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[2022] QCA 18
General information, not legal advice.
Court of Appeal (Qld)
2022-02-18
Fraser and Morrison JJA and North J
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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 Wilson [2022] QCA 18
PARTIES: R / v / WILSON, Andii Jared / (applicant)
FILE NO/S: CA No 7 of 2021 / SC No 85 of 2020
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Cairns – Date of Sentence: 8 December 2020 (Henry J)
DELIVERED ON: 18 February 2022
DELIVERED AT: Brisbane
HEARING DATE: 18 August 2021
JUDGES: Fraser and Morrison JJA and North J
ORDER: Dismiss the application for leave to appeal.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced upon pleas of guilty he entered to 12 drug offences and one Weapons Act 1990 (Qld) offence, all committed on 9 June 2019 – where the sentencing judge declared as time served under the sentence a period of 51 days – where the applicant contends that the sentencing judge failed to adequately deal with the applicant’s pre-sentence custody for two reasons, namely, that the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld) and the sentencing judge failed appropriately to apply the principle of totality in relation to overlapping sentences – where the sentencing judge imposed the sentence upon the legally incorrect premise that s 159A did not apply in relation to the 288 days during which the applicant was held in custody in relation to the proceedings for the subject offences and also under the previous sentence – where that was an error of principle which caused the sentencing discretion to miscarry – where the Court must instead re-sentence afresh unless it concludes in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence – where the Court ordinarily should not impose a more severe sentence upon a convicted person’s application for leave to appeal and it should not do so without first allowing the application for leave to appeal and giving the applicant an opportunity to discontinue the appeal – whether the same or a more severe sentence is the appropriate sentence / Criminal Code Act 1899 (Qld), s 668E(3) / Penalties and Sentences Act 1992 (Qld), s 9(1), s 159A / Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied / Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited / Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited / Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited / R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited / R v CCT [2021] QCA 278, cited / R v Cook [2021] QCA 209, cited / R v Dinh [2019] QCA 231, cited / R v Gordon (1994) 71 A Crim R 459, cited / R v Kendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited / R v Peirano [2020] QCA 100, cited / R v Phillips [2017] QCA 41, cited / R v Stewart [2021] QSC 187, cited / R v WBK (2020) 4 QR 110; [2020] QCA 60, cited / R v Whitely [2021] QSC 154, approved
COUNSEL: M C Longhurst for the applicant / D Nardone for the respondent
SOLICITORS: Osborne Butler Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: On 8 December 2020 the applicant was sentenced upon pleas of guilty he entered on the preceding day to 12 drug offences and one Weapons Act 1990 (Qld) offence, all committed on 9 June 2019. For each of two offences of unlawful possession of the dangerous drug methylamphetamine, the quantity of the dangerous drugs exceeding two grams, (counts 1 and 2) the applicant was sentenced to five and a half years imprisonment. He was sentenced to two years imprisonment for an offence of unlawfully possessing ten weapons, at least five of which were category H weapons (count 9). Much less severe sentences were imposed for the remaining ten counts: one month imprisonment for each of one count of possession of electric scales used in connection with the commission of the crime of possessing a dangerous drug (count 3) and possessing the dangerous drug buprenorphine (count 4), oxycodone (count 5), boldenone nandrolone and testosterone (count 6), growth hormone (hGH) (count 7), diazepam (count 10), testosterone (count 11), growth hormone (hGH) (count 12) and diazepam (count 13); and two months imprisonment for the dangerous drug heroin (count 8). All of the terms of imprisonment are to be served concurrently.
The sentencing judge declared as time served under the sentence a period of 51 days, comprising one day on 9 June 2019, 49 days between 24 March and 11 May 2020, and one day from 7 December 2020 to 8 December 2020. The sentencing judge fixed a parole eligibility date of 17 October 2022. Taking into account the declared pre-sentence custody of 51 days, the minimum custodial period is two years (which is about two months longer than one-third of the term of imprisonment).
The applicant applies for leave to appeal against sentence upon two grounds. Ground 1 contends that the sentence is manifestly excessive. Ground 2 contends that the sentencing judge failed to adequately deal with the applicant’s pre-sentence custody for two reasons, namely, that the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld) and the sentencing judge failed appropriately to apply the principle of totality in relation to overlapping sentences.
On 9 June 2019 the applicant and a co-offender, a woman with whom the applicant was in a relationship, were intercepted by police at Cairns Airport after their arrival on a flight from Brisbane they had booked under assumed names. The applicant’s fingerprint was found on a bag which contained some of a significant quantity of methylamphetamine found in the co-offender’s underwear. Also taking into account a significant quantity of methylamphetamine found in the co-offender’s bra, on her person there was 135.9 grams of substance containing 88.637 grams of pure methylamphetamine. The sentencing judge found that the applicant and the co-offender jointly possessed that drug (count 1) and 8.79 grams of substance containing 5.542 grams of pure methylamphetamine taped around the waist of the applicant’s underpants (count 2). The electric scales and the dangerous drugs identified in other counts on the indictment were variously in the applicant’s bag, his underpants, his residential unit and his self-storage shed.
“His report details a materially disadvantaged, deprived, disrupted and disjointed upbringing characterised by childhood abuse, family reorganisation, and inevitable emotional harm flowing from that and from perceived parental neglect and resentment towards your mother. This doubtless played a significant part in what has been an ongoing problem with illicit drug abuse. I accept you were a drug-dependant person at the time of your offending and that you have struggled with depressive episodes aggravated by your substance dependency disorder.
Dr Hatzipetrou notes that throughout his interview with you, you tended to attribute blame on your illicit drug use, lack of social support, and dysfunctional relationships and previous offending. He notes while you have sought rehabilitation services, you have struggled to utilise internal mechanisms for change and the lack of your internal locus of control results in impaired insight and inability to challenge cognitive attributions and behaviour patterns. He later opines your history of substance dependence, criminality and dysfunctional relationships and instability appears to be perpetuated by personality vulnerabilities and that your awareness of these personal traits is likely to be limited. As a result, you are likely to engage in repeated patterns of behaviour when confronted with psychosocial stressors such as relationship problems.
He further opines:
Mr Wilson’s involvement in his offences is not unexpected. Considering Mr Wilson’s criminal history and the reported relapse, this offending represents an extension of offence trajectory that has been perpetuated by his ineffective coping mechanisms, access to illicit substances and cognitive distortions. Mr Wilson has not adequately addressed these dynamic risk factors, and as such remains at risk of drug relapse.”
The sentencing judge found that the sheer volume of the drugs combined with the act of their transportation bespoke a blatant commercial purpose and demonstrated that the applicant’s offending went far beyond offending motivated only by drug dependency. The sentencing judge referred to the well-known fact that methylamphetamine wreaks damage in the community and observed that deterrence loomed large. Acknowledging that the applicant’s drug dependency reduced the relevant maximum (from 25 years’ imprisonment to 20 years’ imprisonment), the sentencing judge considered that the applicant’s obviously commercial motivation called for a sentence at a high-end range, and that, but for the weapons offence, a head sentence of four and a-half to five years would be readily within range.
The maximum penalty for the weapons offence is 13 years’ imprisonment. The sentencing judge described the applicant’s possession of the cache of weapons as “extremely serious in its own right” and observed that it required a material uplift in the sentence for the drug offences. After noting that there had been no considered attempt on the applicant’s behalf to mitigate the seriousness of the possession of so many weapons by a criminal on parole, the sentencing judge remarked that, if the weapons offences had stood alone, it could attract a sentence upwards of two years’ imprisonment.
After referring to the possibility that a cumulative term of imprisonment should be imposed, the sentencing judge was persuaded “that an uplift of the head sentence for counts 1 and 2 on the indictment, which will be sufficient to encapsulate the overall criminality inclusive of the weapons offences, would not exceed an appropriate range by reason of the moderating impact of your mitigating circumstances, including the weight to be given to the nine months or so spent serving out your former sentence”. The sentencing judge considered whether all discounting should be made by reducing the head sentence, leaving the statutory eligibility for parole at the mid-point of the head sentence. Ultimately the sentencing judge acted upon the submission for the applicant not to confine the discounting to the head sentence but instead to fix a parole eligibility date earlier than the mid-point of the head sentence. The sentencing judge observed that he would fix the parole eligibility “at approximately the one-third mark, reduced further to take account of the 51 days pre-sentence custody.”
The first of the two contentions within ground 2 of the application is that the sentencing judge failed to adequately deal with the applicant’s pre-sentence custody because the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act. Section 159A(1) provides:
“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”
If the sentencing court does not order that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence, s 159A(3) obliges the sentencing court “as part of the sentence order” to state the dates between which the offender was held in pre-sentence custody, calculate the time the offender was held in pre-sentence custody, and declare that calculated time to be imprisonment already served under the sentence. Conversely, if the sentencing court does otherwise order in terms of the proviso in s 159A(1), s 159A(3B) obliges the sentencing court “as part of the sentencing order” to make such a statement and calculation and to declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.
Before the commencement on 25 May 2020 of s 164 of the Justice and Other Legislation Amendment Act 2020 (Qld) the words “and for no other reason” appeared in s 159A(1) after the words “any time that the offender was held in custody in relation to proceedings for the offence”. The amended form of s 159A clearly empowers a sentencing court to make a declaration in relation to time the offender was on remand both for the subject offence and on remand for an offence which was not dealt with at the sentence hearing. In R v Whitely,1 Bowskill J decided that s 159A also empowers a sentencing court to make a declaration in relation to time the offender was on remand for the subject offence whilst serving a previous sentence of imprisonment. In my respectful opinion that decision is correct for the reasons given by Bowskill J.2
The applicant’s sentence was imposed after the amendment to s 159A came into effect but before the decision in Whitely. A pre-sentence custody report stated that the total pre-sentence custody was 50 days, being the sum of the one day and the 49 days I have mentioned. Neither counsel submitted to the sentencing judge that the pre-sentence custody certificate should be amended to bring it into line with the amended form of s 159A by adding reference to the 288 days during which the applicant was both on remand for the subject offences and serving the balance of the term of imprisonment under the previous sentence. It is evident from the sentencing remarks that the sentencing judge proceeded upon the premise, now known to be legally incorrect, that the only pre-sentence custody that could be declared to be imprisonment already served under the subject sentence was the 50 days stated in the pre-sentence custody certificate and the additional day the applicant spent on remand between 7 and 8 December 2020. Counsel for the respondent acknowledged at the hearing of the application that the sentencing judge was not informed of the amendment to s 159A.
“The fact is the nine months you had to serve out may have been triggered by your parole breach, but it was attributable to your early offending behaviour, so it does not logically follow that the sentence I impose ought be wholly reduced by that period. The logical justification for moderation, notwithstanding that your bail resulted in a break of continuous custody, is the avoidance of a result which, considered in light of your service of your earlier sentence, is overall too crushing. More specifically, it is a need to avoid any excessively punishing consequence of your committing these offences on parole. On the one hand, it is proper that your sentence may be more than it would had you not been on parole when you offended, just as on the other it is proper that you are returned to jail to serve your full sentence in jail, having breached your parole. But that accumulation of those two consequences of the fact you offended on parole may, in combination, produce an unjust outcome unless the present sentence is moderated to allow for it in arriving at a just sentence.”
The applicant relied upon R v Stewart,24 in which the quantum of a head sentence was significantly discounted (including by a declaration under s 159A) to take into account that the sentence would effectively be imposed cumulatively upon an “already prolonged period of unbroken custody”. This is a very different case. The applicant had been in the community on parole for some 11 months after the previous sentence was imposed and, after having been held in custody for a total period of about 11 months (about the first nine months of which whilst he was both on remand for the subject offences and serving the balance of the previous sentence, and about the last two months of which whilst he was only on remand), the applicant was in the community on bail for nearly seven months before the subject sentence was imposed. Any analogous discount in the present case should be relatively modest, particularly having regard to the circumstances that counts 1 and 2 and count 9 are serious offences, those offences could not reasonably be attributed to the applicant’s continuing dependency upon drugs, the applicant was not deterred from committing those or the other counts (or the drug offences he subsequently committed whilst on bail) by having been required to serve more than one year and four months in prison under the previous sentence (as declared pre-sentence custody), and the applicant committed more serious offences when he was afforded an opportunity under the previous sentence to rehabilitate himself in the community on parole.
Comparing the notional sentence indicated in [27] of these reasons with the sentence imposed by the sentencing judge, the term of imprisonment under the sentence imposed is discounted by six months and the minimum custodial period under that sentence (taking into account the 51 days of declared pre-sentence custody) is discounted by four months.25 That amounts to a somewhat more substantial discount than I consider is required to ensure that the sentence is not unduly harsh in consequence of it being imposed in the context of the previous sentence and the related circumstances, including the periods the applicant served in custody and on parole under that sentence. My conclusion is that the just sentence in the circumstances of this case would be somewhat more severe than the sentence imposed by the sentencing judge.
It remains necessary to consider whether s 159A of the Penalties and Sentences Act should be applied in relation to the 288 day period or some part of it. In Whitely, Bowskill J held that the considerations which before the amendment of s 159A(1) informed the determination of a sentence where an offender had been serving another sentence of imprisonment remain relevant to the exercise of the discretion under the amended form of s 159A. Her Honour observed that before that amendment, the time during which the offender had been serving a preceding sentence was “not generally … treated in a like-manner to pre-sentence custody on remand, whether that was formally declarable or not”, but some amelioration of the later sentence might be required to reflect the totality principle having regard to the cumulative effect to the penalties and the need to avoid a crushing sentence. Similarly, in appropriate cases the intended effect of the methodology adopted by the sentencing judge (making an unspecified discount to avoid undue harshness in a sentence imposed after the applicant had spent a substantial period in custody serving the balance of a previous sentence whilst also on remand for the subject offences) might instead be achieved by making a declaration under s 159A(3B).
[2021] QSC 154 at [17]. ↩
[2021] QSC 154 at [13] – [18]. ↩
House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). ↩
(2014) 252 CLR 601 at 618 [42] - [43] (French CJ, Hayne, Bell and Keane JJ). ↩
Compare Kentwell v The Queen (2014) 252 CLR 601 at 618 [42]. ↩
[2017] QCA 41. ↩
[2020] QCA 100. ↩
[2019] QCA 231. ↩
[2014] QCA 206. ↩
[2015] QCA 27. ↩
(2020) 4 QR 110 at [9] – [15]. ↩
[2021] QCA 278 at [215] – [233]. ↩
(1997) 189 CLR 295 at 307 – 308. ↩
(1988) 166 CLR 59 at 64 – 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ). ↩
R
Wilson [2022] QCA 18
(2014) 252 CLR 601
(1988) 166 CLR 59
(1982) 149 CLR 305
(1997) 189 CLR 295
(1936) 55 CLR 499
In the self-storage shed of which the applicant was the occupier, police found a cache of weapons and ammunition (count 9): 32 shotgun cartridges, 12 seven millimetre bullets, three 45 calibre bullets, 156 point 223 bullets, a flick knife (a category M weapon), the wooden rear stock of a point 410 single barrel break action shotgun, a point 22 revolver loaded with six bullets, a shortened break action 12 gauge shotgun, a Ruger min-4.223 calibre self-loading rifle, 7.62mm self-loading rifle with magazines, a Bentley pump action 12 gauge shortened shotgun, a Smith & Wesson point 38 calibre revolver, a Ruger double action revolver, and a point 45 revolver.
The charges against the applicant were committed for trial. Once the indictment was presented steps were taken to list the matter for legal argument. Ultimately that was abandoned and the applicant indicated he would plead guilty. The sentencing judge observed that the applicant’s pleas of guilty were not particularly timely but they at least did come at a time before the prosecution was likely to have been significantly inconvenienced by the applicant’s slow decision-making. The sentencing judge observed that he applied a relatively orthodox degree of discounting in favour of the applicant to take account of his guilty pleas.
The applicant was 31 when he committed the offences. He had a very concerning criminal history over the preceding decade, which included serious drug offences and offences of violence for which terms of imprisonment requiring actual custody were imposed. Most recently, on 13 July 2018 he had been given an effective sentence of three years imprisonment, with the date of sentence fixed as the parole release date and a declaration that the 476 days the applicant had spent in pre-sentence custody was time served under that sentence. The period of imprisonment of three years comprised a term of 18 months for assaults occasioning bodily harm (a domestic violence offence) committed in December 2016 and a cumulative term of 18 months by way of the acceleration of part of a suspended sentence that had been imposed some years earlier for an offence involving grievous bodily harm committed in December 2013. The last entry in the applicant’s criminal history refers to convictions in the Magistrates Court of drug offences the applicant committed on 26 May 2020, about a fortnight after he had been released on bail upon the subject charges.
The applicant committed the subject offences whilst he was on parole under the previous sentence of 13 July 2018. A court report dated 13 August 2020 concerning the applicant’s response to supervision on parole states that the applicant’s “engagements with his officer and Intervention Providers are deemed to have been manipulative in nature and positive impression management”, he “did not present as genuinely motivated to address his criminogenic needs”, and he “is considered not suitable for further community based orders”.
A chronology of the applicant’s pre-sentence custody is as follows:(a)After the applicant was arrested and charged in relation to the subject offences on 9 June 2019, he served one day on remand in relation only to the proceedings for those offences before his parole under the previous sentence was suspended on 10 June 2019.(b)The applicant was held in custody both in relation to the proceedings for the subject offences and under the previous sentence for 288 days from 10 June 2019 until the full-time date of the previous sentence on 23 March 2020.(c)The applicant was held in custody only in relation to the proceedings for the subject offences for 49 days from 24 March 2020 until 11 May 2020, when he was released on bail.(d)The applicant was held in custody only in relation to the proceedings for the subject offence for one day from 7 December 2020 (the first day of the sentence hearing) until the sentence was imposed on 8 December 2020.
The sentencing judge observed that the applicant was “of course, entitled to a declaration that the 50 days plus the further day until today is time already served under the sentences” and that the parole eligibility date would be moderated to allow for that period. The sentencing judge took into account the 288 days between 10 June 2019 and 23 March 2020 by moderating the sentence that otherwise would have been imposed.
References given to the sentencing judge made favourable remarks about the applicant and described his apparent commitment to rehabilitation. The applicant also had a standing offer of employment. The sentencing judge also referred to steps taken by the applicant whilst in custody and after he was released on bail in an attempt to rehabilitate. The applicant had a genuine desire to rehabilitate. That motivated his significant investment in rehabilitative measures. The applicant did what he could whilst in custody to embark on rehabilitation, including participation in various programs. He had made positive progress, which the sentencing judge took into account in the applicant’s favour on sentence; but that would have had “an even greater mitigatory effect if your to date stubborn history of recidivism was not so significant and if you had not committed more drug offences on bail”. The sentencing judge took into account the onerous character of some of the bail conditions.
A psychologist interviewed the applicant on 30 November and 1 December 2020 and provided a report. The sentencing judge summarised the significant aspects of the report:
The respondent contends that the fact that the sentencing judge was unaware of that effect of s 159A did not result in an error in the exercise of the sentencing discretion. This contention is said to be supported by two propositions: the expression “unless the sentencing court otherwise orders” confers a discretion; and the way in which the sentencing judge took into account the 288 days served on remand and under the previous sentence – by a general moderation of the subject sentence – was open to the sentencing judge under the amended section. I would accept both propositions, but they do not justify the respondent’s contention.
Section 668E(3) of the Criminal Code Act 1899 (Qld) provides that on an appeal against sentence, “the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal”. The definition of “sentence” in s 668(1) comprehends a declaration which s 159A of the Penalties and Sentences Act requires a sentencing court to make “as part of the sentencing order”. The sentencing judge imposed the sentence upon the legally incorrect premise that s 159A did not apply in relation to the 288 days during which the applicant was held in custody in relation to the proceedings for the subject offences and also under the previous sentence. That was an error of principle which caused the sentencing discretion to miscarry.3 Applying the general principles expounded in the plurality judgment in Kentwell v The Queen,4 the Court is not to attempt to ascertain whether or in what degree the sentence was affected by the error; the Court must instead re-sentence afresh unless it concludes in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence.
The plurality in Kentwell5 allowed for exceptions to those principles, positing as an example a case in which a sentencing judge did not adhere to a statutory provision specifying the order in which a sentencing court must set a non-parole period and the balance of the term. Any such error could have no bearing upon the sentence. No similar conclusion could be reached about the error in this case, which concerned an inseparable component of the sentence. Because the Court must exercise the sentencing discretion afresh it is not necessary to adjudicate upon the remaining contention in ground 2 of the application or upon the contention in ground 1 that the sentence is manifestly excessive. It will be apparent from the following reasons, however, that I would not accept either of those contentions.
The applicant made submissions to the following effect. The range of the head sentences for the drug offences in counts 1 and 2 (if considered alone) is four and a half to five years’ imprisonment and that the range of head sentences for the weapons offence in count 9 (if considered alone) is two to two and a half years’ imprisonment. After discounting the aggregate sentence for “internal totality” (application of the totality principle in relation to all counts) a notional term of between five and a half and six years imprisonment is appropriate. The totality principle also should be applied to the “overlapping sentences”, meaning the previous sentence and the notional sentence as discounted for “internal totality”. Applying the totality principle to those sentences, the appropriate sentence is five years and nine months imprisonment (imposed on each of counts 1 and 2, to reflect the criminality in all counts), together with a pre-sentence custody declaration for the 51 days served solely in relation to the subject offending and 144 days (50 per cent of the 288 days the applicant served in custody both under the preceding sentence and whilst on remand for the subject sentence). The applicant submitted that a parole eligibility date should be fixed as 20 April 2022, which the applicant described as “the effective one-third mark”. This submission was made in the context of a calculation by the applicant that the minimum time the applicant will spend in custody under both the subject sentence imposed by the sentencing judge and the previous sentence of 13 July 2018 is 48 per cent of the effective global sentence period for “the overlapping sentences” of eight and a half years.
The material circumstances and sentencing factors are those which were identified by the sentencing judge. Consistently with the sentencing judge’s approach, I would allow some discounting of both the term of imprisonment and the minimum custodial period for the applicant’s pleas of guilty (as had been submitted for the applicant at the sentence hearing). I would not fix parole eligibility at one-third of the term in those circumstances and where the pleas of guilty were not particularly timely and an assessment of the extent of the applicant’s rehabilitation must be tempered for the reasons mentioned by the sentencing judge. Consistently with the sentencing judge’s approach, I would fix parole eligibility after one-third and before the mid-point of the effective term of imprisonment.
With those matters in mind, I agree with the sentencing judge that a head sentence of five years would be “readily” within range for counts 1 and 2 if they stood alone. A longer term is also within range. In my view the concurrent terms of imprisonment for counts 1 and 2 should be five and a half years imprisonment if they stood alone. Allowing for the differences between this case and the comparable sentences, that conclusion is supported by R v Phillips,6 which was cited in this application, and it is consistent with R v Peirano7 and R v Dinh,8 which were cited at the sentence hearing. Counsel were not able to find a comparable sentence for the weapons offence charged in count 9. The sentencing judge considered this count could attract a sentence “upwards” of two years’ imprisonment if it stood alone. I agree. For the reasons given by the sentencing judge this serious example of the offence calls for a substantial sentence of imprisonment. My conclusion is that count 9 alone should attract two and a half years’ imprisonment.
It is necessary next to consider the application of the totality principle. Many judgments of this Court discuss the circumstances in which the totality principle applies: see, for example, R v Beattie; Ex parte Attorney-General (Qld),9 R v Kendrick,10 R v WBK,11 and R v CCT.12 The relevant circumstances may be summarised as follows:(a)In Postiglione v The Queen,13 McHugh J stated that the totality principle “requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”.(b)In Mill v The Queen,14 the High Court held that the totality principle applied also in cases in which an offender is sentenced a long time after the commission of the offence because, during the intervening period, the offender was serving a sentence imposed in another State “in respect of an offence of the same nature and committed at about the same time”. In such a case, the correct approach is to ask what would be likely to have been the effective head sentence if the applicant had committed all of such offences in the same jurisdiction and had been sentenced for all such offences at one time.15(c)In R v Gordon,16 Hunt CJ at CL held that the totality principle applies also when a sentencing judge is imposing a sentence cumulatively upon or overlapping with “an existing custodial sentence”. (It has been held in this Court that this extension of the circumstances in which the totality principle applies includes cases in which the custodial part of a sentence overlaps with or is cumulative upon a non-custodial part of a custodial sentence: see R v WBK,17 R v Cook,18 and R v CCT.19 It is not necessary in this case to discuss how the principle is to be applied in such circumstances.)
The totality principle as it was expressed by McHugh J in Postiglione applies in relation to the aggregation of the sentences for the subject offences in this case. Instead of imposing cumulative sentences, discounted to allow for the totality principle, I would adopt the sentencing judge’s approach (applying R v Nagy20) of imposing for counts 1 and 2 concurrent sentences which themselves reflect the total criminality in all of the offending. Upon that basis, subject to further discounting I consider that the just concurrent sentences for counts 1 and 2 are six and a half years imprisonment with parole eligibility after two years and four months (inclusive of the 51 days of declared pre-sentence custody).
The totality principle does not apply in relation to any aggregation of any such notional sentence and the previous sentence. The present case is obviously not within [26](a) or (b) of these reasons. It is not within [26](c) of these reasons because the applicant was not serving any component of a custodial sentence (or any sentence) when the sentencing judge imposed the subject sentence: see R v Beattie; Ex parte Attorney-General (Qld),21 R v CCT,22 and Whitely.23 The previous sentence and the related circumstances, including the periods the applicant served in custody and on parole under that sentence, remain material considerations insofar as they relate to a purpose for which a sentence may be imposed. Those purposes include “to punish the offender to an extent or in a way that is just in the all the circumstances”: Penalties and Sentences Act 1992, s 9(1)(a). In the circumstances of this case, some moderation of the sentence could be justified, essentially for the reasons given by the sentencing judge:
If s 159A(1) were read in isolation from the other provisions of that section, it would be arguable that pre-sentence custody, whether on remand for the subject offences only or whether on remand for those offences and also by way of imprisonment under a previous sentence, is to be treated as imprisonment already served under the sentence unless some good reason is shown why that should not be so. Having regard to the context supplied by the other provisions of the section described in [17] of these reasons, the better construction is that there is no preferred or prima facie position. The same statutory language is used to authorise the making of each form of declaration and the section does not express any guidance for the way in which the discretion to make a declaration should be exercised. In these circumstances, the amendment seems designed to increase the flexibility allowed to sentencing courts to structure sentences in ways that facilitate the imposition of a just penalty in conformity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.
A relevant sentencing purpose in the present case is general deterrence; under s 9(1)(c) of the Penalties and Sentences Act 1992 a sentence may be imposed “to deter … other persons from committing the same or a similar offence”. In R v Stewart,27 Henry J took that purpose into account when exercising the discretion under s 159A, upon the footing that a declaration under s 159A(3B) in that case would reduce the degree of discounting of a head sentence that would be required by the formerly common methodology of making a general reduction in a head sentence. I would be inclined to adopt a similar approach in this application but for one consideration. In my view, a declaration under s 159A(3B) made for the first time on appeal should give effect to what this Court considers in the exercise of its independent discretion to be the appropriate sentence, but I favour a somewhat more severe sentence than the sentence imposed by the sentencing judge. The Court ordinarily should not impose a more severe sentence upon a convicted person’s application for leave to appeal and it should not do so without first allowing the application for leave to appeal and giving the applicant an opportunity to discontinue the appeal.28 There is no reason to think the applicant might wish to pursue an appeal in these circumstances.
In these circumstances the appropriate order is to dismiss the application for leave to appeal.
MORRISON JA: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with those reasons and with the order proposed by his Honour.
NORTH J: I agree with Fraser JA and with the order proposed by his Honour.
(1988) 166 CLR 59 at 66 – 67. ↩
(1994) 71 A Crim R 459 at 466. ↩
(2020) 4 QR 110 at [13] – [15]. ↩
[2021] QCA 209 at [30]. ↩
[2021] QCA 278 at [233], [235]. ↩
[2004] 1 Qd R 63; [2003] QCA 175. ↩
[2014] QCA 206 at [20]. ↩
[2021] QCA 278 at [216]. ↩
[2021] QSC 154 at [7] and the cases there cited (R v Berns [2020] QCA 36 at p 6, and R v McAnally [2016] QCA 329 at [42] - [43]). ↩
[2021] QSC 187 at [39] - [41]. ↩
The minimum custodial period under the subject sentence is 730 days or two years: the 51 days declared by the sentencing judge plus 679 days between the date of sentence of 8 December 2020 and the parole eligibility date of 17 October 2022. ↩
[2021] QSC 154 at [7] (citing R v Berns [2020] QCA 36 at pp 6 – 7 and R v McAnally [2016] QCA 329 at [41] – [43]) and [18]). ↩
[2021] QSC 187 at [43]. ↩
Neal v The Queen (1982) 149 CLR 305 at 307 – 308 (Gibbs CJ). ↩