R v Gault [2006] QCA 316

Court of Appeal (Qld)|2006-08-28|Before: McMurdo P, Wilson and Douglas JJSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Justice Wilson will give her reasons first.

WILSON J: This is an application for leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive.

The applicant pleaded guilty to trafficking in the dangerous drug, cannabis sativa, over a six month period, from 12 March to 12 September 2005. He also pleaded guilty to related summary offences.

It was accepted at sentence by counsel that the appropriate range for the head sentence was two to four years. For the trafficking offence, the sentencing judge imposed a sentence of two and a half years, suspended after six months, with an operational period of three years. No further penalty was imposed for the summary offences.

On appeal, counsel for the applicant accepted that the head sentence was within range. The real issue on this application is whether the sentencing judge ought to have suspended the sentence at an earlier time.

Counsel for the applicant relied on two factors: the applicant's cooperation with the authorities and his poor health. In his oral submissions, he contended that the sentence ought to have been suspended after three months.

The trafficking was comparatively small scale. For an outlay of $10,000, the applicant made a profit between $2,500 and $6,000, the sentencing judge accepting that the profit was likely to have been at the bottom end of that range. He would buy a pound of cannabis for $4,000 and re-sell it in quantities of one-half or one-quarter of an ounce at the rate of $320 per ounce.

The offence was detected when police attended his premises at Kallangur. They found 426 grams of cannabis sativa in his possession. He accompanied them to the local police station where an interview was conducted. There was then a second visit to his premises when he produced digital scales and a quantity of clip-seal plastic bags. There was a second interview, in which he made detailed admissions, without which he could not have been prosecuted successfully for trafficking.

Cooperation of this sort is certainly deserving of special leniency in sentencing: see AB v R [1999] HCA 46; (1999) 198 CLR 111.

Counsel for the applicant submitted that this factor alone would have been sufficient to reduce the period after which the sentence was suspended from one-third, that is from 10 months, to five months. I will return to the extent of the leniency shortly. Suffice it to say at this point, that the sentencing judge recognised the significance of the cooperation and expressly took it into account in fixing the head sentence and deciding the point at which it should be suspended.

The sentencing judge also took account of the applicant's antecedents. He was born in 1957, so that he was aged 49 at the time of the sentence. He had no relevant criminal history. He had been a blacksmith/welder by trade, but he had been unable to work since about 1991 because of medical problems. He had been caring for his elderly parents. There were a number of good character references put before the court.

At the time of the offending and still at the time of sentencing, the applicant suffered from morbid obesity, obstructive sleep apnoea, deep vein thrombosis, pulmonary hypertension, asthma, severe lower back pain, recurrent sebaceous cysts and depression. He had been a user of cannabis, but he had ceased using it in February 2005, before the period of the trafficking, because it exacerbated his emphysema.

The sentencing judge was told that he needed money to meet medical expenses and running expenses associated with his oxygen machine. He started selling cannabis to fund these expenses.

At sentence a number of medical reports were put before the court, which indicated that he required regular monitoring medically and a breathing mask with a continuous positive airway pressure apparatus for sleeping. One general practitioner expressed the opinion that it would be difficult for him to be treated in prison, that he had a severely limited exercise tolerance, and that his health would be put at risk.

"The problem for me is that I have to take into account your criminal conduct and you have committed this offending whilst you were subject to the severe medical problems, and it does not appear that it could be said that you will not get treatment in prison. I have taken into account, however, the severity of your medical problems and that serving actual custody will be harsher for you than it is for someone who does not have the same degree of medical affliction as you."

What her Honour said is consistent with the principle enunciated by King CJ in R v Smith (1987) 44 SASR 587 that ill health will be a mitigating factor only where imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on his health.

There are medical facilities available within the prison system and there was no evidence led at sentence from which her Honour could have concluded that those facilities would not adequately cater for the applicant's needs.

On this application, counsel for the applicant submitted that the applicant's health difficulties ought to have resulted in a further reduction of two months' actual imprisonment.

In short, he submitted that the sentence ought to have been suspended after three months. It was suspended after six months.

In the circumstances, I am not persuaded that what her Honour did resulted in a manifestly excessive sentence. She made a fair, if not generous, allowance for the mitigating factors and she ordered a suspension after one-fifth of the term of imprisonment, rather than one-third, to reflect the plea of guilty.

In my respectful opinion, the sentencing judge did not err in the exercise of her discretion. I would dismiss the application for leave to appeal.

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