R v Ikin

SUPREME COURT OF QUEENSLAND

CITATION: R v Ikin [2007] QCA 224

PARTIES: R v IKIN, Brett Dale (applicant)

FILE NO/S: CA No 86 of 2007 / SC No 5 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Mt Isa

DELIVERED EX TEMPORE ON: 17 July 2007

DELIVERED AT: Brisbane

HEARING DATE: 17 July 2007

JUDGES: Williams and Keane JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application refused

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 – GENERALLY – where applicant sentenced to eight years imprisonment for trafficking in methylamphetamine –where applicant eligible for parole after serving two years and eight months actual imprisonment – whether sufficient weight given to applicant's cooperation – whether sentence manifestly excessive / AB v The Queen (1999) 198 CLR 111, cited Dinsdale v The Queen (2000) 202 CLR 321, cited R v Gladkowski (2000) 115 A Crim R 446, cited R v WR [2007] QCA 16; CA No 325 of 2006, 1 February 2007, cited

COUNSEL: A W Moynihan SC for the applicant B G Campbell for the respondent

SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I will ask Justice Keane to give his reasons first.

KEANE JA: On 28 March 2007, the applicant was convicted on his own plea of one count of trafficking in methylamphetamine, one count of possessing a quantity of methylamphetamine exceeding two grams and one count of possessing things used in connection with trafficking. He was sentenced to eight years imprisonment on the trafficking count, with 1 July 2009 being fixed as the parole eligibility date. A period of pre-sentence custody of 148 days was declared to be time already served. On the other counts the applicant was sentenced to concurrent terms of one year's imprisonment to be served concurrently with the sentence for the trafficking count and the day of sentence was fixed as the parole release date. The applicant also pleaded guilty in respect of a number of other offences for which a conviction was recorded and the applicant was not further punished. Thus the applicant was effectively sentenced to two years and eight months imprisonment before becoming eligible for parole.

The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

As to the circumstances of the offence, on 8 September 2005, police searched the applicant's residence in Mount Isa where they found 190 grams of powder containing 22.659 grams of pure methylamphetamine. The applicant told police that he had purchased the drugs for $50,000 and expected to sell it in a week to about 50 clients, including 12 regulars, at a profit to himself of about $1,000 per ounce, that is about $7,000. He said that he intended to use these funds to finance his next purchase of drugs and that he was in the business "for the long haul" to "make some money". He said that he had been in business for about 18 months and had travelled from Mount Isa to Brisbane for supplies on eight occasions. He said that he was a user of methylamphetamine but was not an addict.

Apart from the applicant's admissions as to the extent of his trafficking, he provided police with information about his suppliers and associates. This information led to the arrest and prosecution of about eight other persons, one of whom was charged with trafficking in methylamphetamine, the others being charged with lesser offences.

At the time of his arrest on the charges of present relevance, the applicant was the subject of an intensive correction order made on 27 June 2005 in respect of two charges of possession of dangerous drugs and one charge of possession of things used in connection with dangerous drugs, these offences having been committed on 23 May 2005.

The applicant was held in pre trial custody in respect of the offences of present interest from 23 January 2006 until 19 June 2006.

As to the applicant's personal circumstances, he was born in 1975. He has a criminal history which began in 1993 and which includes convictions for assault and domestic violence offences. In 1996, 2000, and 2001, he was convicted of drug related offences for which he was punished by fines. During this period he was also convicted of an offence of dishonesty for which he was given a suspended sentence.

In 2003 and 2004, he was convicted of further drug related and weapons offences. Once again, he was punished by non-custodial sentences. As I have already noted, on 27 June 2005, he was given the benefit of an intensive correction order for possession of dangerous drugs in May 2005.

Since the applicant's release from prison in June 2006, he has apparently resolved his drug addiction and obtained secure and gainful employment. He is now in a stable domestic relationship.

It was common ground before the learned sentencing judge that a head sentence of eight years imprisonment was appropriate. See R v O'Brien [2006] QCA 482. The extent of the contest before the learned sentencing judge was between a non-parole period of two years and eight months, and one of two years and five months. The learned sentencing judge recognised that it was necessary to give the applicant the benefit of his cooperation with police. In particular, his Honour recognised that, but for the applicant's own admissions, the police would not have been able to bring the trafficking charge against him. His Honour also took into account in the applicant's favour his cooperation with police, both by way of information against other offenders, and by way of his plea of guilty.

In the end, the learned sentencing judge resolved the contest between submissions against the submission put on behalf of the applicant on the basis, first, that a deterrent sentence was required to address the, "virtual epidemic of methylamphetamine in this State", and, secondly, that it was an, "especially serious feature" of the case that the applicant had continued his trafficking while subject to the intensive correction order of June 2005. The effect of the sentence imposed for the offence of trafficking was that the applicant is obliged to serve two years and eight months in custody, that is five months pre-sentence custody, plus two years and three months between the date of sentence and 1 July 2009.

On behalf of the applicant, in this Court it was accepted that the applicant has no ground for complaint in relation to the head sentence of eight years imprisonment. Mr Moynihan SC, on behalf of the applicant, argued for a period of 24 months actual custody before the applicant becomes eligible for parole. Mr Moynihan did not press the argument that the non-parole period of 32 months fixed by the learned sentencing judge rendered the sentence manifestly excessive. That would have been a difficult task bearing in mind that, before the learned sentencing judge, experienced counsel on behalf of the applicant had contended for a non-parole period of 29 months. Rather, Mr Moynihan argued the learned sentencing judge erred in failing to give sufficient weight to the applicant's cooperation with the authorities so as to enliven this Court's discretion to sentence the applicant afresh.

The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred. In this regard, there may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent.

In this regard it must be accepted that the circumstance that the applicant's admissions led to his conviction on the trafficking charge entitled him to "special leniency". See AB v The Queen (1999) 198 CLR 111 at 115 [13]. It must also be accepted that substantial discountS should be given for valuable information which leads to the conviction of other criminals. See R v Gladkowski (2000) 115 A Crim R 446 at [7]. It is established that the informers' discount may range between 20 per cent and 50 per cent, but the court must "ensure that the reduction does not result in a sentence that is an affront to community standards". See R v Gladkowski (2000) 115 A Crim R 446 at [7]. In the present case, the learned sentencing judge was clearly not unmindful of these considerations, but he may well have taken the view that the information provided to the authorities was neither so valuable nor so likely to expose the applicant to retribution, that a discount beyond that actually allowed by his Honour was warranted.

A substantial informers' discount usually reflects the risk of retribution to which an informer's cooperation with the authorities may expose him or her, as well as the value of the information in securing convictions of other offenders. In this case, there was no clear suggestion that the circumstances of the applicant's incarceration were likely to expose him to greater risk of injury in prison because of his cooperation with the authorities. It was open to his Honour to proceed on the footing that the applicant's cooperation did not expose him to any serious hazard, or at least any serious hazard which warranted a marginal reduction in the appropriate period of actual custody.

Further, and importantly, his Honour may well have taken the view that a further discount on the sentence to be imposed for a serious crime by an offender of mature years motivated by the prospect of commercial gain, who continued his offending while enjoying the benefit of an intensive correction order, so as to bring the actual period of custody down to two years, "would have been an affront to community standards". See R v WR [2007] QCA 16.

In summary, the assessment of the relative weight to be given to these competing considerations was a matter for the discretionary judgment of the learned sentencing judge. It is important in this regard not to lose sight of the fact that, while the applicant was serving a period of intensive correction, his continued trafficking included an investment of $50,000 for the purchase of 190 grams of methylamphetamine.

In my respectful opinion, it is not apparent that the learned sentencing judge erred in failing to accord appropriate weight to the applicant's co-operation with the authorities, bearing in mind the strong competing claims in this case of both general and personal deterrence.

In conclusion, I consider that the applicant has failed to demonstrate that the sentence was manifestly excessive or that the sentence was affected by error on the part of the learned sentencing judge.

In my opinion therefore the application for leave to appeal against sentence should be refused.

WILLIAMS JA: I agree.

MULLINS J: I agree.

WILLIAMS JA: The order of the Court is that the application for leave to appeal against sentence is refused.