_R v Johnson_

Court of Appeal (Qld)|2007-12-07|Before: Williams, Keane and Holmes JJA, Separate reasons for judgment of each, member of the Court, each concurring as to the orders made

[2] KEANE JA: On 28 March 2007 the applicant was sentenced, following his plea of guilty to an ex officio indictment, in respect of one count of trafficking in the dangerous drug methylamphetamine between 1 January 2001 and 3 April 2006, and one count of trafficking in the dangerous drug cannabis sativa between 1 January 2001 and 3 April 2006.

[3] On the first count he was sentenced to nine years imprisonment with a parole eligibility date of 27 March 2009. On the second count he was sentenced to a concurrent sentence of seven years imprisonment with a parole eligibility date of

27 June 2008. A period of pre-sentence custody of 351 days was declared as time already served under these sentences.

[4] It is not disputed by the respondent that, under s 160C, s 160E and s 160F of the Penalties and Sentences Act 1992 (Qld) ("the Act"), only one parole eligibility date should have been fixed by the learned sentencing judge.

[5] Having regard to the learned sentencing judge's error in fixing two parole eligibility dates, it is, I think, necessary in the interests of justice to grant leave to appeal to ensure that sentence is lawfully passed on the applicant.

[6] It was said that the learned sentencing judge's error might be corrected by simply deleting the reference to the parole eligibility date of 27 June 2008. In my respectful opinion, this course is not open to this Court. In AB v The Queen, Hayne J said:

"... once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be

re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed."[1]

[7] Accordingly, even though the error which affects the sentence imposed on the applicant is technical, the error means that it falls to this Court to re-sentence the applicant. The question for this Court is not whether the sentence was manifestly excessive, but, rather, what sentence this Court considers, "in the separate and independent exercise of its discretion", should be imposed.

[8] The applicant sold speed and marijuana in the Mt Isa area for five years. His business built up over time until he came to the attention of the authorities. He was under covert electronic surveillance inside his house from 1 February 2006 until

[9] During this time he purchased methylamphetamine from a number of wholesalers, usually in one ounce lots which cost about $5,000 each. The applicant made numerous sales of speed to people who came to his house to purchase quantities ranging from $20 to $500. He made many sales which were of a value of several hundred dollars. Customers often injected the drug in his house. He also supplied cannabis.

[10] On one occasion he gave a drug courier $12,000 with instructions to fly to Brisbane to purchase 2.5 ounces of speed. The courier was intercepted at the airport with

68 grams of powder (7.5 grams of pure methylamphetamine). The courier was to receive some of the drug in return for his trouble. The applicant complained that the courier's arrest had cost him $25,000.

[11] The applicant was himself an addict. The proceeds of his business supplied his own habit and provided for the living expenses of himself and his partner. He also supplied drugs to some female customers in return for sex.

[12] When he was first apprehended by police he declined to be interviewed; but, as I have noted, the applicant pleaded guilty to an ex officio indictment.

[13] The applicant was 34 years old when he commenced trafficking in drugs. He was not engaged in lawful employment during the period of his trafficking.

[14] The applicant has a history of minor convictions for drug and street offences. On four occasions during the period of the trafficking he was convicted of possession of dangerous drugs. He was fined on each occasion until, in February 2006, he was sentenced to two years probation. It is apparent that many transactions in the course of his trafficking in dangerous drugs occurred while he was on probation.

[15] On the applicant's behalf it is submitted that a sentence of the order of nine years imprisonment after moderation to reflect an early plea of guilty and other circumstances of mitigation is appropriate to drug traffickers who act as wholesalers or retailers of large quantities of dangerous drugs, and who are in the business to make substantial profits. Reference was made in this regard to decisions of this Court in R v Bradforth,[2] R v Elizalde,[3] R v Donnelly and Corbic[4] and R v Assurson.[5] In the case of offender's trafficking conducted at the street retail level to maintain the offender's own addiction, the range suggested on the applicant's behalf is four to eight years imprisonment after moderation. Reference was made to the decisions of this Court in R v Coleman[6] and R v Mullins.[7] On behalf of the applicant it is accepted that, given the extended period of the applicant's trafficking and the volume of his sales, the head sentence in this case should be at the top of the range of four to eight years.

[16] On the applicant's behalf particular reliance was placed on the decision of this Court in R v Coleman. In that case the offender was sentenced to four years imprisonment after pleading guilty to trafficking in speed for three and a half months. He sold drugs at the retail level to fund his addiction. He was, it would seem, in a bigger way of business than the applicant, and he had a more extensive criminal history. He became a major supplier of drugs in the Mt Isa area while subject to the terms of a suspended sentence of imprisonment. It must be said, however, that that offender was entitled to a special degree of leniency because his cooperation with the authorities extended to informing the police of the full extent of the trafficking for which he was sentenced.[8] It was this special consideration which informed the moderation of a sentence for a level of trafficking which could be expected to attract a sentence of imprisonment in the range between five and seven years after a plea of guilty.[9] In this case the applicant is not entitled to the benefit of special leniency for the extent of his cooperation with the authorities; and the period of his offending was very much longer than was the case in R v Coleman.

[17] The variety of circumstances which may attend trafficking in dangerous drugs means that, with this offence as with many others, it is not possible neatly to categorise the degrees of seriousness of offending in particular cases with quite the degree of precision suggested by the submissions made on the applicant's behalf.[10] Nevertheless, it is, I think, possible to say that the nature of the offending engaged in by the applicant, even over the period of five years, is less serious than that which this Court has regarded as attracting a sentence of the order of 12 to 13 years by way of head sentence before circumstances in mitigation, such as an early plea of guilty, are taken into account.[11] There is much force in the submission made by

Mr Moynihan SC, who appeared for the applicant, 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".[12] 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.

[18] The sentence to be imposed upon the applicant by this Court must reflect the seriousness of his crimes, especially having regard to the long period during which he offended, and the fact that during part of that period he was on probation. The sentence must at the same time, however, recognise that his offending was at a lower level of criminality relative to larger retailers or wholesalers who traffic in dangerous drugs for commercial gain.

[19] I am of the opinion that these considerations, and the benefit of the applicant's early plea of guilty, can be balanced by a sentence, for the trafficking in methylamphetamine, of imprisonment for eight years with eligibility for parole after one third has been served.

[20] The application for leave to appeal should be granted, and the appeal should be allowed. The sentences below should be set aside.

[21] The applicant should be sentenced to eight years imprisonment on the first count and seven years imprisonment on the second count. These sentences are to be served concurrently. A period of 351 days should be declared as time already served. The applicant's parole eligibility date should be fixed at 27 November 2008.

[22] HOLMES JA: I have read and agree with the reasons of Keane JA, and with the orders he proposes.

[1] AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 160 [130].

[8] AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 155 [113].

[10] Cf AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 156 [115].

[11] Cf R v Elizalde [2006] QCA 330; R v Saunders [2007] QCA 93 at [9].

[12] R v Coleman [2006] QCA 442 at [13].

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