_R v Casagrande_

Court of Appeal (Qld)|2009-02-04|Before: de Jersey CJ, Muir JA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made

THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against sentences imposed on the respondent for two offences which form part of a series of offences. The subject two offences were the most serious of those to which the respondent pleaded guilty. They were, carrying on the business of unlawfully trafficking in cocaine, a Schedule 1 drug, and unlawfully trafficking in MDMA, which is a Schedule 2 drug. The other charges in the series were of supply and possession of unlawful drugs.

The appeal, as I have said, relates to the sentences imposed in respect of the trafficking offences, and they were three years' imprisonment with immediate release on parole. The appellant's contention is that the sentence thus imposed failed to reflect both the respondent's substantial criminality and also the important need in cases of this nature for both special and general deterrence. Mr Campbell, appearing for the appellant, has submitted that a sentence of four years' imprisonment with parole after 12 to 15 months should have been imposed.

At the time of the offences the respondent was 17 years of age. He had no prior criminal history. Beset by low self-esteem, he had progressed from steroid use in the early stages to a Cocaine and Ecstasy addiction. He trafficked in those drugs over a period of eight and a half months in part to feed his own addiction, but in the later stages profiting, he believed, to the tune of approximately $1,000 per week. In the later stages of the period of eight and a half months, as he informed the police, he was supplying to some eight other persons.

When apprehended by the police the respondent cooperated fully, and it is accepted that the trafficking charges were substantially facilitated by the respondent's frank admissions to the police. Following his arrest he spent 46 days on remand for other offences in this series, the commission of those offences having followed a grant of bail. He found that period on remand a salutary experience.

He was sentenced on the 16th of October 2008 and then released on parole. While on parole he has, according to affidavit material before this Court, performed satisfactorily. The conditions of his parole, as is usual, include testing for the presence within his system of unlawful drugs. While subject to that parole, of course, the respondent is subject to substantial supervision which is in his interests and the interests of the community. I should add that prior to and following his sentencing the respondent voluntarily undertook psychological counselling.

The basis on which the learned Judge took what might be considered an unusual approach to sentencing for trafficking in a Schedule 1 drug especially, that is that the respondent be spared any actual incarceration, emerges from this passage in her sentencing remarks.

She said, "Because you've already had the time on remand and because of the steps you've already taken towards your own rehabilitation, and the fact that the aggravating aspect of the trafficking, which I consider the length of time that it occurred over, was in part attributed to the frank admissions that you made to the police and that your actual offending has to be looked at, not only in the light of the admissions as to the time period that you were involved, but also as to the point in time which it has escalated. I have decided I will give you an immediate parole release date."

There is no hard and fast principle that such an offender must serve actual time in prison, and Mr Vasta QC, who appeared for the respondent, has pointed to the provisions in the Penalties and Sentences Act 1992 as to prison being a penalty of last resort and as to the significance of rehabilitation. In the end it was this respondent's young age and previously unblemished record which justified the course taken by the sentencing Judge in the context of the respondent's having served more than a month on remand, his cooperation with the authorities and his voluntary attempts at rehabilitation which were apparently having some success.

The decision in R v McAway [2008] QCA 401 where the offender was 19 to 20 years of age at the time of the offending ought not to me suggest that actual incarceration was militated or mandated in the case of this 17 year old otherwise comparable offender, particularly allowing for that age gap and the incidentally important feature that this respondent in fact served 46 days on remand, albeit for other offences committed while on bail. It was the combination of the circumstances to which the sentencing Judge referred which sufficiently justified the particular leniency extended here. I add that the head sentence was in my view justified as being at the low end of any applicable range.

It should be acknowledged that the respondent being subject to the three year head term, especially with parole conditioned upon drug testing, provides a powerful incentive for him to rehabilitate himself to continue with the rehabilitation which he has voluntarily embraced. That penalty, in short, is far from insubstantial and satisfactorily allows for the need for both personal and general deterrence.

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