_R v Challacombe_

Judgment (29 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: On 26 May 2009 the applicant was convicted on his own plea of three contraventions of the Drugs Misuse Act 1986 (Qld) ("the Act"). These offences were:

[3]

Count 1: trafficking in the dangerous drugs methylamphetamine and

[4]

3,4-methylenedioxymethamphetamine ("ecstasy") between

[5]

Count 2: unlawful possession of the dangerous drugs methylamphetamine and ecstasy in a quantity exceeding 2.0 grams on 22 February 2008;

[6]

Count 3: on 22 February 2008 possessing a sum of money obtained from trafficking in dangerous drugs knowing it to have been obtained from the trafficking.

[7]

[2] The applicant was sentenced to five years imprisonment in respect of count 1 and to concurrent terms of imprisonment of 12 months in respect of the other counts. It was ordered that he be eligible for consideration for parole on 25 November 2010, ie after serving 18 months of his sentence in actual custody.

[8]

[3] The applicant seeks leave to appeal against these sentences on the ground that they are "manifestly excessive". Obviously it is the sentence for the trafficking offence which must be the focus of attention on his application.

[9]

[4] The applicant's role in the trafficking operation was evidently at a relatively low level involving about 1,000 ecstasy tablets and two bags of methylamphetamine and a turnover of between $24,000 and $30,000 over a period of four to five months for a profit to him of $3,000 to $4,000. The applicant sold drugs mainly to apprentice tradesmen. He had four regular customers. He was found in possession of

[10]

[5] The applicant made full admissions to police to having trafficked in drugs after police discovered messages related to drug selling on his mobile phone when he was stopped while driving on 22 February 2008.

[11]

[6] The applicant was 21 to 22 years of age at the time of the offending and 23 years of age when he was sentenced. He comes from a good family and has a good work history. He is a qualified diesel fitter. His employer speaks well of him.

[12]

[7] The applicant is the father of a young child. He is the breadwinner for his child and de facto wife.

[13]

[8] The learned sentencing judge accepted that the applicant had been a user of drugs but concluded that he was not an addict. His Honour also accepted that the applicant cooperated fully with the authorities and that he has endeavoured to rehabilitate himself.

[14]

[9] His Honour, nevertheless, considered that he was constrained by considerations of general and personal deterrence to impose a sentence involving actual detention in custody. In that regard, his Honour said that he approached the sentence on the basis that he would "endeavour to keep [the] period in actual incarceration as short as [he] decently [could]".

[15]

[10] On the applicant's behalf it is argued in this Court that the learned sentencing judge erred in placing too much emphasis on the need for personal deterrence and did not adequately recognise the comparatively low level of offending and the strong personal factors relevant to mitigation of the penalty, especially his high level of cooperation with the authorities and his rehabilitation in the period after he was arrested and before he was sentenced.

[16]

[11] It must be said immediately that this argument omits reference to the consideration of general deterrence which clearly weighed heavily with the learned sentencing judge. It may be accepted that it was necessary that the applicant's personal circumstances, including his cooperation with the authorities, efforts at rehabilitation and his family responsibilities be taken into account. But it is also clear that the seriousness of the offending and the consideration of general deterrence had to be reflected in the sentence which was to be imposed.

[17]

[12] It is submitted by the respondent that the considerations in mitigation of sentence were reflected in the applicant's non-parole period. The early parole eligibility date fixed by the learned sentencing judge did reflect recognition of the applicant's cooperation with the authorities and his rehabilitation.

[18]

[13] On the applicant's behalf reference was made to a number of cases where arguably more serious offending had attracted a penalty similar to that imposed on the applicant.[1] It is beside the point to refer to cases which suggest that a more lenient approach was taken in other cases where the material facts were different. To approach the matter in this way is to fail to recognise two important points: first, that the question for this Court is whether the sentence was outside the range of proper sentences which might have been imposed on the appellant; and secondly, that the cases to which the applicant refers involved factual differences leading to sentences which reflect those differences within a broad sentencing discretion.

[19]

[14] The applicant's counsel also acknowledges that reference to this Court's decision in R v McAway[2] provides clear support for the sentence imposed in this case. In McAway the offender was 20 years of age who trafficked in ecstasy for a period of six months selling about 500 tablets and being found with about 600 ecstasy tablets and nine bags of methylamphetamine in crystal form (2.42 grams pure) in her possession. Over the six month period of her trafficking she had turned over $18,000 worth of drugs for a profit of $9,000. She had no prior convictions. She cooperated with the authorities and pleaded guilty at an early stage. She had good prospects of rehabilitation. In that case it was held that a sentence of five years imprisonment with a parole eligibility date set after 18 months was at the top of the appropriate sentencing range of four to five years imprisonment.

[20]

[15] In the light of the decision in McAway, it is not possible to sustain the argument that the sentence imposed in this case was manifestly excessive. The applicant seeks to sideline the decision in McAway by arguing that it is "out of step" with other cases. That argument cannot be accepted. The earlier decision of this Court in R v Taylor[3] also supports the sentence in this case. In R v Taylor a head sentence of five years imprisonment suspended after two years was imposed on a 20 year old offender with no criminal history whose offending was at the lower end of a drug trafficking network.[4]

[21]

[16] Having regard to the serious nature of the applicant's offending, and bearing in mind the need for general deterrence in relation to an offence for which the maximum penalty is imprisonment for 25 years, the period which the applicant must spend in actual custody is such as might realistically be thought to serve as a real deterrent to other young people minded to go into the business of trafficking in dangerous drugs.

[22]

[17] I am unable to conclude that the sentence imposed on the applicant was manifestly excessive.

[23]

[18] I would refuse the application for leave to appeal against sentence.

[24]

[19] HOLMES JA: I agree with Keane JA's reasons and conclusion. The fact that the sentence imposed here might have been more lenient does not mean that it was manifestly excessive; the authorities to which Keane JA refers show that it was not outside a proper range.

[25]

[20] MUIR JA: I agree with the reasons of Keane JA and with his proposed order.

[26]

[1] Cf R v Cooney; ex parte A-G (Qld) [2008] QCA 414; R v Oldfield [2004] QCA 435.

[27]

[2] [2008] QCA 401.

[28]

[3] [2005] QCA 379.

[29]

[4] See also R v Casagrande [2009] QCA 1.

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Judgment (29 paragraphs)

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