Whyte v Queensland Police Service

She was sentenced to a further term of one months' imprisonment on the charge of failing to appear in accordance with the undertaking, but in accordance with the operation of the relevant provisions of the Bail Act, that sentence was cumulative on the period of four months' imprisonment. It followed from the imposition of terms of imprisonment that a conviction was recorded for each of these offences. A parole release date was fixed at 2 March 2010, effectively requiring the appellant to serve four months, or 80 per cent of the five month period of imprisonment.

This is an appeal under section 222(1) of the Justices Act 1886 (Qld) on the following grounds: 1, the sentence is manifestly excessive; 2, that having fixed an effective head sentence of five months, a parole release date ought to have been fixed at no greater than 50 per cent of the head sentence; 3, in fixing a parole release date after serving four months' imprisonment, the learned Magistrate has not given sufficient weight to relevant facts in mitigation, most notably the appellant's pleas of guilty. The facts which were placed before the Magistrate are not in dispute.

On 8 July 2009 police officers searched a house where the appellant and two other adults were the occupants. A syringe filled with clear liquid was located on a bench on a bar in the lounge room. Although no admissions were made by the appellant at this stage, after she had called the police station in relation to this item, she participated in a record of interview with police on 22 July 2009 during which she admitted that the syringe was hers, and that it contained Morphine.

She stated that she had been given the tablet of Morphine by a friend, and that she had crushed it down and heated it to liquid form and transferred it to the syringe ready for use. She left it on the bar the day before the police searched the house and forgot about it. She stated that she is badly affected by arthritis in her knees, and sometimes uses Morphine to help relieve the pain.

She stated that she had no lawful authority to possess the Morphine, and knew that it was an offence not to properly secure the syringe. These facts form the basis of the possession of dangerous drugs charge, and the charge of failing to take reasonable care and precautions in respect of a syringe or needle on 8 July 2009. As the Magistrate recognised, this was a small amount of Morphine. It was clearly for her personal use.

She was issued with a notice to appear before the Toowoomba Magistrates Court on 12 August 2009 in relation to these charges. Before she appeared as required she committed the further offence of failing to take reasonable care and precautions in respect of a syringe or needle on 8 August 2009. On that date, police officers again executed a search warrant at the appellant's address. During the search they located her black handbag in her room. Contained in the zipper inside the bag was one used syringe. Also contained in a small red cloth bag within the handbag was another used syringe. The appellant admitted both bags were hers, however, she stated the syringes were not hers.

These facts are the basis for the charge of failing to take reasonable care and precaution in respect of the syringe or needle on 8 August 2009.

On 24 September 2009 a warrant was issued for the appellant's arrest when she failed to surrender into custody at the Toowoomba Magistrates Court in accordance with a bail undertaking she had entered into in relation to each of the drug related offences on 10 September 2009. She was located and arrested by police officers for this offence on 9 October 2009. When questioned as to her reason she stated that she had several matters going on in Court at that time, and was confused in relation to dates.

At the hearing before the Magistrate on 3 November 2009 the appellant provided instructions that she was present at Court on 24 September, but she had left with officers from the Department of Child Safety after being directed by those officers to leave with them. She instructed that she was assured by those officers that the matter of her appearance would be sorted out with the Courts. The prosecution was unable to make any submissions before the Magistrate which contradicted this explanation when invited to do so by the Magistrate. However, the Prosecutor did say that he was aware that she was apprehended by Child Safety in relation to a breach, but was unaware if she had attended Court on that date. In these circumstances, there is no basis for the Court not to proceed to sentence her on the basis of her explanation as given to the Magistrate.

The appellant's criminal and traffic histories were tendered. It is only the criminal history which is of relevance to this appeal. It demonstrates that at the time of her sentence she had a problem with drugs which underlies her offending behaviour.

From 26 October 2006 to 11 September 2008, she had been convicted of four counts of possession of dangerous drugs and six counts of possession of utensils or pipes for use, or which had been used in connection with drugs. In her six Court appearances for these charges she had been afforded the rehabilitative benefits of a good behaviour bond associated with a drug diversion order, and also probation. She had also been fined for some of her offences. She had the benefit of probation on two occasions, and had been re-sentenced to probation for a breach of each order.

On 26 February 2008 she was re-sentenced for a second breach of probation, and the breaching drug related offences to four months' imprisonment with a parole release date at the end of this period, that is, on 25 June 2008. In other words, she was sentenced to serve the whole period of four months without access to the benefits of a parole order.

On the 11th of September 2008 she had been convicted on one count each of breaching a bail condition and failing to appear in accordance with an undertaking. No conviction was recorded in relation to either offence. She was fined $200 for the breach of the bail condition, and was not further punished for the other offence.

Her legal representative before the Magistrate referred in her submissions to the fact that the appellant was 28 years of age and in receipt of Centrelink benefits. The Magistrate was told that she was the mother of three young children who were in the custody of others, but to whom she had unlimited access so that she was basically doing everything for them that a mother would ordinarily do. The Magistrate was told that her involvement with drugs resulted mainly from the need for pain relief for rheumatoid arthritis in her knees. It was said on her behalf that she was making a determined effort to turn her life around, and that she had given up Morphine and was on pain medication as prescribed by her doctor. It was said that she was complying with the program as required, and the doctor would look at starting her on a Morphine program for long term use. It was said that her health was improving, although she was suffering from depression related to the medication, and also Family Law proceedings which were on foot.

Reference was made to the fact that she had the support of her family and doctors, and she intended to comply with all programs set out for her. It was therefore submitted that she was making significant efforts to turn her life around with a view to getting her children back. Reference was also made to the fact that she had been cooperative with the police.

It was submitted to the Magistrate that the appellant was not intending to use any of the drugs, but that she was taking responsibility for them being found at her premises. However, the Magistrate was entitled to reject this submission given her admissions to the police in relation to the earlier offences. It was submitted that a further period of probation with some drug testing requirements could be imposed, or in the alternative, a suspended sentence could be appropriate.

The Magistrate responded that he rejected each of these options. He referred to her previous criminal history for drug related offences, and the previous penalties that she had received, which included probation which he observed that she had apparently squandered. He also rejected the option of a suspended sentence on the basis that the appellant had demonstrated that she would continue to possess or use a dangerous drug.

Relevant to the issue of the date at which her parole release was set, her legal representative responded to the Magistrate that the appellant assured her that she was making every effort not to re-offend. It was therefore submitted that an immediate parole order with drug testing requirements could be imposed, together with strict reporting requirements. The Magistrate did not respond to this submission. Instead, after making reference to the fact that he would accept that her pleas of guilty, although not early, were timely and saved the State further cost and expense, and making reference to her previous opportunities for probation, observed that he was considering imposing an actual term of imprisonment to be served by the appellant. It was at this stage that he made reference to his acceptance that the small amount of Morphine was involved.

He adjourned the sentence until later in the afternoon, but after another matter had been interposed, he informed the appellant's legal representatives that he had had a closer look at the issue of the appellant's sentence, and was prepared to sentence her immediately subject to anything further that the appellant's legal representative wished to address him on. It was at this point that the appellant's legal representative submitted that immediate parole would be appropriate. The Magistrate replied that he was not with her as far as immediate parole, however, he did not alert the parties to the fact that he was considering setting the parole release date beyond the midpoint of the sentence, and in particular at 80 per cent of the total head sentence.

In imposing sentence, he identified as mitigating matters her pleas of guilty which he described as not early or timely for the drug offences, but timely for the failing to appear offence, the affect that a further period of imprisonment would have upon her and her family; that she was now 28 years of age, and 27 years of age at the date of the offences; that she had cooperated with the police; and that she had claimed to have been in Court on 24 September 2009, but left before the matter was mentioned in the Court; and that she had ongoing Child Safety matters.

He identified the aggravating circumstances as her previous drug related offences, and that the sentencing options that had been offered to her had no deterrent effect; the fact that the offence had been for her personal gain, which I can only interpret as meaning for her personal use; the prevalence of the offence; the need for personal and general deterrence; that despite opportunities such as Court ordered drug diversion and probation, she continued to commit drug offences whilst subject to such orders; that he deemed her unsuitable for further community based orders in light of her criminal history; and her demonstration of absolute contempt for the laws of the State and the orders of its Courts in an attempt to rehabilitate her.

In the circumstances, he concluded that a custodial sentence was the only real option to be imposed. He expressly indicated that it was inappropriate to make any orders to suspend the sentences imposed because she had demonstrated that she would continue to possess and use drugs.

Against this background, it is the ultimate submission of the respondent that the sentence imposed is manifestly excessive in that the sentencing discretion of the Magistrate miscarried and the parole release date should be varied. This is on the basis that the sentence imposed failed to follow the principles of exercising the sentencing discretion in R v Kitson [2008] QCA 86. It was submitted in fixing a parole release date at four months into a five month sentence, a point that is significantly beyond the halfway point of the period of imprisonment, the Magistrate failed to take into account the early plea of guilty of the appellant, at least in relation to the bail offence, and also failed to give reasons for, or to give counsel the opportunity to make submissions on the unusual parole release date. It was submitted that these are matters which must be addressed before a Magistrate can exercise a discretion to fix a parole release date beyond the halfway point of the sentence.

As was decided in Kitson, where an appellant has a claim upon the discretion for an order to be released after serving less than half of the sentence in view of a plea of guilty and other personal circumstances, a parole release date that is significantly beyond the midpoint of the head sentence is very unusual. If such an unusual order is made reasons for doing so are required to be given. Further, where such an unusual aspect of the sentence was not sought or contemplated in the submissions of either party, it should not be imposed without the sentencing Judge or Magistrate adverting to it and giving the opportunity to be heard.

This decision was applied in R v Myall [2008] QCA 2002. In

R v Leu; R v Togia [2008] QCA 2001 it was held that in circumstances where there was an unusual order deferring eligibility for parole for six months behind the midpoint, and this was not contemplated in the submission of any party, it should not have been made without the sentencing Judge adverting to it, and giving the parties an opportunity to be heard about it. The failure to allow that opportunity, and the failure to give any reasons for making the order amounted to errors.

Kitson has been applied by this Court in Whyte v State of Queensland [2008] QDC 256 by Bradley DCJ and in Knibbs v R [2008] QDC 288 by Rafter DCJ. The Magistrate's order in this case was an unusual one in that despite the appellant's pleas of guilty, which was recognised as timely in relation to the Bail Act charge, her cooperation with the police, which included making admissions, particularly for the offences of 8 July, and other circumstances which were personal to her, a parole release date beyond the midpoint was imposed. As recognised by the High Court in Siganto v R [1998] HCA 74; (1998) 194 CLR 656 at 663-4, a plea of guilty is ordinarily a matter to be taken into account in mitigation. The extent of mitigation may vary, depending on the circumstances of the case.

As recently stated in R v Ryan [2008] QCA 134 by Mackenzie AJA at [26] and [28], with reference to section 13 of the Penalties & Sentences Act 1992 (Qld) "Making an ameliorating accompanying order in the form of a recommendation or order for early release is one of the means of complying with the requirements: R v Corrigan [1994] 2QdR 415."

Although as recognised in R v Maxfield [2002] 1QDR 417 at 423 per Davies JA and Fryberg J at [23], the section does not require a Court to reduce the sentence of an offender who pleaded guilty, and it is true in this case there was a strong case against the appellant, nonetheless, the approach of entering pleas of guilty to these charges was beneficial to the public and this called for a reduction through a discounted sentence. In addition, despite the circumstances of aggravation, there were other circumstances including those personal to the appellant which called for such recognition.

I have already mentioned her cooperation with the police. Further, she is still a relatively young woman who was said to be making efforts to rehabilitate herself with the support of her family and partner. Although she has had the opportunity of probation, she has never received the real benefit of a parole order to assist her in that rehabilitation. The only occasion on which a parole release date was set was on the last day of a four month sentence. Requiring her to serve 100 per cent of that sentence was itself unusual. On this occasion she will also receive no benefit of parole if she is to serve 80 per cent of the sentence.

In these circumstances, the order made by the Magistrate in this case is unusual, such that reasons were required to be given for setting the parole release date beyond the midpoint of the sentence. Further, as this unusual aspect of the sentence was not sought or contemplated in the submissions of either party, it should not have been imposed without the sentencing Magistrate giving the parties an opportunity to be heard. This is particularly so because, as I have indicated, after the Magistrate had adjourned the sentence and given consideration to it, and indicated that he did not agree with a submission on behalf of the appellant that immediate parole would be appropriate, he did not alert the parties to the fact that he was considering setting the parole release date beyond the midpoint of the sentence, and in particular at 80 per cent of the total head sentence.

In these circumstances, the Magistrate was in error in not giving sufficient weight to the plea of guilty, the appellant's cooperation and the other matters personal to her, and as is conceded by the respondent, in not giving reasons for setting the parole release date beyond the 50 per cent point of the head sentence, and for failing to give the parties an opportunity to be heard in relation to this.

The principles governing appeals against the exercise of discretion on sentence are well established. In Hughes v Hopwood [1950] QWN 21 [at p31] Macrossan CJ stated that an appeal Court is not entitled to interfere unless it "can find that the sentence is manifestly excessive, or that there are some circumstances which show that the Magistrate acted under a misapprehension of facts, or on some wrong principle in awarding sentence."

Similarly, in House v The King (1936) 55CLR504 at 505, Dixon, Evatt and McTiernan JJ stated that, "It is not enough that the Judges comprising the appellate Court consider that if they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion." The errors I have identified involve the Magistrate proceeding on a wrong principle in determining sentence. In other words, as the respondent concedes, there was an error in the exercise of his sentencing discretion. For these reasons, the sentence to the extent that it involves the parole release date, which is the only point on which the appellant now takes issue, must be varied under section 225 (1) of the Justices Act.

I agree with the submission of the respondent that the appropriate parole release date is one fixed at the date of hearing, effectively requiring the appellant to serve three months of the five month period of imprisonment. This in itself involves ordering that a parole release date be fixed beyond the midpoint of the sentence at 60 per cent of the head sentence, however, in the circumstances of this case, it is the earliest date at which parole release can be fixed.

It is relevant that when the appellant is released she will be subject to parole for the remaining two months of her sentence. This imposes significant obligations and restrictions upon her. A failure to comply with the order in any way, including the commission of another offence during the parole period, is likely to result in her parole being suspended and revoked, and her being required to serve the balance of the sentence of imprisonment. The parole order is part of the sentence. The affect of this sentence provides the necessary personal and general deterrence and denunciation of her conduct that the Acting Magistrate must have had in mind when sentencing the appellant. It also gives parole a real opportunity to operate to provide the beneficial rehabilitative affects which are intended by the legislation.

Accordingly, I order as follows: 1, appeal allowed; 2, sentence at first instance varied by fixing a parole release date as 3 February 2010. I make no order as to costs.

Ms Whyte, I just want to say something to you about the parole release. At some time in the near future you will be released on parole. You will be required upon release to go immediately to the probation and parole office here in Toowoomba, which I understand is at 171 Hume Street, to obtain a copy of the Court ordered parole order. If you fail to do so, you will be unlawfully at large and a warrant can be issued to take you into custody with the result that you will serve the balance of your sentence. So you must understand that.

Secondly, it is important that you understand that a parole release is different from a probation order to this extent, that whereas if you breach a probation order, you come back to the Court, as you have experienced before, for the Court to re-sentence you with some prospect that you won't be re-sentenced for the original offence, or if you are, you won't be re-sentenced to a term of imprisonment. If you breach a parole order in any way, the matter is out of the Court's hands. You do not come back to Court. It is the parole authorities who suspend and revoke the parole, and in your case, you can expect to spend the rest of your sentence in prison. Do you understand that?

HIS HONOUR: That means that just like a probation order, you must comply with every requirement that is placed upon you during parole, including reporting as required, or undertaking any counselling or programs that you are required to undertake. It also means that you must not commit any offences during the parole period. If you do any of those things it results in your parole being suspended and revoked, and you serving the time in custody. You understand that?

HIS HONOUR: All right. Is there anything further, Mr Millican?

HIS HONOUR: All right. Well, in those circumstances that is the order of the Court.