R v Sartori [2006] QCA 284

Court of Appeal (Qld)|2006-08-04|Before: McMurdo P, Jerrard and Holmes JJASeparate reasons, for judgment of each member of the Court, each concurring as to the order, made

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

[2] JERRARD JA: On 25 May 2006 Mr Sartori pleaded guilty to the offences of possession of the dangerous drug methylamphetamine ("speed"), the dangerous drug 3, 4-methylenedioxymethamphetamine ("MDMA" or "ecstasy") in a quantity exceeding 2 grams, and possession of a set of scales, a mobile phone, and a quantity of clip seal bags used in connection with the commission of the crime of possessing a dangerous drug. He was sentenced to 18 months imprisonment suspended after five months with an operational period of three years for the offence of possessing MDMA, and to concurrent terms of three months imprisonment on the two other counts. He has applied for leave to appeal, arguing that the sentences of imprisonment should have been suspended entirely.

[3] The circumstances of the offences were that at about 5.00 pm on 20 August 2005 police executed a search warrant at a residence where Mr Sartori was present, and found a small clip seal bag in his wallet containing the speed, and a Tupperware container with two clip seal bags in Mr Sartori's backpack. One bag had 49 ecstasy tablets and the other 50. Mr Sartori told the police that he had more ecstasy tablets in his car, and another five were found in a silver cigarette box in the centre console. The backpack, which had the Tupperware container, had also had a set of digital scales, an open box of clip seal bags, and a mobile phone. Mr Sartori told the police that he used the scales to weigh cannabis, which he bought, to make sure that he was getting the correct weight; he told police that he used the clip seal bags to store ecstasy tablets that he had bought. Several text messages in the inbox of his mobile phone appeared to relate to the supply of ecstasy tablets to other people.

[4] When interviewed later, Mr Sartori admitted that he had sold ecstasy tablets to his friends and said he had sold approximately 45 over the previous months. He said he sold two or three tablets at a time, but sometimes as much as 10; he would buy the tablets for approximately $25 and sell them for approximately $30 each. He said the small amount of money he made was sufficient for him to buy tablets of ecstasy for his own use.

[5] The agreed schedule of facts exhibited before the learned sentencing judge announced that the prosecution was proceeding on the basis that there was a commercial element to Mr Sartori's possession of those 104 ecstasy tablets, because of his admissions to the police and because of the contents of the text messages. An analysis of the tablets reveal a total weight of 10.679 grams of pure MDMA.

[6] Counsel for the prosecution informed the learned sentencing judge that Mr Sartori had been co-operative with the police, to the extent of naming the person who supplied Mr Sartori with the ecstasy tablets; and that that person has since been charged and that "an indictment is pending". The learned judge was told, as was this Court, that the offence with which the supplier will be charged is trafficking. Naming a supplier would usually be a very significant step for a person in Mr Sartori's position, because that is rarely done; taking that step would usually mean that Mr Sartori was unlikely again to be in a position to supply others with non-prescribed drugs.

[7] In Mr Sartori's case it does not show as much contrition and abandonment of all drug related activity as it otherwise might, because the address at which the search warrant was executed was the supplier's. That person had arrived there with Mr Sartori, to find the police at the house; during the search Mr Sartori's drugs were found, as well as drugs in the supplier's possession. Both those offenders confessed to a role in drug supply to others; both told the police, independently, that the supplier was Mr Sartori's source.

[8] There were other matters put before the learned sentencing judge which would also mitigate the otherwise appropriate penalty, those being matters personal to Mr Sartori. They were that he had been undergoing significant stress at his workplace, to the extent of resignation in the latter part of 2004, followed by re-employment on the promise of improved work conditions, which allegedly did not eventuate, and he ultimately went on stress leave, and applied to WorkCover for compensation. The learned sentencing judge was told that Mr Sartori had to wait approximately four months before WorkCover accepted his claim and began "funding" him, and it was in those circumstances that he sold drugs to be able to get some ecstasy for himself. He had become addicted to ecstasy after being given it by "friends" to help him "keep going" at his place of employment. Those same friends introduced him to cannabis, which assisted him to sleep at night. Prior to that he had been having difficulty sleeping, had suffered a loss of appetite, and would come home totally exhausted at the end of each day.

[9] The submissions made on his behalf on this application include that the powerful mitigating factors, being the extent of his co-operation with the police and the circumstances of his starting to offend, made the sentence imposed manifestly excessive. It was submitted or conceded that a sentence of 18 months imprisonment suspended after six months would have been appropriate without those particular circumstances, and that in light of them, the applicant now having served 68 days imprisonment, it would be appropriate to suspend the sentence forthwith to allow for his immediate release. I would respectfully agree that a sentence of actual imprisonment would be manifestly excessive were it not for the fact that Mr Sartori was convicted on 26 May 2005 of possession of 76.5 grams of cannabis and of a small amount of methylamphetamine or "speed". Those offences were committed on 1 May 2005, and were detected when the police pulled over Mr Sartori's car, and the drugs were located underneath a seat. Mr Sartori said the cannabis, which was in the order of three ounces, was for his own use. Those convictions were recorded just under three months before he was found in his house in possession of the speed and the MDMA, and his counsel's submissions described those offences as happening earlier in the period when Mr Sartori was on stress leave. He should have learnt in May 2005 of the risks in involving himself in non-prescribed drugs, and his presence three months later with his supplier, arriving together at the latter's residence, means Mr Sartori had made a significant decision to stay involved in illicit dealings with drugs. Because of that prior conviction, I am not persuaded the sentence is manifestly excessive. I would dismiss the application.

[10] HOLMES JA: I have read and agree with Jerrard JA's reasons. The application for leave to appeal against sentence should be dismissed.

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