Court of Appeal (Qld)|2016-05-18|Before: Philippides and Philip McMurdo JJA and Flanagan, J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
Philippides and Philip McMurdo JJA and Flanagan, J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – JUDGE ACTED ON
WRONG PRINCIPLE –
where the applicant was convicted on his own plea of one count of drug
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – JUDGE ACTED ONWRONG PRINCIPLE –where the applicant was convicted on his own plea of one count of drugtrafficking, 18 counts of supplyingdangerous drugs, two counts of possessingthings and one count of possessing a dangerous drug – where theapplicant was sentencedto concurrent sentences of four years imprisonment,suspended after 12 months, for an operational period of five years on thetraffickingcountone year imprisonment for the supplying dangerous drugsoffencesand three months imprisonment for possessing a dangerousdrug, withconvictions recorded but no further punishment for the remaining counts –where the applicant submitted the sentencingjudge erred in imposing concurrentsentences of imprisonment for each of the supplying counts – where the
applicant submitted
the sentencing judge erred in concluding in relation to the
trafficking count that a more mature offender would have had to serve
a period
of imprisonment of longer than 12 months – whether it was wrong to impose
concurrent terms for the supplying counts
where the acts largely constituted the
trafficking count – whether the sentencing process was infected by error
in considering
that a more mature offender would have had to serve a period of
imprisonment of longer than 12 months – whether sentencing
discretion
ought to be re-exercised
R v Ahmetaj [2015] QCA
248, cited
R v Blumke [2015] QCA
264, considered
R v Bobonica & Runcan [2009] QCA
287, cited
R v Brown [2015] QCA
225, cited
R v Challacombe [2009] QCA
314, considered
R v Dang [1999] QCA
414, cited
R v Dowel
Ex-parte Attorney-General (Qld) [2013] QCA
8, considered
R v Engellenner [2012] QCA
6, considered
R v Galeano [2013] 2 Qd R 464
[2013] QCA
51, cited
R v Jobsz [2013] QCA
5, cited
R v Johnson [2007] QCA
433, cited
R v McAway (2008) 191 A Crim R 475
[2008] QCA
401, considered
R v Taylor [2005] QCA
379, considered
Judgment (50 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE - where the applicant was convicted on his own plea of one count of drug trafficking, 18 counts of supplying dangerous drugs, two counts of possessing things and one count of possessing a dangerous drug - where the applicant was sentenced to concurrent sentences of four years imprisonment, suspended after 12 months, for an operational period of five years on the trafficking count; one year imprisonment for the supplying dangerous drugs offences; and three months imprisonment for possessing a dangerous drug, with convictions recorded but no further punishment for the remaining counts - where the applicant submitted the sentencing judge erred in imposing concurrent sentences of imprisonment for each of the supplying counts - where the applicant submitted the sentencing judge erred in concluding in relation to the trafficking count that a more mature offender would have had to serve a period of imprisonment of longer than 12 months - whether it was wrong to impose concurrent terms for the supplying counts where the acts largely constituted the trafficking count - whether the sentencing process was infected by error in considering that a more mature offender would have had to serve a period of imprisonment of longer than 12 months - whether sentencing discretion ought to be re-exercised
Director of Public Prosecutions (Queensland) for the respondent
[16]
[1] PHILIPPIDES JA: The applicant was convicted on 18 January 2016, on his own plea, of one count of trafficking in methylamphetamine, cannabis and 3,4 methylenedioxymethamphetamine (MDMA) (count 1); 18 counts of supplying a dangerous drug (counts 2-19); two counts of possessing things (counts 20-21) and one count of possessing a dangerous drug (count 22).
[2] On 2 February 2016, concurrent sentences were imposed of four years imprisonment, suspended after 12 months, for an operational period of five years for the trafficking offence (count 1); one year imprisonment for each of the supplying dangerous drugs offences (counts 2-19); and three months' imprisonment for possessing a dangerous drug (count 22), with convictions recorded but no further punishment imposed for the remaining counts (counts 20-21).
[17]
[3] The applicant seeks leave to appeal against the sentences imposed on the following amended grounds of appeal:
(a) The sentencing judge erred in imposing concurrent sentences of imprisonment for each of counts 2-19.
(b) The sentencing judge erred in concluding in relation to count 1 that a more mature offender would have had to serve a period of imprisonment of longer than 12 months.
(c) The sentence was manifestly excessive.
[18]
[4] The police began an operation to identify those involved in drug trafficking in Townsville. The main target of the operation was one Jon Costello, whose telephones were intercepted between 30 May and 14 August 2013. It was revealed that the applicant was a customer of Costello and that Costello and the applicant spoke over a number of telephones hundreds of times. They were heard to source methylamphetamine from each other and to assist each other to obtain that drug as well as cannabis from others.
[5] The prosecution's position was that the applicant trafficked for four months and was "generally a street-level dealer" in methylamphetamine, though he had access to large quantities (28 grams for example) at short notice. He could also obtain large quantities of cannabis at short notice. The prosecution could not accurately establish the level of profit from sales.
[6] On 9 October 2013, the police searched the applicant's bedroom at his parents' house. There they found 38 grams of cannabis and cannabis seeds (count 22) and scales, scissors and unused clip seal bags (count 21). When the applicant arrived home, his mobile phone was seized. Text messages stored in it proved that he had used it to carry on trafficking (count 20). The supply counts (counts 2-19) were derived from text messages contained in the seized mobile phone. It is pertinent to note that counts 4, 6, 7, 9, 11, 15, 16, 17 and 19 constituted either acts preparatory to supply or offers to supply. Count 3 resolved to the applicant indicating that he could get five ounces of cannabis. Count 7 involved the applicant asserting capabilities to supply pounds of cannabis and an ounce (28 grams) of methylamphetamine.
[19]
[7] The applicant was 19 years old when the offences were committed and 22 years old when sentenced.
[8] The applicant left school at age 15 and worked in the family business until he was 17. For some two years thereafter to age 19, the applicant obtained employment at a mine.
[9] He was in a relationship with a young woman, who he had known from school, and with whom he had a daughter. The relationship ultimately broke down in 2013 when he was 19. At the time he was sentenced, his daughter, with whom he has a close relationship, was aged four. He had custody on alternate weeks.
[10] The applicant has a minor criminal history. In June 2013, the applicant was fined for contravening a domestic violence order, common assault and stealing, all of which occurred on 28 December 2012. The applicant failed to appear on 31 January 2013 in accordance with his undertaking, and was fined in February 2013. In June 2015, he was fined for being drunk or disorderly in licensed premises. That offence was committed on 8 May 2015 whilst on bail for the drug offences. On that occasion, a conviction was recorded.
[20]
[11] The learned sentencing judge referred to the applicant's work history and references, which demonstrated that he was capable of hard work and was well regarded in his workplace and by customers, acquaintances and friends. His Honour regarded the applicant's criminal history as minor and not particularly relevant.
[12] His Honour noted that by 2013 the applicant's work schedule placed his relationship under some stress. While working in the mine, the applicant became exposed to methylamphetamine, which was used recreationally by many in that environment. He started using drugs and became addicted when his relationship broke down. It was also a factor in the offending for which he was fined.
[13] The applicant had trafficked for a period of over four months. He was more than a "streetlevel" dealer. He had access to amounts of up to an ounce of methylamphetamine and reasonably substantial quantities of cannabis. The applicant was, however, also using some of the drugs that came into his possession to feed his addiction.
[14] The applicant ceased contact with Costello in early August 2013 and shortly before the police raid he had resolved to stop using drugs. The applicant had since then weaned himself off drugs, returned home and gained work in his family's business, initially working short hours because of his ill health.
[15] His Honour considered that the circumstance that the applicant could "take [himself] off drugs and seek gainful employment, working ... physically hard, suggest[ed] that even as a young man [the applicant had] some strength of character"[1] and a capacity to rehabilitate himself. Additionally, his early plea of guilty was timely and was also some demonstration of remorse. His Honour observed, however, that, unlike some other cases, the applicant had continued trafficking up until he was arrested. Nevertheless, in imposing sentence, his Honour stated that both the head sentence and the period actually to be served would be shorter than the terms a mature offender could expect to receive.
[21]
Error in imposing concurrent sentence on counts 2-19
[22]
[16] It is convenient firstly to address ground (a). The trafficking count was largely constituted by the acts of supplying a dangerous drug which were the subject of counts 2-19, as reflected in the Schedule of Facts.[2] The applicant's submission that, in those circumstances, the sentencing judge erred in imposing concurrent terms of imprisonment on the counts of supplying is correct.[3] It is regrettable that the sentencing judge was not assisted in this regard by the submissions made by the Crown prosecutor and defence counsel, in response to a direct enquiry by the judge about the appropriate form of the sentence.
[17] As the respondent properly conceded, the terms of imprisonment imposed on those counts must be set aside. The appropriate order in relation to counts 2-19 is that convictions be recorded on each count but no further punishment be imposed. The error the subject of ground (a), however, has no relevance in relation to the other grounds of appeal and would not of itself require this Court to interfere with the sentence imposed on count 1_._[4]
[23]
Error in the exercise of the sentencing discretion
[24]
[18] It was submitted that the learned sentencing judge proceeded on the basis of an error in principle, in imposing sentence on count 1, such that this Court should exercise the sentencing discretion afresh by imposing a sentence of four years imprisonment, but suspended after six months, for an operational period of five years. Alternatively, it was submitted that the sentence imposed was manifestly excessive in requiring 12 months to be served and should be varied to suspend it after six months.
[19] The sentencing judge was referred by the prosecutor to R v Blumke[5] and was told that the sentence imposed there on the trafficking count of four years imprisonment had been suspended after 18 months imprisonment was served.[6] Unfortunately, his Honour was misinformed about that. The four year term of imprisonment imposed in that case was in fact suspended after 12 months was served, and concurrent sentences of 18 months imprisonment were imposed on supply counts, also suspended after 12 months.[7]Blumke was the only authority put before the Court concerning an offender of more mature years.
[20] His Honour was, of course, entitled to rely on the correctness of what the prosecutor said as to the sentence imposed in Blumke, particularly, where there was no revisitation of the matter by defence counsel. Although it appears that a copy of the decision was provided to his Honour, it is not apparent that his Honour appreciated the error in the prosecutor's submission, since his Honour made no mention of the error during submissions or in his Honour's sentencing remarks.
[21] While his Honour did not make direct reference to the case in the course of sentencing remarks, there is no reason to doubt that, in imposing a sentence requiring 12 months actual imprisonment, his Honour proceeded on the basis that what he was told by the prosecutor about the sentence imposed in Blumke was correct. In that regard, it is reasonable to assume that that was reflected in his Honour's sentencing remarks that the period of imprisonment he would impose would be "less than what would have been called for a more mature offender ... both in terms of the length of the sentence ... and the time that you will actually have to serve". And it is also reasonable to assume that the implicit conclusion in the sentencing remarks, that a mature offender would generally be required to serve more than 12 months in the circumstances of this case, was influenced by the prosecutor's erroneous information that a sentence requiring 18 months of actual custody to be served was imposed in .
[25]
[25] The sentencing judge inquired as to whether Costello had been dealt with, no doubt to determine the relevance in terms of a comparative of any sentence imposed on him, but was informed that he had committed suicide.
[26] In R v Taylor,[9] a sentence of five years imprisonment suspended after two years for an operational period of five years was found not to be manifestly excessive, although a suspension after 18 to 20 months was also said to have been within range. The sentence was imposed for trafficking by the 20 year old apprentice plumber over a three month period, on weekends, in methylamphetamine (then a Schedule 1 drug) and MDMA (then a Schedule 2 drug). He was found with over $3,000 in his wallet, which he ultimately admitted was from a recent drug sale. He also admitted that drugs found in his car were "bagged up" because he had been selling speed and ecstasy. He was not a user and admitted to selling drugs to make money.[10] He had no prior criminal history, was remorseful, provided excellent references and presented with positive rehabilitative prospects.
[27] In R v McAway,[11] a sentence of five years imprisonment with parole eligibility after 18 months imposed on a 21 year old offender who trafficked in MDMA and MDEA over a six month period was upheld, but was said to be at the top of the appropriate sentencing range. McAway was described as being "above a street level dealer but well down the chain of distribution".[12] During the trafficking period, McAway sold about 500 MDMA tablets, about 100 a month, making a profit of $1,500 a month. She was also found with about 600 ecstasy tablets and nine bags of methylamphetamine in crystal form (2.42 grams pure) in her possession. She trafficked for commercial gain. She had turned over $18,000 worth of drugs for a profit of $9,000. She was 19 and 20 at time of offending with no prior convictions, but had a subsequent possession conviction whilst on bail. She cooperated with the authorities, made extensive admissions (the trafficking charge was based solely on her own admissions) and pleaded guilty at an early stage. She had no prior convictions and good prospects of rehabilitation. By the time of sentence, she had removed herself from a relationship with an older male, through whom she had become involved in drugs, and had completed a drug diversion course.
[26]
"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."
[27]
[29] The sentence imposed in Blumke of four years imprisonment suspended after 12 months was not disturbed on appeal. Blumke trafficked in the same three Schedule 1 drugs as the applicant. He did so for 10 weeks, primarily, but not always, at street level. However, he trafficked as a 27 year old, was 29 on sentence and had, on four prior occasions, been fined for drug offences. His offending occurred in the context of loss of employment, a relationship breakdown and other personal stressors. He had, however, turned his life around by obtaining employment, resuming his relationship and removing himself from the groups that had had a negative effect on him. His pleas, cooperation and change in behaviour were seen as reflecting genuine remorse. The head sentence of four years imprisonment took into consideration the need for a significant head sentence to reflect a properly deterrent sentence but was counterbalanced by the sentencing judge imposing an early suspension after 12 months to take into account the applicant's prospects for rehabilitation.[15]
[30] In R v Engellenner,[16] a sentence of three years imprisonment with parole release after six months imposed on an 18 year old offender, who trafficked in MDMA over a period of about a month, was varied on appeal by ordering immediate parole release on the day of the hearing (by which time just over three months had been served). The offender acted as a "middle man" sourcing ecstasy tablets from a supplier to supply others. He mainly dealt in quantities of 30 or less, although on one occasion he obtained 100 tablets in order to sell them and on another he attempted to obtain 1,000 tablets. The offender was a user. He normally did not make any monetary reward from the supply to his contacts but was given a few tablets for his own use. Initially, he falsely denied selling drugs but eventually admitted the offending and cooperated by nominating his supplier. He had a minor criminal history, which was regarded as irrelevant to the disposition of the trafficking. By the time of sentence, he had complied with bail conditions for 21 months and had obtained full time work.
[31] In R v Dowel; Ex-parte Attorney-General (Qld),[17] a wholly suspended sentence of four years imprisonment imposed on a 19 year old first offender for trafficking in two Schedule 1 drugs over 40 days was not disturbed. He sold about 700 pills in three sales but ceased trafficking prior to arrest. Dowel was neither a user nor an addict. He was in full time work and obeyed the terms of his bail for 21 months. It may be accepted that cases where this Court exercises the sentencing discretion itself are usually regarded as providing surer guides than those where all that is concluded is that a sentence is not manifestly excessive. Consequently, the utility of comparing the applicant's case with might be reduced. However, Muir JA's statement of principle is pertinent:
[28]
"The considerations which prompted the leniency of the Court in Casagrande and Engellenner were, in some respects, different from those present here. The cases are useful however as demonstrations, if any demonstration is needed, that even in drug trafficking cases there is no inflexible rule necessitating the imposition of a custodial sentence. Each sentence must be imposed by reference to the facts of the case in light of the relevant statutory requirements, sentencing principles and standards derived from statute, decided cases and comparable sentencing decisions."
[29]
[32] The decision in Dowel,[19] where a wholly suspended sentence of four years imprisonment was upheld on appeal, is a quite different case from the present. The submission below, by reference to that case, that a wholly suspended sentence should be imposed was ambitious, as was conceded by the applicant's counsel.
[33] On the other hand, the applicant's offending was clearly less serious than that in Taylor where a sentence of five years with parole after 18 months was said to have been open for three months trafficking by the 20 year offender purely for commercial gain. The applicant's offending was also in some respects less serious than that in McAway, which also attracted a five year sentence with parole eligibility after 18 months. The trafficking (albeit in drugs which were at the time Schedule 2 drugs) by that offender, who was not an addict, continued for two months longer than the applicant and was at "above a street level dealer" level, resulting in some $9,000 profit.
[34] Further, as for Challacombe, where a sentence allowing for parole eligibility after 18 months was also imposed, that offender, although a user, was not an addict and his rehabilitation was not undertaken against that additional difficulty.
[35] As in Engellenner, the applicant had a minor criminal history, which was irrelevant to the disposition of the trafficking. The court there took into account that the young offender had successfully complied with bail conditions for 21 months. The applicant was on bail from the time of his arrest in October 2013 until he was sentenced in February 2016, a period of two years and three months. Although he committed the offence of being drunk on licensed premises, contrary to s 164(1) of the Liquor Act1992 (Qld), that was not an offence punishable by imprisonment. Therefore, it could be fairly said, as was submitted on behalf of the applicant, that the applicant was compliant over a substantial period. As was the case with Engellenner, the applicant had obtained full time work. Whilst this applicant did not provide cooperation of the nature in , that is counterbalanced by the consideration that the applicant, unlike Engellenner, was an addict who had succeeded in ridding himself of his addiction. While it is true that there was a shorter period of trafficking in , that is a consideration that would appropriately be reflected in imposing a four year head sentence, rather than the three year sentence imposed there.
[30]
"There is much force in the submission ... that the criminality of an addict who sells dangerous drugs at the retail level to support his habit is of a different order from that of a large retailer or wholesaler whose motivation is 'cynically commercial'. While one cannot ignore the seriousness of the applicant's offending and the social harm he has caused, it would be both unrealistic and unduly harsh to refuse to recognise that the applicant too is a victim of dangerous drugs."
[31]
[40] Thus, even with the inherently serious crime of trafficking in Schedule 1 drugs, that the offender is driven by addiction can be a mitigating circumstance, especially where (as here) there is a genuine effort at rehabilitation which is bearing fruit.[22] Those matters, together with the applicant's age, plea, remorse and good references indicate that a sentence of four years imprisonment, suspended after six months, and operational for five years, is one that imposes a period of actual custody that is realistically deterrent to this applicant and other young offenders, while also giving due regard to the weighty considerations of mitigation present here. Given that there is an operational period of five years from the date of sentence, there is the added sting that should the applicant reoffend relevantly during the remainder of that comparatively long period, he exposes himself to serving a further period of actual custody in addition to the sentence imposed for the reoffending.
[41] Accordingly, I would re-exercise the sentencing discretion in respect of count 1, by imposing the same sentence as was imposed below, except that I would vary the sentence by suspending it after a period of six months imprisonment is served.
[32]
[42] The orders that I propose are:
The application for leave to appeal is granted.
The appeal is allowed.
Other than the recording of convictions, the sentences imposed on counts 2-19 are set aside and the applicant not be further punished on those counts.
The sentence imposed on count 1 is varied to the extent that it is suspended after a period of six months imprisonment is served, in lieu of a period of 12 months imprisonment.
[43] PHILIP McMURDO JA: I agree with Philippides JA.
[22] As it turns out both the head sentence of four years and custodial component of 12 months imposed on the applicant are the same as imposed on the 29 year old offender in Blumke. The respondent submitted that it could not be assumed that his Honour was intending specifically to impose a sentence less than Blumke but for the applicant's age and rehabilitation. However, there is nothing in the sentencing remarks to contradict that assumption. And his Honour did not articulate in his sentencing remarks that, but for considerations of age and rehabilitation, the applicant's case was a more serious one than Blumke.
[23] In my view, the sentencing discretion proceeded on an erroneous understanding as to the relevant sentencing parameters (which stemmed from an incorrect appreciation of the sentence in Blumke) that a more mature offender would have had to serve a period of imprisonment of longer than 12 months in the circumstances of the case. The exercise of the sentencing discretion miscarried, being infected by an error as to what the comparative indicated. In those circumstances, there is no need to consider ground (c).
[24] This court is required to exercise the sentencing discretion afresh and, in so doing, to consider if the sentence imposed below should be imposed by this court.
[28] In R v Challacombe,[13] a sentence of five years imprisonment with parole eligibility after 18 months imposed for trafficking in MDMA and methylamphetamine over a period of about five months was not interfered with on appeal. The offender was 21 to 22 at the time of offending and 23 at sentence. His offending involved him selling MDMA and methylamphetamine primarily to four apprentice tradesmen over a four to five month period, with a turnover of $24,000 to $30,000 from which he made a profit of between $3,000 and $4,000. The trafficking was based on his confession to police, made after some drug related text messages were found on his phone. He was a young father, was the breadwinner and had no criminal history. He fully cooperated with police. He had been a user but was not an addict and had undertaken rehabilitation prior to sentence. Keane JA said:[14]
[36] In Blumke, the trafficking involved multiple transactions and multiple drugs, primarily, but not always, at street level but was over a lesser period. Similarly to the applicant, Blumke had undertaken significant steps towards rehabilitation prior to sentence. Like the applicant, Blumke had a minor criminal history but it did include four entries for drug offences attracting fines. Significantly, Blumke was considerably older (29 at sentence) and there is no reference in the judgment to him being an addict during his offending.
[37] In re-exercising the sentencing discretion, I do not consider it would be appropriate to require the applicant to serve the same period of actual custody as that imposed on the much older offender in Blumke.
[38] The length and nature of the trafficking are relevant considerations requiring serious punishment, involving the imposition of a realistically deterrent sentence of actual custody. Further, it is to be noted that the trafficking count was not based on the applicant's own admissions, a feature that distinguishes him from some of the comparable cases relied on by the applicant.
[39] However, it is also a relevant consideration that the applicant was an addict, who has taken impressive steps towards rehabilitation and has promising prospects of continuing along that path, which is to be promoted. The significance of that factor was recognised in a passage, that has been much cited,[20] in the decision of R v Johnson where Keane JA observed:[21]