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FILE NO/S: CA No 320 of 2006 / SC No 29 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Toowoomba

DELIVERED ON: 16 March 2007

DELIVERED AT: Brisbane

HEARING DATE: 5 March 2007

JUDGES: Jerrard and Keane JJA and Muir J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Application for leave to appeal against sentence granted / 2. Appeal allowed / 3. Sentence varied by fixing applicant's parole eligibility date at 30 April 2008

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 GRANTED - PARTICULAR OFFENCES - OTHER OFFENCES - where applicant convicted of trafficking in cannabis and other offences - where applicant sentenced to six years imprisonment with parole eligibility after two years and six months - whether personal circumstances appropriately considered as mitigating factors in sentencing - whether sentence manifestly excessive / R v Turner [2006] QCA 133, CA No 340 of 2005, 28 April 2006, distinguished

COUNSEL: A W Moynihan for the applicant / D R Mackenzie for the respondent

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

JERRARD JA: In this matter I have had the advantage of reading the reasons and orders given by Keane JA and respectfully agree with those.

KEANE JA: On 31 October 2006, the applicant was convicted on her plea of guilty of one count of trafficking in cannabis, four counts of supplying cannabis, one count of possession of cannabis and one count of possession of things connected with trafficking in cannabis.

The applicant was sentenced to six years imprisonment on the trafficking count. Her eligibility for parole was fixed at 30 April 2009, ie after two years and six months. She was convicted, and not further punished, on the remaining six counts. Presentence custody of 36 days was declared as time already served.

The applicant seeks leave to appeal against her sentence on the ground that it was manifestly excessive. On her behalf, it is submitted that she should have been sentenced to five years imprisonment, with parole eligibility set at 30 April 2008, ie after one year and six months. In particular, it is submitted that decisions of this Court in comparable cases do not support a head sentence in excess of five years imprisonment. It is also submitted on the applicant's behalf that the parole eligibility date fixed by the learned sentencing judge did not reflect the mitigating circumstances personal to the applicant.

I will discuss the applicant's submissions after first setting out the circumstances of the offences, the applicant's personal circumstances and the consideration of these matters by the learned sentencing judge.

Circumstances of the offences

The applicant trafficked in cannabis between 22 September 2002 and 25 August 2005.

On 24 August 2005, a covert police operative made an arrangement by telephone with the applicant to purchase 2.1 grams of cannabis, divided into two bags, for $50. The applicant told the police operative that the drug would be delivered to a nominated location by her driver. The applicant arranged for a 17 year old male to drive her car to the meeting point and for her 15 year old stepson to hand over the drug at the meeting point.

Shortly after this supply had occurred, police intercepted the applicant's car and searched it. No drugs were found on that occasion. Later that day, the vehicle was intercepted again by police who found a clip seal plastic bag in the applicant's handbag. The clip seal bag contained 21 smaller bags with a total of 59.2 grams of cannabis. The applicant was in possession of $700. She claimed that this sum represented her savings and that the police had planted the cannabis in her bag. A young niece of the applicant travelling in the car with her was found to have $1,350 in cash concealed in her bra. The mobile phone used to organise the supply was found on the person of another young niece in the applicant's car.

Police searched the applicant's home. They found a set of digital scales and clip seal bags. The applicant denied any knowledge of the scales and said that she used the clip seal bags to store jewellery.

The applicant said that the money found concealed in the bra of her young niece belonged to the applicant and was the proceeds of the sale of a car. This was false: the serial numbers on three of the notes matched those handed over by the police operative earlier in the day. The applicant's niece said that the applicant had been supplying cannabis since 2002. She had lived with the applicant for five months during which time the applicant made at least one sale per day of cannabis to persons who would visit the applicant's house. She said that the applicant had given her the $1,350 when the police had intercepted them.

The applicant's young male driver told police that he had agreed to deliver drugs for a 10 per cent commission provided that he did not have to touch the drugs. He said that, in the two days prior to 24 August, he had made four deliveries with the applicant's stepson.

The applicant's stepson told police that the applicant gave him drugs to supply to people on a list. In the preceding week, he had supplied cannabis to about 20 people. He told police that a man named Ashley Van Klaveren had previously been the applicant's driver.

Van Klaveren had been arrested on 11 June 2005 when he was caught, while driving the applicant's car, in possession of a list and 64 grams of cannabis divided into 17 one gram bags, five seven and a half gram bags and two 16 gram bags.

The applicant's personal circumstances

The applicant was born on 20 July 1969. She was 37 years old when she was sentenced. She is the mother of seven children ranging in age from two to 19 years. She attained a year 9 standard of education, and was placed in care at an early age.

The applicant has an extensive criminal history which commenced in 1985. The applicant's criminal history involves a number of offences of dishonesty. The most significant aspects of that history for present purposes were that: on 11 November 2002, she was convicted and fined $1,200 for possession of 217.8 grams of cannabis divided into six bags; and, on 27 October 2003, she was convicted and fined $1,050 for possession of cannabis. The applicant has no previous convictions for selling illegal drugs.

The applicant's domestic partner was in prison at the time of sentence for breaching a domestic violence order intended to protect the applicant. The applicant's partner was a drug addict who provided no income for the applicant or her children and required money for his own habit. The learned sentencing judge was told, and it was not disputed, that these circumstances were the catalyst for the applicant's becoming involved in drug trafficking.

The applicant was in gainful employment at the time of her sentence and it appears that this employment will still be available to her on her release from prison.

The sentence

As to the extent of the trafficking in which the applicant engaged, the learned sentencing judge described it as "persistent and comparatively frequent … it obviously was not insubstantial" over a period of about three years at street level.

The learned sentencing judge also referred to the applicant's criminal history as reflecting a degree of persistent, indeed "brazen", criminality. His Honour observed that an aggravating aspect of the applicant's conduct was the involvement of young people and family members in the business of drug trafficking. His Honour also regarded the applicant's initial attempts to deny her culpability and to accuse the police of planting drugs as a further circumstance of aggravation.

The learned sentencing judge referred to the applicant's plea of guilty, her remorse and the circumstance that she was the mother of a large family as circumstances of mitigation.

The application

The applicant refers to a number of decisions of this Court in an endeavour to make good the submission that the head sentence of six years was manifestly excessive. In particular, reference was made to R v Turner,¹ R v Whyte,² R v McFadden,³ R v Douglas⁴ and R v Haygarth.⁵

There are, of course, points of comparison and contrast between this case and those referred to on the applicant's behalf. It is not necessary to engage in a detailed examination of those points of comparison and contrast because it may be acknowledged that the extent of the applicant's trafficking, both in terms of time and nature of drugs, was less serious than, for example, in R v Turner, where a sentence of five years imprisonment was regarded as "not excessive". The difficulty with accepting the applicant's submission on this point arises, however, from the circumstance that the applicant's criminality cannot be regarded independently of her involvement of adolescents and younger members of her family to facilitate her trafficking. It was open to the learned sentencing judge to regard these aspects of the applicant's offending as giving an added dimension to the objective assessment of the gravity of her criminality beyond that reflected in the cases to which reference was made on her behalf. None of these cases involved the recruitment of young people and young family members.

That being so, the applicant's reference to authority does not, in my view, make good the submission that a head sentence of six years imprisonment was manifestly outside the appropriate range.⁶

The learned sentencing judge adverted to the credit to which the applicant was entitled by reason of her plea of guilty, her remorse and the circumstance that she was the mother of a large family. His Honour did not advert, however, to the circumstance that the applicant offended only to support her large family. This circumstance and the circumstance that honest employment was available to the applicant were not denied by the Crown. They bear upon both the applicant's criminality and her prospects of rehabilitation. They are circumstances personal to the applicant which should be taken into account in fixing her sentence. When taken into account, they do, in my respectful opinion, support a reduction of the term to be served before the applicant becomes eligible for parole from that fixed by the learned sentencing judge.

The applicant's very difficult personal circumstances also serve to explain, even if they do not excuse, her persistence in carrying on her illegal business. It is said by the respondent on this appeal that the applicant's motive for her participation in the business of trafficking in drugs was "commercial gain". That proposition was not put by the Crown to the learned sentencing judge, and it is not a finding which his Honour made. Having regard to what was put to his Honour (and not gainsaid) as to the applicant's motivation, this Court should not accept the submission now made for the respondent.

Conclusion and orders

In my respectful opinion, there is no sound basis shown for interfering with the head sentence of six years imprisonment fixed by the learned sentencing judge.

So far as the question of the parole eligibility date is concerned, however, the personal circumstances in mitigation to which the learned sentencing judge did not refer serve as a counterweight to the applicant's initial lack of co-operation with the authorities. In the end, I consider that the applicant should be eligible for parole after 18 months in order to allow her the opportunity to rehabilitate herself and to provide emotional and financial support to her large family. If she is granted parole at that time, the prospect of completing the balance of a six year sentence should afford her real incentive to avoid further resort to crime as a means of supporting her family.

The application for leave to appeal against sentence should be granted, the appeal should be allowed. The sentence should be varied by fixing the applicant's parole eligibility date at 30 April 2008.

MUIR J: I agree with the reasons of Keane JA and with his proposed orders.