R v Oldfield [2004] QCA 435

SUPREME COURT OF QUEENSLAND

CITATION: R v Oldfield [2004] QCA 435

PARTIES: R v OLDFIELD, Leisa Karen (Applicant)

FILE NO/S: CA No 310 of 2004 / SC No 208 of 2004 / SC No 435 of 2004

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 16 November 2004

DELIVERED AT: Brisbane

HEARING DATE: 16 November 2004

JUDGES: Williams JA, Mackenzie and Philippides JJ / Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER: Application for leave to appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 5 years imprisonment for trafficking with recommendation for post-prison community based release after 2 years – where applicant on probation for similar offences at time of commission of offences – where applicant is sole carer of a child - whether sentence manifestly excessive / R v Burge [2004] QCA 161; CA No 63 of 2004, 13 May 2004, considered / R v Fry & Fry [2000] QCA 89; CA No 397 of 1999, CA No 17 of 2000, 21 March 2000, considered / R v McMahon [2003] QCA 369; CA No 199 of 2003, 27 August 2003, considered / R v Zeremes & Zeremes [2003] QCA 255; CA No 135 of 2003, CA No 136 of 2003, 18 June 2003, considered

COUNSEL: A J Rafter SC for the applicant / R Pointing for the respondent

SOLICITORS: Gilshenan & Luton for the applicant / Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I will ask Justice Philippides to deliver her reasons first.

PHILIPPIDES J: This is an application for leave to appeal against sentence. The applicant was sentenced on 16 August 2004 on her plea in relation to eight counts and three summary offences.

In respect of count 1, a count of trafficking in the dangerous drug MDMA and methylamphetamine, a sentence of five years imprisonment was imposed, cumulative upon the sentences imposed for the summary offences. A recommendation was made for post prison community based release on 16 August 2006, that is, after two years.

Counts 2 to 7 concern six counts of supplying a dangerous drug and were treated as particulars of the trafficking and no separate penalty was imposed in respect of them. Count 8 concerned possession of MDMA in a quantity exceeding 2 grams. The sentence imposed for that count was one of six months imprisonment to be served concurrently with the five year sentence imposed for count 1, but cumulative upon the sentence imposed for the summary offences.

In relation to the summary offences, concurrent sentences of one month imprisonment were imposed.

The ground upon which the application is made is that the sentence imposed in respect of the trafficking offence was manifestly excessive. It is submitted that the sentence which should have been imposed is one of four years imprisonment suspended after 18 months or accompanied by a recommendation for post prison community based release after 18 months.

The applicant was 28 years of age at the time of the offences and 30 years at sentencing. The applicant has a criminal history and on 20 May 2002 she was placed on probation for two years and ordered to perform 80 hours of community service for offences of possessing dangerous drugs, possession of utensils or pipes and supplying dangerous drugs. No convictions were recorded. On 20 September 2002, the applicant was fined $250 for possession of dangerous drugs and possession of utensils and pipes. No convictions were recorded. On 13 February 2002, the applicant was dealt with for a breach of the probation order and fined $240 but it was ordered that probation continue.

The circumstances concerning the offence in respect of which the application is brought, that is the trafficking offence, are that during the course of an undercover police operation, a police operative was introduced to the applicant. Over a two and a half month period, the applicant was involved in a series of six supplies of methylamphetamine and MDMA. A total of $7,260 was paid to the applicant by the officer for those drugs. The total quantity of methylamphetamine supplied was 0.975 grams and the total quantity of MDMA was 19.428 grams.

A further 2.078 grams of MDMA was found in the applicant's possession when her home was searched on 7 November 2003 and that concerns count 8.

When the applicant was arrested in relation to counts 1 to 7 on 20 February 2003 she was found in possession of a small quantity of cannabis - less than 1 gram - and the other items the subject of the three summary charges were located.

At sentence, the Crown submitted that a head sentence of five years imprisonment was well within range. Counsel for the applicant accepted that and the thrust of his submissions concerned whether there ought to be a suspension or recommendation and if so its nature.

In sentencing the applicant, the learned sentencing Judge took into account that, in respect of the summary offences the quantity of cannabis was very small and only for the applicant's use, although the presence of scales suggested that she was a long-term user. The serious aspect noted by the sentencing Judge was that the applicant was on probation for similar offences. As to the charges on the indictment, the most serious of which was that of trafficking, the learned sentencing Judge took into account the seriousness of that offence, the fact that the applicant was a user of drugs and her relatively minor criminal history, albeit that she was on probation at the time. Matters of mitigation considered by the learned sentencing Judge included that there was an early plea, that the applicant had ceased supplying the amphetamines after being charged with count 8 and had apparently decided to cease using drugs herself, that she made attempts to rehabilitate herself with some success and that the trafficking appeared to be street level, rather than wholesale distribution or manufacture of the drug.

In support of the submission that the sentence imposed in respect of the trafficking offence was manifestly excessive, reliance was place on behalf of the applicant on the applicant's personal circumstances as set out in the report of Dr Curtis, including the fact that the applicant is the sole parent of a nine year old daughter, who has been struggling at school, the opinion of Dr Curtis that the applicant's rehabilitation was in a period of consolidation and that her prognosis was good, and a favourable reference from her employer.

It was also submitted on the applicant's behalf that, having regard to the fact that the applicant was trying to cease her use of amphetamines and had turned to marijuana to assist her to do so, it was appropriate for the sentence for the summary offences to be served concurrently with the five year sentence rather than cumulatively.

The respondent contends that the sentences imposed were within range. It is submitted that the applicant's conduct must be seen in the light of her persistent breaches of the probation order, which had been made not long prior to the commencement of the trafficking. In addition it is said that the sentences imposed in respect of the summary offences were lenient and that the overall structure of sentences provided a fair and balanced approach to all the prevailing circumstances and ensured that the applicant was adequately punished and had a clear incentive to rehabilitate herself in the future.

A number of cases were referred to on behalf of the applicant, including R v. Fry & Fry [2000] QCA 89, R v. Zeremes & Zeremes [2003] QCA 255, R v. McMahon [2003] QCA 369 and R v. Burge [2004] QCA 161.

Fry concerned a husband and wife aged 27 and 22 respectively, who pleaded guilty to trafficking in methylamphetamine. Mr Fry was sentenced to five years imprisonment and Mrs Fry to three years. The sentences imposed reflected the fact of the pleas and their co-operation, there being no suspension or recommendation. Neither had any substantial prior convictions. They were found to be trafficking for commercial gain, but also to feed their own addictions. A serious aspect of that case was that the trafficking was to truck drivers. The trafficking in that case, was more extensive than that in the present case but the sentences took place before methylamphetamine became a schedule 1 drug.

Zeremes concerned a husband and wife in their early thirties who pleaded inter alia to trafficking in methylamphetamine. Mr Zeremes was sentenced to seven years imprisonment with a recommendation for parole after three years. Mrs Zeremes was sentenced to five years imprisonment suspended after 18 months for an operational period of five years for trafficking in methylamphetamine over a period of five and a half months. Neither had a substantial previous criminal history, both were drug addicts. Both had made real efforts towards rehabilitation. However, they were involved in a significant commercial operation and were also found to be producing the drug in a sophisticated and commercial laboratory. The female offender was found to have played a subsidiary role to the husband. An aggravating feature of the trafficking offence in that case was that it was committed whilst on bail for the production offences. The sentences imposed in that case also reflected the fact that the offending was committed when methylamphetamine was a schedule 2 drug.

In McMahon, the Court of Appeal refused leave to appeal a sentence of five years imprisonment suspended after two years for an operational period of five years imposed on the applicant's plea to trafficking in methylamphetamine and cannabis. The trafficking was carried out over a period of 11 months and over 70 occasions of supply were identified. For most of the period of the offending, methylamphetamine had been a schedule 2 drug. The applicant had a minor criminal history and was aged 37 and 38 at the time of the offending and had made an early plea. He had had a very good work history and had shown a genuine commitment to rehabilitation and had outstanding references. He had been a heroin addict and was diagnosed with hepatitis C. An aggravating feature in that case was also that the applicant was on probation at the time of the trafficking for other drug offences.

In Burge a sentence of three years' imprisonment, suspended after 18 months for an operational period of three years was imposed in respect of an offence of trafficking in methylamphetamine. It was varied on appeal by ordering that the sentence be suspended after nine months. The trafficking covered a period of 11 months. The applicant, who was 18 and 19 at the time of the offending, had acted as a secretary for her de facto, who played the dominant role in the supply. The applicant had no criminal history and had made genuine attempts towards rehabilitation. On appeal the Court reaffirmed that trafficking in the schedule 1 drug, methylamphetamine, warranted a significant penalty and that but for a combination of factors particular to the applicant, a sentence of five years' imprisonment was within range. The Court moderated the sentence imposed because, as the President observed, the factors of mitigation in that case placed that case in a “very special category warranting unusual leniency”. They included the applicant's youth, her addiction, her dependence on her de facto as her supplier, her subservient position in a very abusive and violent relationship with her de facto, the principal offender, and her significant cooperation with police.

The present applicant does not have the benefit of extreme youth as in Burge, nor of the other unique matters of mitigation which placed that case in a special category.

A head sentence of five years' imprisonment is supported by authorities such as Burge and reflects the serious nature of the offence of trafficking in a schedule 1 drug such as methylamphetamine and MDMA, and the need for a significant penalty in accordance with the principles of individual and general deterrence. While there are significant matters of mitigation in the present case, these were appropriately recognised by the learned sentencing Judge in the recommendation made. In the present case an important matter of mitigation is that the applicant has the sole care of a nine year old child. However, as was properly acknowledged by the applicant's counsel, considerations relating to the impact of a sentence on third parties cannot overwhelm other sentencing consideration as was recognised both in Whitehouse [1998] QCA 148 and D’Arrigo ex parte Attorney-General [2004] QCA 399. That factor has less weight where, as is the case here, it is clear that a significant custodial sentence is warranted.

The authorities indicate that the sentence imposed for the trafficking offence was within the sentencing discretion. While a slightly more lenient penalty would also have been justified by the authorities, it has not been demonstrated that the sentence imposed by the learned sentencing Judge was manifestly excessive.

As to the imposition of a cumulative sentence in respect of the summary offences, while that sentence was not urged by the Crown, it was also in my opinion within the sentencing discretion.

Accordingly I would dismiss the application.

WILLIAMS JA: I agree.

MACKENZIE J: I agree.

WILLIAMS JA: The order of the Court is the application is dismissed.