_R v Atkins_

Court of Appeal (Qld)|2007-09-25|Before: Holmes JA, Jones and Lyons JJ, Separate reasons for, judgment, each concurring as to the order made.

The Crown Prosecutor before us referred particularly to the case of the Queen v Grima [2000] QCA 105 which concerned trafficking in methylamphetamine when the drug was listed as a schedule two drug. That offender was sentenced to four years imprisonment with no parole recommendation which means that he would have become eligible after serving two years imprisonment. He had no previous convictions. The quantity of drug which he was involved in trafficking was two and a-half ounces over a short period. His activities involved less intensity than that evidenced by the material against the applicant.

The applicant has a limited criminal history. The only prior offences that invited comment were his offending as a 19 year old in the possession and supply of Cannabis sativa and his being in unlawful possession of weapons in 2006. The drug offences attracted a penalty of 200 hours of community service. The firearms offence related to his possession of three plastic pellet guns and attracted a fine of $750. Neither of these offences impacted significantly on the sentence which was imposed and now being considered.

However, there was not put before the Court any compelling ameliorating factors such as his personal rehabilitation or cessation of use of drugs or co-operation with the police as would invite any greater consideration for early eligibility than was allowed in this case. The applicant had a troubled teenage period and a reasonable work record despite being a user himself of methylamphetamine for a 12 to 18 month period. The fact that he was found to be in possession of a quantity of that drug as well as of cannabis sativa two years after the trafficking suggests there was an ongoing problem.

The learned sentencing Judge had to balance the requirements of parity in sentencing the applicant as a co-offender, sentencing him within an identifiable range and taking into account aspects personal to him. Considering all of these matters it cannot be said, in my view, that the sentence imposed was manifestly excessive.

HOLMES JA: I agree. So far as the question of ameliorating circumstances bearing on parole eligibility is concerned, while it is true, as counsel for the applicant contended, that there is no evidence of continued trafficking after the 38 day period covered by the telephone intercepts, it is not a case, unlike some others, where counsel for the applicant at first instance was able to point to any positive act of desistence. And unlike the circumstances in O'Brien and Taylor, this is not a case where the time which elapsed between the trafficking and the applicant's arrest could assist him, given his possession of what the learned sentencing Judge found to be a commercial possession of methylamphetamine in February 2006, in circumstances where he held, also, $1,700 cash. One could hardly argue, then, that there was rehabilitation in the intervening period. Another matter of distinction is, of course, that this is a case of wholesaling methylamphetamine rather than retail by an addict at a street level. For those reasons, together with those which Justice Jones has already given, I would dismiss the application for leave to appeal.

LYONS J: I agree with the reasons of Justice Jones and I also agree that the application should be refused.

Misuse Act 1986(Qld)

In this period, quantities of material which were estimated to involve, at least, 20 grams of methylamphetamine and said to be worth in excess of $60,000, were traded. The applicant both purchased and sold the drug in multiple ounce lots. He was correctly identified as a wholesaler. Other persons identified as the participants in the same trafficking ring, had been dealt with at earlier dates. The respective penalties imposed on these persons were referred to by Wilson J, in her sentencing of a co-offender Khor Tran Ly, (No. 2 of 2006). He was the person with whom the applicant dealt. He was described as being at mid level in the hierarchy of drug dealing. He dealt with five persons. He was sentenced, after pleading guilty, to nine years imprisonment without any provision for early eligibility for parole. Another person at an equivalent level was similarly punished; Saled Elizade [2006] QCA 330.

(1) Queen v Barton [2006] QCA 267, which concerned trafficking of 26 grams of methylamphetamine over two and a-half period, resulting in a head sentence of seven years imprisonment;

(2) R v Postic [2004] QCA 301, concerned trafficking and production of dangerous drugs, resulting in sentences of seven years and four years imprisonment respectively;

(3) Queen v Coleman [2006] QCA 442, trafficking approximately 20 ounces of methylamphetamine over a four month period where the Court of Appeal described the appropriate sentencing range as being between five years and seven years;

(4) Queen v Witherspoon [2003] QCA 58, trafficking in methylamphetamine as well as a number of other drugs over an 11 months period, sentenced to seven years, nine months imprisonment; and

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