R v Engellenner [2012] QCA 6

Judgment (29 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] CHIEF JUSTICE: I'll invite Justice Atkinson to deliver the first Judgment.

[3]

[2] ATKINSON J: The applicant, Danial Engellenner, has made an application for leave to appeal a sentence imposed upon him on 26 October 2011 in the Supreme Court. He was sentenced to three years' imprisonment on count 1 on the indictment, trafficking in a dangerous drug, and with regard to count 2 on the indictment, possessing anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986, he was convicted and not further punished. His parole release date was set at 26 April 2012, giving him a period of six months' imprisonment before his release on parole.

[4]

[3] The circumstances of his offending were set out in a schedule tendered at the sentencing hearing. In November 2009, the Queensland Police Service commenced an operation in relation to suspected drug trafficking in the Sunshine Coast region. The applicant was not the primary target of that investigation; however, he had telephone contact with the primary target, Matthew Champion, whose mobile phone service was being lawfully intercepted by police.

[5]

[4] Telephone conversations and text messages between 24 December 2009 and 19 January 2010 between Champion and the applicant revealed that the applicant was sourcing tablets containing 3,4-methylenedioxymethamphetamine ("MDMA" or "ecstasy") from Champion to supply to others. The applicant most frequently obtained 30 or less tablets at a time from Champion but on one occasion he attempted to obtain 1,000 tablets and on another he obtained 100 tablets.

[6]

[5] The applicant attended the Caloundra Police Station on 2 March 2010 and voluntarily took part in an interview. He readily admitted that he was a user of ecstasy. He initially denied that he organised the sale of ecstasy tablets, declined to name his source and denied that he sourced tablets from Champion. However, later during the same interview he admitted that he acted as a "middle man", sourcing ecstasy tablets from Champion for those who called him seeking drugs. He admitted that he had previously requested 1,000 tablets but the most he had had in his hand at any one time was 100 tablets. He said that rather than being paid cash for the tablets by his friends they would give him a few tablets for his own use for the weekends. The mobile phone which he used to conduct his drug activities was seized by the police and was the subject of count 2 on the indictment.

[7]

[6] The learned sentencing judge referred to the circumstances of the applicant's offending and to the fact that the trafficking was in a schedule 1 drug. Her Honour then referred to his personal circumstances. He was still a very young man, being 18 years of age when the offences were committed. Her Honour also referred to his minor criminal history which she said was not relevant. The sentencing judge also took into account that the applicant pleaded guilty at an early time, that it was a short period of trafficking, that he had not re-offended in the lengthy period of almost 21 months whilst on bail, and he had the support of his own family and of his girlfriend and her family. Additionally, it appears, from the submissions on sentence, that he had obtained full time employment. His employer provided a very positive personal and professional reference to the Court.

[8]

[7] The respondent submitted before the sentencing judge that the appropriate range for this offending was three to five years' imprisonment. An analysis of the cases relied upon, however, does not support that as the appropriate range for this particular offending. The upper limit of that range of five years' imprisonment derives from the decision in R v Challacombe,[1] where a sentence of five years' imprisonment with parole eligibility after 18 months for trafficking in methylamphetamine and MDMA was upheld. The trafficking operation was at a relatively low level involving about 1,000 tablets of MDMA and two bags of methylamphetamine; however, it took place over a five month period and the applicant profited by about $3,000 or $4,000. The applicant was found in possession of 148 tablets. That case was clearly more serious than the current case in terms of the quantity and types of drugs involved, the length of the time of the trafficking and its profitability.

[9]

[8] This case is more similar to the circumstances in R v Baker,[2] where the applicant had been sentenced on the basis that he was a low-level street dealer in MDMA. During the time of his trafficking he sold 300 tablets to friends and acquaintances and had made a profit of about $400. He was apprehended with 48 tablets in his possession. The total weight was 17.802 grams with a pure weight of 1.192 grams. He was a drug user and he used the money to pay bills and living expenses. He was 23 years old with a very poor traffic record and a criminal history with a few very minor offences and one more serious offence of grievous bodily harm. He had no previous convictions for drug offences. The sentence imposed on the count of trafficking in the dangerous drug, MDMA, was three years' imprisonment. A parole release date was set after 12 months to reflect the particular circumstances of that case which are not presently relevant.

[10]

[9] The comparison of the present case with R v Baker and the R v Challacombe suggests that a head sentence of three years' imprisonment for this offence was appropriate and certainly not manifestly excessive.

[11]

[10] The question remains whether a parole release date after he had served six months of his sentence was manifestly excessive in the circumstances. The most relevant comparative case on this aspect is R v Casagrande.[3]

[12]

[11] In R v Casagrande, the Attorney-General's appeals against sentences of three years' imprisonment for unlawfully trafficking in schedule 1 and schedule 2 drugs with immediate release on parole was unsuccessful. In that case the immediate parole release date was appropriate in light of the respondent's youth (he was only 17 years of age), the fact that he had spent 46 days on remand, the trafficking charges were substantially facilitated by his own frank admissions to police, and he had voluntarily undertaken drug rehabilitation.

[13]

[12] A comparison with Casagrande suggests that a parole release date after the applicant had served six months' imprisonment was, in this case, manifestly excessive. The applicant in this case is also very young; he had no relevant criminal history; he did not gain any monetary reward from his drug dealing which was limited to friends; he made admissions to police and assisted the administration of justice with a very early plea of guilty. He had not reoffended in a very long period in the community after his offending had been detected; he had obtained full-time employment and had the substantial support of two families. His continued rehabilitation from drug use will be assisted by a long period on parole.

[14]

[13] In these circumstances the applicant has shown that the sentence imposed was manifestly excessive. I would allow the application for leave to appeal against sentence and allow the appeal only to the extent of substituting an order for immediate release on parole, that is, that his parole release date be today, 9 February 2012, rather than 26 April 2012.

[15]

[16] CHIEF JUSTICE: I think the consequence of this release is that s 160G(3) requires this Court to explain to the applicant the parole situation, doesn't it?

[16]

[17] CHIEF JUSTICE: So, well, the order of the Court is as indicated by her Honour, Justice Atkinson. That is, that the application for leave to appeal is allowed. The appeal is allowed and this Court fixes today, the 9th of February 2012 as your parole release date.

[17]

[18] The consequence of that is that you will be released forthwith, that is, as soon as is practicable by the Department of Corrective Services downstairs. You will then have to report within 24 hours of your release to the probation and parole office in Brisbane.

[18]

[20] CHIEF JUSTICE: You'll be told where it is. It's - Corrective Services will know where that is.

[19]

[21] CHIEF JUSTICE: Now, you are required to report to that office and obtain a copy of your parole order before 5 pm today. Will you be able to do that?

[20]

[22] CHIEF JUSTICE: You won't. Will you have him out by then?

[21]

CORRECTIVE SERVICES OFFICER: The process - we have to wait for an order from your - this Court-----

[22]

[23] CHIEF JUSTICE: Well, you'll have to report by 5 pm tomorrow to obtain your parole order. Yes. Now, the conditions of the parole order will include - by the way if you don't report to the parole office you'll be arrested, put back into custody - by 5 pm tomorrow.

[23]

[24] CHIEF JUSTICE: The conditions of your parole which will apply - and I'm going to read them to you now so that you know the regime under which you're operating until you get the piece of paper - will be that you are under the Chief Executive's supervision, that's the Director-General of the Department of Corrective Services - be under his supervision until the end of your period of imprisonment, that is, until the end of that three year period.

[24]

[25] CHIEF JUSTICE: You're to carry out the Chief Executive's lawful instructions, effectively given to you through your parole officer. You're to give a test sample if required to do so by the Chief Executive. You're to report and receive visits as directed by the Chief Executive. You're to notify the Chief Executive within 48 hours of any change in your address or employment during the parole period and you are not to commit any offence.

[25]

[26] It may be that other conditions will be added but they're certainly the basic conditions to which you're subject immediately upon your release and for the rest of the - for the balance of that period of three years. Do you understand that?

[26]

[27] CHIEF JUSTICE: Yes. And you should know that the system's quite strict. If you commit any offence you'll be returned to prison and you'll have to serve the balance of that three years, so it's very much in your interests to continue on the rehabilitative path that you're following at the moment.

[27]

[1] [2009] QCA 314.

[28]

[2] [2011] QCA 104.

[29]

[3] [2009] QCA 1.

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