R v Johnson [2014] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION: R v Johnson [2014] QCA 79

PARTIES: R v JOHNSON, Dean James (applicant)

FILE NO/S: CA No 226 of 2013 SC No 226 of 2013

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 15 April 2014

DELIVERED AT: Brisbane

HEARING DATE: 4 March 2014

JUDGES: Margaret McMurdo P and Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Application to adduce further evidence refused.**Application for leave to appeal against sentence refused.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the applicant pleaded guilty to trafficking in dangerous drugs, possession of dangerous drugs and possession of things used in connection with trafficking in dangerous drugs – where at sentence the applicant's solicitor advocate submitted that the applicant was not addicted to drugs – where the applicant seeks to give and call new evidence to establish that he was drug dependent at the time of the offending – whether the application to adduce further evidence should be granted / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to drug offences – where the applicant was sentenced to 10 years imprisonment – where at sentence the applicant's solicitor advocate submitted that the applicant was not addicted to drugs – where the applicant submits that had the sentencing judge been aware of the extent and length of the applicant's drug addiction a sentence of less than 10 years imprisonment would have been imposed – whether a lesser sentence would have been imposed had the sentencing judge been aware of the applicant's drug addiction at the time of his offending / R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Bradforth [2003] QCA 183, cited R v Elizalde [2006] QCA 330, cited R v Feakes [2009] QCA 376, considered R v Kalaja [2012] QCA 329, cited R v Kashton [2005] QCA 70, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Markovski [2009] QCA 299, cited R v O'Shea [2011] QCA 18, cited R v Raciti [2004] QCA 359, cited R v Rodd; ex parte A-G (Qld) [2008] QCA 341, cited R v Westphal [2009] QCA 223, considered

COUNSEL: A Glynn QC for the applicant D Meredith for the respondent

SOLICITORS: Robertson O'Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P: The applicant pleaded guilty on 29 August 2013 to trafficking in dangerous drugs between November 2011 and July 2012 (count 1); unlawful possession of methylamphetamine and cocaine on 26 July 2012 (count 2) and possession of things used in connection with trafficking in dangerous drugs on 26 July 2012 (count 3). He was sentenced to 10 years imprisonment on count 1 with the result that the conviction had to be declared under s 161B Penalties and Sentences Act 1992 (Qld) a conviction of a serious violent offence. This means that he must serve eight years before becoming eligible to apply for parole. On count 2 he was sentenced to 12 months concurrent imprisonment and on count 3 he was convicted but not further punished. He has applied for leave to appeal against his sentence and to adduce new evidence. His sole proposed ground of appeal is that the new evidence:

"shows that the extent of [his] addiction was such that a failure to place information about it before the learned sentencing Judge has resulted in a miscarriage of justice in that had that information been before her Honour a sentence of less than 10 years imprisonment would have been imposed."

2. I will set out the applicant's antecedents, summarise the sentencing proceeding, explain the new evidence sought to be adduced and set out the competing contentions before explaining my reasons for refusing these applications.

Antecedents

3. The applicant was 24 and 25 at the time of his offending and 26 at sentence. He left school at year 10, undertook a pre-vocation course at TAFE and became a fitter and turner. He commenced full-time work but in his mid-20s lost his employment and began to use drugs, ultimately becoming a drug trafficker. He had a relatively minor criminal history which included street offences in 2006 and 2009 for which he was fined without conviction. Of more concern, in 2012 he was convicted in the Brisbane Magistrates Court of assault occasioning bodily harm committed on 3 July 2011, sentenced to nine months imprisonment to be served by way of an intensive correction order and ordered to pay $10,000 compensation. His present offending breached that order.

4. A report from his probation and parole officer dated 5 August 2013 was tendered and recorded the following.¹ He had an alcohol problem. On 4 April 2012 he completed an alcohol and drug abuse session but did not self-refer for additional counselling. After being charged with these offences, he admitted to using illicit substances and stated that he wanted to address his addiction. He underwent a mental health assessment and obtained a referral to a psychologist but then failed to report on two occasions. Prior to being charged with the present offences he engaged well in interviews, but afterwards his behaviour and attitude towards the order changed. He was inconsistent as to whether he had a problem with illicit substances. He attended community service on only three occasions due to medical issues but when he attended his performance was satisfactory. He was an unsuitable candidate for further community based orders.

Circumstances of the offending

5. The applicant came to the attention of police during a covert operation to target Jarrad Bult, who, it emerged, was a customer of the applicant. The operation then expanded to target the applicant by intercepting his telephone calls and text messages between February and April 2012. He used four different telephones. Had his final anticipated supply eventuated, he would have supplied an undercover police officer, through Bult, with a total amount of drugs worth almost $60,000. Between November 2011 and July 2012, the applicant operated a significant wholesale trafficking business in a variety of Sch 1 drugs including methylamphetamine, cocaine and ecstasy. He played an integral role in the enterprise and seemed to be its head in south-east Queensland. He had at least 10 regular customers, most of whom purchased drugs in large quantities, including hundreds of ecstasy tablets, up to half an ounce of methylamphetamine, and one-eighth of an ounce of cocaine. On occasions he sold 3,000 to 5,000 ecstasy tablets, five to six ounces of methylamphetamine and up to an ounce of cocaine. He often sold drugs "on tick". When drugs were delivered to him, he contacted his client base to promote and sell them. He supplied in public areas such as shopping centres.

[6] Telephone intercepts showed that another customer, Corey Tucker, paid the applicant between $100,000 and $120,000 for drugs between February and April 2012. The applicant sometimes threatened violence to Tucker when he owed money. On one occasion, the applicant's associates physically assaulted Tucker at a meeting arranged by the applicant. The applicant and Tucker between them put more than $1.5 million into the bank accounts of the applicant's suppliers, Steven Huynh and Peter Nguyen, during the period of the trafficking.

Counsel's submissions at sentence

[7] By way of comparable sentences, the prosecution referred to R v Rodd; ex parte A-G (Qld),² where, on a successful Attorney-General's appeal, this Court imposed a sentence of 10 years imprisonment; R v Markovski,³ where a sentence of 15 years imprisonment was imposed after a trial; R v Kalaja,⁴ where a sentence of 14 years imprisonment was imposed; and R v Feakes,⁵ where a sentence of 10 years imprisonment was imposed. This trafficking warranted a sentence of not less than 10 years imprisonment despite his youth and guilty plea. It was a very extensive criminal enterprise committed in breach of an intensive correction order.

[8] The applicant's solicitor advocate submitted that a sentence of nine years imprisonment with parole eligibility at least at the half way point was appropriate. The applicant had suffered an injury to his hand and become unemployed. He bolstered his income by trafficking in drugs. He was not addicted, not living a high life and was not selling to support a significant drug addiction. He resided with his parents and did not have expensive clothes, jewellery or car. He received about 10 to 15 per cent of the money which passed through his hands. Since his arrest, he had dissociated himself from bad elements and he no longer used drugs. He was still relatively young, had rehabilitative prospects and had pleaded guilty.

[9] His lawyer tendered a bundle of references, including some from the applicant's family members. His brother stated that he was shocked to find the applicant had been charged with these offences and was struggling with a cocaine and marijuana addiction. He referred to their father's battle with alcohol addiction and stated that, with professional help and strong family support, he believed the applicant would rehabilitate. The applicant's parents referred to his early promise as a young champion boxer, his father's struggle with alcohol addiction and the applicant's struggle with his own addictions to marijuana and cocaine while taking the prescribed medication, Effexor. He agreed he needed professional help to overcome his serious addictions and problems. They expressed hope that he would get that help and return to being a hard working community member. The applicant's uncle referred to the applicant's use of marijuana and cocaine and that he would "need a lot of support to sort through the problems". A family friend referred to the applicant's "personal use of drugs" and that with the support of family and friends he was confident he would not re-offend.

The judge's sentencing remarks

[10] After referring to the applicant's antecedents, the judge noted his early plea of guilty and cooperation. The trafficking was serious, extending over an eight month period. It was a very substantial wholesale and commercial enterprise. Her Honour noted:

"Really there's conflicting material before me as to your own drug use. I think it's clear you were using drugs through this time. Certainly in relation to the two possession charges you say that drugs and paraphernalia of which you were in possession was for personal use. You deny addiction through your counsel. I have some doubt about that, but that is the basis upon which the case was put to me by your representative, that you are not drug-addicted although you were using. Really, in a way, that makes the conduct worse because it's commercial conduct engaged in for making a profit rather than conduct engaged in by an addict to support a habit which cannot be controlled.

…

There is no material before me to show that you have made any attempt to clear yourself of drugs, such as urine analysis, over a period of time, or at all, and no material to show that you have sought counselling or assistance at the many organisations which I think would be beneficial or which would have been beneficial to you to rid you of not just drug use but drug related behaviour, drug related friends, and the general background circumstance that you are in contact with people who are using and selling drugs."

[11] After discussing Rodd, Markovski, Kalaja and Feakes, her Honour determined that the appropriate sentence was 10 years imprisonment.

The application to call new evidence

[12] The applicant, who has changed his legal representatives since sentence, now seeks to give and call new evidence from a psychologist and his mother to establish that he was drug dependent at the time of his offending.

[13] If the applicant were given leave to adduce this evidence, the respondent would wish to adduce evidence from the applicant's solicitor advocate at sentence and his employed solicitor.

The applicant's new evidence

[14] The applicant deposed that his solicitor advocate at sentence did not ask him about the extent of his drug abuse. His lawyer told him it would look bad if he used the drug excuse and claimed to be on drugs at the time of the offending. He told his lawyer that he was using cocaine, ecstasy, MDMA and cannabis but did not disclose the extent of his use. In fact, at the time of his offending, he was a very heavy user and his life was controlled by drugs. Because his lawyer told him not to use "the drug card", he did not raise the issue of drugs with him again. After his sentence, he obtained new solicitors who had him see psychologist Peter Jordan.

[15] The applicant gave oral evidence at the appeal hearing confirming the truth of what he told Mr Jordan. In cross-examination, he agreed that his former lawyer also acted for him when he was charged with assault. He became involved in the assault because he was under the influence of drugs, although he did not tell his lawyer this. The assault occurred in February 2012 during the trafficking period. He agreed that in carrying out his trafficking business he functioned and acted normally and saw himself "as a very different drug addict". Nevertheless, he maintained that he was "very much on drugs" during the trafficking period and including the day of sentence. Throughout the trafficking period he continued to attend the gym and did not lose weight or show other physical signs of drug addiction. As he had ready access to drugs, there were no withdrawal signs. He agreed he told his lawyer that he trafficked in drugs to maintain his drug-centred lifestyle. He maintained that his lawyer told him that claiming to be a drug addict was not to his advantage. In re‑examination, he stated that during the period of the trafficking most of his money went on cocaine.

Psychologist Mr Peter Jordan

[16] Mr Jordan deposed that he examined the applicant at Woodford Correctional Centre for two hours on 9 December 2013. The applicant reported that he was not academically successful at school because of an inability to focus. Paediatrician Dr Neville Davis noted that he had symptoms suggestive of oppositional defiance disorder and some features suggestive of attention deficit hyperactivity disorder. He was expelled from school at the end of year 10 after becoming involved in a fight. He completed his trade qualifications while working for an engineering firm and continued to work there after completing his apprenticeship. He was sober and training as an amateur boxer. He stopped working when he was about 21 years old and became involved with a long term girlfriend, a drug user who introduced him to ecstasy and cocaine. He did only casual work. He had smoked cannabis from age 15 but his drug problem began only after he formed this relationship which continued until July 2012. He also drank alcohol to excess about once a week. At the time of his offending, he was spending almost $2,600 every two to three days on methylamphetamine, cannabis and cocaine to help him deal with the difficulties in his relationship and his anxieties around his drug trafficking. When he saw his lawyer who acted for him at sentence, he was highly intoxicated. He sought advice about entering a rehabilitation program but was told this would not help. He felt weak and overwhelmed and drugs offered him strength. Since his imprisonment, he had withdrawn completely from illegal drugs. Effexor helped him manage his cravings although his withdrawal symptoms had been significant and he had begun to smoke cigarettes. He intended to complete the Getting Smart program and other vocational programs whilst in prison.

[17] In 2011 and 2012 he saw psychologist Lynn O'Donoghue because he felt he had a heavy drug problem. He also attended Alcoholics Anonymous meetings with his father in an attempt to address the problem. He now recognised that he did not understand the extent of his drug dependency and had been in denial.

[18] His response to the personality assessment inventory test showed a very high level of negative self-evaluation. These results suggested significant problems with anxiety, mood control, paranoid thinking, manic behavioural features and concentration difficulties.

The applicant's mother

[19] The applicant's mother deposed that she and her husband were present with the applicant at meetings with the lawyer who represented him on sentence. At a conference in November 2012, her husband asked whether the applicant should go into a rehabilitation centre as he was clearly addicted to drugs. The lawyer advised, "No, no, not just yet. There is a long way to go." The applicant was living with his parents for most of the period prior to sentence although he moved out of home for about nine to 12 months. Ever since he met his girlfriend in 2009, his behaviour was strange and she strongly suspected he was using drugs. He would sometimes go days without sleeping and other times was impossible to arouse from sleep. She often saw cannabis in his room and sometimes pills. He had delusional ideas and sometimes became angry and smashed things. He once threw a brick at a car on the family property. He would often sweat profusely.

[20] She made all appointments with his lawyer as the applicant was always drug-addled. He met with the lawyer on five occasions and she and her husband attended each meeting. He was not in a fit state to go alone; they had to cajole him to attend and he was always clearly affected by drugs. He was agitated and "mentally not in the room … erratic". When the applicant disclosed his drug use, the lawyer said he would get a report from their family GP, Dr Shanahan, and added that he wanted the applicant to see a psychologist. They did not receive any referral to a psychologist for either treatment or a court report. In the week before sentence, the lawyer said he did not want to "play the drug card". The applicant was using a lot of drugs to cope and had taken drugs on the morning of the sentence. So much was obvious by his physical appearance and actions. In light of his behaviour in the four to five years before sentence, she was astonished that his lawyer stated in court that his drug use was recreational.

[21] She also gave oral evidence at the appeal hearing. She met with the lawyer's employed solicitor briefly on two or three occasions but she did not recall him being present for any of the conferences which were all with the solicitor advocate. In cross-examination, she said she did not attend any conference concerning the applicant's assault charge but attended all conferences in respect of the trafficking charge. The lawyer advised that the best course was to plead guilty to trafficking and the applicant accepted that advice. The lawyer asked her to provide a statement of the applicant's life history. She complied, setting out how he commenced to drink alcohol and then progressed to using marijuana which he hid from his family along with his more recent cocaine use.⁶ The applicant saw his GP, Dr Shanahan, about his problems and was prescribed Effexor. He also sought help from psychologist, Lynn O'Donoghue. She agreed she did not state in that life history that the applicant was a drug addict. She understood Effexor was prescribed to help the applicant with his marijuana problem. She agreed that prior to sentence she had not claimed the applicant was an addict, perhaps because she did not want to admit this. Looking back, there were obvious signs but she was not experienced in dealing with drug addicts.

[22] She disagreed with the suggestion that the applicant was lucid and able to give instructions during conferences with his lawyer. She denied that she raised with the lawyer the applicant's diagnosis of possible bi-polar as an explanation for his trafficking. The applicant lived away from home for nine to 12 months returning during the trafficking period in about February 2012. She did not want to admit that he was drug addicted but he had sudden mood swings and his eyes were dilated; he would sweat and was not the son she knew.

The applicant's solicitor advocate

[23] The applicant's solicitor advocate and his employed solicitor did not provide affidavits to answer the contentions of the applicant and his mother but sent letters to the Director of Public Prosecutions (DPP). The solicitor advocate stated in his letter that he did not notice any indicia of drug use during conferences with the applicant. He was lucid, asked rational questions and constantly enquired as to his likely sentence. In preparing the case, he listened to the applicant's interview with police and read his intercepted conversations. This was all consistent with someone able to carry out the role of operations manager of a very large drug distribution network with many others working at his direction. The lawyer was very experienced in representing those charged with drug offences and it was "absolutely fanciful to suggest that [he] would have missed or deliberately understated a client's drug problems." He added:

"The depth of the deceit of this scum and his mother is found in the fact that he actually signed an Acknowledgment prior to sentence confirming that he happy with my performance in preparing for sentence but now to get around that his mother says that when he signed it he was 'stressed' and she didn't get to read it. This fact appears to be in contradiction with the concerns she apparently held as we proceeded toward sentence that I wasn't acknowledging her son's raging and obvious drug addition.

After the sentence his mother even came into my office, asked me to allow her to take copies of CD recordings from Mr Johnson's file and during conversation reiterated her gratitude for the work that had been done for her son.

Personally, I find it appalling that another law firm would encourage such a vulgar and scurrilous set of instructions as those apparent from Mr Johnson. This is a blatant attempt to blacken my name with rubbish in order to assist a dirty drug peddler. I thought [the applicant's present lawyers] were above that. The deplorable idea for this disgusting fraud by the Johnson's must have come from somewhere and it certainly wasn't me!" [errors in the original]

[24] The solicitor advocate also gave evidence in the appeal. He has been a solicitor, practising principally in criminal law at the Gold Coast, since 1998. His employed solicitor may have been present for some conferences with the applicant. His firm's policy was that any client showing signs of intoxication was required to leave the premises for safety reasons and because they would not be able to provide cogent instructions or receive advice. At no stage did the applicant show indicia of being affected by drugs. At all conferences the applicant was able to give instructions.

[25] As to the assault charge, the applicant instructed that it arose out of excessive consumption of alcohol exacerbated by his use of Effexor. He may have also mentioned some minor use of cannabis but it was not a significant factor in the assault. The applicant told him he was prescribed Effexor as he was bi-polar. Except when mixed with alcohol, Effexor controlled his bi-polar illness.

[26] Prior to the applicant's sentence for trafficking, he listened to the applicant's interview with police conducted shortly after his arrest and to multiple telephone intercepts. Nothing in the telephone intercepts suggested that his life was out of control on drugs; he kept tick lists and was conducting his business efficiently. The applicant told police he had taken a small amount of cocaine and two grams of cannabis in the 24 hours before the interview but did not appear affected by drugs during the interview. The applicant never suggested he was addicted to drugs. He stated that his drug use was recreational; he enjoyed it and could stop and start as he pleased.

[27] The applicant prepared a document entitled "My reason for offending" in which he wrote something to the effect that he committed these offences to fund his new lifestyle. He told the lawyer that he enjoyed not having to work, receiving Centrelink benefits and paying for everything with cash. He went to the gym a lot, put accessories on his car, paid for his girlfriend's lifestyle and received his drugs for free.

[28] He did not advise the applicant against using "the drug card"; this was not a phrase he used. Had the applicant told him he was an addict he would have submitted that factor in mitigation as an explanation for the trafficking. Addiction did not feature in the telephone intercepts. Rather, they recorded the applicant stating things like "We've got to work hard, boys, so we can play hard." On the applicant's instructions, his drug use was always recreational.

[29] On the morning of sentence, he read a statement to the applicant setting out what the lawyer would say in court. The applicant signed that statement which included that the lawyer would tell the court something to the effect of the applicant being a recreational drug user. The applicant was hoping for a sentence of less than 10 years with parole eligibility after about six years. When the court adjourned for a luncheon break during the lawyer's submissions, the lawyer thought the judge may accede to that submission. The applicant was happy that the lawyer thought the judge was with them. The applicant made no complaint about the lawyer's submission that the applicant's drug use during the period of the trafficking was recreational. Neither parent suggested that the applicant was addicted to drugs and needed to go to rehabilitation. During conferences with the applicant and his parents, the applicant displayed no signs of being affected by drugs.

[30] In cross-examination, the lawyer stated he would have made notes of his conferences with the applicant and his parents but he did not bring his file to court. The instructions the applicant signed immediately prior to sentence were tendered.⁷ They contained nothing about the applicant's drug use. He did not contemplate having the applicant examined by a psychiatrist or psychologist as his drug use was recreational and not a big issue. The lawyer did mention urine tests at some stage but did not arrange these as he did not think there was a problem or that it was something that would affect the sentence.

[31] He agreed that the aspects of his letter to the DPP set out in [23] of these reasons were "very intemperate". At the time he was very upset that his professional competence had been called into question. He had never had this happen before. His description of the applicant as "a filthy drug peddler" was "pure emotion" when he was deeply hurt that his professional work had been called into question. When he was acting for the applicant, he took "the highest view of him" and he now regretted deeply these statements to the prosecution. He made the suggestion that the applicant's present solicitors had invented allegations when he was very angry and he now regretted it. He did not think his statement to the DPP would be disclosed. If he could retract it, he would.

[32] He agreed that he had a discussion with the applicant's parents after the committal for the trafficking offence about him seeing a psychologist but he understood this was to do with his bi-polar illness, not with rehabilitation for drug addiction. He questioned the applicant about whether his bi-polar illness was a contributing factor to his offending and he said it was not as he was properly medicated. It followed that there was no need for a psychological report. He did not have notes of these conversations. He did not know how many pages of notes he made of his five conferences with the applicant as he did not have the file with him. He did not bring it as it was not subpoenaed. His file notes recorded conversations concerning the seriousness of the offending; whether the applicant had learned from his previous intensive correctional order; and that he should obtain references.

[33] Two referees, a family friend and the applicant's uncle, provided references for both the assault sentence dealt with in February 2012 and the trafficking sentence. On the applicant's evidence in this appeal, at the time of both his trafficking offence and the assault offence, he had a raging drug habit, yet the referees state he was honest, trustworthy and reliable and they would recommend him without hesitation. This made him "terribly troubled" as it suggested the applicant was a liar. Further, the objective evidence did not support the proposition that he had a bad drug habit whilst trafficking.

[34] The applicant's mother told him a few days before sentence that he had a drug habit which was hidden from everyone but there was no objective evidence to support this. The applicant at no point instructed him that he was addicted and in need of rehabilitation. Such a contention was inconsistent with the applicant running such an extensive commercial enterprise. He agreed that some addicts were capable of performing at a high level. His employed solicitor attended some conferences with the applicant to gain experience as he was newly admitted.

The employed solicitor

[35] The employed solicitor also gave a statement to the DPP. He said he was involved in the preparation of the trafficking sentence and had regular contact with the applicant and his mother. He sat in on some conferences between his employer and the applicant. On no occasion did the applicant appear affected by drugs. He was always coherent, competent and lucid and asked pertinent questions about his likely sentence.

[36] The employed solicitor gave evidence at the appeal hearing by telephone. He re-affirmed that at the two or so conferences he attended with the applicant, the applicant did not show any signs of intoxication. He did not take instructions from him but his responses appeared lucid and he seemed to understand what was happening. The applicant did not state in his presence that he was addicted to any illicit drug.

The applicant's submissions

[37] The applicant's counsel submitted that the evidence of the applicant's mother should be accepted. She was a straight forward, honest witness. On the other hand, the evidence of the applicant's former solicitor advocate was entirely defensive. He did not bring file notes but brought selected documents. The statement prepared by the applicant's mother as to his life history referred to the applicant's abuse of drugs and should have put his lawyer on guard as to whether he was drug dependent. A competent solicitor would have sought a report from a psychologist or psychiatrist about his drug dependency and would have advised regular urine tests to show the court that he had been drug free for some time prior to sentence and had taken steps towards rehabilitation.

[38] The new evidence should be received as it demonstrated that a lesser sentence was justified: R v Maniadis⁸ and R v O'Shea.⁹ Had the sentencing judge been aware of the extent and length of the applicant's drug addiction, her Honour would have imposed a sentence of less than 10 years imprisonment. The new evidence from the applicant and the psychologist, Mr Jordan, established the extent of the applicant's raging drug habit at the time of the trafficking. Mr Jordan's testing of the applicant did not provide any reason to doubt the accuracy of the applicant's self-reporting on his drug use at that time. As Mr Jordan pointed out, the applicant's claims in this respect were supported by evidence from other sources, including his mother, other family members and referees. The applicant's comparative youth, his severe drug dependency and the absence of any extravagant lifestyle were consistent with his offending being to support his addiction. He had a supportive family so that his prospects of rehabilitation were promising, particularly if on parole for a significant period. The sentence imposed on appeal in both R v Westphal¹⁰ and Feakes supported the granting of both the application to adduce new evidence and the application for leave to appeal. The appeal should be allowed and a sentence of nine years imprisonment with parole eligibility after four and a half years should be substituted.

The respondent's contentions

[39] Counsel for the respondent contended that the application to adduce further evidence should be refused. The applicant's objective conduct in the trafficking offence was inconsistent with him being a raging drug addict. If he were, it is very likely that the lawyer who appeared for him at sentence and his employed solicitor would have noticed symptoms during the conferences. The references from the family friend and the applicant's uncle state only that he had "an issue with drugs"; they do not refer to addiction. The only reference to addiction comes from the applicant's parents. They had an opportunity during the court luncheon break to discuss with the solicitor advocate his submissions at sentence but they did not because the lawyer was acting on his client's instructions. If the applicant were an addict, his addiction was not such as to make him incapable of conducting an organised business obtaining and selling drugs. In any case, even if the applicant were sentenced as an addict, the cases of Kalaja, Markovski, Rodd and Feakes all support a sentence of at least 10 years. The applications to adduce further evidence and for leave to appeal should be refused.

Conclusion

[40] It is fortunate that the applicant's former solicitor advocate has now realised that his letter to the DPP concerning his former client and his mother was unprofessional. As a practising criminal lawyer, he should have understood that his former client was entitled to legal advice as to how best to seek to appeal from a very lengthy prison sentence and that the applicant's parents understandably wished to do the best they could for their son. He could have adequately answered the allegations made against him without descending to vitriolic abuse of his former client and his family.

[41] That said, I accept that the applicant did not instruct him that he was drug addicted but rather insisted that he was a drug user who remained in control of his life. The lawyer made submissions at sentence consistent with those instructions. The objective evidence of the extent and nature of the trafficking was consistent with that submission. Nothing in the life history¹¹ provided by the applicant and his mother directly challenged those instructions. The new evidence which the applicant now seeks to lead, however, does establish that the applicant probably was addicted to drugs at the time of his trafficking and that this addiction probably affected his judgment in becoming a drug trafficker rather than holding down a regular job. That conclusion is supported by the evidence from the applicant's mother which I accept as truthful. But while she may have realised her son was drug-affected at conferences with his lawyer, this may not have been obvious to lawyers who did not know him as well and were unfamiliar with his appearance when he was drug-free.

[42] An appellate court will accept further evidence of the kind sought to be led by the applicant where to refuse to do so would result in an injustice: R v Maniadis¹² and R**v O'Shea.¹³ The difficulty for the applicant is that the new evidence would not have greatly assisted him at sentence. The judge was, rightly it now appears, sceptical about the defence submission that the applicant was a mere recreational user of drugs who had remained drug free in recent times.¹⁴ After all, the references tendered at sentence from those who probably knew him best, his parents and his brother, made clear that he had a concerning drug problem for which they considered he needed assistance. This was also consistent with the references from the applicant's uncle and family friend. It now seems probable that even they underestimated the extent of his drug problem and he was in fact abusing drugs right up to and on the day of sentence. With hindsight, it may have been prudent for his lawyer to have had him assessed by a psychologist or psychiatrist. It may also have been helpful had he successfully completed a rehabilitation course and tendered a series of clear urinalysis results over a lengthy period. But that did not happen. The new evidence does not establish that prior to sentence the applicant was motivated to rehabilitate. Indeed, it establishes that he was using drugs on the very day of sentence. And in any case, his addiction did not stop him from operating a major trafficking business, at one point using others to threaten and physically assault a co-offender debtor.

[43] The applicant was unable to refer to any case where a 24 year old with prior convictions comparable to the applicant's was convicted of heroin trafficking on this scale and sentenced to less than 10 years because of his drug addiction. In submitting that a head sentence of nine years was appropriate, he relied on Westphal and Feakes.

[44] In Westphal, the applicant pleaded guilty to two counts of trafficking in methylamphetamine and to other less serious drug offences. He sought to appeal his sentence of an effective term of 10 years imprisonment. He supplied a street level dealer and addict with methylamphetamine over 15 and a half months. His most profitable sales involved up to $10,000 per day during the Rockhampton Show. He trafficked in drugs worth up to $50,000 per week. He did not personally receive the proceeds but acted as a middle man receiving $1,000 for each transaction. A financial analysis showed that during the trafficking period he had spent $215,000 which could not be accounted for from legitimate sources. He was sentenced on the basis that he was a user of methylamphetamine but not an addict. He was between 27 and 32 whilst offending and had a criminal history involving prior drug offences.

On appeal, he sought to adduce new evidence as to the assistance he gave police concerning an offender who was later arrested and threatened to kill him. His assistance resulted in the prosecution of this person for supplying a dangerous drug. This person was eventually charged with trafficking but on the basis of evidence independently obtained by police. Westphal also sought to adduce further evidence about his drug addiction which he did not mention in his lengthy police interview. The court refused to receive that evidence but, to avoid a miscarriage of justice, did receive the evidence as to his police assistance. This substantial assistance was verified by police. He did not disclose it at sentence because it exposed him to real risk. After reviewing sentences imposed in broadly comparable cases, the court determined that 10 years imprisonment, while not manifestly excessive, was at the higher end of an appropriate range for Westphal's offending. In light of his assistance to police and while still recognising the seriousness of the offending, a sentence of nine years imprisonment with parole eligibility after six years was substituted.

[45] In Feakes, the applicant pleaded guilty to trafficking in an assortment of Sch 1 and Sch 2 dangerous drugs and to other related drug offences. He applied for leave to appeal against his 10 year sentence. He was 30 and 31 when he offended and 34 at sentence. He had some relevant but minor criminal history. The trafficking was committed in breach of a good behaviour bond when he was subject to "drug diversion". His offending consisted of supplying drugs on 11 particularised occasions over a seven month period to a covert police operative. He supplied 32 grams of cocaine, almost 5,000 tablets containing 330 grams of the then Sch 2 drug MDMA, and 110 grams of the Sch 2 drug MDEA. His benefit from drug related activity was over $56,000 and about $115,000 passed through his hands during the trafficking period. His trafficking was commercially motivated. After reviewing the cases of R v Kashton;¹⁵ R v Assurson;¹⁶ Rodd; R v Elizalde;¹⁷ R**v Bradforth¹⁸ and R v Raciti¹⁹ this Court noted that, absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders who have pleaded guilty can expect a sentence of at least 10 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to slightly lesser terms. Feakes had a grossly dysfunctional upbringing and had made real efforts to overcome his dependence on cannabis and other drugs so that he had promising prospects of rehabilitation. Whilst a sentence of nine years imprisonment could have been imposed, the 10 year sentence was not manifestly excessive.

[46] It is true that Westphal and Feakes were older than the present applicant. But, unlike the present applicant, Westphal had the additional and important mitigating feature of assisting the police in apprehending another significant offender and Feakes's rehabilitative prospects at sentence were more promising than the applicant's. When the aggravating and mitigating factors in Westphal and Feakes are compared to those in the present case, they do not demonstrate that, had the new evidence been before the sentencing judge, a sentence of less than 10 years was open. The applicant was not in the most youthful category of offenders and he had a relevant and unimpressive criminal history. The trafficking occurred in breach of an intensive correction order. The community correctional authorities did not consider he was suitable for further community based orders. His trafficking was on a very large scale, often involving significant quantities of drugs and money. He ran a much larger and more lucrative operation than either Westphal or Feakes resulting in payments to his suppliers of more than $1.5 million. On the new evidence, he had not rehabilitated and was still using drugs on the day of his sentence. His present rehabilitation has occurred in prison, not in the community. Even accepting the new evidence that he was drug addicted at the time of his offending and taking into account his comparative youth, cooperation and plea of guilty, a sentence of less than 10 years imprisonment would have been manifestly inadequate for such a serious trafficking offence. For that reason, to refuse to accept the further evidence which the applicant seeks to lead in this appeal would not result in any injustice to him. That is not to say the new evidence will not be helpful when he applies for parole but it means that the application to adduce further evidence should be refused.

[47] As the only ground of appeal turns on the new evidence, it follows that the application for leave to appeal against sentence should also be refused.

ORDER:

1.Application to adduce further evidence refused

2.Application for leave to appeal against sentence refused

[48] HOLMES JA: I agree with the reasons of the President and the orders she proposes.

[49] FRASER JA: I have had the advantage of reading the reasons for judgment of the President. I agree with those reasons and with the orders proposed by her Honour.

Footnotes

1. Ex 2 at sentence. ↩

2. [2008] QCA 341. ↩

3. [2009] QCA 299. ↩

4. [2012] QCA 329. ↩

5. [2009] QCA 376. ↩

6. The statement was ex 1 in the appeal. ↩

7. Ex 2 in the appeal. ↩

8. [1997] 1 Qd R 593, 596-597. ↩

9. [2011] QCA 18, p 4. ↩

10. [2009] QCA 223. ↩

11. Ex 1 on the appeal. ↩

12. [1997] 1 Qd R 593. ↩

13. [2011] QCA 18, p 4. ↩

14. See the judge's sentencing remarks set out at [10] of these reasons. ↩

15. [2005] QCA 70. ↩