_R v Mullins_

Court of Appeal (Qld)|2007-11-23|Before: McMurdo P, Keane JA and Daubney J, Separate reasons for judgment of, each member of the Court, each concurring as to the order made

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Keane JA.

[2] KEANE JA: On 2 August 2007, the applicant was convicted, on her plea of guilty to an ex officio indictment, of one count of trafficking in methylamphetamine and cannabis sativa, one count of possessing cannabis sativa, one count of possessing methylamphetamine and one count of possessing things for use in connection with trafficking. On the trafficking charge, she was sentenced to four years imprisonment with parole eligibility fixed at 2 November 2008, ie after serving

15 months in actual custody. She was sentenced to shorter concurrent terms for the other offences.

[3] The applicant seeks leave to appeal against the four year sentence on the ground that it is manifestly excessive.

[4] The trafficking charge related to the period between 1 July 2005 and 27 January 2006. At about 5.00 pm on 26 January 2006, police executed a search warrant at her residence. They found small quantities of cannabis (6.4 grams) and white powder (0.21 grams) containing methylamphetamine. Police also found a set of scales, clip seal bags, spoon set, mobile phone and two pipes.

[5] The applicant told police that, over the previous seven months, 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 said that she supplied two people with cannabis in the form of a "stick" (1.7 grams) for $25.

[6] On 4 October 2006, the applicant advised the authorities that she was prepared to plead guilty to the offences on an ex officio indictment.

[7] The applicant was 22 years of age when she commenced trafficking. She was

[8] She experienced an unsettled upbringing, attending 10 different schools, but she ultimately completed year 12.

[9] Unfortunately, the applicant became immersed in a culture of illicit drug use. She has been addicted to methylamphetamine since she was 17 years old. Her motivation for trafficking in drugs was to support her own addiction.

[10] Prior to her sentence, she lived with her father and her boyfriend.

[11] She had taken only the first steps to redress her addiction. She has previously failed to take advantage of opportunities to address her addiction. Prior to sentence, she had obtained employment and was said to be doing well. She has a long way to go to establish her independence from the drug culture, and to rehabilitate herself.

[12] The learned sentencing judge, in his sentencing remarks, referred to the serious social harm caused by the applicant's trafficking in a Sch 1 drug and the need for a deterrent sentence.

[13] His Honour referred to the high level of cooperation by the applicant with the administration of justice, including her early plea of guilty and the circumstance that the trafficking charge depended on the admissions she made to police.

[14] His Honour also accepted that the applicant trafficked because she was a drug addict and not for profit.

(a) that the head sentence of four years imprisonment was manifestly excessive having regard to the range reflected in decisions of this Court; and

(b) that the sentence failed to reflect the "special leniency" to which the applicant was entitled because of her confession to the offence of trafficking when there was no other evidence on which she could have been convicted of this offence.

[16] The applicant relies on the decisions of this Court in R v Scott[1] and R v Tytherleigh[2] to establish that the range for trafficking in methylamphetamine, even at the lower end of the scale, is between three and five years imprisonment.[3]

[17] On the applicant's behalf, it is said that the present case stands in stark and instructive contrast with R v Tytherleigh. In that case, the offender had a lengthy criminal history, and was found in possession of large quantities of heroin and methylamphetamine. He admitted trafficking in methylamphetamine at street level for a three month period for a profit of $15,000. A sentence of four and a half years with a recommendation for parole after 15 months was said by this Court to be high, but not outside the range of a sound exercise of the sentencing discretion. On behalf of the applicant, it is said that she was in possession of small quantities of cannabis and methylamphetamine, and trafficked in the drugs not from a motive of profit, but to support her own addiction. Police found no cash when they executed the warrant on her premises.

[18] In my respectful opinion, reference to R v Tytherleigh does not establish the applicant's contention that a head sentence of four years in this case was manifestly excessive. I say this principally because the absence of a criminal history and any profit-making motive in the present case was reflected in the lesser head sentence imposed in this case bearing in mind as well that the applicant was trafficking for twice as long as Tytherleigh. Further, unlike the applicant, Tytherleigh had taken effective steps to rehabilitate himself by the time he was sentenced. It may be said that the sentence in this case was at the high end of the appropriate range but it was not beyond that range.

[19] It is correct to say that the applicant was entitled to special leniency by reason of her confession to trafficking when there was no other evidence available to police to establish that charge.[4] But the offender in R v Tytherleigh was also entitled to special leniency for the same reason.

[20] Similarly in R v Scott, the charge of trafficking was based on the offender's admissions. He had been trafficking over a period of about nine weeks and supplied between five to eight people. He had largely overcome his addiction. A sentence of three and a half years with 15 months to serve before eligibility for parole was not interfered with on appeal. The decision in R v Scott does not suggest that the sentence imposed on the applicant was excessive. In this case, the applicant trafficked to a greater number of people over a much longer period of time and made no attempt to rehabilitate herself.

[21] It has not been demonstrated that the sentence was manifestly excessive.

[22] I would refuse the application for leave to appeal against sentence.

[23] DAUBNEY J: For reasons expressed by Keane JA, I agree that the application for leave to appeal against sentence should be dismissed.

[3] See also R v Oldfield [2004] QCA 435.

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