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[2009] QCA 118
appellant. Appeal allowed. The parole eligibility date fixed at 1 June 2010 was set aside and replaced with 1 March 2012. The sentences imposed at first instance on both indictments were otherwise confirmed...
Sharkey's offending involved a large drug-trafficking operation, but the majority also gave significant weight to his youth, guilty plea, cooperation and rehabilitation. It left the nine-year head sentence in place, but considered the original parole eligibility date too early in light of the seriousness of the trafficking. It moved that date from 1 June 2010 to 1 March 2012, while confirming the other sentences. Chesterman JA would have imposed higher sentences on the two trafficking counts, but that was not the Court's order.
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2,102 words · generated 02/10/2026
The Queensland Court of Appeal considered an Attorney-General appeal against sentences imposed on Leif Juyana Sharkey for 17 drug-related offences. The central dispute was whether the sentencing result was too lenient for the scale of his drug trafficking. The court divided: McMurdo P and Mullins J gave joint reasons allowing the appeal by changing the parole eligibility date, while Chesterman JA would have changed the trafficking sentences themselves.
4 cited instruments linked from this judgment.
The offending spanned two indictments and different periods. On 3 June 2004, when Sharkey was 17, he possessed more than 500 grams of cannabis, lysergide, methylamphetamine and MDMA. The majority noted that there was a commercial purpose to the drug possession ([1], [4]–[5]). The second indictment concerned conduct principally in October and November 2006, when Sharkey was 20. It included trafficking methylamphetamine and MDMA, supplying several other drugs, possessing money derived from trafficking, and receiving stolen property ([1], [27]).
The operation described at sentence was substantial. The accepted facts included 44 identifiable ecstasy sales to 14 regular customers, discussions of transactions involving thousands of tablets, and seizures of large quantities of MDMA and methylamphetamine. Police also found cash and a bank cheque. The majority recorded an estimate that Sharkey handled between $370,000 and $420,000 during the relevant period ([6]–[7]). The court did not treat scale as the only consideration: Sharkey was young, had a history of drug dependence, pleaded guilty, expressed remorse, undertook courses in custody and had positive rehabilitation evidence ([9]–[11]).
The sentencing judge imposed nine years’ imprisonment for trafficking methylamphetamine and six years concurrently for trafficking MDMA, with lesser concurrent sentences for the other counts. The judge declared 522 days as time served and set parole eligibility at 1 June 2010 ([1], [28]). The majority substituted 1 March 2012 as the parole eligibility date and confirmed the sentences otherwise ([25]). Chesterman JA would instead have imposed ten years for methylamphetamine trafficking and eight years concurrently for MDMA trafficking, with a serious violent offence declaration attached to the ten-year sentence ([65]). Those proposed orders were dissenting reasons, not the court's disposition.
The joint reasons framed the issue as whether the sentence fell outside the appropriate range after accounting for mitigation, especially youth, rehabilitation and cooperation ([3]). They recognised that punishment and deterrence have substantial importance in serious drug trafficking, while also accepting that youthful offenders with limited histories and promising prospects may warrant leniency. The majority referred to s 9(2)(f) of the Penalties and Sentences Act 1992 (Qld), which required Sharkey's age to be taken into account ([12]).
The operation's seriousness was not diminished by the fact that Sharkey was immature or drug-dependent. The majority accepted that his dealings were flagrant and unlike the more professional, concealed operations of some career traffickers. But it stressed that distributing drugs for further supply still had serious consequences for others. It described the trafficking as involving drugs worth about $370,000 over two months ([19]). In other words, explanations for how the offending occurred affected the assessment of Sharkey's personal culpability and mitigation, but did not remove the harm and deterrence concerns associated with the scale of the enterprise.
The majority also accepted that the nine-year head sentence could stand. Its decisive concern was the parole eligibility date. In assessing the effective sentence, it accounted for about seven months of imprisonment that was not declared as time served under the sentences before the court. That period related to an interconnected sentence, IDRO detoxification and imprisonment for unpaid fines. The majority considered that the totality principle and the need to avoid a crushing penalty for a remorseful young offender required that custody to be taken into account ([20]).
Even after making that allowance, the majority found the original parole date too early. It described the effective sentence as nine years and seven months, with parole eligibility after three and a half years, and concluded that mitigation had reduced the practical punishment out of proportion to the seriousness of the methylamphetamine trafficking ([22]). It substituted a date intended to result in effective parole eligibility after four years and nine months, taking the additional seven months into account ([23]).
The result reflects a distinction between the head sentence and parole eligibility. The majority did not increase the nine-year head sentence. It changed the point at which Sharkey could become eligible for parole, aiming to recognise both deterrent punishment and the mitigating force of youth and rehabilitation ([23]). Eligibility did not itself mean release: the judgment addresses the date of eligibility, not whether parole would ultimately be granted.
The majority also cautioned against treating the six-year concurrent sentence for MDMA trafficking as a sentencing comparator. In its view, the methylamphetamine sentence reflected the totality of Sharkey's offending across both indictments ([24]). That qualification matters when reading the result: the court was not presenting the individual concurrent sentence as a general benchmark for MDMA cases.
The judgment did not announce a new statutory test or replace existing sentencing principles. Rather, it applied established considerations to the particular combination of very large-scale trafficking and substantial personal mitigation. The majority cited earlier authority for the importance of punishment and deterrence in serious trafficking, and for the relevance of youth, rehabilitation and cooperation ([12]). It also noted that circumstances surrounding trafficking vary, making it difficult to classify seriousness with precision ([13]).
Before the appeal, the sentencing order included a nine-year head sentence for methylamphetamine trafficking and parole eligibility from 1 June 2010. After the appeal, the nine-year head sentence and the other sentences remained, but the parole eligibility date became 1 March 2012 ([25]). The operative change was therefore to the parole timetable, not to the nominal head sentence.
The judgment's treatment of comparators is fact-sensitive. The majority considered Rodd, Assurson and Elizalde, but distinguished or evaluated them by reference to such matters as duration, scale, maturity, professional concealment, violence, drug type and the offender's personal circumstances ([15]–[19]). It did not create a fixed tariff for trafficking offences. The court expressly relied on the observation that trafficking cases cannot be neatly ranked with precision ([13]).
Chesterman JA's dissent provides a different application of the same sentencing material, rather than an alternative binding outcome. He regarded the scale and commercial success of the operation as outweighing the personal mitigation to a greater extent, and would have set aside the sentences on both trafficking counts ([50]–[65]). The majority's final orders, however, changed only parole eligibility.
At [3], the majority says the central question is whether the sentence was outside the proper range after considering the mitigation. In plain English, the court was not deciding whether Sharkey's personal circumstances existed; it was deciding how much those circumstances should affect the punishment for this offending.
At [12], the majority treats Sharkey's youth as a very significant mitigating factor, together with rehabilitation and cooperation. It refers to the statutory requirement to take age into account. This does not mean that youth automatically controls the sentence. The later reasoning shows the majority balancing those considerations against the scale of trafficking.
At [19], the majority accepts the primary judge's characterisation of Sharkey as an immature, drug-dependent young man, but says that this did not change the consequences of supplying drugs for further supply. In practical terms, the court recognised a distinction between the way the business was conducted and the harm associated with the operation's size.
At [20], the majority explains why custody not included in the formal pre-sentence custody declaration mattered. It considered the total period already served, including time relating to interconnected matters. The passage demonstrates that the court assessed the practical effect of the sentence rather than looking only at the sentence imposed on the trafficking count.
At [22], the majority concludes that the sentence was manifestly inadequate when its parole effect was assessed alongside the effective sentence and custody already served. At [23], it explains the remedy: a later parole eligibility date, intended to balance deterrence with youth and rehabilitation.
At [24], the majority says the concurrent MDMA sentence should not be used as a comparator because the methylamphetamine sentence reflected the totality of the offending. This is a warning against extracting an individual concurrent term from the overall sentencing structure and treating it as a standalone precedent.
The case is most directly relevant to sentencing appeals involving serious, commercial-scale trafficking where the offender also has substantial personal mitigation. The factual combination here included trafficking in methylamphetamine and MDMA over about two months, large quantities, many customers, significant money, supply of other drugs and earlier drug offending ([6]–[7], [19]). It also included youth, drug dependence, a guilty plea, cooperation, remorse and evidence of rehabilitative steps ([9]–[12]).
The decision is especially useful where an appeal concerns the practical effect of parole eligibility rather than only the length of the head sentence. The majority accepted the nine-year term but concluded that the original parole date did not adequately reflect the seriousness of the trafficking after accounting for custody already served ([21]–[23]).
It is not a simple numerical comparator. The majority warns that drug trafficking varies in seriousness and that this case's six-year MDMA term should not be used in isolation ([13], [24]). A comparison would need to consider the features the judgment itself discusses: drug type, quantity, value, duration, commercial purpose, organisation, offender age and maturity, prior offending, rehabilitation, plea and custody already served ([12]–[19]).
The case also matters when the offender's age is unusually young relative to the scale of the enterprise. The majority treated youth as significant mitigation, but did not allow it to neutralise the consequences of trafficking on this scale ([4], [12], [19]). The judgment does not establish that the same balance applies automatically in other cases with superficially similar quantities or turnover.
The supplied judgment contains no later cases applying, distinguishing or interpreting Sharkey. Later treatment therefore cannot be established from this source alone. It would be unsafe to claim that later courts adopted or rejected any particular proposition from the case without the later judgments.
Within this judgment, the majority draws on several earlier authorities. It follows Bird and Schipper in recognising leniency for youthful offenders with rehabilitation prospects and cooperation, and considers Tilley on the importance of punishment and deterrence in serious trafficking ([12]). It considers Assurson and Elizalde as sentencing comparisons, and distinguishes Rodd as more serious because of its longer duration, professional operation and violence ([15]–[19]). These relationships show how the panel situated its decision among the authorities then before it, but they do not establish later judicial treatment of Sharkey.
Chesterman JA's dissent should also be kept separate from the majority's precedential outcome. His reasons argued for higher trafficking sentences based on the scale and success of the operation and the need for deterrence ([61]–[65]). The orders made by the court followed the joint reasons, not that proposed disposition.
The judgment does not determine how the principles would apply to an operation with the same scale but a different mix of drugs, a longer duration, violence, different evidence of profit, or a different level of personal rehabilitation. It does not provide a fixed method for converting an amount of drug turnover or a quantity seized into a particular head sentence or parole eligibility period. Its caution that trafficking circumstances vary makes those limits important ([13]).
The reasons also do not give a general rule for the precise weight of youth against commercial scale. The majority found youth and rehabilitation significant but insufficient to justify the original parole date, while the dissent considered the operation's maturity and success substantially reduced the force of youth as mitigation ([19], [55]–[64]). Those are competing evaluations in this case, not a formula for every offender.
Another issue is the treatment of custody connected to earlier or related proceedings. The majority took about seven additional months into account under totality, but the judgment does not provide a universal calculation method for different custody histories ([20]–[23]). The relevant periods and their relationship to the sentence would need to be examined in any separate case.
Finally, the judgment does not decide what parole authority would do once eligibility arose. It fixes an eligibility date, not an outcome on release. Nor does the supplied material show how later courts have read the decision. Those questions require sources beyond this judgment.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Sharkey; ex parte A-G (Qld) [2009] QCA 118
PARTIES: R v SHARKEY, Leif Juyana (respondent) EX PARTE THE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO: CA No 352 of 2008 SC No 84 of 2007 SC No 132 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by A-G (Qld)
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON: 8 May 2009
DELIVERED AT: Brisbane
HEARING DATE: 1 April 2009
JUDGES: McMurdo P, Chesterman JA and Mullins J Joint reasons for judgment of McMurdo P and Mullins J; separate reasons of Chesterman JA dissenting in part
ORDERS: **1.****Appeal allowed.****2.****Set aside the parole eligibility date fixed at 1 June 2010 and substitute a parole eligibility date fixed at 1 March 2012.****3.**The sentences imposed at first instance on both indictments are otherwise confirmed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent was charged with 17 drug related offences – where respondent pleaded guilty to the offences – where respondent was sentenced to nine years imprisonment for trafficking methylamphetamine – where respondent was sentenced to lesser concurrent sentences for other offences – where parole eligibility was after two years and 11 months – whether given the seriousness of the offending the sentence was inadequate / Penalties and Sentences Act 1992 (Qld), s 9(2)(f) / AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered / R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered / R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, followed / R v Bradforth [2003] QCA 183, considered / R v Elizalde [2006] QCA 330, considered / R v Jenkins, Rollason and Brophy [2008] QCA 369, cited / R v Johnson [2007] QCA 433, cited / R v Melano; ex parte Attorney-General of Queensland [1995] 2 Qd R 186; [1994] QCA 523, followed / R v Rizk & Raciti [2004] QCA 359, cited / R v Rodd; ex parte A-G (Qld) [2008] QCA 341, distinguished / R v Tilley; ex parte A-G [1999] QCA 424, considered
COUNSEL: A Moynihan SC, with L Brisick, for the appellant / J D Henry SC for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / O'Reilly Stevens Bovey Lawyers for the respondent
McMURDO P AND MULLINS J: The Attorney-General contends that the sentences imposed on the respondent, Leif Juyana Sharkey, in the Supreme Court at Cairns on 5 December 2008 for 17 drug-related offences was manifestly inadequate. On the first indictment, Sharkey was charged with possessing in excess of 500 grams of cannabis (count 1); possession of lysergide (count 2); possession of methylamphetamine (count 3); and possession of MDMA (count 4). All these offences occurred on 3 June 2004. The second indictment concerned offences committed essentially in October and November 2006: three counts of receiving stolen property (a flat-screen TV, car tyres and rims, and television and computer equipment, respectively counts 1, 7 and 10); two counts of trafficking (in the Sch 1 drug methylamphetamine and the then Sch 2 drug MDMA, respectively counts 2 and 3); one count of possessing lysergide (count 4); six counts of supplying dangerous drugs (cocaine, counts 5, 6 and 12; heroin, count 8; and an unspecified dangerous drug, counts 9 and 11); and possession of money obtained from trafficking in dangerous drugs (count 13). He was sentenced to nine years imprisonment on count 2 on the second indictment and to lesser concurrent sentences on the remaining counts on both indictments. Pre-sentence custody of 522 days from 30 November 2006 to 13 February 2007; 8 September 2007 to 10 December 2007; and 18 December 2007 to 5 December 2008 was declared as time served under all sentences. The judge set a parole eligibility date at 1 June 2010, that is, after Sharkey had spent two years 11 months in custody on these sentences.
Chesterman JA has accurately set out the details of Sharkey's offending. We agree with his Honour that it is extremely serious and requires condign punishment to deter both Sharkey and others who might involve themselves in the heinous trade of commercial drug trafficking.
The essential issue in this appeal is whether the sentence imposed was outside the appropriate range for this serious offending after taking into account the mitigating features, primarily Sharkey's youth and subsequent steps towards rehabilitation, and cooperation with the administration of justice.
As the learned primary judge recognised, the most unusual feature of this case is the combination of Sharkey's persistent and large-scale efforts at drug trafficking at such a young age. The offences on the first indictment were committed when he was still 17 years old, about three weeks before his 18th birthday. He was 20 years old at the time he committed the offences in the second indictment.
To fully appreciate the matrix of this case, it is essential to place the offences on which Sharkey was sentenced on 5 December 2008 in context with his criminal history. He first offended at 17 years old when he supplied and possessed Sch 1 and Sch 2 drugs and possessed items for use in the commission of a crime, and tainted property. The charges in the first indictment are amongst those offences. There was a commercial purpose in the possession of the drugs that was the subject of the first indictment. On 8 July 2005, when he was 19 years old, he was convicted of those offences that he committed as a 17 year old and placed on an intensive drug rehabilitation order ("IDRO") and sentenced to 13 months’ imprisonment wholly suspended under the 2000 (Qld). He was arrested on the offences in the second indictment on 30 November 2006 and he has remained in custody since. His IDRO was vacated on 7 March 2007. He was re-sentenced for some IDRO-related offences to an effective term of six months’ imprisonment and he was committed to the Supreme Court for sentence on the remaining IDRO-related offences. Those are contained in the first indictment. His six month sentence expired on 6 September 2007. Whilst on remand he also served 22 days’ imprisonment for IDRO detoxification (between 14 February and 7 March 2007) and seven days’ imprisonment for fines (between 11 and 17 December 2007). This presumably accounted for the parole eligibility date being fixed at two years 11 months after the sentence date (taking into account 522 days of declared pre-sentence custody). It is relevant that he has served a sentence of six months’ imprisonment for supply of drugs that was for related offending to the possession of drugs on the first indictment, in addition to the imprisonment imposed and declared to be part of his sentence the subject of this appeal.
"You're a very young man, and I've got no doubt that your use of these drugs, led you to the view that you were probably eight foot tall and bullet proof by that stage. The very manner in which the business was conducted with so many customers and the way that you almost invited surveillance and led you to be so obviously involved in a large scale operation rather shows, firstly your lack of maturity, secondly the fact that your substance taking probably led to a recklessness which is just hard to understand.
But it does have the effect to distinguish you from those career traffickers who are not drug takers, but who are in it for profit and who do go about it in a different way."
"There is a distinction between that sort of behaviour and the way in which you conducted your affairs brought about by your age and your behaviour pumped up yourself by performance enhancing stimulants."
The judge also noted the following. The delay in finalising the matter was through no fault of Sharkey, who had from the time of his arrest indicated an intention to plead guilty with resulting discussions between the Director of Public Prosecutions, the police and Sharkey's legal advisers. Sharkey had taken steps to rehabilitate whilst he had been in jail for the past two years. The psychological report was positive. Because of Sharkey's timely plea of guilty, the time he had already served in jail, his remorse and his promising rehabilitative prospects, Sharkey should have an early date for parole eligibility.
The psychologist's report to which the judge referred was prepared by Dr Chris Richardson. Dr Richardson interviewed Sharkey at Lotus Glen Correctional Facility in November 2008. Sharkey had then been in custody for two years. Sharkey reported a significant history of drug abuse which commenced at a very young age. This evolved into selling drugs to sustain his addiction. Sharkey was motivated to accept treatment for drug dependence and abuse and reported a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility. Since in custody, he had changed his attitudes and priorities. Dr Richardson was of the view that "[g]iven the shift in his belief system, particularly in the context of his 'straight' state associated with abstinence from drug use whilst in the custodial setting, it is unlikely that once released he will reoffend."
Sharkey had completed a number of vocational courses whilst in prison. In a handwritten letter to the sentencing judge, he expressed his remorse and explained the circumstances in which he committed these offences. These details married with the submissions made by Sharkey's counsel at sentence. Sharkey left school at 15 to become an apprentice hairdresser. He successfully completed that apprenticeship despite becoming progressively drug-dependent. He began using marijuana and ecstasy at 14, progressing to LSD and "meth" by 16. He became dependent on "ice" which he came to smoke on a daily basis in order to function. His life spiralled downwards and he was convicted for supplying drugs. He initially attempted to comply with the resulting IDRO but soon returned to abusing drugs, choosing those that were not detectable by drug screening, such as LSD, alcohol and horse tranquilliser. He used steroids to sustain his weight to hide his drug problem. His lifestyle was expensive to maintain and he turned to trafficking in unlawful drugs to maintain it. He claimed that prison had provided an opportunity for him to observe the effect of illicit drugs in the criminal justice system. He understood that drug abuse had affected his own judgment and perception of reality. He was sorry for contributing to the misery of others involved in the drug problem. He wanted to become a useful member of the community. He was studying in prison for his high school certificate. He had gained employment within the prison in a trusted position. He regularly attended AA meetings. He planned to complete personal development and substance abuse programs and ultimately to study business to ensure his success in the hairdressing industry when released from prison. He had strong support from his family and from a former employer in the hairdressing business. He understood that the cause of his destructive behaviour and offending was a lack of moral substance on his part and his long-term drug abuse.
Discussion and conclusion
This Court recognised in R v Tilley; ex parte A-G (Qld)4 and in many subsequent cases that punishment and deterrence are substantial factors in serious cases of trafficking in dangerous drugs. But this Court has also long recognised that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed the most serious of offences, should receive more leniency from courts than would otherwise be appropriate: R v Bird and Schipper.5 See also s 9(2)(f) Penalties and Sentences Act 1992 (Qld) which requires this Court, in sentencing Sharkey, to take his age into account. The learned sentencing judge was right to consider that Sharkey's youth at the time of his offending was a very significant mitigating factor, in combination with his efforts at and promising prospects of rehabilitation and his cooperation with the administration of justice.
As this Court recognised in R v Johnson,6 relying on Hayne J's observations in AB v The Queen:7
"The variety of circumstances which may attend trafficking in dangerous drugs means that, with this offence as with any others, it is not possible neatly to categorise the degrees of seriousness of offending in particular cases with … precision."
"Major determinants of penalty in trafficking cases include the type of drugs supplied, the quantity of the drugs, their value, the nature of the venture or undertaking, and whether the activities are commercial or are engaged in to feed a habit. In all cases, however, regard must be had to the maximum penalties imposed by statute and the recognition by the Legislature and the courts that the purveying of drugs of the nature of those under consideration, however motivated, has the potential to cause much individual suffering, as well as social harm and decay."
"a particularly serious instance of trafficking in a schedule one drug. It persisted over more than two years; the offending was relentless, moving from one address to another; it continued while the respondent was on bail; the amounts produced were large; the respondent both produced and sold on a wholesale basis; the respondent was commercially motivated, funding an extravagant lifestyle and regularly in possession of very large amounts of cash; and the trafficking was attended by gangster-type actual and threatened violence."10
Rodd was drug-addicted but the primary judge found that commercial gain was of at least equal significance to feeding his habit. This Court considered that the level of gangster-style violence which attended the commission of Rodd's offences of production and trafficking in methylamphetamine rendered it a clear case for a serious violent offence declaration. The extent of Rodd's violent conduct in the course of his trafficking included threatening and intimidating his associates to confess to crimes they did not commit; threatening and intimidating witnesses who had provided statements to police after they had been summonsed to appear before the Australian Crime Commission; threatening to kill witnesses or their families; continuing to pass on threats after his arrest using the prison telephone system.11 This Court indicated that a sentence of 12 to 13 years would have been appropriate if the sentencing was proceeding at first instance,12 but acted on the Attorney-General's submission that a sentence of no more than 10 years’ imprisonment was sought on the appeal.
Rodd was a considerably more serious case than the present despite the large amounts of drugs and money involved in Sharkey's trafficking. Rodd was a mature man who had trafficked and produced methylamphetamine in a thoroughly professional way aimed at avoiding detection and over a much longer period than Sharkey. The violence and threats associated with Rodd's offending were unquestionably greater than the recorded episodes of what was probably Sharkey's exaggerating and boastful talk.
In R v Assurson,13 Assurson had pleaded guilty on the morning of the trial to an assortment of drug-related offences, including trafficking in methylamphetamine, cocaine and MDMA. He was sentenced to nine years imprisonment with a declaration that he was convicted of a serious violent offence. He was therefore eligible for parole after 7.2 years. He applied for leave to appeal against his sentence contending it was manifestly excessive. Assurson was a producer of methylamphetamine as well as a dealer. He lived off the proceeds of his drug dealing. He was a reasonably substantial drug user. He was 23 at the time of his offending and 26 at the time of sentencing. He had a relatively minor criminal history but his offending was a breach of an 18 month probation order. He also committed some of the offences whilst on bail for others. The hard evidence could establish only a relatively modest profit over the six to eight weeks of his trafficking. This Court unanimously considered that the nine year sentence was within range but that the primary judge erred in his application of Pt 9A Penalties and Sentences Act 1992 (Qld) and so re-sentenced Assurson. The majority deleted the serious violent offence declaration and instead ordered a non-parole period of five and a half years. The dissenting judge would have deleted the serious violent offence declaration so that Assurson had parole eligibility after four and a half years.
In R v Elizalde,14 Elizalde pleaded guilty to trafficking in the dangerous drugs MDMA, methylamphetamine and cocaine over a three to four month period and to some less serious related drug offences. He was sentenced to nine years’ imprisonment for the trafficking offence without any recommendation for early parole eligibility. He applied for leave to appeal against that sentence claiming it was manifestly excessive. He was 25 at the time of his offending and 28 at sentence. He pleaded guilty at an early stage. He had one prior entry in his criminal history for minor drug offences. Elizalde was able to source drugs when contacted by others looking for sizable quantities of MDMA (usually 1,000 tablets or more) or cocaine. His actual trafficking was at a relatively modest level but he had flown to Sydney in the course of it, returning with over 52 grams of powder containing over 12.6 grams of cocaine so that his conversation recorded in telephone intercepts was not merely "talk". His turnover was estimated at $100,000 and he trafficked for profit as a wholesaler. Since his arrest, Elizalde had worked hard to overcome his substantial addiction to methylamphetamine and had obtained regular employment. Favourable references were tendered on his behalf. This Court concluded that the sentence imposed adequately took into account the mitigating factors and was not outside the range of sentence appropriate for Elizalde's offending.
1.Appeal allowed.
2.Set aside the parole eligibility date fixed at 1 June 2010 and substitute a parole eligibility date fixed at 1 March 2012.
3.The sentences imposed at first instance on both indictments are otherwise confirmed.
(a)Possessing more than 500 grams of cannabis sativa;
(b) Possessing lysergide;
(c) Possessing methylamphetamine;
(d) Possessing MDMA;
all on 3 June 2004 when the respondent was 17 years of age.
(a)Receiving a television set which had been stolen and which the respondent had reason to believe had been stolen; between 3 November 2003 and 1 December 2006;
(b)Trafficking in methylamphetamine; between 5 October 2006 and 30 November 2006;
(c)Trafficking in MDMA; between 5 October 2006 and 30 November 2006;
(d)Possessing lysergide; on 5 October 2006;
(e)Supplying cocaine; on 13 October 2006;
(f)Supplying cocaine; on 14 October 2006;
(g)Receiving car tyres and rims which had been stolen and which the respondent had reason to believe had been stolen; between 27 October 2006 and 31 October 2006;
(h)Supplying heroin; on 31 October 2006;
(i)Supplying a dangerous drug; on 2 November 2006;
(j)Receiving a television and computer equipment which had been stolen and which the respondent had reason to believe had been stolen; between 3 November 2006 and 7 November 2006;
(k)Supplying a dangerous drug; on 9 November 2006;
(l)Supplying cocaine; on 21 November 2006;
(m)Receiving money which had been obtained from trafficking dangerous drugs and the respondent had reason to believe that the money had been so obtained; on 30 October 2006.
The respondent was 20 years of age when he committed these offences.
He was sentenced to nine years’ imprisonment on Count 2 in the second indictment, trafficking methamphetamine, and to six years’ imprisonment on the third count of that indictment, trafficking MDMA. Lesser concurrent sentences of imprisonment were imposed on each of the other offences. He had spent 522 days in custody between his arrest and the date of his sentence. This period was declared to be time served under the sentences. 1 June 2010 was fixed as the parole eligibility date. The respondent was therefore required to spend three years in custody (including pre-sentence custody) before being eligible for parole.
The Attorney-General submits that the sentences imposed on the trafficking counts are manifestly inadequate.
The respondent had twice previously appeared before the Cairns Drug Court.
On 8 July 2005 he was convicted of supplying dangerous drugs, possessing a Schedule 1 drug the quantity of which exceeded the amount specified in Schedule 3, possessing a Schedule 2 drug the quantity of which exceeded the amount specified in Schedule 3, three further charges of possessing unidentified dangerous drugs, one charge of possessing a thing for use in the commission of a crime and one charge of possessing tainted property. The respondent was 19 years old when dealt with. He was sentenced to 13 months’ imprisonment wholly suspended and placed on an Intensive Drug Rehabilitation Order.
While subject to that order the respondent committed further drug offences, including trafficking, which are the subject of the second indictment. He was arrested on 30 November 2006.
On 7 March 2007 the Cairns Drug Court terminated the order made on 8 July 2005. He was re-sentenced to six months’ imprisonment for supplying dangerous drugs and lesser concurrent periods for the possession of dangerous drugs, possession of things for use in the commission of a crime, and possession of property. These offences could be dealt with summarily. The respondent was committed on the remaining charges to the Supreme Court. They are the ones on the first indictment.
On 3 June 2004 when the respondent was 17 years old he was found in possession of cannabis sativa in excess of 500 grams, lysergide, methylamphetamine and MDMA. On that occasion $8,880 cash was also found in his bedroom. In an understatement the judge said “that quantity of drugs, its variety and the presence of a lot of money indicates to me a very distinct commercial purpose in your having possession of those drugs.”
In late 2006 police in far north Queensland investigated the trafficking of amphetamines and MDMA. They used listening devices to keep the respondent under surveillance from 3 October 2006 to 1 December 2006. He was also the subject of visual surveillance from 30 October 2006 to 1 December 2006. This surveillance established that the respondent was involved in large scale drug trafficking.
“Were that activity engaged in by a mature person with business acumen who was not pumped up by his own use of the drugs, the penalty would’ve been in the region of 13 to 14 years’ imprisonment.”
One may doubt, with respect, the description of the respondent, in the conduct of his business, as “pumped up by ... use of ... drugs”, but the selection of the range of 13 to 14 years’ imprisonment was not inappropriate. A number of recent decisions in this Court support that range. I doubt the accuracy of the description because of the success and scale of the respondent’s drug dealing. It shows business acumen and organisational flair, as well as initiative and enterprise that one does not normally associate with drug induced befuddlement.
The sentencing judge discounted the range so heavily because of the respondent’s personal mitigating factors. His Honour said:
“You are a young man. You are obviously very personable. You could attract people.
...
… during the time of your first ... offending you [had] a good work record. You, apparently ... impressed your employers and ... other people with whom you have come in contact.
You have taken steps to rehabilitate yourself. ... You have been gaol for two years and ... that is a very significant step in your rehabilitation because for that period ... you were free of drugs. Whilst in gaol you have ... undertaken ... courses and ... undergone psychological assessment which allows some confidence that if you do remain drug free when you come out of gaol ... you will have the capacity to join the community [as] ... a good citizen.
You are obviously highly entrepreneurial. You ... will be very successful in a lawful business if you are prepared to engage in it.”
The Attorney-General submits that the sentencing judge overvalued these personal factors and did not balance them against the seriousness of the offences, the scale of the respondent’s criminal enterprise, and the need to deter likeminded, reckless young men from engaging in the supply of dangerous drugs to the detriment of the community. By both reducing the head sentence by four or five years, and then setting a very early parole eligibility date, the Attorney-General submits that his Honour imposed a sentence manifestly inadequate for the purposes of deterrence, denunciation and the need to safeguard the community.
The judge noted, correctly with respect, that the respondent posed a “considerable danger to the community”. The sentence does not, it is submitted, reflect that finding or respond suitably to the danger. This Court pointed out in R v Tilley; ex parte A-G [1999] QCA 424 that in cases of this kind:
“Punishment and deterrence are the substantial issues ... circumstances personal to the offender will ordinarily not weigh heavily in an accused’s favour”, though a “plea of guilty and its consequent saving of public resources should ... usually lead to a discernible amelioration in the penalty.”
On that point it should be noted that the starting range identified by the sentencing judge, of 13 to 14 years’ imprisonment, is appropriate where the accused in question has pleaded guilty. All the decisions with which comparison is made, and which indicate an appropriate range, followed pleas of guilty.
The approach to sentencing taken here by the learned judge departs from the approach sanctioned by Tilley in that it emphasised factors of personal mitigation. Apart from the respondent’s youth, being 20 at the relevant time, the other circumstances are to be found in a number of cases where drug dealers, and traffickers in particular, were sentenced to periods of imprisonment of between nine and 14 years. It is not uncommon to find young men who engage in this pernicious activity, for money and excitement, to show remarkable evidence of rehabilitation after their arrest when the realisation of their predicament comes starkly to mind. There are many instances of such offenders who, between arrest and sentence, have eschewed drugs, found work and established family ties and obligations. There is nothing unusual in the respondent’s circumstances in that regard. It should be borne in mind that his withdrawal from drug taking has occurred in prison where access to drugs is difficult. He has not, of course, been able to work and demonstrate vocational success.
His youth is no doubt in his favour but he appears to have been precocious and, though young in years, mature in ability and experience. There may have been a certain fecklessness, or recklessness, in the conduct of his business which can be attributed to youth, but his determination to succeed, his capacity for executing his business plans and his organisational skills all suggest a maturity beyond his years. It should also be remembered that the respondent received the benefit of youth when dealt with by the Drug Court. He was treated sympathetically and encouraged to reform. He chose not to. There is a limit upon the number of occasions when serious criminal misconduct can be condoned because of youth.
It may also be accepted that the respondent was, for many years, a consumer of various types of unlawful drugs and he may well have commenced dealing in drugs because of that addiction which did not, as I mentioned, appear to detrimentally affect his capacity to run the business. Nevertheless those circumstances do distinguish his case from others in which people of more mature years without drug addiction commenced trafficking for profit. It cannot be doubted, however, that the respondent’s primary motive for trafficking was profit. The figures speak for themselves. He was not dealing to feed his own habit, but to amass a fortune.
In R v Rodd; ex parte A-G (Qld) [2008] QCA 341 the Chief Justice (with whom White AJA and McMeekin J agreed) expressed the opinion that 10 years is the “foot of the ... relevant ‘range’ (after allowing for the plea of guilty).” Rodd trafficked in methylamphetamine over a two year period from which he made very substantial profits.
Exhibit 3. ↩
[2004] QCA 359. ↩
[2008] QCA 369. ↩
[1999] QCA 424. ↩
(2000) 110 A Crim R 394 at [33]. ↩
[2007] QCA 433 at [17]. ↩
(1999) 198 CLR 111 at 156. ↩
[2003] QCA 183 at [29]. ↩
[2008] QCA 341. ↩
[2008] QCA 341 at [15]. ↩
[2008] QCA 341 at [28]. ↩
[2008] QCA 341 at [25], [28] and [30]. ↩
(2007) 174 A Crim R 78. ↩
[2006] QCA 330. ↩
R v Melano; ex parte Attorney-General (Qld) [1995] 2 Qd R 186 at 190. ↩
R
Sharkey; ex parte A-G
(1999) 198 CLR 111
Appeal allowed. The parole eligibility date fixed at 1 June 2010 was set aside and replaced with 1 March 2012. The sentences imposed at first instance on both indictments were otherwise confirmed ([25]).
The summary of Sharkey's trafficking tendered by the prosecution at sentence1 was not fully accepted by Sharkey's counsel. Sharkey's counsel urged the judge to interpret some of the recorded intercepted telephone evidence more favourably to Sharkey than suggested by the prosecution. It was, however, common ground that Sharkey had supplied drugs to street-level suppliers; that his turnover of drugs was very significant; and that he made a substantial profit in the range of $20,000-$25,000 per week over a seven to eight week period.
The primary judge in his sentencing remarks accepted the following facts to which there is no challenge. The business was in "full swing" over the whole of the period between 5 October 2006 and 30 November 2006. The amounts of money and quantity of drugs in which Sharkey was trafficking were "really quite extraordinary". Commonly, amounts of $4,000, $5,000 and sometimes $50,000 were being discussed. The numbers of ecstasy tablets referred to at various times and in various transactions involved large quantities in the thousands and a quantity of 17,000 tablets was spoken about. There were 44 identifiable sales of ecstasy tablets and there were 14 identifiable regular customers of the trafficking business. The scale of the operation was illustrated by what was seized by the police on 29 November 2006: 899 ecstasy tablets (containing 62.666 grams of pure MDMA) and a quantity of methylamphetamine containing a pure amount of the drug of 67.366 grams. On 30 November 2006 the police also seized 1,347 ecstasy tablets (containing 80 grams of pure MDMA) and 166 grams of powder that contained 23 grams of pure methylamphetamine. The police also located cash in the sum of $114,466 and a bank cheque for $80,000. (The prosecution accepted that the sum of $20,000 included in that bank cheque belonged to a third party.) Sharkey also supplied an assortment of drugs, including lysergide, cocaine and heroin. Sharkey was involved in "a major operation" in which it seems he may have handled between $370,000 and $420,000 during the two month period of the trafficking. Had Sharkey been "a mature person with business acumen who was not pumped up by his own use of the drugs, the penalty would've been in the region of 13 to 14 years' imprisonment." Sharkey was at the time a heavy user of stimulant drugs, particularly "speed" (methylamphetamine). His Honour made the following observations:
At face value, Sharkey's offending was at a grotesquely high level involving obscenely large quantities of dangerous drugs and money. It was more serious and significant than that in Assurson and Elizalde. But we agree with the primary judge that Sharkey's offending reflected the behaviour of an immature, drug-dependent young man who was so flagrant in his dealings that it was inevitable he would be quickly detected by the authorities, as indeed he was. The primary judge rightly distinguished Sharkey's behaviour from that of professional traffickers who run businesses for long periods and take elaborate steps to conceal their evil trade from the authorities. The circumstances of his offending did not warrant a declaration that the offence was a serious violent offence. The immaturity and recklessness involved in his offending, however, did not alter in any way the consequences for others of his distributing for further supply over a period of two months drugs to the value of about $370,000.
It is noteworthy that Sharkey had been in custody since his arrest on 30 November 2008, two years prior to his sentence. About seven months of that period could not be declared as time served under the sentence the subject of this appeal: six months related to a sentence for matters interconnected with the charges on the first indictment; 22 days for related IDRO detoxification and seven days imprisonment for unpaid fines. The totality principle and this Court's reluctance to impose a crushing penalty on a remorseful young offender with prospects of rehabilitation also require this additional seven months imprisonment to be taken into account when sentencing Sharkey for his present offending.
Even so, the authorities relied on by the Attorney-General of Rodd, Assurson and Elizalde show that it is only Sharkey's youth (and the aspects of his offending that are the result of that) that can support the head sentence of nine years for trafficking in methylamphetamine. The submission was then made by the Attorney-General that if the head sentence of nine years was within the sound exercise of discretion, the early parole eligibility date rendered the sentence manifestly inadequate. A submission was made that a parole eligibility date after Sharkey had served five and a half years in custody would balance the mitigating factors, with the need for punishment, general deterrence and community protection.
Even treating the effective sentence imposed on Sharkey as one of nine years and seven months with a parole eligibility date after three and a half years (which gives full recognition to the sentence of six months that was fully served and the period served by way of IDRO detoxification and unpaid fines not included in the pre-sentence custody) the mitigation of the sentence is out of proportion to the seriousness of the trafficking committed by Sharkey. The sentence for such large-scale trafficking in methylamphetamine is manifestly inadequate.
Applying the principles pertaining when an appeal against sentence by the Attorney-General is allowed,15 we would set aside the parole eligibility date and substitute one at about the half way point of Sharkey's effective nine years’ and seven months’ sentence so that he becomes eligible for parole after effectively serving four years and nine months (when the additional seven months already served is taken into account on both the head sentence and in fixing the parole eligibility date). We would fix the parole eligibility date at 1 March 2012. This sentence sufficiently balances the need for condign deterrent punishment for large-scale drug trafficking, whilst recognising the folly of youth and the importance of rehabilitation of young, remorseful offenders.
It should also be noted that the concurrent sentence of six years’ imprisonment imposed for the serious example of trafficking in the then Sch 2 drug MDMA (count 3 on the second indictment) should not be used as a comparable sentence in other cases. This is because the effective nine years’ and seven months’ sentence imposed for trafficking in methylamphetamine (count 2 on the second indictment) reflected the totality of Sharkey's offending in both indictments.
The orders which should be made are:
The sentencing judge found that the respondent’s drug trafficking business was “in full swing” all the time he was under surveillance. The judge found that the “amounts of money and quantities of drugs which were exchanged were really quite extraordinary”. While exact findings as to the scope of the trafficking were not made, it was accepted that “commonly amounts of $4,000, $5,000, sometimes $50,000 were being discussed”. The respondent handled between $370,000 and $420,000 during the eight week period of the surveillance.
The respondent refused to deal in less than 50 MDMA tablets per transaction. The judge found that such transactions often involved thousands of tablets, sometimes as many as 17,000. Surveillance revealed 44 sales of tablets to 14 identifiable regular customers. The respondent also sold MDMA into Mount Isa and Mackay.
In relation to the trafficking of methylamphetamine the surveillance revealed 38 transactions with a number of purchasers, 10 of whom were identified by police.
The sentencing judge noted that the scale of the operation was illustrated by the quantity of drugs seized by police when they raided the respondent’s house on 29 November 2006. A quantity of amphetamines of which 67.366 grams was pure and 899 MDMA tablets (62.666 grams pure) were seized. 700 of the MDMA tablets were divided into clip seal bags each containing 100 tablets.
The respondent was not at home when the raid occurred. When he realised the seized drugs were missing, he went to his “stash” at Machans Beach. The following day police raided his house and found 1,347 tablets containing 80.453 grams pure MDMA. The Machans Beach property was also searched and more than 2,000 MDMA tablets were discovered, containing 164.223 grams of pure ecstasy. The tablets at Machans Beach were divided into clip seal bags in quantities ranging from 93 to 330 tablets per bag.
The sentencing judge accepted that this “stock-in-trade” showed the very large scale of the respondent’s drug trafficking operation.
In addition to trafficking in MDMA and methylamphetamine, the respondent supplied heroin (discussions involved a total amount of 39 grams), cocaine (supply discussed on six occasions with weights ranging from 1.7 to 2 grams for a combined price of $9,000), LSD (250 tabs) and steroids to the value of $5,000. The respondent participated in a discussion of the supply of pseudoephedrine for $10,000.
Police found $114,660 cash in his house and a bank cheque for $80,000, $60,000 of which were the proceeds of drug dealing.
The respondent spoke about using violence to recover debts. Discussions involved cutting off somebody’s finger and “bashing”, but there is no evidence that the violence was ever carried out.
The respondent was not charged with producing or attempting to produce dangerous drugs but he had engaged in conversations about production and the judge found that there was a prospect of expanding the trafficking business.
There was reference to the respondent owing between $250,000 and $350,000 for the purchase of drugs, and being owed $138,000 for the sale of drugs.
Methylamphetamine is contained in Sch 1 of the Drugs Misuse Regulation 1987 (Qld). The maximum penalty for methylamphetamine trafficking is 25 years’ imprisonment. At the time of the offences MDMA was classified as a Sch 2 drug and the maximum was 20 years.
The respondent, while undergoing an intensive drug rehabilitation order, imposed for possessing commercial quantities of a number of unlawful drugs, undertook the business of dealing in and supplying what can only be described as an extraordinary quantity of dangerous drugs of various types. His business had a large number of wholesale customers. The turnover was about $200,000 per month. The respondent had ready access to substantial amounts of money and drugs of a high quality. He supplied drugs to customers in Cairns, Mount Isa and Mackay. While speaking to his criminal consorts he indicated he was prepared to use violence, if necessary, in the course of his business, which stopped only when he was arrested.
The sentencing judge thought that:
Reference to two cases in which a sentence of less than 10 years was imposed shows that the sentence imposed here was inadequate. The first is R v Elizalde [2006] QCA 330. Elizalde was a young man, only five years older than the respondent, who trafficked in MDMA, methylamphetamine and cocaine over a four and a half month period. The bulk of his dealing was in MDMA, a Schedule 2 drug. He supplied only small quantities of methylamphetamine and cocaine. He had one previous minor drug conviction. At sentence, three years after arrest, he was rehabilitated, employed and had overcome a substantial drug addiction. His turnover for the period of his trafficking was estimated at $100,000, about $25,000 per month. A notional sentence of 11 years was reduced to nine, without a declaration, because of the circumstances of rehabilitation.
The second case is R v Assurson (2007) 174 A Crim R 78 in which nine years was imposed on a plea of guilty for trafficking methylamphetamine, cocaine and MDMA over five or six weeks. The profit made from the trafficking was just under $30,000. Assurson was 23 years old and on bail for another drug offence when he trafficked. He was subject to a declaration that he had committed a serious violent offence but on appeal that declaration was set aside and instead a parole eligibility date five and a half years after sentence was imposed.
The respondent’s offending was far more serious than that in Elizalde and more serious than that in Assurson. The quantity of drugs and amount of money involved were both much more substantial. The scale of offending is the most relevant factor in this kind of case. See R v Bradforth [2003] QCA 183 at [29].
But for the personal circumstances of mitigation the appropriate sentence would have been one of 14 years’ imprisonment for trafficking methylamphetamine. Those personal circumstances are not peculiar to the respondent. They are present in many of the cases in which more substantial penalties have been imposed. The youthfulness of the respondent is, perhaps, unusual, but that circumstance is counter-balanced by his precocity and the maturity of his unlawful business operation, as well as the earlier leniency from which he did not profit. The comparable cases in which a term of less than 10 years was imposed are those in which the primary drug trafficked was in Sch 2, not Sch 1, and the quantities and value of the drugs involved was markedly less.
The Attorney-General submits that the head sentence should not have been “moderated” below a term of 10 years which would attract an automatic declaration that the respondent had committed a serious violent offence. The submission should be accepted. Notwithstanding that this is an appeal by the Attorney-General so that a degree of circumspection is required when interfering with the sentence imposed at first instance, the discount given both in terms of head sentence and early eligibility for parole transgress acceptable limits. Whatever sympathy one may have for the respondent and his troubled upbringing, his situation is not remarkably different from that of many young offenders who gravitate towards drug dealing as a vocation. What does distinguish the respondent is the scale and success of his operation. Unless such activities are sternly punished the temptation for others will be undiminished, to the detriment of society. The sentence imposed, and the emphasis on personal circumstances, show that the sentencing judge erred in his approach to the imposition of appropriate penalty. Moreover both principle and authority required concentration on the need to denounce and deter large scale drug trafficking.
To allow these sentences to stand will work a marked injustice upon other drug traffickers who have been sentenced to much more substantial, but appropriate, terms of imprisonment. Many of those were not in a position markedly different to the respondent’s. They may have been older but several were not much older. Many of them were involved in a lesser scale of offending. Some of them were addicted to drugs and had had a poor start to life. To single the respondent out for particularly lenient treatment would be an injustice to the others who were dealt with appropriately and a departure from standards of consistency to which the administration of criminal justice aspires. There is nothing so remarkable about the respondent’s circumstances as to justify the injustice, or the departure from principle.
In my opinion the appeal should be allowed and the sentences imposed on the two trafficking counts should be set aside. Instead the respondent should be sentenced to 10 years’ imprisonment on Count 2 of the indictment on 4 December 2008 which will carry with it a declaration that the respondent was convicted of a serious violent offence. On Count 3 the applicant should be sentenced to a term of eight years’ imprisonment to be served concurrently with the other sentences. The declaration as to time already served should, of course, remain.