The Queen v Whitely [2021] QSC 154

[6] It was amended in 2020, by s 164 of the Justice and Other Legislation Amendment Act 2020, to remove the words "and for no other reason" which previously appeared after the underlined words. The inclusion of those words meant that where, for example, an offender was held on remand for the offences being dealt with at the sentencing hearing, as well as other offences not being dealt with at that time, no formal declaration of time served could be made under s 159A. However, it was still open to the sentencing judge to take the time served into account in arriving at the appropriate sentence, whether by reducing the head sentence, or accelerating the date for parole (or suspension), or otherwise, in the exercise of the sentencing discretion: see R v Skedgwell [1998] QCA 93; [1999] 2 Qd R 97 at 99; R v Jones [1997] QCA 132; [1998] 1 Qd R 672 at 674-675. As confirmed by the Court of Appeal in R v Fabre [2008] QCA at [14] whilst not mandatory it was generally desirable to take such time into account at the first opportunity.
[7] Where the accused was serving another sentence of imprisonment, as opposed to being held on remand, the considerations were different, with that time not generally being treated in a like-manner to pre-sentence custody on remand, whether that was formally declarable or not. Although the requirement to impose a penalty which is just in all the circumstances (s 9(1)(a) of the Penalties and Sentences Act), which reflects the totality principle, meant some amelioration of the later sentence may be required, having regard to the cumulative effect of the penalties imposed and the need to avoid a crushing sentence.[1]
[8] As earlier authorities, like R v Jones [1997] QCA 132; [1998] 1 Qd R 672, explain, it has always been relevant, in the exercise of this aspect of the sentencing discretion, to consider the various causes of an offender serving time in custody, in deciding the extent to which credit should be given for that.
[9] Prior to its amendment, there was no question of time the offender had served, under a sentence of imprisonment previously imposed, being the subject of a declaration of time served under s 159A, in respect of other offences. Although, consistent with the totality principle, it could be taken into account to the extent considered appropriate.
[10] The question which has arisen in the present case, however, is whether, as a result of the recent amendment to s 159A(1), it is open to the court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand for the present or other offending.
[11] That arises in the present case because the defendant:

[12] In determining the question whether it is open to the court to make a declaration that (some or all of) the time the defendant has been held in custody is taken to be imprisonment to be served under the sentence to be imposed today, two questions arise.
[13] The first question is whether, in terms of s 159A(1) as it now provides, any of the time served since 31 May 2020 is time the defendant has been "held in custody in relation to the proceedings for the offence(s)" which are presently before the court for sentence.
[14] The answer, by reference to s 8 of the Bail Act 1980, is yes. Section 8(2) provides that a person in custody on a charge of or in connection with an offence who is not granted bail must, unless the person has been sentenced for that offence, be remanded in custody. So if you are charged with an offence(s), and are not granted bail, you are remanded in custody. That is so whether or not you are also, coincidentally, in custody for another reason, such as serving a previous sentence. According to the pre-sentence custody certificate, the defendant was remanded in custody from 30 July 2020 in relation to the trafficking offence and some of the summary offences.
[15] The second question is whether, on the proper construction of s 159A(1), as it now provides, it is open to the court to make a declaration in respect of that time. In my view, the answer to that question is also yes. The task in construing a statute is to ascertain the intended meaning of the words used, a process which must be undertaken having regard to the context for the provision (which may include surrounding statutory provisions, extrinsic materials, the legislative history and the "mischief" which it may be seen the statute is intended to remedy).[2] The reference to intention in this context is not the subjective intention of those who promoted or passed the legislation; rather, the objective intention, or purpose, of the provision.[3]
[16] The explanatory memorandum to the Bill which became the Justice and Other Legislation Amendment Act 2020 states that the amendment to s 159A "will provide a sentencing court with increased flexibility in relation to the consideration of pre-sentence custody".
[17] One might anticipate that the reason for the amendment was to overcome the practical difficulties which frequently arose in sentencing proceedings where a person was held in pre-sentence custody for offences including, but not limited to, the offence(s) they were then being sentenced for. It may or may not have also been Parliament's (subjective) intention to broaden the scope of operation of the provision to include a declaration of time served under a sentence previously imposed. Nevertheless, construing the words used in s 159A(1), as it now provides, the power to make a declaration is very broad. It extends to a power to formally declare time served even where that time is served under a previously imposed sentence. The qualifying fact that must be present, for the power to be exercised, is that the time must be time the offender was held in custody in relation to proceedings for the offence. If that is established, it is open to the Court to exercise the power under s 159A(1).
[18] However, as s 159A makes clear, the sentencing court retains a discretion whether or not to declare all, or some, or any of that time. Considerations such as those referred to in the cases above remain relevant to the exercise of that discretion.
[19] I observe that the fact that the Court can now declare time served in custody, under a previous sentence, as time served under the sentence imposed by the Court obviates the need to ameliorate, to quite the same extent, the otherwise appropriate head sentence. This has the positive consequence of not distorting the sentence imposed, the explanation for which may not be apparent without consideration of the sentencing remarks.
[20] In the present case for the reasons I will shortly articulate, I propose to declare some, but not all of the time the defendant has served.
[21] I turn now to my reasons for sentence in this matter.
[22] Mr Whitely, you are to be sentenced for one count of trafficking in dangerous drugs and summary charges including possession of drugs, possession of digital scales and a pipe.
[23] You pleaded guilty to those offences before me on 18 June 2021, and I am taking your guilty pleas into account in your favour, in reducing the sentence that otherwise would have been imposed on you. It shows that you have taken responsibility for your actions and that you are willing to facilitate the course of justice.
[24] The offences are of course very serious. Trafficking carries a maximum penalty of 25 years. Because of the damage, destruction and despair that drugs like methylamphetamine cause in the community, the penalties which are imposed for offending involving the commercial supply of such drugs are severe, and are intended to communicate to you the community's denunciation of this kind of offending and to deter people from engaging in this behaviour. Personal deterrence is an important feature as well, given your lengthy criminal history and previous breach of orders, including parole. Rehabilitation remains a relevant factor also, though. In that regard, I note that you have tried, through residential rehabilitation facilities, to rid yourself of your addiction. Your efforts in that regard have been a bit mixed. There is some inconsistency between what appears in the parole report about that, and the letters from Sunrise Way. But in any event, I am told you have indicated you would like to return to Sunrise Way, to try again, and the letter from that organisation says they are happy for you to reapply. Obviously, without really committing to rehabilitation of that kind, your future is very likely to involve more prison terms. But I also acknowledge how hard it is to overcome an addition to something like methylamphetamine.
[25] You are 32 years of age now; 31 at the time of the offending, which was committed in April 2020.
[26] You do have a criminal history which has a number of entries on it for convictions for drug offending and also demonstrates a poor history of failing to appear in accordance with bail undertakings. I have been told that you experienced a very disadvantaged childhood, which included being exposed to violent abuse from your father, resulting in you leaving home and school at 13 (grade 7) and starting to use drugs (first cannabis, then methylamphetamine) from a very young age. Positively, you later completed your grade 12 equivalency when you were 17, and have previously worked in the removalist industry, and have hopes of returning to that.
[27] For some of your earlier offending, you were given probation and suspended sentences, although breached those. You were sentenced in the District Court on 5 July 2018 for supplying drugs and sentenced to 18 months' imprisonment, with immediate release on parole.
[28] Then on 14 December 2018 you were sentenced in the Magistrates Court for a significant number of drug offences. Among other penalties, you were sentenced to six months' imprisonment, cumulative on the previous sentence, and given a parole eligibility date of 14 February 2019.
[29] As appears from the pre-sentence custody certificate, you were released on parole on 29 April 2019. The present offending was therefore committed while you were on parole
[30] Turning to the facts, briefly. On 8 April 2020 the police executed a search warrant at your home, where you lived with your partner. You volunteered to the police that there were drugs in plain sight on the bed, and police located some bags of methylamphetamine, digital scales, a pipe and four mobile phones, as well as $930 cash under the bed. Although you told police the drugs were for your use, that is not accepted and in all the circumstances it is reasonable to infer you possessed the drugs for combined personal and commercial purposes. You were arrested, charged and released on bail.
[31] On 26 April 2020, while on bail, you were walking in the city, detained and searched by the police. You had three clip seal bags containing methylamphetamine on you as well as a Viagra pill, which are the subject of two of the summary charges.
[32] Although the police could access some messages on your phone at the time of the first search, there was a problem charging the phone and so they obtained a warrant to search for stored communications. Those messages revealed a 10 day street-level trafficking enterprise, from 31 March to 9 April 2020, selling methylamphetamine. You had nine customers during that period, to whom you supplied or offered to supply methylamphetamine on eleven occasions. The extent of profit you made is unclear, although the Crown identifies about $3,000 in unexplained deposits in your bank account.
[33] You were charged with trafficking on 17 June 2020 and remanded in custody, as I have said, from 30 July 2020.
[34] In terms of the appropriate penalty to be imposed, I accept on the authorities that the appropriate penalty for the count of trafficking is three years imprisonment, taking into account your age, criminal history, and the circumstances in which the offence was committed.
[35] By operation of s 156A of the Penalties and Sentences Act, because you committed the trafficking offence while on parole, that sentence must be ordered to be served cumulatively upon the sentence you are currently serving (the nine months imposed by the Magistrates Court, the full time date for which is 11 August 2021).
[36] Also to be weighed in the balance is the question of the declaration of time served to be made. You have been in custody since 31 May 2020, a period of almost 13 months. Most of that time you have served because you breached your parole, and then were sentenced for a number of other offences in November last year. However, I accept, in terms of s 159A(1), that the time since 30 July 2020 that you have been held in custody is also time held in custody in relation to proceedings for the offences I am sentencing you for. In my view, it is not appropriate, as part of imposing a just sentence, to declare all of that time as time served under the sentence to be imposed on you today, because the cause of it was breaching your parole, and the commission of other offences, at separate times. But I will declare eight months of it.
[37] Because I can formally declare that time, as time already served, it is not necessary, in my view, to reduce what I otherwise consider to be the appropriate head sentence to be imposed.
[38] The next question is when the parole eligibility date should be. I reject the submission that suspending the sentence is appropriate because of your criminal history and drug addiction issues. In terms of parole, it has to be an eligibility date, again, because the offending was in breach of parole (see s 160B(2)). I will declare eight months as time already served, which is a bit less than the one-third conventionally required to be served where a person pleads guilty. But I take judicial notice of the extensive delays which are currently experienced by applicants for parole. If I were to fix a date in, say, four months' time, on my understanding of those delays, you could end up serving another year before your application for parole is considered.
[39] Therefore, taking that matter into account, as well as the time you have served more broadly since 31 May 2020, and your pleas of guilty, I propose to fix today as the date you be eligible for parole.
[40] It remains a matter for the Parole Board to determine whether you be released on parole. In making that order it is my intention that your application be dealt with as part of the Court Ordered Immediate Parole Eligibility (COIPE) program.
[41] I direct that the Registry of the Court provide the statement of agreed facts (exhibit 5) and these sentencing remarks, without delay, to the Parole Board, to facilitate its determination of your application for parole, under the COIPE program.
[42] I will sign the certificate declaring the conviction of the trafficking offence as a conviction of a serious drug offence.
[43] Finally, I record that in respect of the summary offences, taking into account the penalty imposed on the trafficking offence, the defendant is convicted, the convictions are recorded, but is not further punished.

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Cases Cited (2)