_R v McAway_

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of the President. I agree that the application should be dismissed, for those reasons.

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[2] McMURDO P: The applicant, Tess Elizabeth McAway, pleaded guilty on 25 August 2008 to one count of trafficking in dangerous drugs, namely MDMA and MDEA; one count of possession of MDMA exceeding two grams; and one count of possession of MDEA. She also pleaded guilty to the summary offence of possessing property (an unspecified amount of cash) reasonably suspected of being proceeds of an offence under the Drugs Misuse Act 1986 (Qld). She was sentenced to five years imprisonment on the trafficking count and to lesser concurrent terms of imprisonment on the remaining offences with a parole eligibility date set at 24 February 2010, that is, 18 months from the date of sentence. She applies for leave to appeal against her sentence, contending that it is manifestly excessive.

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[3] The offences occurred between February and August 2007. Ms McAway was 19 and 20 years old at the time of her offending and 21 at sentence. She had no prior convictions, but in December 2007, when she was on bail for the present offences, police searched her home and found one ecstasy pill in a small box in a pile of rubbish. She pleaded guilty to possession of that drug on 18 December 2007 on the basis that it was left over from when the police searched her house and charged her with the present offences. She was convicted and placed on a $150 good behaviour bond for four months and ordered to participate in a drug diversion program.

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[4] The circumstances of the present offending were as follows. Police officers obtained a search warrant and attended at Ms McAway's premises on 24 August 2007. They found a large quantity of pink ecstasy tablets inside a stuffed toy. They found more ecstasy tablets in plastic bags in various locations. Ms McAway co-operated with police, telling them where the tablets were hidden. She admitted the tablets were ecstasy. She also admitted to selling ecstasy tablets. She went with the police to the police station where she co-operated in a video recorded interview. She admitted being in possession of the 500 pink ecstasy tablets in bags of 50 tablets for which she said she had found a buyer. The agreed price was between $7,000 and $7,500. In all, she had 600 ecstasy tablets. She told police she had bought them in bulk for between $15-$20 per tablet and was dividing them up to sell for between $25-$30 per tablet. She said she had been doing this for about six months and estimated that she would have sold about 500 tablets, averaging sales of about 100 tablets per month.

[6]

[5] This amounted to a monthly turnover of about $3,000, of which she made about $1,500 per month profit. Over the six month period of her trafficking, her business had an $18,000 turnover with a $9,000 profit. She told police that she used the money for normal living expenses. At the time, she was working at a hardware store earning about $600 per week. She was co-operative with the police, providing the names of others involved with her in the drug trade. This resulted in some arrests for minor drug charges, but it was common ground at sentence and on appeal that s 13A Penalties and Sentences Act 1992 (Qld) had no application to her case.

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[6] Her committal proceedings were by way of hand-up witness statements only, without cross-examination. Shortly afterwards, in February 2008, she indicated her intention to plead guilty.

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[7] The prosecutor at sentence submitted that a term of imprisonment was inevitable. Ms McAway had been involved in the commercial enterprise of trafficking in MDMA and MDEA for six months which involved a moderately high turnover. She submitted, relying on R v Dylan Taylor,[1] that a head sentence of about five to six years imprisonment was warranted.

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[8] Defence counsel at sentence made the following submissions. Ms McAway's subsequent conviction related to a leftover ecstasy tablet following the August 2007 police raid. She was not involved with prohibited drugs after that raid. She came to drug trafficking as a 20 year old through her association with a 32 year old man, although she did not tell police about him. She has since separated from him because, after she was charged, he continued his drug use. She realised that her rehabilitation required that she end their relationship. She drifted into the present offending without consciously understanding the very serious nature of what she was doing. She spent the profits on her own drug and alcohol use and nights out. Her parents, who are religious people, have virtually disowned her because of her offending. She lost her position at the hardware store where she had been employed when police visited her there. She has since worked hard to rehabilitate. She was employed at sentence in two jobs: full time at a fast food outlet as a team leader and two mornings a week at a supermarket. She no longer abused alcohol or drugs. She pleaded guilty at an early time and was extremely co-operative with police. Defence counsel emphasised that she had successfully completed the drug diversion course. He tendered references from her present employers, one of whom stated that he was aware of the present charges but was still prepared to consider her for a management position. Relying on this Court's decision in R v Oldfield,[2] defence counsel submitted that a sentence of about four years imprisonment with parole after nine to 12 months was appropriate.

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[9] Mr R A East, who appears for Ms McAway in this application, submits that the head sentence on the trafficking count is manifestly excessive. In support of that contention, he relies on this Court's decisions in R v Rizk[3] and R v P[4] which, he contends, demonstrate the circumstances in which a sentence of six years imprisonment for significant trafficking in ecstasy is appropriate. He further submits that R v Tytherleigh,[5] R v Bagnall[6] and R v Mullins[7] demonstrate that the appropriate head sentence for trafficking in this case was between three and four and a half years imprisonment. Mr East contends that, because of her youth, her co-operation, her timely guilty plea, her efforts at rehabilitation and her assistance to the police, parole or parole eligibility should be set after 12 months imprisonment.

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[10] Mr B G Campbell, who appears for the respondent, emphasises that the drugs found in Ms McAway's possession contained a total of 36.774 grams of pure MDMA, over 18 times the schedule amount. Ms McAway was also found in possession of a small number of tablets containing a total of 0.102 grams of pure MDEA. She sold $18,000 worth of dangerous drugs over a six month period. She was able to invest in the bulk purchase of 500 tablets, demonstrating an ability to source large quantities of the drugs and to fund such a purchase. She was involved in a serious level of trafficking for commercial gain. Her offending was above the level of street trafficking engaged in by the applicants in Dylan Taylor, Tytherleigh and Mullins. He submits her offending was more akin to that of the applicants in R v Christopher Taylor[8] and R v Bellino.[9] Mr Campbell submits that the sentence of five years imprisonment with parole eligibility after 18 months is not manifestly excessive.

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[11] It is helpful to review the cases relied on by the parties in deciding whether the sentence imposed is within range. In R v Dylan Taylor, the applicant was sentenced to five years imprisonment suspended after two years with an operational period of five years for trafficking in methylamphetamine (by then, a sch 1 dangerous drug) and MDMA (then, as in the present case, a sch 2 dangerous drug) over a three month period. He finally admitted to police that the money in his wallet was from the sale of drugs and that the drugs found in his car were "bagged up" because he had been selling speed and ecstasy for a couple of months. He was also found in possession of ketamine for personal use. He was a 20 year old apprentice plumber. This Court's decision appears inconsistent as to whether he was an ecstasy user. A review of the sentencing judge's remarks[10] reveals that Dylan Taylor sold ecstasy to finance his own drug habit, a habit he had beaten at the time of his sentence. His counsel relied on Rizk and R v Christopher Taylor,[11] to support his contention that whilst five years imprisonment was not manifestly excessive, it should have been suspended earlier than after two years to reflect the mitigating circumstances. After reviewing those and other cases, this Court noted that, while the five year sentence could well have been suspended after 18-20 months, the sentence imposed was not manifestly excessive.

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[12] In R v Christopher Taylor, the offender, like Dylan Taylor, trafficked in both MDMA and methylamphetamine over a 10 month period. He recruited two others as sellers. He was one step up from a street level trafficker. The sentencing judge described his offending as "a lengthy involvement in the wholesaling of dangerous drugs which are the scourge of the younger segment of our community". He pleaded guilty, had a good work history and a supportive family and had taken extensive steps towards rehabilitation. He was 19 years old at the time of his offending. He was sentenced to five years imprisonment suspended after two years with an operational period of five years.

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[13] In Rizk, the applicant pleaded guilty to trafficking in MDMA and to possession of a quantity of it exceeding two grams. As in the present case, MDMA was then a

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sch 2 drug. He worked under his co-offender, Raciti. He obtained large quantities of ecstasy from numerous suppliers at Raciti's direction and distributed it to others for sale. The trafficking occurred over a two and a half to three month period. Rizk pleaded guilty. He was found in possession of 5,063 tablets of 31.7 per cent purity totalling 445.188 grams of pure ecstasy for which he had paid $87,500. He was

[16]

25 years old. He had a supportive family and steady employment. He was addicted to ecstasy. He had no prior convictions. This Court reduced his original sentence of eight years imprisonment with a parole recommendation after three years to six years imprisonment with a parole recommendation after two years.

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[14] The applicant in R v P pleaded guilty to trafficking in ecstasy and cannabis (then both sch 2 drugs as in the present case) and to other lesser related offences. On the trafficking offence, he was first sentenced to nine years imprisonment with a recommendation for parole after four years. The trafficking took place over a six month period. He told an undercover police officer that he earned $3,000 a week from drug dealing in cannabis, ecstasy and speed and that he sold 1,000 ecstasy pills over Christmas and regularly sold them at a nightclub and at concerts attended by young people. He had two suppliers above him in the chain of distribution and set up others below him to sell the drugs in exchange for him receiving a share of the profits. Later, P told the undercover police officer that he could supply him with 10,000 ecstasy pills and that 200,000 would be arriving on the Gold Coast within the next fortnight. He introduced the police officer to his supplier, R. P and R were apprehended the following day. Police found 2.205 kilograms of pills containing 733.5 grams of pure ecstasy in P's suitcase. They also found $25,000 cash, 500 grams of cannabis and small quantities of other prohibited drugs in his possession. He fully confessed and pleaded guilty. He had no prior relevant convictions. He was 31 at sentence. This Court substituted a sentence of six years imprisonment with parole eligibility after two and a half years because of P's plea of guilty and co-operation with the police.

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[15] In Tytherleigh, the applicant was sentenced to four and a half years imprisonment with a recommendation for parole after 15 months for trafficking in methylamphetamine (a sch 1 drug, so that the maximum penalty was 25 years imprisonment) over a three month period and to two years imprisonment in respect of possessing heroin. He also pleaded to other counts which were particulars of the trafficking count. He told police that he had been selling methylamphetamine for about three months to support his heroin habit. He bought between $500 and $1,000 worth of methylamphetamine every three or four days and cut it for sale to five or six regular customers. He agreed he must have been making about $5,200 per month. He was spending about $6,000 a month on heroin for his own use. He was a street level dealer selling low purity drugs to other addicts to support his heroin addiction. He pleaded guilty at an early time. The trafficking and supply counts were based solely on his admissions to police. He had registered with an opiate treatment program two months before sentence. He had a favourable reference from an employer. He had a fairly lengthy criminal history for minor drug offending for which he received community based orders. Additionally, in November 2000 he was placed on a nine month wholly suspended sentence for robbery with actual violence in company and other lesser offences. Five months of that sentence was activated in January 2003 because of further drug offending. He was subsequently sentenced on two separate occasions to periods of two and eight months imprisonment for drug offending. This Court concluded that the trafficking sentence was high in the circumstances but within the available range. The sentence for possession of heroin with no commercial element was reduced to six months imprisonment but the sentence for trafficking was not disturbed.

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[16] In Bagnall, the 29 year old applicant pleaded guilty to trafficking in ecstasy and methylamphetamine (so that the maximum penalty was 25 years imprisonment rather than the 20 year maximum in the present case) over a 39 day period involving but five sales, only one of which involved methylamphetamine. He had some minor drug history. He contended he received no monetary profit from his trafficking but obtained MDMA for his own use. He pleaded guilty at an early time to an ex officio indictment. He was sentenced to three years imprisonment, suspended after nine months with an operational period of five years. This Court refused his application for leave to appeal and did not consider the sentence excessive.

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[17] In Mullins, the applicant pleaded guilty to an ex officio indictment containing one count of trafficking in methylamphetamine (by then, a sch 1 drug so that the maximum penalty was 25 years rather than 20 years as in the present case) and cannabis and other counts subsumed in the trafficking charge. She was sentenced to four years imprisonment with parole eligibility after 15 months. The trafficking occurred over a seven month period. She told police that she supplied between eight and 10 people on a weekly basis with small amounts of amphetamine ranging from 0.1 grams for $20 to 0.5 grams for $100. She also admitted supplying two people with cannabis in the form of a "stick" weighing 1.7 grams for $25. She pleaded guilty at an early stage. She was 22 years old at the time of her offending and 25 at sentence. She became addicted to methylamphetamine at 17 years old. She had a dysfunctional background. She had taken the first steps to redress her addiction despite previous failures. At sentence, she had obtained employment and was said to be doing well. After referring to cases including Tytherleigh, this Court determined that the sentence imposed was not manifestly excessive.

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[18] The applicant in Bellino pleaded guilty to trafficking in MDMA over a two month period and to five counts of supply, four of them being in ecstasy and constituting particulars of the trafficking, and one being in a small quantity of heroin which was either a gift or something thrown in with another dealing. The trafficking involved four transactions resulting in the provision of 600 ecstasy tablets in return for four payments totalling $22,400. It was not established that his profit was of a high order. He was 29 years old at the time of his offending and had no prior convictions. This Court reduced the effective eight year term of imprisonment imposed at first instance to six years imprisonment. No recommendation for parole eligibility was made.

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[19] The maximum penalty for Ms McAway's offending of trafficking in MDMA and MDEA is 20 years imprisonment.[12] She, like Dylan Taylor and Christopher Taylor, was above a street level dealer but well down the chain of distribution in this worrying and prevalent trade in ecstasy. The cases of Dylan Taylor and Christopher Taylor, who each received a similar sentence to Ms McAway, involved trafficking in both ecstasy and methylamphetamine and so involved a 25 year maximum penalty rather than the 20 year maximum apposite here.

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[20] Ms McAway's offending was less serious than in Rizk and in R v P where sentences of six years imprisonment were imposed with parole eligibility after two and two and a half years respectively. Ms McAway also had more mitigating features than both Rizk and P. Her sentence, when compared to the sentences imposed in their cases, does appear high. Rizk and P show that in the circumstances pertaining in each of those cases, the sentence substituted by this Court was within range and the sentence set aside was manifestly excessive.

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[21] Bagnall, where a three year term of imprisonment suspended after nine months was imposed, was a much less serious example of trafficking than Ms McAway's, even though it also involved trafficking in methylamphetamine.

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[22] Tytherleigh is not really comparable to Ms McAway's position because it involved a long-term heroin addict who was trafficking to support his heavy heroin addiction and who had made some commendable efforts at rehabilitation by the time of sentence. Nevertheless, the sentence imposed in Tytherleigh, like that imposed in Mullins, four and a half years and four years imprisonment respectively, both with parole eligibility after fifteen months, where the maximum penalty was 25 years imprisonment, also suggests that the sentence imposed in this case was high. On the other hand, Bellino demonstrates that it is within the existing range.

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[23] This review of the cases relied on by the parties demonstrates that the sentence imposed of five years imprisonment with parole eligibility after 18 months, though at the top end of the range in the circumstances, was nevertheless within it. It is a heavy penalty to impose on 20 year old young woman who, apart from this serious blemish in her record, has otherwise led a commendable life. She has promising prospects of returning to a law-abiding life on her release from prison. But trafficking in ecstasy is a serious offence. It deserves a salutary penalty as a personal and general deterrent. As Chesterman J noted in Bagnall:

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"Ecstasy may not have the deleterious effects of methylamphetamine, but it has its own dangers for young people and its trade should be vigorously discouraged by the Courts."[13]

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[24] So much was recognised by the primary judge who observed:

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"Ecstasy is a drug that can kill people; it has killed people. It does that in either of two ways. One is when people misuse it either by overdosing or by not taking enough water or by drinking too much water. Their whole metabolism is upset and they die. And, second, by impurities that are in the tablets. These things are not made under controlled circumstances; they're made in shonky operations by people whose idea of quality control is non-existent.

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So when you sell these things to other people, you put their lives at risk. You could be assisting somebody getting killed. To do that is morally reprehensible. To do it for money, for your own pleasure, is socially unacceptable. It is evil. ..."

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[25] Those engaging or contemplating engaging in significant trafficking in dangerous drugs, including ecstasy, for commercial gain must understand that they are likely to be caught and when they are, any short-term gains made by them will be far outweighed by the penalties imposed by the courts. On a cost-benefit analysis, the business of trafficking is not viable.

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[26] There were many mitigating features in Ms McAway's case. These included her youth, her co-operation with the authorities, including the fact that the trafficking count turned solely on her admissions, her early plea of guilty and her promising prospects of rehabilitation. A sentence in the range of four to five years imprisonment with parole eligibility after one to two years would have been appropriate in this case. The sentence imposed, while at the top of that range, cannot be said to be manifestly excessive.

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[27] The application for leave to appeal should be dismissed.

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[28] MUIR JA: I agree with the reasons of McMurdo P and with her proposed order.

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