R v Manning

SUPREME COURT OF QUEENSLAND

CITATION: R v Manning [2007] QCA 145

PARTIES: R / v / MANNING, Shannon Maree / (applicant/appellant)

FILE NO/S: CA No 148 of 2006 / SC No 308 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 4 May 2007

DELIVERED AT: Brisbane

HEARING DATE: 20 April 2007

JUDGES: McMurdo P, Jerrard JA and Holmes JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Application allowed / 2. Appeal allowed / 3. Set aside the sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment / 4. Declare that a period of 261 days of pre-sentence custody before 12 May 2006 was time already served under the sentence of five years / 5. Fix the appellant’s parole eligibility date as at 24 July 2007

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant’s then counsel made submissions at trial as to sentence without supporting evidence – where the applicant’s then counsel was invited by the trial judge to lead evidence supporting counsel’s submissions – where supporting evidence was not lead at trial by the applicant’s then counsel – whether the Court of Appeal should admit new evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN ALLOWED – GENERALLY – where the applicant pleaded guilty to 10 counts involving contravention of the Drugs Misuse Act 1986 (Qld) – where the applicant’s evidence at trial suggested that she was the dominant party in a trafficking arrangement with her then partner – where there was no evidence before the trial judge as to the applicant fearing her then partner – whether the sentence was manifestly excessive in light of the new evidence / Drugs Misuse Act 1986 (Qld) / Penalties and Sentences Act 1992 (Qld), s 161, s 188 / R v Maniadis [1997] 1 Qd R 593, applied

COUNSEL: G P Long SC for the applicant/appellant / D L Meredith for the respondent

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

McMURDO P: I agree with Jerrard JA.

JERRARD JA: On 12 May 2006 Shannon Manning pleaded guilty to 10 counts involving offences against the Drugs Misuse Act 1986 (Qld), and was sentenced to seven years imprisonment, with a parole eligibility date of two years and 10 months after the start of that sentence. The learned sentencing judge declared that a substantial period of pre-sentence custody (261 days) was time already served within the meaning of s 161 of the Penalties and Sentences Act 1992 (Qld). Shannon Manning has applied for leave to appeal against the sentences imposed, contending that she was sentenced on a factual basis which was incorrect, and that in the result the sentence is manifestly excessive.

The offences to which she pleaded guilty included carrying on the business of unlawfully trafficking in the dangerous drugs Lysergide, Amphetamine, Methylamphetamine, 3,4-Methylenedioxymethamphetamine and cannabis sativa. By her plea she admitted doing that between 16 December 1998 and 29 May 1999 at Brisbane, a period of 5.5 months. She also pleaded guilty to three offences committed on 15 February 1999, being two of unlawfully supplying the dangerous drug Amphetamine to another person, and one of possession of that drug. Then there was a plea to supplying Methylamphetamine to another on 25 February 1999, and pleas to four offences committed on 10 March 1999. Those were supplying a dangerous drug to another, supplying cannabis sativa to another, possession of cannabis sativa, and possession of Amphetamine. Finally, she pleaded to possession of Amphetamine and Methylamphetamine on 28 May 1999.

She was actually arrested on 28 May 1999, when police searched a room she occupied at a hotel with her then partner Barry Humphries. He was a drug user, apparently an addict; Shannon Manning told the police that she had been supporting herself by selling drugs for about a year, and described her dealing in dangerous drugs as “a livelihood”. She said she sold Amphetamines, “Speed”, “Whiz”, “Trips”, Ecstasy, MDMA, LSD and cannabis, and that on a daily basis she would sell “anywhere between an eight ball and upwards”; an eight ball of “Speed” was 3.5 grams of that drug in pure form. She would make up to eight sales a day, and also sell a “couple of ounces of cannabis a day plus Trips galore and Ecstasy and MDMA”. She nominated that she would make “probably” about a $1,000 a day in profit, and specified that “I was the dealer, Barry wasn’t. Barry was just a runner”; adding a little later that Barry was “very good to me”, and that “I always handed the money over to him cause I always had the drugs on me and we ever got done by the cops they couldn’t the money as tainted money, like, ill gained”.

The sentencing remarks by the learned judge also record that in addition, she told the police that she supplied between 100 and 200 people, and that on an average day she would supply between 50 or 60 people, being paid in either cash or goods. She used the money that she made for living expenses, and to buy more drugs. On those admissions, she had been a significant dealer for at least a year, trafficking in a number of dangerous drugs, and making a minimum profit of $150,000 in the five months period in which she was charged with trafficking.

She was held in custody from 28 May 1999 until 12 July 1999, when given bail, and she absconded. She was ultimately arrested by police in Victoria on 27 August 2005 as a result of an incident in a restaurant, and had remained in custody from then until when she was sentenced on 12 May 2006. When arrested, she was in possession of a false passport.

The sentencing remarks record that an attempt was made by her counsel during the sentencing process to paint what the learned sentencing judge described as a picture that suggested Shannon Manning had been acting under the influence of Mr Humphries in carrying out the transactions of supply. The judge held that there was simply no evidence upon which the judge could make that finding. As the judge observed, on the contrary, she had expressly admitted to the police that she was the dealer and not Mr Humphries. On the information put before the sentencing judge, Mr Humphries had been dealing in drugs on a much smaller scale than Shannon Manning had, and he had been sentenced in 2001 to a four year prison term.

The learned judge had heard a submission to the effect that Shannon Manning and Barry Humphries had previously discussed that, if they were ever caught, Shannon Manning should take the majority of the blame for their drug dealing, because she was younger, had no relevant criminal history, and accordingly would face a shorter prison term than Mr Humphries would. He was older and had a criminal record. The judge told Shannon Manning’s counsel that the learned judge could not proceed on those instructions repeated to the judge without evidence, and effectively invited counsel to call some.

No evidence was called before the sentencing judge, although the judge was also told that the reason Shannon Manning had absconded on bail was because threats had been made after her arrest that her child would be harmed; and so she had moved to Victoria. There she obtained gainful employment and in 2005 had taken some steps toward voluntarily surrendering herself. She had been located and arrested before she could do that. The judge was informed that the threats to the safety of the child, which the judge was told came from Mr Barry Humphries, were made both to Shannon Manning and to Shannon Manning’s grandmother, who was helping care for the child. The judge was told that the grandmother was present in the Court room; yet no evidence was called from her.

The learned sentencing judge imposed the seven year head sentence on the offence of trafficking, and either concurrent 12 month sentences on the other counts, or no further penalty on those. The recommendation for parole after two years and eight months, and a declaration that a number of days had been already served, meant that her parole eligibility date was 24 June 2008. The sentencing remarks of the learned judge show that the judge sentenced her on the facts she recounted to the police, remarking that she had made substantial admissions to them, and had co-operated in arranging to plead guilty after her re-arrest. It follows that she was sentenced on the assumption she was making a profit in the order of $1,000 a day, and that she was the significant dealer.

Those assumptions are the ones she had attempted to challenge by the submissions before the sentencing judge, but not by evidence. The learned judge was also told that Mr Humphries had been violent to her, and on a number of occasions had assaulted her and caused her to be admitted to the PA Hospital. Again, no evidence was called to support that.

Shannon Manning’s application for leave to appeal against her sentence was first called on in this Court on 1 September 2006, and the same counsel appeared then as had appeared at the original sentence. That counsel again attempted to rely on submissions, in the absence of evidence, to the effect that Shannon Manning had wrongly admitted a much greater responsibility for the drug trafficking in which she and Mr Humphries had been engaged. Counsel again had made no arrangements to call evidence to support the submission that Shannon Manning’s role as a wrongdoer had been deliberately overstated by her to the police, and that in consequence she had been sentenced on an overly severe view of the facts. Ultimately this Court adjourned her application to enable Ms Manning to file affidavit evidence, should she so wish, in support of her submissions. There was just no new material to put before the original judge on an application under s 188 of the Penalties and Sentences Act 1992.

Shannon Manning now has new legal representatives, who have filed affidavit material from her, from her grandmother, from counsel who originally appeared for her, from her partner in Melbourne, and, through her current solicitors, from the PA Hospital. That affidavit evidence supports to an extent the submissions her original counsel attempted to make without evidence to the learned sentencing judge, and to this Court when the appeal was first called on. The evidence Shannon Manning gave in cross-examination on this application suggested she was unwilling to give evidence in 2006; it appears her counsel did not discuss the possibility with her.

Shannon Manning’s affidavit evidence read by leave on the resumed appeal described meeting Mr Humphries in mid-1997, and that a relationship started between them. After some months he became physically, emotionally and psychologically abusive, and involved her in using drugs, and then in helping him sell them. He had urged on her the view that because she was young, and without a criminal record, that she should play the bigger, more active role in their offending; if she really loved him, she would do as he said. She contented that their relationship really ended in March 1999; her affidavit did not explain why they were sharing a hotel room on 28 May 1999. In cross-examination, she said she had gone to see him because he telephoned her and said he would change; he gave her drugs that very day. She was 21.

She swore that she had exaggerated her offending behaviour when interviewed by the police on 29 May 1999, because Mr Humphries had told her to lie for him, and she accordingly exaggerated the varieties of drugs with which she had dealt, their quantities, and their value. She did that because she understood an undercover police officer had been observing Mr Humphries’ dealings, and she did not want to understate what she assumed he had been doing.

As remarked in the affidavit from the applicant’s current solicitors from Legal Aid Queensland, it was Mr Humphries who introduced the undercover police officer to Shannon Manning, and on each occasion when that officer had contact with Shannon Manning, Mr Humphries was also present, for at least part of each period. On many of those occasions, the undercover officer gave the money to Mr Humphries; before the first of the two occasions when that undercover officer himself purchased a drug, he was shown what seemed to be a light brown coloured powder substance in a clip-seal bag by Shannon Manning, and told by her that “That’s what Barry wanted to sell you”. A little later the undercover officer saw her give Mr Humphries a sum in cash.

Those observations by the undercover officer are consistent with her statement to the investigating police that she and Mr Humphries had agreed that she would carry the drugs and he would have the money; her affidavit evidence is that that was Mr Humphries’ idea. Its result was that if they were caught separately, she would be the person to be charged, rather than him. She also contended in the affidavit that she had exaggerated answers to minimise the extent of Mr Humphries’ drug dealing, such as claiming that potential purchasers would ring her, which was not true; they would call Mr Humphries, not her. Likewise, when she said that Mr Humphries was “very good to me”, she was lying. That interview was on 28 May 1999; on 9 May 1999, Mother’s Day, she had been assaulted by Mr Humphries, after they had separated, and she said then and now that at that time he had driven a motor vehicle over her legs. She had escaped and hidden from him, and telephoned her grandmother, who had come and collected her, and taken her to hospital. Her grandmother’s affidavit supports that account of the event, and the hospital records do likewise. The records of that date note that Shannon Manning has a long history of multiple presentations to the PA Hospital’s emergency department with trauma, and that it had previously been suspected that it was due to her boyfriend, but that she had denied that; the boyfriend was always present with her on her admissions to emergency previously. Shannon Manning’s affidavit evidence described other assaults, on dates on which injuries are recorded in the hospital records, and in particular 21 January 1999, 23 March 1999, and 15 September 1998. On those occasions Mr Humphries had gone to the hospital with her; Shannon Manning deposed that that was so she would not describe what had happened. She swore that what had happened in truth each time was that he had assaulted her, and she was confident in cross-examination that the undercover police officer would have seen bruises to her face. She swore she lied to the police to conceal the violence she experienced.

Her grandmother’s affidavit also annexed to it documents the grandmother said had been received in the grandmother’s mail box, which appeared to be threats made either by Mr Humphries or on his behalf, directed to Shannon Manning’s child and to Shannon Manning. The basis of the threats appeared to be that Shannon Manning had “dobbed” or “dogged” on others.

Overall that evidence supports the contention that Barry Humphries was violent to Shannon Manning during the period in which she was charged with trafficking, and her claim that he threatened her after their arrest. It generally supports her contention that she had reason to be and was in fear of him. She swears that for that reason she took more than her proper share of the criminal responsibility for the drug trafficking in which they had both engaged. It appears she did exaggerate her role and minimise his, when her statements to the police are compared with the observations of the undercover officer, and when account is taken of the abusive and violent nature of her relationship with Mr Humphries and of her misdescription of that to the police. It would unduly prolong the sentence proceedings to require that the applicant proceed in a proper way, namely, make an application to the sentencing judge under s 188 of the Penalties and Sentences Act.

She was an active trafficker in a variety of drugs who had supplied Amphetamine, Methylamphetamine and cannabis to others on different occasions and had possessed those drugs on various occasions. The decision of this Court in R v Maniadis [1997] 1 Qd R 593, particularly at 596-597, records that this Court will admit new evidence on an appeal, notwithstanding that it is not fresh evidence, if its admission shows that some other sentence, whether more or less severe, is warranted in law. The admission of this evidence does suggest that another sentence was warranted in law, and the respondent Director did not seriously dispute the submission of senior counsel for Shannon Manning that a head sentence of five years would be appropriate. The parties disagree as to the recommended date for parole eligibility or suspension of the sentence. Mr Meredith for the Director suggests suspension or eligibility at no earlier than two years and suggested between two and two and a half; Mr G Long SC suggested 21 months.

The applicant is very fortunate that this evidence is being received, and should be very grateful to her current legal representatives. She would have avoided a great waste of time by telling some more of the truth a lot earlier. The annexures to her solicitors’ affidavit inform that Queensland Corrective Services had calculated, on a total pre‑sentence custody already served of 261 days, that her parole eligibility date on the present sentence is 24 June 2008. I would allow the application for leave to appeal, allow the appeal, set aside the sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment, declare that a period of 261 days of pre-sentence custody before 12 May 2006 was time already served under that sentence, and fix the appellant’s parole eligibility date as at 24 July 2007.

HOLMES JA: I have had the opportunity to read the judgment of Jerrard JA. I note his observation that the proper course would have been an application under s 188 of the Penalties and Sentences Act 1992 (Qld), but agree that in the interests of expedition, the matter should now be resolved here. The further evidence about the relationship between the applicant and Humphries should be received in the peculiar circumstances of the case, in which the failure to adduce it at first instance was the product of her counsel’s inexperience.

For my part, I did not find the applicant a reliable witness and would not accept her evidence where it was not independently supported. However, the objective evidence, in the form of the hospital notes, which record the injuries the applicant sustained at the hands of Humphries, the observations of the undercover officer as to his dealings with the pair, the respective ages of the two (21 and 29 at the relevant time) and the applicant’s lack of previous convictions, makes it improbable that their relationship was one in which she was dominant in the way she described in the record of interview; and, indeed, makes it much more likely that Humphries was the major actor in the drug dealing.

On that basis I agree with Jerrard JA that the application for leave to appeal and the appeal should be allowed, and the sentence he proposes substituted.