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[2006] QCA 442
General information, not legal advice.
Court of Appeal (Qld)
2006-11-03
Jerrard and Keane JJA and Philip McMurdo JSeparate reasons for judgment, of each member of the Court, each concurring as to the order made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Coleman [2006] QCA 442
PARTIES: R v COLEMAN, Kyle George (applicant)
FILE NO/S: CA No 213 of 2006 / SC No 43 of 2006
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Townsville
DELIVERED ON: 3 November 2006
DELIVERED AT: Brisbane
HEARING DATE: 20 October 2006
JUDGES: Jerrard and Keane JJA and Philip McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Application for leave to appeal dismissed
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine - applicant sentenced to imprisonment for four years, cumulative upon a term of 18 months imprisonment previously imposed - learned sentencing judge recommended applicant be eligible for parole as from 1 September 2008 - applicant had been trafficking for four and a half months - applicant continued to traffick while subject to terms of a suspended sentence - applicant had extensive criminal history - high level of cooperation with police - applicant father of seven children - whether sentence is manifestly excessive / Penalties and Sentences Act 1992 (Qld), s 156A / R v Bellino [1999] QCA 106; (1999) 105 A Crim R 137, considered / R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, cited
COUNSEL: The applicant appeared on his own behalf / M J Copley for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
JERRARD JA: In this application I respectfully agree with Keane JA.
KEANE JA: On 21 July 2006, the applicant was convicted, on his plea of guilty, of trafficking in the dangerous drug methylamphetamine between 1 May 2005 and 16 September 2005. The applicant was sentenced to imprisonment for four years, with that term to commence at the conclusion of a term of 18 months imprisonment which had been imposed by the District Court on 2 February 2006. The learned sentencing judge recommended that the applicant be eligible for parole as from 1 September 2008.
The applicant seeks leave to appeal against this sentence on the ground that it is manifestly excessive.
Circumstances of the offence
The applicant was arrested on 15 September 2005 when he admitted that he was about to receive 56 grams of methylamphetamine concealed in a tube of grease from a truck driver at Mount Isa. He told police that he had "picked up" a similar quantity of the drug from the same truck driver a week earlier.
The applicant told police that, over the previous four and a half months, he had been receiving one to two ounces (that is, 28 to 56 grams) of the drug once a week for which he paid $5,000 per ounce. He told police that he distributed the drug in lots of up to 3.5 grams to between 15 and 20 people per day in the Mount Isa area. He told police that his profit was approximately $1,500 per ounce. The profit from the period of criminal activity to which the applicant admitted was conservatively estimated by the prosecution below at $143,000.
On 30 September 2005, the applicant had been sentenced, for failing to provide the necessaries of life to his children, to 18 months imprisonment wholly suspended for a period of three years. On 21 December 2005, he was sentenced for a number of offences, including offences relating to possession of dangerous drugs on 23 July 2004, 9 September 2005 and 8 December 2005. For these drug offences, he was sentenced to nine months imprisonment. By that last offence, the applicant had breached the terms of the suspended sentence of 30 September 2005, and, on 2 February 2006, he was ordered to serve the full term of that suspended sentence.
The applicant's circumstances
The applicant was born on 7 April 1959. He was 46 years old when the period of trafficking began. He was 47 years old when sentenced for the offence of present concern.
On the applicant's behalf, it was said that the applicant had been in productive employment until he was about 39 years of age. At that time, he was introduced to amphetamines and became addicted to them. He engaged in the distribution of drugs to fund his addiction.
The applicant has an extensive criminal history which began in December 1995. His offending has generally concerned drug related matters at the lower end of the scale of seriousness although it has escalated in recent years. In January 2005, the applicant was sentenced to a wholly suspended term of nine months imprisonment for possessing dangerous drugs, and other drug related offences. As has been seen, in September 2005, he was sentenced to a wholly suspended term of 18 months for failing to supply the necessaries of life to his children. On 21 December 2005, he was sentenced for a number of offences, including assault occasioning bodily harm in November 2005 and the possession of dangerous drugs to which I have already referred. The escalation of the applicant’s criminal activity culminated, prior to the present sentence, in his imprisonment on 2 February 2006 for the whole of the 18 month term of the sentence imposed in September 2005.
The applicant had become a major supplier of methylamphetamine in the Mount Isa area. It is obviously a matter of grave concern that, after January 2005, he built up this business while subject to the terms of the suspended sentence imposed in that month.
The sentence
The learned sentencing judge considered that he was bound to impose a sentence for the trafficking offence which was cumulative upon the earlier sentence for failing to supply the necessaries of life to his children. His Honour also expressed the view that he would have been likely to take that course even if he had a discretion as to whether a cumulative sentence should be imposed.
This Court need not resolve the question of whether the learned sentencing judge was obliged by s 156A of the Penalties and Sentences Act 1992 (Qld) to impose the sentence for drug trafficking cumulatively on the earlier sentence. It was plainly open to the learned sentencing judge to take the view that a cumulative sentence was appropriate because it was punishment for offences quite separate in nature from the drug trafficking for which he was arrested on 15 September 2005.
His Honour accepted that he should sentence the applicant on the footing that the applicant's substantial motivation in engaging in trafficking in drugs was not cynically commercial, but was to feed his own habit.
His Honour expressly recognised that the applicant was entitled to the benefit of his plea of guilty to an ex officio indictment.
His Honour also recognised that the applicant was entitled to the benefit of the applicant's high level of cooperation with the police. His Honour acknowledged, in particular, that but for the applicant's cooperation, the police would not have had evidence of the full extent of the applicant's drug dealing.
His Honour also took into account considerations of totality to make allowance for the circumstance that the applicant would not commence serving the trafficking sentence until the expiration of the earlier sentence on 2 August 2007. As a result of his Honour's recommendation, the applicant will be eligible for parole in respect of his four year sentence after serving only 13 months of the four year term.
The applicant's arguments
The applicant argued in this Court that the learned sentencing judge did not give sufficient weight to the considerations referred to in the two preceding paragraphs. This argument cannot be accepted. It is apparent that the learned sentencing judge's consideration of the applicant's high level of cooperation with the administration of justice was reflected, both in fixing the applicant's head sentence, and in making a recommendation for consideration for early parole at a time described by his Honour as "significantly ahead of the date [he] would otherwise have been eligible to apply".
Decisions of this Court show that trafficking in dangerous drugs to the extent engaged in by the applicant can be expected to attract a sentence of imprisonment in the range between five and seven years after a plea of guilty.1 Accordingly, it is clear that his Honour did, indeed, allow the applicant very significant benefit for his cooperation with the authorities over and above that due in respect of his early plea of guilty. This benefit related, both to the head sentence, and to his Honour's recommendation for early consideration for parole.
That this is so can most clearly be seen by reference to the decision in R v Bellino2 where this Court sentenced a 29 year old trafficker in a Sch 2 drug, who carried on business on a smaller scale than the applicant for only two months, to six years imprisonment with no recommendation for early consideration for parole. That offender was also entitled to the benefit of a plea of guilty; and, significantly, he had no previous convictions. While the applicant may have admitted a greater period of trafficking than could have been established by the authorities, the decision in R v Bellino shows that trafficking in Sch 2 drugs on a lesser scale, and for a much shorter period, than the applicant admitted could have led to a sentence of six years imprisonment. The applicant was a mature adult who trafficked in Sch 1 drugs on a large scale.
The learned sentencing judge in this case imposed on the applicant a sentence which appears distinctly moderate when compared with that imposed in Bellino. It cannot be said that his Honour erred in failing to make more generous allowance for the factors required to be taken into account in mitigation of sentence. This is especially so when one bears in mind the applicant’s persistence in pursuing his criminal enterprise during the period of his suspended sentence.
The applicant complained that there was an element of double punishment involved in the sentence because, on 21 December 2005, he was dealt with for possession of drugs which were related to his trafficking activities. Reference to the record, summarised in paragraphs [6] and [19] above, shows that this complaint is without foundation.
Conclusion and order
The application for leave to appeal should be dismissed.
PHILIP McMURDO J: I agree with Keane JA.
R
Coleman [2006] QCA 442
In the applicant's written submissions in support of this application, he also complained that, when he was sentenced, his counsel failed to mention that the applicant was the father of seven children aged eight years and under. That consideration would not have been likely to influence the sentenced imposed on the applicant in his favour. The applicant was under a suspended sentence for failing to provide his children with the necessaries of life. He could not seriously advance his responsibilities as breadwinner for his children as a circumstance of mitigation. And, in any event, mention of the circumstance that the applicant was the father of a large number of children would only have emphasised the criminality of the applicant's determined pursuit of an enterprise which causes untold damage to our community, and, most particularly, to its younger members.
It has not been demonstrated that the sentence imposed on the applicant was in any way excessive.