R v SBK [2009] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION: R v SBK [2009] QCA 107

PARTIES: R v SBK (applicant)

FILE NO: CA No 32 of 2009 SC No 13 of 2009

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 28 April 2009

DELIVERED AT: Brisbane

HEARING DATE: 3 April 2009

JUDGES: McMurdo P, Keane and Chesterman JJA / Separate reasons for judgment of each member of the Court,each concurring as to the order made

ORDER: The application for leave to appeal against sentence is refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to trafficking in MDMA – where applicant sentenced to two years and six months imprisonment with a parole release after six months – where applicant’s confession sole basis for charge – whether sentencing judge adequately considered confession / CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES – where applicant provided assistance to police – where assistance led to a number of other arrests – whether adequate consideration given to cooperation when sentencing / AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited / R v Bagnall [2005] QCA 20, considered / R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited / R v McAway [2008] QCA 401, considered / R v Nabhan; R v Kostopoulos [2007] QCA 266, considered

COUNSEL: G P Lynham for the applicant M B Lehane for the respondent

SOLICITORS: Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: I agree that this application for leave to appeal against sentence should be dismissed.

2. As Chesterman JA explains,¹ the applicant was entitled to a very significant discount in his sentence because of his remarkable cooperation with the authorities. He not only confessed to conduct with which he would not have been charged but for his admissions, but he also provided valuable assistance to the police in respect of other offenders.

3. Courts recognise the need for deterrence in cases involving significant drug trafficking. This Court's observations to that effect in R v Nabhan; R v Kostopoulos² were in the context of the sentencing of high level, major traffickers in an assortment of Sch 1 and Sch 2 drugs to terms of imprisonment of 13 and 15 years. R v McAway,³ where this Court made similar observations, was also a more serious case of trafficking than the present street-level offending in that McAway was a level above a street dealer.⁴ This Court concluded that McAway's sentence of five years imprisonment with parole eligibility after 18 months was at the top of, but within, the appropriate sentencing range in that case. The present applicant's trafficking in MDMA was at street-level. That does not mean that deterrence is not a relevant sentencing principle. Of course, it is. But deterrence becomes proportionately more important to the sentencing discretion the higher the level of the trafficking.

4. The extent of the applicant's cooperation with the authorities was unusual. It seems that he increased his involvement in trafficking after he was seriously injured in a jet ski accident. His counsel at sentence said that he spent one week in hospital and five months recuperating so that his ability to work in his lawn-mowing business was affected. References tendered on his behalf supported these submissions and suggested that the applicant's prospects of rehabilitation are promising. He was, however, 25 years old at the time of his offending, an age by which he should have shown greater maturity than to become involved in trafficking in the illegal and dangerous drug, MDMA. Even taking into account the many mitigating features, I am not persuaded that the sentence of two and a half years imprisonment with parole fixed after serving six months was a manifestly excessive sentence in the circumstances.

5. I agree with the orders proposed by Chesterman JA.

6. KEANE JA: I agree with the reasons prepared by Chesterman JA and with the order proposed by his Honour.

7. CHESTERMAN JA: On 20 February 2009 the applicant pleaded guilty, to an ex**officio indictment, charging him with trafficking in the dangerous drug, MDMA between 30 August 2007 and 22 November 2007. He was sentenced to a term of two years six months imprisonment. The parole release date was set at 20 August 2009, requiring the applicant to spend only six months in custody.

8. The applicant was arrested on 21 November 2007 when police found him in possession of 180 ecstasy tablets and $600 in cash. The tablets had been divided into equal lots and placed into clip seal bags. The applicant made full admissions. He told police that the cash in his possession was the proceeds of the sale of 20 ecstasy tablets effected about an hour earlier. The 180 tablets were to be sold to another buyer who would take them in one lot and then on-sell. The applicant told police he had been selling ecstasy tablets to friends and acquaintances in the Townsville nightclub strip since the end of August 2007. His scale of activity had increased from early November 2007 when he was injured in an accident and unable to work. He increased his drug dealing to replace the lost income.

9. In that period he sold between 50 and 100 tablets each weekend and made a profit of between $5 and $10 per tablet. From this it can be seen that the applicant’s weekly profit was in the range of $250 to $1,000.

10. The applicant had commenced selling between five and 10 tablets per transaction but increased the quantity as he saw the opportunity for enhanced profits.

11. Following his arrest and admissions the applicant provided further assistance to the police by identifying a number of other ecstasy dealers in the hotels and clubs of Townsville. Six apparently small scale dealers were arrested and one or two dealers involved in a substantial way in the supply of MDMA. The arrests were only made possible by the applicant’s co-operation which involved some personal danger. On at least three occasions the applicant was questioned by those known to him in the network of suppliers and asked whether he was giving police information about their activities. That having been said there is no evidence of any threats of retribution having been made to the applicant and no evidence that while in custody he has been harmed or threatened in any way.

12. The applicant’s counsel has submitted that the sentence imposed on him, despite its modest duration, is in fact manifestly excessive and that it was an error of principle to require the applicant to spend any time in custody. A number of arguments were advanced in favour of the applicant but the two given prominence were that the sentence does not properly reflect the extent to which the evidence of trafficking against the applicant came from his own confession without which there was insufficient evidence to support that charge, and the value of his co-operation and assistance given to police leading to the arrests of several other drug dealers.

13. The points raised by the applicant are obviously well-supported by authority. It is right that:

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty ... . And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.”

Per Hayne J in AB v The Queen (1999) 198 CLR 111 at 155.

14. It is also true that:

“... co-operation ... particularly where society benefits from it and it places the informer in a position of danger, calls for ‘very substantial discount’ ... . The necessity of encouraging persons to inform so that offenders may be convicted is regarded as a matter of ‘high public policy’. ... Discounts of one-third or even one-half of the sentence that would otherwise be appropriate are not uncommon, according to the value and risk of the assistance rendered ... . Other decisions ... recognise the possibility of the discount exceeding 50 per cent, but at the same time the court must ensure that the reduction does not result in a sentence that is an affront to community standards.”

R v Gladkowski [2000] QCA 352 at [7].

15. The applicant’s argument points also to his favourable background, having no prior convictions, being relatively young at 25 when the offence was committed, with an exemplary work history and an early plea of guilty to an ex officio indictment.

16. The argument advanced on behalf of the applicant was that, ignoring his special claim for leniency because of his confession to otherwise unknown trafficking and extensive co-operation with police, the head sentence should have been one of no more than three years imprisonment. Applying those discounting factors the appropriate head sentence should have been 18 months. Then it is submitted that the extent of that co-operation and the personal risk to which it exposed the applicant “reduced the appropriate sentencing range ... to one which did not require him to serve any actual period of imprisonment” so that the sentence “requiring the applicant to serve six months actual imprisonment did not sufficiently recognise the extent of the applicant’s assistance”.

17. There are several errors in this reasoning. The first is that the applicant seeks the benefit of the discount to which he is entitled by reason of his co-operation to be applied twice: firstly to reduce the notional sentence from three years to 18 months and then to avoid incarceration altogether.

18. Another error is to ignore the need for deterrence in cases of drug trafficking. In R v Nabhan; R v Kostopoulos [2007] QCA 266 at [43], Keane JA (with whom Williams and Jerrard JJA agreed) said:

“While the consideration of deterrence may be of little relevance in relation to some offences and some offenders, it is clearly an important consideration in relation to those who conduct criminal enterprises solely for commercial gain. This is not a ... crime of passion or ... a crime committed on the spur of the moment. In the case of large scale commercial drug traffickers ... the sanctions of the criminal law will only have the desired effect of suppressing commercially motivated crime if it is made clear to the entrepreneurs that the risks of the enterprise do not justify the rewards.”

19. To the same effect McMurdo P said in R v McAway [2008] QCA 401 (the Chief Justice and Muir JA agreeing):

“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.”

20. The third error is the result of the analysis of comparable cases to conclude that a term of three years imprisonment would have been the maximum appropriate to the applicant before taking into account his confession and co-operation. The case principally relied upon for the conclusion is R v Bagnall [2005] QCA 20. Bagnall was convicted on his own plea of selling five lots of MDMA and methylamphetamine over a six week period to an undercover police officer. In that time he sold 261 ecstasy tablets and on one occasion 2.8 grams of methylamphetamine. The gross sale price of the drugs was $8,780. Bagnall was 29 with a number of prior drug convictions. He was sentenced to three years imprisonment suspended after serving nine months.

21. The cases are comparable. The applicant carried on business a little longer than Bagnall but did not sell methylamphetamine. His turnover appears to have been greater than Bagnall’s. The real point of Bagnall is, as was pointed out on appeal, that the sentence imposed was lenient. This was recognised in R v de Carteret [2006] QCA 279.

22. A fourth error in the applicant’s argument is that it overlooks the concluding sentence in Gladkowski: though co-operation with a police investigation is to be substantially rewarded the discount must not result in a sentence which affronts the public. MDMA is a dangerous drug. As was pointed out in Bagnall it:

“... 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.”

23. In McAway the President endorsed the remarks of the sentencing judge:

“Ecstasy is a drug that can kill people; it has killed people. ... 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 ... is socially unacceptable.”

24. The courts would fail in their duty to do what can be done to suppress trafficking in dangerous drugs, and the public would, I think, be affronted if a dealer in dangerous drugs, even one who confessed so frankly and co-operated so fully as did the applicant was not sent to jail, even briefly. The applicant, though not a large dealer, was selling fairly significant quantities of MDMA for a discernible profit. Although he was himself a consumer of ecstasy he was not drug dependent and engaged in his trade for profit. From small beginnings he extended his business to bulk sales and deliberately increased his activity to provide an income when he was disabled from work.

25. In these circumstances a custodial sentence had to be imposed. The sentence actually delivered is distinctly reasonable, giving full regard to the applicant’s assistance and his co-operation with the administration of justice.

26. I would refuse the application for leave to appeal against sentence.

Footnotes

1. See reasons at [12]-[14]. ↩

2. [2007] QCA 266. ↩

3. [2008] QCA 401. ↩

4. [2008] QCA 401 at [19]. ↩