R v Michalas [2007] QCA 38

Court of Appeal (Qld)|2007-02-13|Before: de Jersey CJ, Jerrard JA and Holmes JA

THE CHIEF JUSTICE: The applicant seeks leave to appeal against a sentence of two and a-half years imprisonment with parole after 10 months imposed on each of two counts of possession and supply respectively of methylamphetamine on the 28th of October 2005, and on each of three counts of receiving stolen property, being two lap-top computers and one global positioning system unit, between September and October 2005.

He also pleaded guilty to other offences, being the possession of methylamphetamine on the 5th of October 2005, the possession of scales and tainted money on the 28th of October 2005 and receiving a set of keys between August and October 2005, and he was sentenced to concurrent 12 month terms with parole after 4 months in respect of those counts.

The present application relates to the longer term, two and a-half years imprisonment with parole after 10 months which he submits was manifestly excessive.

At the time of the offences the applicant was 26 years of age. His prior convictions were for possession of house-breaking implements in 1997 for which no penalty was imposed, for breaking and entering and wilful damage in 1997 which attracted two years probation and for a break and enter in 1996 for which, in February 2006, he was fined.

On the 5th of October 2005 a police search of the applicant's unit uncovered 1.39 grams of powder which included .477 grams of methylamphetamine, together with three Clipseal bags.

The police then located the keys, the computers and the GPS unit which were together valued at $2,940. The police issued the applicant with notices to appear. Twenty-three days later, while subject to those notices to appear, the applicant committed further offences on 28th October 2005.

He was found in a room at the Chifley Hotel in the city in possession of 2.396 grams of pure methylamphetamine and numerous Clipseal bags. $9,950 in cash was located in his motor vehicle.

The related counts were of possession of more than the prescribed quantity of methylamphetamine and of supply under the extended definition which embraces preparation for sale.

The applicant's explanation was that he had a serious methylamphetamine problem which cost him of the order of $200 to $300 a day. He received the stolen property with a view to selling it for an easy profit. It had been stolen from an RSL Club, a locked vehicle in a secure car park and an office.

The applicant spent 27 days in pre-sentence custody. Upon his release he undertook a drug rehabilitation course, apparently with substantial success. He has a business he could resurrect. His Counsel, before the Sentencing Judge, sought an immediate grant of parole, but the Judge considered that would pay insufficient regard to the consideration of general deterrence, particularly with regard to the offences of receiving stolen property.

Mr Copley, for the respondent before us, has referred to two cases which principally concern the Schedule 2 drug, MDMA, where sentences of two and a-half years suspended after 12 months and two and a-half years suspended after 9 months were imposed. They are Wynyard [2004] QCA 431 and de Carteret [2006] QCA 279.

Neither of those offenders had any prior criminal history. While this applicant's was not substantial, it was not entirely irrelevant as Mr Kimmins submitted. It had some relevance because of the previous property offence convictions.

But much more significant for the present is the applicant's re-offending in a serious way on the 28th of October having received notices to appear for possession of the same drug, and other offences, only three weeks earlier.

The cases to which Mr Copley refers amply support the appropriateness of the terms imposed here. In seeking an order for parole operative now Mr Kimmins submitted that the need for deterrence did not justify a sentence of this order which also inadequately reflected the goal of rehabilitation.

He referred to a number of cases of considerable vintage containing discussion of those concepts and their interaction. The concepts have been statutorily enshrined in this State since 1992 and are well understood by sentencing Judges and this Court.

I do not consider the feature that the applicant received stolen property to aid the feeding of his drug addiction limited consideration, with relation to general deterrence, to persons similarly addicted, or that it constrained the Judge to secure the applicant's release after a period short of 10 months.

There is no ground for considering the Judge's discretion miscarried or that the sentences imposed were manifestly excessive. I would refuse the application.

THE CHIEF JUSTICE: Oh, I am sorry. There is need, however, to vary the order imposed by his Honour. He said:

"I sentence you to two and a-half years imprisonment with an order that you be released on parole after 10 months."

Section 160B paragraph 3, sub-section 3, however of the Penalties and Sentences Act required his Honour actually to specify a parole release date. The order imposed by his Honour should therefore be varied to provide;

"I sentence you to two and a-half years imprisonment and I specify your parole release date as 23rd August 2007."

That date is calculated by taking the point 10 months beyond the date upon which his Honour imposed sentence and then subtracting the 27 days for which he had served pre-sentence custody.

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