable cases Philippides J (with whose reasons the President and Keane JA agreed) observed that the appropriate head sentence in that case, given the quantity of the drug, the early plea and the lack of commerciality was one of between 12 to 18 months' imprisonment. The Court set aside a sentence of two and a half years imprisonment suspended after 12 months for an operational period of three years as being outside the sentencing discretion and sentenced the offender to 18 months imprisonment suspended forthwith. (The offender had spent nearly eight months in pre-sentence custody before being released on bail).

[28] In Armstrong the Court referred to a number of cases, including R v Woods

[2004] QCA 204. In that case, this Court, sentencing afresh, varied a sentence of

12 months' imprisonment by ordering that it be suspended after four months for an operational period of three years. There the 24 year old offender had possession of

12 grams of powder containing the equivalent of 3.85 grams of pure methylamphetamine, but it was accepted that it was for personal use only. The sentence was heavier in Armstrong because that offender was older and his criminal record was much worse.

[29] The most significant differences between Armstrong and Anable on the one hand, and this case on the other, are that this offender possessed a much smaller amount of the drug but he was sentenced on the basis that there was some element of commerciality. Of course, so far as the possession offence is concerned, the applicant here fell to be sentenced for possession of the drug and not for supply of it. To the extent that the offences were said to involve some element of "commerciality" in light of possible re-sales and the fact that the mobile phone was used to receive messages from potential acquirers of drugs, it is accepted that that this concerned a drug addict intending to sell to finance his own addiction. Importantly this distinguishes this case from those involving sales on a significant scale.

[30] Nevertheless, it must not be overlooked that this drug is notoriously dangerous in its effects on those who use it. In addition to rehabilitation and recognition of the plea of guilty, which I would take into account, deterrence is an important aim for sentences for the all too prevalent offences of this character.

[31] Weighing up these factors, in my opinion the appropriate sentence is 15 months imprisonment with a parole release date fixed after six months, on 29 May 2008.

[32] This involves an increase in the head sentence of three months beyond that imposed by the learned sentencing judge and with the associated risks for the applicant should he re-offend. After the Court intimated that a sentence of that character was under consideration, the applicant's counsel informed the Court that the applicant's instructions were that he nevertheless wished to pursue his appeal:

cf Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55.

[33] I would grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence and in lieu thereof order that the applicant be imprisoned for 15 months and fix the parole release date as 29 May 2008.

[34] FRYBERG J: I agree with the orders proposed by Fraser JA and with his Honour's reasons for those orders.

[35] LYONS J: I have had the advantage of reading the reasons for judgment of

Fraser JA. I agree with the reasons and the orders proposed by Fraser JA.