Douglas v Commissioner of Police [2021] QDC 229

DISTRICT COURT OF QUEENSLAND CITATION: Douglas v Commissioner of Police [2021] QDC 229 PARTIES: TRENT JOHN DOUGLAS (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 633 of 2021 DIVISION: Appellate PROCEEDING: Appeal pursuant to section 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court DELIVERED ON: 17 September 2021, ex tempore DELIVERED AT: Brisbane HEARING DATE: 16 September 2021 JUDGE: Loury QC DCJ ORDER: 1. The appeal is allowed. 2. Set aside the sentences imposed on all charges. 3. The appellant is resentenced as follows: a) 18 months imprisonment for the offence of possessing dangerous drugs in excess of schedule three of the Drugs Misuse Act 1986. b) Six months imprisonment for the offence of possessing dangerous drugs. c) One month imprisonment for the offence of possessing property suspected of having been used in connection with the commission of a drug offence. d) Convicted and not further punished for the offence of possessing a restricted drug. e) All terms of imprisonment are to be served concurrently. f) The terms of imprisonment are to be suspended after serving 213 days for an operational period of 18 months. COUNSEL: R Hadzalic for the appellant S Kingston for the respondent SOLICITORS: Donnelly Law Group for the appellant -- 1 of 6 -- 2 The Office of the Director of Public Prosecutions for the respondent [1] On 17 February 2021 the appellant pleaded guilty to possessing dangerous drugs in excess of schedule three of the Drugs Misuse Act 1986; possessing dangerous drugs; possessing property suspected of having been used in connection with the commission of a drug offence and possessing a restricted drug. He was sentenced to 18 months imprisonment for the most serious charge and lesser concurrent terms of imprisonment of six months and one month for possessing dangerous drugs and possessing property suspected of having been used in connection with the commission of a drug offence, respectively. He was convicted and not further punished for possessing a restricted drug. The date on which the appellant was ordered to be eligible for parole was 16 August 2021 (a period of six months). [2] The appellant appeals his sentence on the single ground that the sentence was manifestly excessive. [3] The appeal is pursuant to s 222 of the Justices Act 1886. Such an appeal is by way of rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference and placing a good deal of weight on the Magistrate’s view.1 In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.2 [4] As the appellant’s appeal is against his sentence, that involves the exercise of a discretion. Accordingly the principles referred to in House v The King3 are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because he has allowed irrelevant matters to affect him, mistaken the facts or failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh. Circumstances of the offences [5] On 18 May 2020 the appellant was a passenger in a vehicle intercepted by police. He was observed to be nervous which drew the attention of attending police to an object secreted down his pants. He was detained and searched. Concealed in his pants police located a bag containing a white crystal substance which contained methylamphetamine and a glass pipe which contained methylamphetamine residue. They also located in his wallet, a further bag containing methylamphetamine. Inside a suitcase on the rear seat of the car police located a glass vial containing testosterone and a restricted drug, Clomiphene Citrate. 1 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43]. 2 McDonald v Queensland Police Service [2018] 2 Qd R 612. 3 (1936) 55 CLR 499. -- 2 of 6 -- 3 [6] In total the appellant was found in possession of 3.974 grams of substance containing 3.037 grams of methylamphetamine, the purity being approximately 76 percent. [7] The appellant claimed ownership of the drugs however declined to be interviewed by police. It was accepted by the prosecutor that the appellant had possession of the drugs for personal use. The appellant’s antecedents [8] The appellant was 41 years of age at the time of the offending. He had a relevant and significant criminal history. He was first convicted of possessing dangerous drugs in October 2013. He was sentenced to a good behaviour bond for a period of 12 months. Two months later he was found in possession of more than seven grams of pure methylamphetamine and of property suspected of having been used in connection with the commission of a drug offence. He was sentenced in the Supreme Court on 23 September 2014 to 18 months imprisonment with an immediate parole release date. Whilst on parole for that sentence and only a little more than three months later he was found in possession of dangerous drugs and drug utensils. He was fined $850 for those offences together with an offence of contravening a requirement. [9] On 8 September 2016 the appellant was sentenced for 14 counts of supplying dangerous drugs (both schedule one and two drugs) to 12 months imprisonment wholly suspended for a period of 12 months. That offending was committed between October and December 2013 at around the time of his possession of the seven grams of methylamphetamine for which he received the 18 month sentence of imprisonment. [10] On 16 October 2019 the appellant was again sentenced in the Supreme Court for offences of possessing in excess of 10 grams of pure methylamphetamine and possessing a weapon together with 16 summary charges, 15 of which were for drug offences. He was sentenced to a head sentence of two years imprisonment with a parole release date of 16 October 2019. Three hundred and three days of pre-sentence custody was declared to have been time served. [11] The appellant’s traffic history reveals that between January 2017 and July 2018 he was found driving a motor vehicle with a relevant drug present in his blood or saliva on six occasions. [12] The offences before the learned Magistrate were committed seven months into the appellant’s period on parole. Despite that, the appellant was released on bail and his parole was not suspended at that time. [13] Material tendered on behalf of the appellant revealed that he had attended the Queensland Injectors Health Network for counselling on three occasions between November 2020 and February 2021. He had obtained work with a concreting company in July 2020 and was considered to be a reliable, honest, punctual and hard worker. An unsigned reference from a friend of the appellant suggested that he was -- 3 of 6 -- 4 remorseful for his conduct and that he was focused on making positive changes to his lifestyle. The decision of the learned Magistrate [14] The learned Magistrate took into account the appellant’s pleas of guilty. He referred in his remarks to the material tendered on behalf of the appellant and considered that the appellant had made some attempts at rehabilitation. He referred to the offences having been committed whilst the appellant was on parole. He considered that the appellant’s criminal history meant that personal deterrence was important to the exercise of his discretion as was general deterrence. He considered that a term of actual imprisonment was the appropriate penalty. He had regard to the comparable authorities relied on by the parties and each of their submissions that 18 months imprisonment was an appropriate head sentence. He set the parole eligibility date at one-third of that sentence. The appellant’s contentions [15] The conviction and sentence for these offences resulted in the appellant’s earlier parole order being cancelled pursuant to section 209 of the Corrective Services Act 2006. That cancellation took effect from the date of his commission of the drug offences being 18 May 2020. It is contended that the period of time that the appellant served on parole prior to his sentence (a period of some seven months) was not taken into account by the learned Magistrate and as such was an error which warrants this Court exercising the sentencing discretion afresh. The respondent’s contentions [16] The respondent submits that the sentence imposed was not manifestly excessive having regard to the comparable authorities and that the learned Magistrate considered the implications of section 209 and section 211 of the Corrective Services Act 2006 in exercising his sentencing discretion by his imposition of a parole eligibility date. It is argued that by imposing a parole eligibility date the learned Magistrate had in his mind the provisions of section 160B of the Penalties and Sentences Act 1992 which specifically refers to the operation of sections 205 and 209 of the Corrective Services Act 2006. The learned Magistrate gave proper consideration to all of the relevant circumstances and the sentence imposed was a proper exercise of the learned Magistrate’s sentencing discretion. Consideration [17] Neither the prosecutor nor the defence representative drew the learned Magistrate’s attention to the fact that the appellant’s earlier parole order would be automatically cancelled pursuant to section 209 of the Corrective Services Act 2006 and that he would be required to serve out the remainder of the sentence imposed on 16 October 2019. -- 4 of 6 -- 5 [18] The appellant’s parole had not been cancelled or suspended and as at the date of the sentence he had completed his parole without any breaches of it. The full-time expiry date of the two year sentence was 16 December 2020. The appellant was not sentenced by the learned Magistrate until 17 February 2021. [19] Section 160B of the Penalties and Sentences Act 1992 is concerned with the circumstances where a parole eligibility date must be imposed. The reference to the Corrective Services Act 2006 within that provision relates to circumstances where the offender has had a court ordered parole order cancelled during the period of imprisonment. The appellant had not had his parole cancelled during the two year period of imprisonment and somewhat unusually his parole had not been suspended. I do not accept that, in the absence of either party informing the learned Magistrate that the effect of imposing a term of imprisonment (other than a wholly suspended term of imprisonment) would be that the appellant’s earlier parole order would be automatically cancelled and he would be liable to serve a further 213 days of that sentence, that the learned Magistrate turned his mind to that fact. [20] That was a relevant consideration and that failure to take it into account was an error which enlivens my discretion to re-sentence the appellant. [21] The appellant does not argue that the term of 18 months imprisonment was manifestly excessive. Indeed the appellant’s representative at sentence submitted that 18 months imprisonment was an appropriate head sentence. Whilst the appellant’s outline argues that his sentence ought to be wholly suspended so as to avoid the automatic cancellation of his parole and to take into account the efforts that he made to rehabilitate himself whilst subject to parole for a period of seven months, the argument now presented is that the appellant has served more than the six months imprisonment that the learned Magistrate had intended. He has now been in custody for seven months. As the appellant is not entitled to a fixed parole release date but rather a parole eligibility date he can only now (upon the determination of this appeal) make his application for parole. There will necessarily be a further delay before that application can be considered which will mean that he will spend a longer period of time in custody than was intended. [22] Personal deterrence is of paramount importance to the exercise of the sentencing discretion in this case. The appellant has a significant criminal history for serious drug offending. He has been undeterred by periods of imprisonment including having had to serve actual imprisonment. He has committed offences whilst on parole in the past. He was undeterred by being subject to parole at the time of his offending. That feature is an aggravating one to his offending. A wholly suspended sentence in my view would fail to properly reflect the need for a deterrent sentence to take into account the appellant’s serious and similar offending whilst on parole. Had I been sentencing at first instance I would have imposed no different order to that of the learned Magistrate. However the delay in the appeal being heard means that the appellant has not been able to apply for parole. He has now served 213 days (seven months) of the 18 month sentence. The period of custody that the appellant was -- 5 of 6 -- 6 required to serve due to the cancellation of his parole ends today, 17 September 2021. In order to do justice to the case and avoid the appellant serving far longer in custody than would be appropriate, I will re-sentence the appellant to 18 months imprisonment suspended after serving 213 days for an operational period of 18 months on the most serious of the charges. Whilst this is a higher sentence in terms of the time the appellant is required to serve in actual custody, the practical effect of it is that the appellant is able to be released immediately. The appellant’s legal representative confirmed that he held instructions to continue with the appeal knowing that a higher sentence of this nature might be imposed. [23] My orders are: 1. The appeal is allowed. 2. Set aside the sentences imposed on all charges. 3. The appellant is resentenced as follows: (a) 18 months imprisonment for the offence of possessing dangerous drugs in excess of schedule three of the Drugs Misuse Act 1986. (b) Six months imprisonment for the offence of possessing dangerous drugs. (c) One month imprisonment for the offence of possessing property suspected of having been used in connection with the commission of a drug offence. (d) The appellant is convicted and not further punished for the offence of possessing a restricted drug. (e) All terms of imprisonment are to be served concurrently. (f) The terms of imprisonment are to be suspended after the appellant has served 213 days for an operational period of 18 months. -- 6 of 6 --