Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62

SUPREME COURT OF QUEENSLAND CITATION: Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62 PARTIES: CRAIG CANT (applicant) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO: 339 of 2013 DIVISION: Trial Division PROCEEDING: Appeal under section 19AY of the Crimes Act 1914 (Cth) ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 7 April 2014 DELIVERED AT: Brisbane HEARING DATE: 21 October 2013 Further material provided 18 November 2013 JUDGE: Daubney J ORDER: The warrant issued on 12 June 2013 be confirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL - INTEREFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the applicant was sentenced in 2001 to 14 years’ imprisonment for having committed the federal offence of being knowingly concerned in the importation of ecstasy - where the applicant was sentenced in 2004 to a partly concurrent term of 12 years six months imprisonment for the federal offence of being knowingly concerned in the importation of cannabis resin – where the court fixed a single non-parole period for both federal offences – where this non-parole period was fixed at nine years six months being 18 May 2011 – where the applicant was released on 18 May 2011 – where the applicant breached a number of conditions of his parole – where a Notice of Revocation was issued – where a Queensland magistrate issued a warrant under the Crimes Act 1914 (Cth) for a non-parole period of 39 months – where the applicant contends that the non-parole period of 39 months is excessive in the circumstances Crimes Act 1914 (Cth), s 19AU,s 19AV, s 19AW, s 19AY Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] -- 1 of 9 -- 2 HCA 10, followed COUNSEL: The applicant appeared on his own behalf S J Hamlyn-Harris for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent [1] On 12 June 2013, a Queensland magistrate issued a warrant under s 19AW(1) of the Crimes Act 1914 (Cth) (‘the Crimes Act’), which had the effect of fixing a new non- parole period for sentences being served by the applicant for certain federal offences. The applicant now appeals, under s 19AY of the Crimes Act, contending that the non-parole period of 39 months fixed by the magistrate was “excessive in the circumstances”.1 Background [2] In 2001, the applicant was sentenced in the Supreme Court of the Northern Territory to 14 years’ imprisonment for having committed the federal offence of being knowingly concerned in the importation of the drug known as “ecstasy”. He was given a non-parole period of nine years six months. An appeal against that conviction was dismissed in 2003. [3] In 2004, the applicant was convicted, after a re-trial, of the federal offence of being knowingly concerned in the importation of cannabis resin. He was sentenced in the Supreme Court of the Northern Territory to a partly concurrent term of 12 years six months imprisonment, commencing on 19 November 2006 and ending on 18 May 2019 (taking into account pre-sentence custody). In accordance with s 19AB of the Crimes Act the Court fixed a single non-parole period in respect of both federal offences of nine years six months commencing 19 November 2001. [4] By a Parole Order dated 16 February 2011, it was directed by an authorised delegate of the Commonwealth Attorney-General, under s 19AL(2) of the Crimes Act, that the applicant be released on parole on 18 May 2011. He was released on that date. The Parole Order specified a number of conditions, including: “(2)(h) You must not associate with anyone who unlawfully possesses, uses or sells any substance that is a drug or narcotic preparation within the meaning of the Narcotic Drugs Act 1967. (2)(i) You must not leave the State of Queensland for seven days or less without first obtaining the written permission of the authorised Queensland Corrective Services officer for the area in which you are residing.” 1 Notice of Appeal filed 18 June 2013. -- 2 of 9 -- 3 [5] On 24 October 2012, a “Notice of Revocation” of the applicant’s parole was issued pursuant to s 19AU of the Crimes Act and served on the applicant. The Notice of Revocation referred to a number of breaches by the applicant of his conditions of parole. I will later make reference to those breaches in greater detail. By this Notice of Revocation, the applicant was effectively given 14 days to show cause as to why his parole should not be revoked. [6] On 29 October 2012, a parole assistance organisation made written submissions on behalf of the applicant as to why parole ought not be revoked. Those submissions were not accepted and, by a written “Revocation of Parole” dated 29 January 2013, the applicant’s parole was revoked under s 19AU of the Crimes Act. [7] On 12 June 2013, the applicant appeared before a Queensland magistrate, as a “prescribed authority” for the purposes of the relevant part of the Crimes Act,2 on an application for the issue of a warrant under s 19AW for the fixing of a new non- parole period. It is convenient to note here that, as at the time he was brought before the learned magistrate for that application, the applicant had not been formally arrested under s 19AV. The reason he had not been arrested under that section was, quite simply, because he was already being held in custody on remand after having been charged with new offences. In the hearing before me, counsel for the respondent quite properly raised the issue as to whether the lack of a formal arrest under s 19AV impacted on the hearing before the learned magistrate. The applicant was fully apprised of this argument and he expressly disclaimed any reliance on that point. The applicant confirmed that he did not take any issue with the way in which he was brought before the magistrate and did not take issue with the proposition that the magistrate had power to determine the application under s 19AW. [8] Section 19AW relevantly provides that, if the magistrate was satisfied that the applicant was the person named in the Revocation Order,3 and that he had been notified of the proposal to make the Revocation Order,4 and that the Revocation Order was still in force,5 then the magistrate was required to issue a warrant in the prescribed form.6 The ‘prescribed form’, includes ‘fixing a non-parole in respect of the outstanding sentence or sentences’.7 Such a warrant must specify the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period.8 [9] The applicant was legally represented at the hearing before the learned magistrate. The evidence before the learned magistrate included a “statement of facts”, the contents of which were not disputed by or on behalf of the applicant. At this hearing it was expressly accepted on behalf of the applicant that he had breached his conditions of parole. 2 Crimes Act 1914 (Cth) s 16 “prescribed authority”.. 3 s 19AW(1)(a). 4 s 19AW(1)(b). 5 s 19AW(1)(c). 6 s 19AW(1): the section uses the term “must”. 7 s 19AW (1)(f). 8 s 19AW(4). -- 3 of 9 -- 4 [10] In accordance with s 19AW(4), the warrant issued by the learned magistrate included the required particulars as a schedule, the “details of sentences to be served”: “SCHEDULE DETAILS OF SENTENCES TO BE SERVED 2 years, 9 months and 20 days (1023 days), being the unserved part of a 14 year term of imprisonment which commenced on 19 November 2001, being a sentence imposed on 22 July 2003 by the Northern Territory Court of Criminal Appeal for a federal offence of being knowingly concerned in the importation of ecstasy. 6 years, 3 months and 19 days (2300 days), being the unserved part of a 12 year and 6 month term of imprisonment which commenced on 19 November 2006, being a sentence imposed on 13 January 2004 by the Northern Territory Supreme Court for a federal offence of being knowingly concerned in the importation of cannabis resin.” [11] The learned magistrate’s reasons for issuing the warrant were as follows: “BENCH: Thank you. I have spent some time looking at the material, in the applicant’s application, this court is asked to make a determination in particular in respect of 1C of the application dealing with the defendant’s breaches on multiple occasions of parole and of their impact on the defendant’s parole eligibility date. The defendant has a serious criminal history with significant periods in custodial settings. I draw on [indistinct] an inference that he well understands the criminal justice culture and the non-negotiable nature of his obligations to comply strictly with rules that are set. The date that concerns the court for the purpose of this application is the date of revocation of parole, that date is the 30th of January 2013, that the defendant has been in custody prior to that date does not concern this court on this application. He was in custody for other reasons unrelated to his parole and for reasons beyond the control of this court. His fulltime release date is, at this point is I understand to be 18th of May 2019, I determine that he should serve approximately half the duration between that date and the date of revocation, I assess that date as the 1st of May 2016 and order that the defendant serve a non-parole period of 39 months. In the normal course, the period that, in my view, ought be the non-parole period would be set at approximately a third of the duration between the parole revocation and the final release date, but these breaches are multiple, they are aggravated because they occur in combination with one another, they occur in context of a serious history, they occur in context of no mitigating circumstances or any prosocial observations that are offered to the court, the only mitigating circumstances here today are the defendant’s pleas to the breaches. So the order I make in terms of 1C of the application, in terms of the draft warrant is put before me, I fix the no-parole period at 39 months, to expire on the 30th of April 2016. Are there ancillary orders that need to be made?” [12] As I have already noted, the material before the learned magistrate included a statement of facts, the contents of which were not disputed. The material relied on before the learned magistrate also included copies of statements by relevant witnesses in support of the factual matters set out in the statement of facts. The -- 4 of 9 -- 5 statement of facts revealed that, since August 2011, the applicant and others with whom he was associated were under investigation by the Australian Federal Police and the Queensland Police Service, it being suspected that they were conspiring to import a commercial quantity of a border-controlled precursor. The statement of facts gave an overview of the various surveillance methods used by the police during the course of their investigation. It was noted that, throughout the investigation, the applicant primarily resided at a particular address at Bridgeman Downs with his son, Vaun Taylor, another man (‘his co-tenant’), that man’s wife and their two young children. On 7 August 2012, the applicant was arrested and charged with a range of drug-related offences which he is said to have committed himself and also jointly with other associates, including his co-tenant at Bridgeman Downs. [13] Relevant also to the applicant’s breaches of parole was evidence contained in the statement of facts that concerned a number of interstate trips which the applicant had made without obtaining the necessary consent of the authorised Corrective Services officer. Also relevant was the evidence of the applicant’s association with persons who were in possession of drugs. The evidence showed that: (a) In March 2012, the applicant travelled to Adelaide on a flight paid for with his co-tenant’s credit card. Electronic evidence showed that the applicant’s telephone was located in Adelaide on the afternoon of 11 March 2012. He flew back to Brisbane from Adelaide on 12 March 2012, and was observed and digitally recorded by police exiting the arrival gate in Brisbane, after departing the flight from Adelaide. (b) Further evidence demonstrated a link between the applicant’s telephone being used to contact a certain other associate, and this other person was, in turn, linked to a further associate by telephone calls. That final associate was intercepted by police on 16 March 2012 carrying 42 clip seal bags containing methamphetamine, with a total net weight of 2.246 grams pure. Telephone records show that on 18 March 2012, that same person’s telephone was used to contact the applicant’s telephone. (c) Electronic evidence demonstrated that, on 20 April 2012, the applicant’s telephone (and, by necessary inference, the applicant himself) travelled into northern New South Wales, returning on 21 April 2012. (d) Police surveillance showed that in March 2012, certain other people with whom the applicant was associated travelled to Alice Springs. One of those people made contact with the applicant by telephone. A few weeks later, police executed a search warrant at the business premises of that person, and located 57.73 grams of methamphetamine. Telephone records then show numerous telephone calls between the applicant’s telephone and those belonging to his associates. On 7 May 2012 the applicant himself travelled to Alice Springs, via Cairns. The airline booking had been made in the name of the applicant’s son, Vaun Taylor, but was paid for using the applicant’s credit card. Closed circuit TV at the Alice Springs airport showed him exiting the airport with the associate at whose premises the police had located the 57.73 grams of methamphetamine. The records of a particular motel at Alice Springs record a booking for the applicant, and detail his mobile telephone number. Telephone records indicate that, while in Alice Springs, the -- 5 of 9 -- 6 applicant’s telephone was used to contact a number of his associates’ telephones. Closed circuit TV footage at the Alice Springs airport on 8 May 2012 show the applicant passing through security to board a flight to Sydney. He then travelled on to Brisbane. [14] With that detail of evidence put before the learned magistrate, it is hardly surprising that the allegations of breach of parole were not challenged. [15] The applicant had a significant criminal history which pre-dated his involvement in the offences for which he was sentenced in 2001 and 2004. Details were before the learned magistrate. That criminal history included a conviction in 1985 for the offences of breaking and entering with an offensive weapon and malicious injury, for which he was sentenced to four years’ imprisonment, and subsequent offences of dishonesty, including possession of a falsified passport in 1993. This appeal [16] This appeal is brought pursuant to s 19AY of the Crimes Act. That section permits an appeal to this Court against, relevantly, ‘the fixing, for the purposes of the warrant, of a non-parole period or the refusal to fix such a period.’9 [17] Section 19AY(3) provides that ‘An appeal is to be by way of rehearing, but the court may have regard to any evidence given before the prescribed authority.’ [18] In Lacey v Attorney-General (Qld) the High Court examined the nature of an appeal under s 669A of the Criminal Code (Qld).10 The plurality noted that an “appeal is a creature of statute and, subject to constitutional limitations, the precise nature of the appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context”.11 Their Honours continued: “57 Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are: 1. Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance. 2. Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error. 3. Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is 9 s 19AY(1)(c). 10 (2011) 242 CLR 573. 11 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [56]. -- 6 of 9 -- 7 authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance. 58 Where the court is confined to the materials before the judge at first instance, that is ordinarily indicative of an appeal by way of rehearing, which would require demonstration of some error on the part of the primary judge before the powers of the court to set aside the primary judge’s decision were enlivened.”12 [19] In my opinion, the present appeal under s 19AY is an appeal by way of rehearing, within the third category described in Lacey. It is curious that s 19AY(3) was drafted so as to provide ‘…but the court may have regard to any evidence given before the prescribed authority’,13 thereby suggesting that having regard to such evidence is something which would not ordinarily be done on an appeal by way of rehearing. Given that the primary position provided for under the subsection is, however, that the appeal is to be by way of rehearing, it appears that this secondary clause is intended to reinforce the capacity of the Court, on the rehearing, to have regard to the materials before the primary adjudicator. [20] Beyond contending that the non-parole period of 39 months fixed under the warrant was excessive in the circumstances, the applicant did not identify any factual or legal error by the learned magistrate. Nor did the applicant identify any erroneous exercise of the learned magistrate’s discretion, beyond the contention that the non- parole period was excessive. [21] In support of his argument that the non-parole period was excessive, the applicant referred to a number of what he described as “comparable” decisions.14 None of the cases referred to by the applicant are at all comparable to the present case. For completeness, I will note them briefly: R v Beattie15 was an appeal against sentence where the applicant had pleaded guilty to two charges of house breaking, two charges of stealing and one charge of false pretences. He was released on a two year probation order. He subsequently breached that probation order. At the breach hearing, the sentencing judge vacated the probation order and sentenced the applicant to 12 months’ imprisonment. The appeal against that sentence was upheld, essentially because the applicant was a young offender who, in reality, was being sentenced as a first offender. The Court considered that the 12 month sentence was excessive, and reduced that to four months. 12 At [57] – [58]. 13 Underlining added. 14 At the time of the hearing before me, the applicant had mislaid his copy of these cases due to being shifted from one prison to another. He was given the opportunity to further investigate the matter and to provide me with those cases. Ultimately, some weeks after the hearing before me, copies of these cases were provided. 15 [1998] QCA 357. -- 7 of 9 -- 8 In R v O’Rourke16 the applicant had pleaded guilty to breaking and entering, and had been released on a 12 month probation order. She breached that probation order, and was re-sentenced to 12 months’ imprisonment. The probation order was breached by a failure to comply with reporting conditions. In that case, the sentence of 12 months’ imprisonment was considered by the Court of Appeal to be manifestly excessive. Whilst the defendant was considered not to be a suitable candidate for further probation, the Court of Appeal considered it appropriate to order her immediate release by suspending the sentence. B W Ingram v Jones17 concerned an applicant who had originally been convicted of a breach of bail. The bail which was breached concerned a charge of creating a disturbance. The applicant was granted watchhouse bail, but subsequently failed to appear. It was clear the applicant had alcohol issues. The undisputed submission made on his behalf was that he could not remember being asked to attend Court. Despite having a lengthy criminal history, mostly for street offences, the applicant had never been sent to jail before. In those circumstances, a term of imprisonment for breaching watchhouse bail was considered to be a last resort which was outside the exercise of a sound sentencing discretion. [22] None of these cases have any application to the present matter. [23] On the undisputed statement of facts which was before the learned magistrate, the applicant committed repeated breaches of his conditions of parole both by unauthorised interstate travel and by associating with persons connected with drugs. Despite the brevity of the learned magistrate’s reasons, it is clear that her Honour had regard to the serious nature of the breaches of parole conditions, and the fact that the applicant had offered no circumstances of mitigation, beyond his admission of the breaches. The conditions which the applicant breached were obviously designed to reduce the risk of him returning to involvement in drug-related criminal activity. It is objectively a matter for concern that the applicant within 12 months of release on parole committed repeated breaches of his conditions of parole. This fact justifies the serious approach taken by the learned magistrate in setting the non- parole period. [24] It is also clear from the undisputed statement of facts that the breaches of parole conditions were deliberate and planned. The evidence of the applicant’s interstate travel demonstrates that he employed a significant amount of deception, together with ongoing association with criminal associates, who had convictions for narcotics offences. On the basis of that evidence, the learned magistrate was clearly correct in her observation that: “... These breaches are multiple, they are aggravated because they occur in combination with one another, they occur in the context of a serious criminal history, they occur in context of no mitigating circumstances or any prosocial observations that are offered to the Court ...” 16 [1998] QCA 449. 17 [1999] QCA 351. -- 8 of 9 -- 9 [25] In all the circumstances, and in the absence of the applicant pointing to any error in the exercise of the discretion by the learned magistrate, I am satisfied that the setting of the non-parole period of 39 months was within a proper exercise of discretion by the learned magistrate, was not excessive, and was not infected by error. [26] Section 19AY(5) prescribes the orders that the Court may make on an appeal: “(5) The court must: ... (c) if the appeal is against the fixing of a non-parole period or the refusal to fix such a period – either confirm the warrant or vary the warrant, if it fixes a non-parole period, as specified in the order.” [27] Having regard to the requirements of s 19AY(5), therefore, the appropriate order in the present case is that the warrant issued on 12 June 2013 be confirmed. -- 9 of 9 --