R v Dowel; Ex parte Attorney-General

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS - where the respondent pleaded guilty to one count of unlawful trafficking in Schedule 1 drugs - where the respondent was 19 at the time of offending - where the respondent had no prior criminal history - where the respondent made a considered decision to sell Schedule 1 drugs for profit - where the respondent voluntarily ended his involvement with drugs - where the respondent continued in full time employment and studied for his apprenticeship throughout - where the respondent was sentenced to four years imprisonment, wholly suspended - whether the sentence was manifestly inadequate

[2]

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(f)

[3]

Director of Public Prosecutions v Karazisis (2010) 31 VR 634; [2010] VSCA 350, cited

[4]

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, considered

[5]

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered

[6]

R v Atkins [2007] QCA 309, distinguished

[7]

R v Casagrande [2009] QCA 1, considered

[8]

R v Challacombe [2009] QCA 314, distinguished

[9]

R v Dwyer [2008] QCA 117, considered

[10]

R v Engellenner [2012] QCA 6, considered

[11]

R v Major; ex parte A-G (Qld) [2012] 1 Qd R 465; [2011] QCA 210, cited

[12]

R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, distinguished

[13]

R v SBK [2009] QCA 107, considered

[14]

R v Taylor [2006] QCA 459, distinguished

[15]

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered

[16]

Director of Public Prosecutions (Queensland) for the appellant

[17]

[1] MUIR JA: The Attorney-General appeals against a wholly suspended sentence of four years imprisonment imposed on the respondent on 30 July 2012 for the offence of trafficking in 3,4-methylenedioxymethamphetamine (MDMA) and methylamphetamine (both Schedule 1 drugs) between 11 April 2010 and 22 May 2010.

[18]

[2] The respondent, an apprentice spray painter, was 19 at the time of offending. He had no criminal history and was well thought of by his employer. He completed his apprenticeship during the 21 months he was on bail for the subject offence.

[19]

[3] The respondent came to the attention of police when, in monitoring the telephone calls of a suspected drug dealer named Hurst, they saw that text messages had passed between Hurst's telephone and two telephones which the respondent subsequently admitted were his. The police searched the unit in which the respondent resided on 6 November 2010 and located the two telephones. The text messages revealed the following:

[20]

On 12 and 13 April 2010, the respondent asked Hurst what price he could do for 10,000 pills and there was a negotiation about price. These communications ended with the respondent asking Hurst how many pills he sold in a week. Hurst replied, "A couple of hundred".
On 16 April 2010, the respondent told Hurst that he was expecting more pills. The respondent told Hurst that he had a variety of other pills in stock.
On 23 April 2010, Hurst asked to be supplied with 300 pills. The respondent did not reply.
On 26 April 2010, Hurst asked if the respondent had any new pills. There was no reply.
- The respondent told Hurst on 29 April 2010 that he had a new batch from the "same press but mdma (sic) base not speed". Hurst ordered 250 pills and said he would start offloading "shit loads" for the respondent and would sell 200 that night.
- Hurst ordered 150 pills on 30 April 2010 to be packaged in one bag of 100 and one bag of 50 for a price of $15 each. The respondent told Hurst that there were plenty more if he needed them.
- On 5 May 2010, the respondent confirmed with Hurst that he could supply 1,000 pills a week to one of Hurst's contacts.
- On 21 May 2010, in the last of the text messages, Hurst arranged to pick up a "10 pack" and arranged to pay for 100 the following day.

[21]

[4] The sentencing judge found that the respondent was negotiating with Hurst, not with a view to purchasing thousands of pills or the 10,000 pills referred to in text messages of 12 and 13 April but, so as to find out from Hurst the quantity of pills Hurst sold in a week with a view to establishing a supply arrangement with him. The sentencing judge found also that it was unclear whether anything came of the respondent's message to Hurst on 5 May in relation to the supply of 1,000 pills. His Honour considered that that may also have been a negotiating ploy. His Honour found that there were two transactions proved; one for 250 pills and another for 150. He found also that a further 300 or so pills had probably been supplied at an earlier date.

[22]

[5] Other significant findings were that: the respondent ended his involvement with drugs at or about the time of the last text message; there was no evidence of any drug dealing by, or involvement in drugs on the part of, the respondent beyond what was shown in the text messages; there was no suggestion of any unaccounted funds or wealth obtained from drugs; the respondent had continued in full time employment and studied for his apprenticeship throughout; there was no suggestion that the respondent had a drug problem. It was found also that there was no suggestion of the respondent's reoffending at any time in the 21 month period on which he was on bail following his arrest.

[23]

[6] Counsel for the appellant submitted to the following effect. The subject sentence failed to properly reflect the seriousness of the offending or provide appropriate punishment and general deterrence. The sentencing judge erred in finding that the nature of the offending warranted a wholly suspended sentence.

[24]

[7] It was submitted that the sentencing judge erred also in finding that it was of particular importance that if the respondent were to be "imprisoned for a period of some months, [his] rehabilitation might be compromised". Even with a head sentence of four years, the respondent was liable to serve substantially more than "some months" before release on parole or suspension. Also, rehabilitation was not a significant consideration.

[25]

[8] The respondent, an intelligent young man without drug dependency or anti-social tendencies, holding a job and with familial support, made a considered decision to sell Schedule 1 drugs for a profit. He was unlikely to reoffend. His personal circumstances, motivation and decision to voluntarily stop demonstrated that the requirement, if any, for rehabilitation and personal deterrence was outweighed by the need for punishment, denunciation and general deterrence.

[26]

[9] Reliance was placed on the following statement by Chesterman JA, Keane JA agreeing, in R v SBK,[1] in relation to a 25 year old offender with no criminal history who had cooperated substantially with the authorities:

[27]

"The courts would fail in their duty to do what can be done to suppress trafficking in dangerous drugs, and the public would, I think, be affronted if a dealer in dangerous drugs, even one who confessed so frankly and co-operated so fully as did the applicant was not sent to jail, even briefly."

[28]

[10] Leave to appeal against a sentence of two years and six months imprisonment with a parole release date after six months for trafficking in MDMA for three months was refused. The applicant, who had sold between 50 and 100 tablets each weekend for a profit of up to $1,000 a weekend, was not drug dependent. It was remarked that the applicant "extended his business to bulk sales and deliberately increased his activity to provide an income when he was disabled from work."[2] He was arrested when found in possession of 180 ecstasy tablets in clip seal bags and $600 in cash. The head sentence reflected the applicant's extensive cooperation with the authorities.

[29]

[11] In reliance also on R v Taylor;[3] R v McAway;[4] R v Atkins;[5] and R v Challacombe,[6] (all cases involving trafficking by persons under 30 years of age (except Atkins) in which custodial sentences were imposed) it was submitted that a wholly suspended sentence of four years was plainly inadequate for selling and "holding out to supply a significant quantity of Schedule 1 drugs" in the circumstances under consideration.

[30]

[12] In R v Challacombe,[7] the sentence of five years imprisonment with parole eligibility after 18 months imposed on the 21 to 22 year old offender for trafficking in methylamphetamine and MDMA was held on appeal not to be manifestly excessive. The trafficking involved about 1,000 tablets of MDMA and two bags of methylamphetamine over a period of about five months yielding a profit of $3,000 to $4,000. One hundred and forty eight tablets were found in the offender's possession.

[31]

[13] The sentence of five years imprisonment with parole eligibility after 18 months imposed after a plea of guilty on 20 year old McAway for trafficking in MDMA and MDEA was said on appeal to be "at the top end of the range in the circumstances".[8] During the offending period of about six months, the applicant sold an average of 100 tablets a month. When arrested she had in her possession 10 bags, each containing 50 ecstasy tablets, and a further separately packaged 100 tablets. The tablets contained 36.774 grams of pure MDMA, over 18 times the schedule amount. The applicant also had in her possession money derived from the sale of drugs.

[32]

[14] It is unnecessary to analyse Atkins. In that case, the 32 year old offender was described as a "wholesaler" who traded methylamphetamine worth over $60,000 as a participant in a trafficking ring.

[33]

[15] Taylor's sentence of seven years and four months imprisonment for trafficking in MDMA and MDA over a period of about four months was varied on appeal by the fixing of a parole eligibility date after two years and six months. He was 21 at the time of offending and had an earlier drug related conviction. When arrested he was found in possession of 49 tablets containing methylamphetamine and ketamine. He had been paid a total of $38,500 by a covert police operative for drugs during the offending period.

[34]

[16] Counsel for the appellant correctly emphasised the heinous nature of trafficking in drugs such as those under consideration. That users of such drugs may be physically and mentally harmed by them and liable to harm others when under their influence is merely an aspect of the social corrosion promoted by their production, consumption and distribution. The Legislature, in response to the problem, has provided a high maximum penalty for trafficking in Schedule 1 drugs (25 years imprisonment) and the Courts regard general deterrence as an important consideration in sentencing for such offending. Consequently, as the sentencing judge recognised, non-custodial sentences for trafficking offences tend to be imposed only in exceptional circumstances.

[35]

[17] The sentencing judge found, in effect, that the offending conduct occurred over a very short period (about 40 days) and concerned only three sales: one of 250 pills, another of about 150 pills and probably another of about 300 pills. At $15 a pill, the total sale price was $10,500. The amount of profit to the respondent was not explored in the evidence but it may be accepted that it was far less than the sale proceeds.

[36]

[18] The respondent intended, as the sentencing judge found, to become a supplier to Hurst. Negotiations were conducted with that end in view. However, before any police involvement the respondent decided to put his drug related activities behind him. He ceased his dealings with Hurst and, inferentially, in relation to drugs on or shortly after 21 May 2010. That is an important consideration for present purposes.

[37]

[19] The respondent's youth, as the primary judge recognised, is also significant. For example, in R v Casagrande,[9] an Attorney-General's appeal against a sentence of three years imprisonment with immediate release on parole imposed on a 17 year old offender for offences of trafficking in cocaine and MDMA (then a Schedule 2 drug) was dismissed. The respondent had trafficked in the drugs for a period of about eight months initially to feed his own addiction but, in the latter part of the offending period, to profit to the extent of approximately $1,000 per week.

[38]

[20] In R v Engellenner,[10] a sentence of three years imprisonment (with a parole release date fixed at a date six months after sentence) imposed on the 18 year old applicant for trafficking in MDMA was varied by ordering immediate release on parole on the day of the hearing of the appeal. The applicant was a "middle man"[11] who sourced ecstasy tablets from a supplier to various contacts. He normally did not make any profit from those contacts but was given a few tablets for his own use. The circumstances were thus quite exceptional but it appears from the reasons of Atkinson J, on appeal, that the quantity of drugs involved was likely to have been greater than the quantity dealt in by this respondent.

[39]

[21] 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. It is as well also to bear in mind the breadth of the sentencing discretion. In Markarian v The Queen,[12] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

[40]

"As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." (citations omitted)

[41]

[22] McHugh J, in Everett v The Queen,[13] discussed the sentencing discretion in the context of Crown appeals as follows:

[42]

"If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave."

[43]

[23] Referring to sentence appeals on manifestly excessive or manifestly inadequate grounds, Gaudron, Gummow and Hayne JJ said in Wong v The Queen:[14]

[44]

"In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons."

[45]

[24] In all of the cases relied on by the appellant, the offender was found in possession of drugs and/or materials which evidenced trafficking and/or the proceeds of sale of drugs. In none of these cases had the offender ceased his or her involvement in drugs. Nor was the number of sale transactions so limited. Moreover, it was relevant, as counsel for the appellant properly acknowledged, that the respondent had spent a lengthy period on bail without any suggestion of reoffending and that he had, again without any suggestion of reoffending, been excused "from custody and ... permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation".[15]

[46]

[25] On a Crown appeal, the Court is required to have regard to the circumstances existing at the time of hearing the appeal and there is a reluctance to disturb a situation in which a respondent has availed himself or herself of a non-custodial sentence to gain, or remain in, employment and pursue a life free from crime and criminal influences.[16]

[47]

[26] Counsel for the appellant submitted that rehabilitation was not a relevant consideration, the respondent having eschewed criminal conduct of his own accord prior to his being apprehended, let alone sentenced. That submission, I respectfully suggest, shows an overly confined understanding of rehabilitation. It also fails to have regard to the possible harm which may result from the legal process' failure to give due acknowledgment to an offender's unaided pre-detention reform when coupled with the undesirable influences to which a young offender is likely to be subjected in prison.

[48]

[27] The cases on which the appellant relied are thus readily distinguishable. The usefulness of some of them is also limited for present purposes as the matter for determination was whether a sentence was manifestly excessive. It is also useful in appeals such as this to recall Keane JA's observations in R v Dwyer[17] that:

[49]

"An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process."

[50]

[28] The sentencing judge, after extensive and competent submissions, carefully considered the sentence to be imposed and delivered clear, detailed and persuasive reasons for the sentence he imposed.

[51]

[29] Having regard to the circumstances and principles discussed at some length above, I am not persuaded that the sentencing discretion miscarried. I would therefore order that the appeal be dismissed.

[52]

[30] FRASER JA: I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.

[53]

[31] DALTON J: I agree with the reasons of Muir JA and the order proposed.

[54]

[1] [2009] QCA 107 at [24].

[55]

[2] R v SBK [2009] QCA 107 at [24].

[56]

[3] [2006] QCA 459.

[57]

[4] [2008] QCA 401.