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[2008] QCA 219
Court of Appeal (Qld)
2008-08-01
McMurdo P, Muir JA and Mackenzie AJASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Marsanic [2008] QCA 219
PARTIES: R v MARSANIC, Marko (applicant/appellant)
FILE NO/S: CA No 95 of 2008 / SC No 1181 of 2007 / SC No 216 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 1 August 2008
DELIVERED AT: Brisbane
HEARING DATE: 10 July 2008
JUDGES: McMurdo P, Muir JA and Mackenzie AJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Application for leave to appeal against sentence grantedAppeal allowed only to the extent of setting aside the sentences imposed on counts 1, 2 and 3Instead, in respect of count 1, the applicant is sentenced to two years and six months imprisonment; in respect of count 2 the applicant is sentenced to 12 months imprisonment; and in respect of count 3 the applicant is sentenced to six months imprisonment****It is ordered that the date the applicant be released on parole be fixed at 16 December 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 – applicant pleaded guilty on indictment to three counts of possession of dangerous drugs, namely ecstasy, cocaine, cannabis, lysergide and MDEA – applicant pleaded guilty to two summary offences of possessing things and property connected with offences – judge imposed effective sentence of three and a half years imprisonment with parole eligibility fixed at 16 March 2009 – psychological report found applicant to be suffering from poly-substance dependence at time of offending – applicant pleaded guilty at an early stage – applicant was 24 years old and at a difficult time in his personal life at time of offences – applicant completed drug rehabilitation courses and had promising future prospects – whether sentence imposed was manifestly excessive / Drugs Misuse Act 1986 (Qld), s 9 / R v de Carteret [2006] QCA 279, considered / R v Eaton [2007] QCA 43, cited / R v Hesketh; ex parte A-G (Qld) [2004] QCA 116, considered / R v Michalas [2007] QCA 38, cited / R v Sartori [2006] QCA 284, considered / R v Stuck [2008] QCA 165, considered / R v Wynyard [2004] QCA 431, considered
COUNSEL: A J Kimmins for the applicant/appellant / G P Cash for the respondent
SOLICITORS: Price and Roobottom for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: Marco Marsanic pleaded guilty on 17 March 2008 in the Supreme Court at Brisbane to possession of MDMA (ecstasy) with a circumstance of aggravation (count 1), possession of cocaine (count 2) and possession of cannabis sativa, lysergide and MDEA (a form of ecstasy) (count 3). He also pleaded guilty to the summary offences of possessing a thing (digital scales and razor blades) for use in the commission of crime and possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 (Qld). On the first two counts he was sentenced to three and a half years imprisonment and to lesser concurrent terms of imprisonment on the remaining offences. Parole eligibility was fixed at 16 March 2009. He applies for leave to appeal against his sentence contending that it is manifestly excessive.
The applicant's counsel, Mr A J Kimmins, also contends that the learned sentencing judge erred in finding that Mr Marsanic was dealing in drugs; in describing that he had a drug habit, not a drug addiction; and by giving only "some credit" for his plea of guilty and co-operation with the administration of justice. It is ultimately unnecessary to directly consider Mr Kimmins' contentions, which are not grounds of appeal, because, for the reasons which follow, I am persuaded the sentence is manifestly excessive in the circumstances.
Mr Marsanic was 24 at the time of the offences and 26 at sentence. He had no previous criminal convictions.
The facts of the offences
The facts of the offences are as follows. On 22 December 2006 police executed a search warrant at Mr Marsanic's home. Mr Marsanic took a police officer to his bedroom and showed him a box containing three clipseal bags. One bag contained five heart-shaped tablets of MDMA, one round tablet of MDMA and one broken tablet containing MDEA and MDMA. A piece of paper perforated into three squares contained a small quantity (.000129 grams) of lysergic acid. Police also found $1,480 in cash which, when tested, contained traces of cocaine and cannabinoids (summary offence).
Police then used a drug detection dog to search Mr Marsanic's bedroom. A container holding 2.8 grams of cannabis, comprising seeds and green leafy material was found in the TV unit (count 3). They found a further 170 tablets in clipseal bags inside a backpack. The tablets weighed 40.431 grams and contained 16.859 grams of pure MDMA (41.7%). A clipseal bag found in the glove box of Mr Marsanic's car contained five tablets of MDMA. Altogether, he was found in possession of tablets weighing 42.856 grams which contained 17.933 grams of pure MDMA (count 1).
Also in the backpack, police found 12 clipseal bags containing white powder and marked with the number "1" and four clipseal bags containing white powder marked with ".5" in handwriting. The total weight of this white powder was 5.927 grams of which 0.865 grams (14.6%) was pure cocaine (count 2). The backpack also contained a number of empty clipseal bags and a set of digital scales (summary offence).1
Mr Marsanic declined to be interviewed.
The sentencing process
The prosecutor at sentence made the following submissions. Mr Marsanic was in possession of the MDMA at least partly for a commercial purpose. He was also in possession of a variety of schedule 1 and schedule 2 drugs. He was, however, a drug user. He co-operated with the administration of justice in pleading guilty. A sentence in the range of three to four years imprisonment was appropriate.
Defence counsel tendered a report from psychologist Ms Jacqui Yoxall, who assessed Mr Marsanic in February 2008. The report recorded the following. He was employed as an administration officer at the Gold Coast Hospital and lived with his parents. He appeared remorseful for his offending, realised the gravity of his offences, was motivated to serve any sentence imposed and to get on with his now law-abiding life. He was born in Croatia and immigrated to Australia when he was three years old. He had a happy upbringing. Between 2002 and 2006 he lived in Sydney with his girlfriend. When their relationship ended he returned to the Gold Coast. His polydrug dependence escalated in the context of unresolved depression relating to his relationship breakdown. He reported that he "fell into a blur of drug use and partying to detach himself from his impossible situation. He started to use Ecstasy and cocaine on a regular basis, in addition to the cannabis and amphetamines." His drug abuse was severe from August 2006 until his arrest in December 2006. He used cannabis daily and various synthetic drugs, including ecstasy, cocaine and amphetamines, up to four nights a week. He also abused alcohol. His greatest fear was that he would run out of drugs. He became fixated on having sufficient stockpiles of drugs, bought them in bulk and hoarded them in his bedroom. Since the police raid on his parents' home, he reported that he continued to use cannabis to manage his stress until March 2007 when he appeared in court. He then realised the gravity of his circumstances and decided to become drug free. He attended several sessions of the program "Back In Control" conducted by Alcohol Tobacco and Other Drugs (Queensland Health). He also disclosed his drug dependence and criminal charges to his parents. He reported that he had since abstained from the use of any illicit substances and has completed the program. He has substantially reduced his alcohol use and changed his peer group. He hopes to train as a plaster technician at the Gold Coast Hospital.
In conclusion, Ms Yoxall considered it likely that he will maintain his progress towards rehabilitation for the following reasons. Mr Marsanic's offences occurred in the context of severe polysubstance dependence during undiagnosed depression relating to the breakdown of his first significant relationship. He had subsequently made substantial changes in his life by ceasing the use of illicit substances, resolving his past issues regarding his failed relationship, maintaining employment and reconnecting with family and a non-drug-using peer group who are supportive of his rehabilitation.
The judge's sentencing remarks
After referring to the type and amounts of drugs found in Mr Marsanic's possession, the learned primary judge made the following observations in his sentencing remarks. Mr Marsanic declined to be interviewed by police and allowed the matter to proceed by way of contested committal proceedings, although he was then also charged with the offence of supplying a dangerous drug. He was committed for trial in July 2007. He did not notify the Director of Public Prosecutions of his intention to plead guilty until December 2007. Mr Marsanic's willingness to co-operate with the administration of justice was qualified in that the guilty plea was not offered pre-committal. Nonetheless, it was a timely plea and avoided the matter being set for trial. Mr Marsanic was 24 when he committed the offences. The remorse referred to in the psychologist's report was not supported or validated by any other information. Mr Marsanic did not tell the psychologist that he had been dealing in drugs, particularly cocaine and ecstasy. This lack of frankness showed an absence of genuine remorse which "continues today". The judge did not accept the submission made on Mr Marsanic's behalf that he was not dealing in these drugs. The lack of candour on this issue was another factor demonstrating an absence of remorse. The evidence that Mr Marsanic was dealing in drugs was "overwhelming" and he did not take up the offered opportunity to rebut that evidence.
The judge noted that Mr Marsanic had no prior convictions and a favourable reference from a co-worker was tendered. He had been a drug-user. His Honour referred to the serious aspects of dealing in ecstasy and its extremely harmful effects of the drug on users and on the community. His Honour noted that Mr Marsanic had been dealing in a variety of drugs, apparently for money, to finance his own habit which it was not suggested was an addiction. The judge observed that since being charged with these offences Mr Marsanic had ceased taking drugs and had rehabilitated. He could have done so at any time. He chose to use drugs because he was unhappy when he broke up with his girlfriend. He suffered no psychiatric condition. The judge indicated he was sentencing Mr Marsanic "only for possession but … it is the serious end of … possession".
Discussion and conclusion
In determining the appropriate sentencing range for these offences, some assistance is gained from the comparable decisions of this Court to which Mr Kimmins and Mr G P Cash, for the respondent, have referred us.
In R v Hesketh; ex parte A-G (Qld)2 the Attorney-General appealed against Hesketh's 12 month term of imprisonment to be served by way of an intensive correction order with a condition that she undergo psychiatric, psychological and medical testing and treatment and drug testing as may be directed. Hesketh was found in possession of a total of 57.347 grams of pure methylamphetamine, more than three times the amount in Mr Marsanic's possession. Police also located $3,550 in cash hidden in various places around her house. She indicated she would be pleading guilty at the committal hearing. She had an extensive criminal history: property offences, a Weapons Act offence, drug convictions including supply of a dangerous drug and possession of methylamphetamine and cannabis, and a conviction for assault occasioning bodily harm. She had not been sentenced previously to a period of imprisonment. She was 39 when she offended and 40 at sentence. She was the sole carer of her five year old child and also cared for her 75 year old mother who was in poor health. The maximum term of imprisonment for the aggravated possession of methylamphetamine was apparently 20 years, the same as in the present case: although methylamphetamine is a schedule 1 drug unlike MDMA (ecstasy), the court seemed to proceed on the basis that Hesketh was a drug dependent person.3 Hesketh had taken steps to rehabilitate and reports from a drug addiction help agency and a psychologist were placed before the court. She had responded well to the intensive correction order. This Court noted that the sentencing range was from two and a half to four years imprisonment. In Hesketh's case a sentence of two and a half years imprisonment suspended after about nine months with an operational period of five years was appropriate. The Court suspended the sentence after about four months to reflect Hesketh's period of imprisonment served by way of an intensive correction order before the determination of the appeal. Hesketh's offending was more serious than Mr Marsanic's in that it related to commercial possession of a much larger quantity of a schedule 1 drug, methylamphetamine. (At the time of his offending, MDMA was a schedule 2 drug.) Further, Mr Marsanic had no criminal history whilst Hesketh's was extensive. She pleaded guilty, however, at an earlier stage and had the sole care of a young child.
In R v Wynyard,4 Wynyard applied for leave to appeal against a sentence of two and a half years imprisonment suspended after 12 months with an operational period of three years for two counts of possessing dangerous drugs, the first of which was an aggravated possession of 422 MDMA tablets containing 30 grams of pure MDMA. At some time after the committal proceedings, he indicated that he would plead guilty. He had no prior convictions. The sentence was contested. When he gave evidence, he admitted for the first time that his improbable version to police (that he found the tablets when his cat was digging a hole in the front garden the previous night) was incorrect. He then gave a different but also improbable version. He claimed that he had been given the drugs by someone called "John" in exchange for $650. He decided that he would give the drugs back to John because he was worried about his position but the police found the drugs before he was able to do so. Wynyard was 42 at the time of his offence. He had a steady employment record and no relevant criminal history. He was a respected member of a surf club and was embarrassed by his predicament. Unsurprisingly, the trial judge rejected Wynyard's account and inferred that the possession of the drug was for a commercial purpose. There was no evidence of drug addiction. This Court determined the sentence was not manifestly excessive. Wynyard was in possession of substantially more MDMA than Mr Marsanic and appeared to have fewer mitigating factors.
Orders
Application for leave to appeal against sentence granted.
Appeal allowed only to the extent of setting aside the sentences imposed on counts 1, 2 and 3.
Instead, in respect of count 1, the applicant is sentenced to two years and six months imprisonment; in respect of count 2 the applicant is sentenced to 12 months imprisonment; and in respect of count 3 the applicant is sentenced to six months imprisonment.
It is ordered that the date the applicant be released on parole be fixed at 16 December 2008.
MUIR JA: I agree with the reasons of McMurdo P and with the orders she proposes.
MACKENZIE AJA: I agree that the application for leave to appeal be granted to the extent proposed by the President, and that the orders proposed be made for the reasons given by her.
Although the summary offence to which Mr Marsanic pleaded guilty included possession of razor blades, no mention was made of razor blades in the prosecution's statement of the facts at sentence. ↩
[2004] QCA 116. ↩
Drugs Misuse Act 1986 (Qld) s, 9(b). ↩
[2004] QCA 431. ↩
[2006] QCA 279. ↩
[2006] QCA 284. ↩
[2008] QCA 165. ↩
[2007] QCA 43. ↩
[2007] QCA 38. ↩
Drugs Misuse Act 1986 (Qld), s 9(c). (At the time of the offending, MDMA was a schedule 2 drug.) ↩
Drugs Misuse Act 1986 (Qld), s 9(d). ↩
R
Marsanic [2008] QCA 219
Certificates were also tendered which showed that Mr Marsanic's urine drug screens were clear on 4 January, 18 January, 8 February, 3 March and 12 March 2008. A certificate of attendance at the six session "Back In Control" drug education and relapse prevention program and a reference from a work colleague referring to the many positive aspects of Mr Marsanic's character and his efforts at rehabilitation were also tendered.
The judge indicated to defence counsel that if Mr Masanic did not want him to draw the inference that he was commercially dealing, it was open to him to give evidence. Defence counsel indicated that his client would not be giving evidence.
Defence counsel submitted that an appropriate head sentence was between two and two and a half years imprisonment to reflect all Mr Marsanic's criminality; a parole eligibility date or a suspension after about six to eight months should be given to reflect the plea of guilty, remorse, prior good character, rehabilitative efforts, and promising future prospects.
In R v de Carteret,5 the applicant pleaded guilty to the aggravated possession of the dangerous drug MDMA and other related offences. He was sentenced to an effective term of two and a half years imprisonment suspended after nine months with an operational period of three years. He was 23 at the time of the offence and 24 at sentence. He had no prior convictions. He was in possession of 251 ecstasy tablets, a smaller bag containing another six tablets and a small amount of powder. In all, he possessed 20.536 grams of pure ecstasy, slightly more than Mr Marsanic He also had $420 in his wallet. The sentencing judge considered that he was "obviously a drug dealer of some sort". This Court emphasised the need for a significant element of general deterrence so that some period of actual custody in the range of at least six to eight months had to be served. The penalty imposed on de Carteret was not manifestly excessive.
In R v Sartori,6 the applicant pleaded guilty to aggravated possession of the dangerous drug MDMA and other related charges. He was sentenced to an effective term of 18 months imprisonment suspended after five months with an operational period of three years. He applied for leave to appeal against sentence contending that the sentence of imprisonment should have been suspended entirely. The agreed schedule of facts stated that there was a commercial element to his possession of 104 ecstasy tablets which contained 10.679 grams of pure MDMA, slightly less than Mr Marsanic. Sartori was cooperative with police to the extent of naming his supplier who was to be charged with trafficking, although the search warrant was executed at the supplier's premises where Sartori was found in possession of drugs. Sartori had been selling drugs to buy ecstasy for his personal use whilst he waited for WorkCover compensation payments after becoming addicted whilst on stress leave. He had some prior drug convictions for which he received a non-custodial sentence a few months before committing the offences the subject of the appeal. A sentence of 18 months imprisonment suspended after six months would have been appropriate without the powerful mitigating factor of his co-operation with police and the circumstances leading to his offending. Because he had spent 68 days in custody, this Court determined that it was appropriate on the hearing of his appeal to suspend his sentence forthwith to allow for his immediate release.
In R v Stuck,7 the applicant pleaded guilty to possessing cocaine, aggravated possession of MDMA, aggravated possession of MDEA, possession of testosterone, nandrolone and somatotropin, and possession of $4,000 obtained from supplying dangerous drugs. He also pleaded guilty to two summary drug related offences. He was sentenced to an effective term of four years imprisonment suspended after 18 months with an operational period of four years. Police executed a search warrant at his premises. He showed them the steroids in his bathroom and a small quantity of cocaine. Police found three small bags of cocaine and some testosterone and nandrolone. They located a vial of somatotropin in the freezer and $4,000 in the bedroom. In the dining room they found a canvas shopping bag containing over 1,050 tablets of MDMA and MDEA. The tablets had about 62 grams of pure MDMA and about 17.6 grams of pure MDEA, a much greater amount than in Mr Marsanic's possession. Stuck's possession was for commercial purposes. Stuck was 25 at the time of the offending and had no prior criminal convictions. He had a good work history. He had his own business in nightclubs and as a concert promoter. He had been involved in community activity and raised money for charity. It was not suggested he had a drug problem. He pleaded guilty when the indictment was presented in the Supreme Court. The prosecutor submitted a head sentence in the order of three and a half years was appropriate. After referring to Wynyard, de Carteret and the cases of R v Eaton8and R v Michalas9 the Court noted that the amount of drug possessed by Stuck was substantially more than that in the possession of Wynyard and de Carteret so that the case was more serious. General deterrence was an important consideration. This was a case motivated by financial greed and deterrent penalties were effective in such cases. The sentence was not manifestly excessive.
The variety and quantity of the drugs found in Mr Marsanic's possession, combined with his guilty plea to possessing digital scales and razor blades used in connection with the commission of the crime of supplying a dangerous drug, his possession of $1,480 cash reasonably suspected of being the proceeds of an offence under Pt 2 Drugs Misuse Act, and the traces of cocaine and cannabinoids on that cash, plainly demonstrated that there was a strong commercial element to Mr Marsanic's possession of the drugs.
Unlike the learned primary judge, I consider that Ms Yoxall's undisputed report was reasonably persuasive evidence that at the time Mr Marsanic was offending, he was not only a heavy user of the illegal drugs found in his possession but he had what Ms Yoxall referred to as a "severe poly substance dependence".
The tendered urine analysis certificates and his completion of the "Back in Control" program, together with the references tendered on his behalf strongly supported his barrister's contention that he had made real efforts at rehabilitation and had promising prospects of continuing his rehabilitation in the community with the support of his family. He had no prior convictions and a good work history. He was a comparatively young man and he pleaded guilty at a relatively early stage.
The maximum penalty for aggravated possession of MDMA (ecstasy) (count 1) was 20 years imprisonment10 and for possession of cocaine (count 2) and possession of cannabis sativa lysergide and MDEA (count 3) 15 years imprisonment.11 Mr Marsanic's offending was unquestionably serious. Use of the illegal and harmful drugs ecstasy and cocaine is prevalent amongst some groups in our community. A deterrent sentence had to be imposed on Mr Marsanic to dissuade him and others of his ilk from possessing quantities of the prohibited drug, ecstasy, for commercial gain. He was also in possession of an assortment of other unlawful and dangerous drugs and had two related summary charges. The most serious of the charges was plainly, however, his commercial possession of almost 18 grams of ecstasy. Mr Marsanic's offending was not as serious as Stuck's but it was more serious than that of Sartori. The case of de Carteret is probably the most comparable. The preceding review of relevant cases demonstrates that in Mr Marsanic's case the appropriate sentence was in the range of two to three years imprisonment and required the serving of a significant period of actual imprisonment in the range of six to 12 months before release. The sentence imposed of three and a half years imprisonment was, however, outside that range and was manifestly excessive. A head sentence of two and a half years imprisonment should be substituted. Mr Marsanic's relatively early plea of guilty, comparative youth, former good character and genuine efforts at and prospects of rehabilitation warrant a parole release date fixed after serving nine months imprisonment.