Court of Appeal (Qld)|2014-04-15|Before: Margaret McMurdo P and Fraser JA and Mullins, J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
Margaret McMurdo P and Fraser JA and Mullins, J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – OTHER MATTERS –
where the
applicant pleaded guilty to unlawfully trafficking in dangerous drugs –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – OTHER MATTERS –where theapplicant pleaded guilty to unlawfully trafficking in dangerous drugs –where the prosecutor submitted at sentencethat the street value of themethylamphetamine involved in this trafficking was between $541,000 and$1,665,000 – where thetendered schedule of facts was internallyinconsistent as to the street value of the drugs involved in the trafficking– wherethe sentencing judge concluded the trafficking involved at leasthundreds of thousands of dollars and probably in excess of a milliondollars– where the sentencing judge was led into error by the confusing statementof agreed facts and the prosecutor's submissions– whether the applicationfor leave to appeal should be grantedCRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE –
where the applicant pleaded guilty to unlawfully trafficking in dangerous drugs
and was sentenced to 12 years imprisonment
to be served concurrently with a
sentence of four years imprisonment previously imposed – where the
applicant had spent two
and a half years in custody since his arrest, only
20 days of which could be declared as time served under the sentence
– where
the totality principle requires a consideration of whether the
effective combined sentence for both episodes of offending is too
harsh and
crushing a penalty – whether the application for leave to appeal should be
granted
Mill v The Queen (1988) 166 CLR 59
[1988] HCA 70, cited
R v
Feakes [2009] QCA
376, cited
R v Galeano [2013] QCA
51, cited
R v Kashton [2005] QCA
70, cited
Judgment (74 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] MARGARET McMURDO P: The applicant pleaded guilty on 14 August 2013, together with Darron Smith, Benjamin Carey, Juan Bright and Corie Weldon, to unlawfully trafficking in dangerous drugs at Rockhampton between 1 August 2010 and 17 February 2011. He was sentenced to 12 years imprisonment to be served concurrently with a sentence of four years imprisonment for unlawful wounding imposed on 8 March 2011. The applicant's ground of appeal is that his sentence was manifestly excessive. He submits that the sentence did not sufficiently take into account the totality principle as discussed in Mill v The Queen.[1] He also claims that the judge erred in concluding that the amounts of methylamphetamine the applicant purchased in the course of his trafficking were of a high level of purity, leading his Honour to err in assessing the extent of the business's high level turnover and profit.
[3]
[2] A discussion of these contentions must begin with an understanding of the matters before the sentencing court and a discussion of the judge's sentencing remarks.
[4]
[3] The agreed schedule of facts was tendered at sentence[2] and established the following.
[5]
[4] The applicant, together with Smith and Carey, trafficked in methylamphetamine, ecstasy and cannabis over about five months from September 2010 to February 2011. They were the prime movers and principal offenders. They arranged to purchase bulk drugs and a phone to take calls from customers, to rent a house from which to operate the business, and for others including Bright and Weldon to sell, store and transport the drugs. The applicant and Smith discussed how the use of the phone and house would allow them to operate like "gangstas".
[6]
[5] On 5 January 2011 when police executed a search warrant at the house, Bright, Weldon and a customer, Brent Comollatti, were present. Police found two sets of electronic scales; two packets of clipseal bags; a sharps container; quantities of used and unused syringes; a shotgun hidden in the roof cavity and four shotgun shells (which Bright claimed as his); a Samurai sword; and a bong, scissors and a chopping plate with traces of cannabis (which Weldon claimed as his). They also found a brown crystalline substance (which Bright claimed as his) underneath the house. It weighed 1.979 grams and contained 0.063 grams of methylamphetamine (3.2 per cent purity). Police took possession of the mobile phones belonging to Bright, Weldon and Comollatti.[3]
[7]
[6] Police then intercepted the applicant's mobile phone conversations. On 5 January 2011, the applicant told others about the police raid, adding that "tomorrow" would be "good".
[8]
[7] The trafficking operation continued after the police raid on 5 January 2011 until the arrest of all offenders on 16 February 2011. Weldon was found in possession of a bong, cannabis and associated items and Carey was found in possession of methylamphetamine.
[9]
[8] The following schedule in the statement of facts recorded that the applicant was the main buyer of methylamphetamine and set out the times, quantities and prices of the established purchases:
[10]
Ryan through Billy Bob from unknown supplier, 28 October 2010
[11]
[9] He also bought 119 ecstasy pills for $2,690 between 16 November and 18 December 2010 and 112 grams of cannabis for $1,260 between 27 October 2010 and 7 November 2011.
[12]
[10] There was no direct evidence of the quantities or price of drugs sold. Police recorded 98 calls concerning the purchase of drugs, on average three a day. There were two occasions someone would use the phone to send out messages about the availability of new product. On 30 December 2010 police intercepted Daniel Borresen as he drove away from the house. He had 0.378 grams of brown crystalline substance which contained 0.028 grams of methylamphetamine (purity 7.6 per cent). He told police it was speed and that he bought it for $150.
[13]
[11] The applicant sometimes phoned Smith and Carey and asked them to deliver "coin" or "paperwork". On one occasion, Smith stated that he had $1,500 which the applicant allowed him to keep as a "bonus". On 18 November 2010, they mentioned a figure of $23,500 but it was unclear whether this figure was profit or gross.
[14]
"The street value of the methylamphetamine purchased by [the applicant] was in the order of $541,125 to $1,665,000 (assuming 333 grams methylamphetmine purchased at 50% purity and cut to 10% to 20% purity for sale in one gram amounts at $650 to $1000). The value could be more if the purity was more when purchased or less when sold (Borresen's methylamphetamine was less at 7.6% purity), or if it was sold in lesser amounts such as points (0.1 grams). The value could be less if the purity of the wholesale amounts were less or significant amounts were consumed by the syndicate."
[15]
[13] The street value of the purchased ecstasy was about $2,975 to $4,760 (assuming each pill sold at street level for $25-$40). The street value of the purchased cannabis was in the order of $1,600 (if sold in quarter ounce quantities for $100) to $2,800 (if sold in one gram quantities for $25).
[16]
[14] The applicant twice attempted to purchase firearms. The trafficking business was sometimes violent in that Bright acted as the applicant's standover man to recover debts. When police searched the applicant's residence they found a gold shotgun shell compatible with the shotgun found hidden in the cavity.
[17]
[15] The applicant had at least six people selling drugs for him including Carey, Smith, Bright and Weldon. He often made more than 10 drug related calls per day. He was a drug user and used some of the drugs he purchased. Despite the trappings, the business was not sophisticated. He often had difficulty financing purchases and had to borrow money from Smith, Carey and others. When arrested on 16 February 2011, he declined to be interviewed by police.
[18]
[16] Carey had the next most significant role in the business. The bond for the drug house was in his name and he sometimes supplied drugs to the applicant.
[19]
[17] Smith also had a significant role. He picked up drugs for the applicant, passed money from sales onto him and promoted the business. When arrested, he participated in a police interview and admitted to selling drugs between October 2010 and February 2011. On his last day, he sold a total of between 1.5 to 2 grams of amphetamines to about 10 to 15 people for a total of $2,000. In all, he probably sold drugs to 50 to 60 people totalling about one ounce and making about $10,000-$20,000 profit. He did not implicate others.
[20]
[18] Bright lived at and sold drugs from the house from 11 November 2010. On one occasion, he agreed to assault a debtor but this did not eventuate because there were children around. He also offered to do some "hand busting" and "head hurting" for the applicant but the applicant did not agree.
[21]
[19] Weldon also assisted the applicant, Smith and Carey in the business by selling, delivering or purchasing drugs. The electricity account was in his name. He participated in a police field interview. He admitted living in the house since December 2010 and that he was a user of cannabis and methylamphetamine, but denied selling or helping others to sell drugs.
[22]
[20] The applicant was 26 and 27 at the time of his offending and 29 at sentence. He had a six page criminal history for relatively minor property, drug, street and bail offences. He had breached a number of community based orders. In 2001, he was fined in the Rockhampton Magistrates Court for offences including supplying a dangerous drug.
[23]
[21] He was on bail for attempted murder through the period of the trafficking. On 7 March 2011, after a trial before the sentencing judge, he was found not guilty of attempted murder but guilty of unlawful wounding. The judge's remarks included the following. His Honour summarised the facts. At about 3.00 am, a group of people, including the complainant and her husband, walked past the applicant on a Rockhampton street. They thought he had behaved nervously and a woman in the complainant's group suggested to a passing police officer that the applicant might have drugs. The police officer searched the applicant without result. The applicant and his group, armed with fence palings, went to the nearby hotel where the complainant and her husband were staying. After an altercation, the applicant's group retreated. He may have phoned for reinforcements as someone arrived in a 4WD vehicle. A fight ensued between that person and the complainant's husband. The police arrived and the complainant's group returned to their rooms in the hotel. About 20 minutes later the applicant went to the hotel with a sawn-off .22 rifle loaded with five bullets. The complainant told him to go away, called for her husband and again told the applicant to leave. Before he fled, he fired three shots into an occupied residential unit and then fired towards the complainant from about seven metres, hitting her in the left arm only inches from her heart. This was a direct shot and not a ricochet, an example of the grossly negligent use of a firearm. Doctors were unable to remove the pellets. She suffered an initially undetected comminuted fracture of the humerus which healed well although she suffered serious detrimental effects.
[24]
[22] The issues at trial were identification and intent. The applicant showed no remorse. He had a 2004 conviction for serious assault and was sentenced to three months imprisonment. In 2009 he was convicted of possession of a knife in a public place. He had committed offences of assault or obstruction of police. His criminal history suggested he had no respect for the law. The judge sentenced him to four years imprisonment and declined to either set a parole eligibility date or make a declaration under s 161B Penalties and Sentences Act.
[25]
[23] Carey was also 26 and 27 at the time of the offending and 29 at sentence. He had a significant criminal history including appearances in the Supreme Court. His drug history dated back to 2002. In 2008, he was sentenced to 18 months imprisonment for possession of 100 ecstasy tablets. In 2012, he was sentenced to five years imprisonment for trafficking and possession of methylamphetamine. He was on bail for that offence at the time of the present offending. He was sentenced to 10 years imprisonment to be served concurrently with a five year sentence for drug trafficking imposed on 8 March 2012.
[26]
[24] Smith was 22 and 23 at the time of his offending and 25 at sentence. He had significant previous criminal history in the Magistrates Court. He had 12 drug related offences including possession of dangerous drugs cannabis and methylamphemine. He was subject to a suspended sentence imposed for possession of cannabis and an anabolic steroid during the period of trafficking. He was sentenced to eight years imprisonment to be served cumulatively upon the activated three month previously suspended sentence, with parole eligibility set after 27 months.
[27]
[25] Bright was 25 and 26 at the time of the offending at 28 at sentence. He, too, had a significant criminal history before the Magistrates and District Court. He had four convictions for possession of small quantities of cannabis and previous convictions for violence including assault occasioning bodily harm and subsequent to this offending, an armed robbery offence. He continued offending whilst on parole after being sentenced for drugs and weapons offences. He was sentenced to six years imprisonment with parole eligibility set after 18 months.
[28]
[26] Weldon was 23 and 24 at the time of the offending and 26 at sentence. He had a significant criminal history including 17 appearances in the Magistrates and District Court for 50 offences. He had previous convictions for possession of dangerous drugs and related offences. He was subject to a community service order for the first three months of the offending period. He was sentenced to five years imprisonment with parole eligibility set after 18 months.
[29]
[27] The prosecutor submitted that the applicant had shown a propensity to engage in violence and was on bail for a violent offence at the time of the trafficking. He was the principal offender, the "king pin", the head of the syndicate. Carey and Smith were at the next level down and were also principals. Bright and Weldon were at a lower level again. Detective Sergeant Moon stated[4] that an ounce of methylamphetamine purchased at wholesale level for about $10,000 could be expected to have a purity of about 50 per cent. It could be onsold either as eight balls (3.5 grams), in one gram amounts or in points (0.1 grams). These generally had a purity of between 10 and 20 per cent. It followed that the street value of the methylamphetamine involved in this trafficking was between $541,000 and $1,665,000.[5]
[30]
[28] The maximum penalty for trafficking was 25 years imprisonment. All offenders had pleaded guilty but Smith's plea was particularly timely. Relying on R v Feakes,[6] she stated that the range for trafficking at this level for the principal offenders was 10 to 12 years. Both general and personal deterrence were important factors. The applicant should be sentenced to between 10 and 12 years imprisonment. He had 20 days of declarable presentence custody prior to his sentence for unlawful wounding.
[31]
[29] Defence counsel emphasised the applicant's difficult upbringing. He had been in a five year relationship which produced two boys aged four and five, and ended when he was arrested on the trafficking in February 2011. He was educated only to year 8 standard and had a poor work history. He became a drug user as a teenager and addicted in his early twenties.[7] Since incarceration, he had completed courses to address his substance abuse and violent offending and had gained a certificate II in engineering. He had a job in the prison metal shop and was drug free.
[32]
[30] The applicant wrote a letter to the judge[8] stating his insight into his addiction and offending and its impact on others, including his young sons. He disputed the allegation that the drugs "sold had the potential to be worth $80,000". He and his co-offenders were amateurs who did not make big profits; they were addicts supporting their habits. When he was arrested he had about $30 in his pocket. During his two and a half years in prison since his arrest, he had worked hard to rehabilitate. He realised that he had caused others to suffer and that only he could change his future. He pleaded guilty as soon as he could. He regretted the harm he had caused others and was working to become a better person for himself, his sons and the community.
[33]
[31] Counsel referred to the applicant's instructions that the trafficking produced only enough for him to buy more product and to support his habit. When arrested he had no car and no significant property. Although he had rented the house for the purpose of the business, this was not a sophisticated trafficking. The two and a half years since his incarceration have been the first time he has been drug free for many years. He was in good health and had gained weight. He had been in custody since 16 February 2011. As he was sentenced for unlawful wounding on 11 March 2011, much of that time could not be declared as time served for the trafficking, but the judge should take this into account in determining the sentence. The applicant was unrepresented for some time but when he first conferred with his present counsel the previous week, he indicated his intention to plead guilty. A sentence of less than 10 years imprisonment was appropriate, with parole eligibility at about one-third and certainly no later than the half way point, should be imposed.
[34]
[32] The judge made the following observations in his sentencing remarks. All five offenders were involved in a substantial trafficking operation. The applicant was the ring leader and Smith and Carey assisted him in organising the business. Bright and Weldon had lesser roles. The trafficking continued over five months from September 2010 to February 2011 and involved methylamphetamine, ecstasy and cannabis, but principally methylamphetamine. In November 2010, the applicant arranged to rent a house from which to sell drugs. The offenders had a roster to use a mobile phone purchased purely for the business. Their activities were terminated only when they were all arrested. Disturbingly, a Samurai sword was found in the premises, together with a shotgun hidden in the roof cavity and four shotgun shells. A police search in early January 2011 did not stop the trafficking.
[35]
[33] The applicant was the main purchaser of drugs. He obtained at least 305 grams of methylamphetamine in the two month period up to late December 2010. He "was paying at least around $10,000 for two ounces and sometimes much more. The evidence from police officer Moon suggests that that price indicates purity of around 50 per cent."[9] Intercepted telephone conversations suggest that the applicant paid about $75,000 for the methylamphetamine. He also purchased ecstasy pills and cannabis. Police officer Moon's evidence suggested
[36]
"that the methylamphetamine obtained by [the applicant] had a street value of between $540,000 and $1.665 million. All depends on assumptions as to the purity of the drug initially obtained, the extent of any cutting, the size of the amounts when sold and the sale price achieved.
[37]
The precise amounts and so on cannot be known. However, it seems to me that the assumptions were generally conservative."[10]
[38]
[34] The drugs seized from customers were in small quantities and of a lower purity which suggested a much greater level of profit. His Honour continued:
[39]
"The major factual dispute relates to the profitability of the enterprise. Each of the [offenders] submitted through their counsel, but provided no evidence, that their own profit from the enterprise was in the form of drugs to satisfy their habit or addiction. In general, I reject that submission, at least so far as the three principal people involved in this are concerned, but probably in respect of each of them.
[40]
First, while it is clear that each of the [offenders] consumed the drugs and methylamphetamine and each claimed at least a habit, if not an addiction, there is no evidence that any one of them was in the grip of an addiction.
[41]
Second, the only evidence I have, I have set out from the experienced detective. The prices paid by [the applicant] are reasonably certain. While the purity of the drugs purchased cannot be known, there is no suggestion in the intercepted material, of any dissatisfaction; in fact, to the contrary. That price paid supports a high level of purity as purchased.
[42]
Third, although very limited, the evidence of sales indicates that the assumptions made are conservative.
[43]
All in all, this business had a turnover that could easily have been well over a million dollars."
[44]
[35] The absence of any demonstrated wealth on the part of the offenders was irrelevant. The trafficking "involved at least hundreds of thousands of dollars and ... probably in excess of a million dollars."[11] Whilst the offenders channelled some profit into their own drug taking, this was still a form of profit. The applicant was the organiser who delegated tasks to others. He attempted to purchase firearms on two occasions and there was a firearm at the house. On at least one occasion, he exhorted Bright to use violence to extract money. He had at least six sellers. He made drug related calls almost every day from 8 October to 5 November, often more than 10 calls per day. Whatever his drug taking habits, he was functioning at a high level. He had a significant criminal history with 28 separate appearances for 85 separate offences over 13 years including offences of dishonesty, drugs and violence. On 7 March 2011, he was convicted after a trial of unlawful wounding and was on bail for the offence of attempted murder at the time of the trafficking. He had breached bail, suspended sentences and community service orders so that his letter of remorse carried little weight and hopes of rehabilitation were only speculative.
[45]
[36] His Honour referred to defence counsel's submissions, specifically rejecting the contention that the applicant took two grams of methamphetamine each day during the period of the trafficking; this was inconsistent with his high level of functioning. It was impossible to believe that he had personally consumed one-third of the drugs obtained. The applicant had become the gangster to whom he referred in the telephone calls. His guilty plea was late and his cooperation with the administration of justice minimal.
[46]
[37] After stating matters relevant to the co-offenders, his Honour noted that R v Feakes[12] was less serious than the present offending and noted Feakes and R v Galeano[13] established a sentencing range after a plea of guilty for trafficking in sch 1 drugs on a substantial scale of 10 to 12 years imprisonment. Deterrence was an important consideration. He sentenced the applicant to 12 years imprisonment concurrent with his four year sentence for unlawful wounding.
[47]
[38] After sentencing the co-offenders, the following exchange is recorded in the transcript:
[48]
"[APPLICANT]: Let's fucking go, mate. Fucking dog. [indistinct] first go.
[49]
[APPLICANT] (TO THE COURT): Fuck you, you fucking grub.
[50]
HIS HONOUR: I'll make the forfeiture of this in the absence of the prisoners.
[51]
[APPLICANT]: You too, you fucking kid fucking dog.
[52]
[APPLICANT]: [indistinct] the fuck up. Fucking kid fucker. You're a fuck - kid fucking dog. Cunt.
[53]
[39] The applicant's counsel accepts that the appropriate sentence for the trafficking was 10 to 12 years consistent with Feakes, R v Cashton[14] and Galeano.[15] His first contention is that, in determining where in that range this sentence should be imposed, the judge should have had regard to the totality principle discussed in Mill v The Queen.[16] The applicant had been in custody for about two and a half years after his arrest on the trafficking offence and had made considerable progress towards his rehabilitation. The judge did not give sufficient weight to this. A sentence of 11 to 12 years would have been appropriate had he not been serving a sentence of almost two and a half years imprisonment for unlawful wounding at the time of his sentence for trafficking. The totality principle required moderation of the trafficking sentence to 10 years imprisonment.
[54]
[40] His second contention is that the judge erred in calculating the extent and gravity of the trafficking. Police officer Moon asserted that an ounce of methylamphetamine purchased for $10,000 suggested a purity of about 50 per cent. The tendered schedule of facts, however, did not support a finding that the applicant was purchasing methylamphetamine for $10,000 an ounce. Rather, many of the purchases were for amounts varying from $4,500 to $7,000 per ounce.[17] This error requires this Court to resentence the applicant. In light of the totality principle, the appropriate sentence is 10 years imprisonment.
[55]
[41] The respondent rightly concedes that the judge was led into error by the confusing statement of agreed facts[18] and the prosecutor's submissions.[19] The respondent contends, however, that the judge's finding, that the turnover involved at least hundreds of thousands of dollars and probably in excess of $1 million was justified on the evidence.
[56]
[42] I cannot accept the respondent's contention. The agreed schedule of facts was internally inconsistent when the schedule[20] is compared to the estimated street value of more than $1.6 million.[21] This estimate, which was adopted by his Honour, turned on the calculation of the likely purity of the methylamphetamine on an incomplete understanding of the average price the applicant paid for the drug. Whilst the judge and counsel appreciated that the street value estimate depended on variables, it seems no-one adverted to the fact that police officer Moon's opinion was dependant on a purchase price for the methylamphetamine of $10,000 per ounce according to the schedule, when the average price the applicant paid was often less than this. The judge therefore erred in authoritatively concluding that the trafficking involved at least hundreds of thousand of dollars and probably more than a million dollars.[22] This error is likely to have inflated his Honour's apprehension of the seriousness of the trafficking and affected his ultimate determination of the appropriate sentence.
[57]
[43] In determining whether to grant this application and appeal, this Court must next consider the applicant's sentence afresh. There is no doubt that he was the most reprehensible of his co-offenders in light of his role in this evil trafficking in methylamphetamine and other proscribed dangerous drugs, his age and his criminal history. Feakes and the cases analysed there[23] and Galeano and the cases analysed there[24] support a sentence of 12 years, given both the nature of his offending and his plea of guilty, before the application of the totality principle.
[58]
[44] The sentencing judge was sceptical about the applicant's self-serving claims of rehabilitation, a view which, regrettably, the applicant's reprehensible post-sentence outburst in court[25] tended to affirm. The applicant had, however, made commendable efforts towards rehabilitation during the two and a half years in custody since his arrest, only 20 days of which could be declared as time served under the sentence. The solemn occasion of a sentencing hearing is inevitably a stressful time for offenders, especially where many co-offenders are being sentenced together. The transcript does not show what led to the outburst. It was certainly concerning but I am not persuaded that he is entirely without prospects of rehabilitation.
[59]
[45] It is true, as the respondent submits, that the present offending and the applicant's offence of unlawful wounding were both serious, separate offences warranting heavy punishment. It is also true that an order that the trafficking sentence be served concurrently with the four year sentence for unlawful wounding in itself provided some moderation. The application of the totality principle, however, requires a consideration of whether an effective combined sentence for both episodes of offending (presently, 14 years five months with parole eligibility after 12 years) is too harsh and crushing a penalty. After reviewing the cases relied on as comparable for the trafficking offence, I am persuaded it is. In light of the four year sentence for unlawful wounding, the totality principle requires a sentence for this trafficking at the low end of the range, namely, 10 year imprisonment. This will have the effect that for both offences he will serve an effective sentence of 12 years and five months with parole eligibility after 10 years and five months. This penalty adequately reflects the gravity of the combined offending and moderates it to ensure it is not crushing.
[60]
[46] For these reasons, I would grant the application for leave to appeal against sentence, allow the appeal and substitute a sentence of 10 years imprisonment for the 12 years imprisonment imposed at first instance. I would otherwise confirm the sentence imposed below.
[61]
3. A sentence of 10 years imprisonment is substituted for the sentence of 12 years imprisonment imposed below.
[62]
[47] FRASER JA: I agree with the reasons for judgment of the President and the orders proposed by her Honour.