R v Stuck [2008] QCA 165

Court of Appeal (Qld)|2008-06-20|Before: McMurdo P, Keane JA and Fryberg JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made

[1] McMURDO P: I agree with Fryberg J that the application for leave to appeal against sentence should be refused.

[2] The quantity and variety of the drugs in the applicant's possession exceeded that in R v Wynyard,[1] R v de Carteret,[2] R v Eaton[3] and R v Michalas.[4] Unlike the present applicant, both Eaton and Michalas were drug abusers at the time of their offending who had subsequently made promising efforts at rehabilitation. The present case is clearly more serious than those four cases. The appropriate head sentence in this case was between three and four years imprisonment. R v Emanuel,[5] to which we were referred, is an instance at the low end of that range. Emanuel was found in possession of a large quantity of tablets containing 45.509 grams of MDMA and 26.77 grams of MDEA with a street value approaching $20,000. Emanuel pleaded guilty to an ex officio indictment and was the carer for his ill father. He was sentenced to three years imprisonment with a parole release date fixed after six months.

[3] The indictment against the applicant was presented in the Supreme Court at Brisbane on 30 November 2007. His lawyer indicated the matter was a sentence and it was listed on 22 February 2008. The applicant pleaded guilty and was sentenced at that time. His plea of guilty was therefore an early plea. This was a significant mitigating factor. Other mitigating factors included his relatively young age of 25 at the time of offending and his prior good history. He was, however, in possession of relatively large quantities of the prohibited drug, ecstasy, for commercial gain.

[4] The use of ecstasy is prevalent in Australia, with 12 per cent of persons aged 20-29 reported to have used the drug at least once in the 12 months prior to the most recent study.[6] Research shows that ecstasy use can cause neurological damage and cognitive impairment including nerve cell damage,[7] impaired learning ability and memory,[8] and depression, anxiety and confusion.[9] Even a single use of ecstasy could have negative consequences.[10] The United Nations Convention on Psychotropic Substances 1971 prohibits its use, manufacture, import or export except by government-approved authorities in limited scientific and medical situations in its 183 signatory nations.[11] The impetus for the convention was nations' "concern [with] the public health and social problems resulting from the abuse of certain psychotropic substances".[12] The Queensland parliament has manifested this concern by imposing a maximum penalty for commercial possession of ecstasy of 20 years imprisonment.[13] Those who commit such offences for profit must expect condign punishment.

[5] The head sentence of four years was at the top end of the appropriate sentencing range. The suspension of that sentence after 18 months sufficiently recognised the mitigating features. The sentence is not manifestly excessive

[6] KEANE JA: I agree with the reasons of Fryberg J and with the orders proposed by his Honour.

[7] FRYBERG J: On 22 February this year the applicant was convicted by Chesterman J on his plea of guilty of one count of possession of cocaine, one count of possession of more than 2 g of MDMA, one count of possession of more than 2 g of MDEA, one count of possession of testosterone, nandrolone and somatotropin and one count of possession of $4,000 obtained from supplying dangerous drugs. He was also convicted of two summary drug-related offences. On the first count he was sentenced to imprisonment for 12 months, on the second count to imprisonment for three years suspended after 18 months for an operational period of three years, on the third count to imprisonment for four years suspended after 18 months for an operational period of four years, on the fourth count to imprisonment for 12 months and on the fifth count to imprisonment for three years suspended after 18 months for an operational period of three years. All imprisonment was concurrent. On the summary offences he was convicted but no penalty was imposed. He now applies for leave to appeal against the sentences on counts 2, 3 and 5 on the sole ground that they were manifestly excessive in all the circumstances.**

**[8] On 19 January 2007 police executed a search warrant at premises occupied by the applicant. He told the police that he had steroids in his bathroom and a little bit of cocaine. On carrying out a search of his person and his bedroom and ensuite police found three small bags of powder weighing about 3.3 g and containing 0.933 g of cocaine and a quantity of testosterone and nandrolone. These drugs, together with a vial of somatotropin found in the freezer in the kitchen, formed the basis for counts 1 and 4 respectively. Police also found $4,000 in the bedroom. The applicant refused to state the source of that money. It founded count five.

[9] In the dining room police found a canvas shopping bag. It held three plastic bags and a pencil case which collectively contained more than 1,050 tablets which the applicant had not told them about. When analysed the tablets were found to contain MDMA and MDEA: about 17.6 g of the latter in 254.9 g of tablets and about 62 g of former in about 259.4 g of tablets. When asked about the tablets the applicant told police they contained MDMA. These tablets formed the basis for counts two and three.

[10] His Honour found that the applicant's possession of MDMA and MDEA was for commercial purposes - sale at a profit - but that of the other drugs was for his own use. That finding was not disputed. It was not suggested that the applicant was addicted to any drug or in financial need; he used the steroids for bodybuilding and was a recreational user of ecstasy. In short, his motivation was greed.**

[11] The applicant was aged 25 at the time of the offending. He had no prior criminal convictions. He had been employed for six years by three different employers as a fibreglass process worker. After doing a business course he commenced his own business in nightclubs and as a concert promoter while also working as what his counsel called a DJ. He had been involved in community activity and raised money for charity. He was, the judge found, motivated and ambitious to succeed.

**[12] The applicant disclosed the existence of the cocaine and the steroids to police, but not the MDMA or the MDEA. When the police found those drugs, he orally admitted what they were; but no formal admission was made and an analysis certificate had to be produced. He refused to say anything about the money. There is no suggestion he agreed to participate in a formal interview. The matter proceeded by way of full hand-up committal in June 2007, but the applicant did not take advantage of the occasion to plead guilty, despite the fact that the drug analysis certificate was then available. He was committed for trial and an indictment was presented on 30 November 2007. The matter was listed for sentence on that day, so it may be assumed that he then notified his intention to plead guilty, which he duly did. His cooperation in the administration of justice can therefore be described as significant but limited, and timely but not early. His age and lack of prior convictions point toward a sentence below the top of the range, but are offset by the large amount of the MDMA and MDEA. There was no evidence of remorse.

[13] The Crown prosecutor submitted that a head sentence "in the order of 3½ years" was appropriate.**

**[14] The applicant submitted that the starting point for determining the sentence should have been 2½ years imprisonment, with a range extending up to at least three years. He submitted that this range could be derived from four comparable cases. He submitted that the appropriate sentence in this case after analysis of the circumstances was imprisonment for three years suspended after serving one year.

[15] The applicant abandoned an argument based on a proposed extension of the parity principle which had been included in his outline of argument.

[16] The respondent submitted that the sentence was not manifestly excessive having regard to the unchallenged commercial reality of the possession, the large amount of MDMA in the applicant's possession (30 times the scheduled amount), the absence of addiction or financial need and the money and other illicit drugs in the applicant's possession.**

[17] Wynyard was sentenced to imprisonment for 2½ years suspended after 12 months for an operational period of three years. He had pleaded guilty to possessing 422 tablets containing a net amount of more than 30 g of MDMA, less than half the combined net weight of the MDMA and MDEA in the applicant's possession. No cash was found in his possession. He notified his intention to plead guilty some time after the presentation of the indictment against him. He denied any commercial intention and gave evidence at the sentencing hearing; but his evidence was disbelieved by the judge. He was 42 years of age at the time of the offence, had been educated to grade 10, had been in steady employment for over eight years and had no relevant criminal history. He was a respected member of the surf club. There was no evidence of financial distress or drug addiction. He exhibited no remorse. His application for leave to appeal against sentence was dismissed by the Court of Appeal.

[18] De Carteret received the same head sentence as Wynyard, but suspended after nine months for an operational period of three years. He had pleaded guilty to possessing 257 tablets and some powder containing a net amount of about 20.5 g of pure MDMA. He was carrying $420 in $20 notes ($20-$30 being the "going rate" for tablets of MDMA) and two mobile telephones. His possession was plainly commercial. It is not clear when he notified his intention to plead guilty. He was 29 years old at the time of the offence and had four previous convictions for possessing cannabis and one for possessing MDMA. He was a substantial user of MDMA at the time of the offending but had ceased using the drug after his arrest. His dealing in the tablets was "in its infancy". His application was dismissed.

[19] Eaton applied for leave to appeal against a sentence of 2½ years imprisonment with a parole release date after eight months. She had pleaded guilty to two counts of supplying MDMA. An undercover police officer arranged through an intermediary to purchase 200 tablets. Possibly acting as a stalking horse for another person, Eaton effected the delivery. Two deliveries took place because only 100 tablets were supplied on the first occasion. The tablets weighed about 51.3 g and contained about 15.3 g pure MDMA. She was, her counsel conceded, one step up from a street dealer. She was aged 23 at the time of the offences and asserted that the transaction out of which they arose was the only one in which she had ever been involved; she acted, she claimed, under pressure from her partner and made no profit herself. She had used methylamphetamine since she was 17. At the time of sentencing she had ceased using hard drugs, but was under treatment for depression and anxiety. She had left school before completing grade 12 and had been in steady employment since then. She had one previous offence, for possession of dangerous drugs some seven months earlier, for which she was fined without a conviction being recorded. Her application was dismissed.

**[20] Michalas was sentenced to imprisonment for 2½ years with parole after 10 months on one count of possession and another of supply of methylamphetamine, and three counts of receiving stolen property. He received lesser sentences for other drug related offences dealt with at the same time. He had pleaded guilty to all counts. He sought leave to appeal against the longest of the sentences. Those offences were discovered when he was found in a city hotel room in possession of about 2.4 g of pure methylamphetamine and numerous clips seal bags. Nearly $10,000 in cash was located in his vehicle. The supply charge arose under the extended definition of supply, which included preparation for sale. He had a serious methylamphetamine "problem" which he said cost him of the order of $200-$300 a day. Prior to sentencing he had successfully undertaken a drug rehabilitation course. The offences were committed only three weeks after he had been given notice to appear for possession of methylamphetamine and other offences. He had prior convictions for breaking and entering (twice), wilful damage and possession of housebreaking implements. Not surprisingly, his application was refused.

[21] In my judgment these cases do not establish the proposition that 2½ years imprisonment is a suitable starting point for consideration of the appropriate head sentence in the present case. In none of them was the application allowed. With the possible exception of Michalas, where the offender might be considered extremely fortunate to have had so much weight given to his pre-sentencing rehabilitation, all of the cases contained features significantly less serious than the present. They (or at least Wynyard and de Carteret) may indicate the bottom of a range of sentences ordinarily imposed on pleas of guilty to possession of ecstasy for commercial purposes, but they certainly do not indicate a top or even a starting point in such cases. No case suggesting otherwise was cited.

[22] In the present case, the longest head sentence imposed by Chesterman J was four years for the possession of MDMA. It is true that this was six months more than was suggested by the Crown prosecutor, but the prosecutor did not suggest a range. The amount of drug possessed by the applicant was substantially more than was found in Wynyard and de Carteret and he was right in my judgment to characterise the present case as more serious than either of them. As his Honour observed, the applicant made a decision to make extra money from selling drugs, conduct which must be discouraged - particularly, I would add, in someone working in the concert and nightclub environment. General deterrence also was an important consideration in this case. MDMA ("ecstasy") kills people and its use is prevalent. While there is room for debate as to the efficacy of heavy sentences in some cases, such as crimes of passion[18], crimes motivated by financial greed, ie crimes of calculation committed by dishonest people who are prepared to break the law for monetary gain, must attract condign punishment to show that crime does not pay. The mitigating factors were taken into account, but were not particularly compelling. I am not persuaded that the sentence was manifestly excessive.**

[5] Unreported, Byrne J, Supreme Court, Qld, 19 March 2008.

[6] 'Illicit drugs and alcohol: Recent use of ecstasy, Australia, 2004' (2005) Australian Institute of Criminology, Australian Government at 18 June 2008.

[7] Green et al 'The pharmacology and clinical pharmacology of 3,4-methylenedioxymethamphetamine (MDMA, "ecstasy")' (2003) 55(3) Pharmacological Reviews 463, 501.

[8] Zakzanis et al 'The neuropsychology of ecstasy (MDMA) use: a quantitative review' (2007) 22(7) Human Psychopharmacology 427, 432.

[9] 'Club-drug 'ecstasy' harmful to first-time users' (2006) New Scientist at 18 June 2008.

[10] 'Club-drug 'ecstasy' harmful to first-time users' (2006) New Scientist at 18 June 2008.

[12] See United Nations Convention on Psychotropic Substances 1971, Preamble.

[13] Drugs Misuse Act 1986 (Qld), 9(c) and Drugs Misuse Regulation 1987 (Qld), Sch 2, Reprint No 5. From 1 June 2008, 3,4-methylenedioxymethamphetamine (MDMA) is a Sch 1 drug so that the maximum penalty for the circumstances of this offence is 25 years imprisonment: see s 9(b)(ii) Drugs Misuse Act 1986 (Qld) Reprint No 5B.

[18] Compare R v Mills [2008] QCA 146 at [29].

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