R v Sutton [2013] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION: R v Sutton [2013] QCA 151

PARTIES: R v sutton, Colin Christopher (applicant)

FILE NO/S: CA No 38 of 2013 / SC No 544 of 2012

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 17 June 2013

DELIVERED AT: Brisbane

HEARING DATE: 17 June 2013

JUDGES: Muir and Gotterson JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to importing a marketable quantity of a border controlled drug – where he was sentenced to imprisonment for five years with a non-parole period fixed at two years and six months – where the applicant applies for leave to appeal against sentence on the ground that it was manifestly excessive – whether the sentence imposed was manifestly excessive / Criminal Code (Cth), s 307.2 / Bertilone v The Queen (2009) 197 A Crim R 78; [2009] WASCA 149, considered / Chong v R [2011] NSWCCA 182, cited / De Bonde v The Queen [2002] WASCA 251, considered / R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited

COUNSEL: The applicant appeared on his own behalf / G R Rice QC for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Commonwealth) for the respondent

MULLINS J: On 29 January 2013 the applicant pleaded guilty to one count of importing a marketable quantity of a border control drug, cocaine, charged under s 307.2(1) of the Criminal Code (Cth) and was sentenced to imprisonment for a period of five years. A declaration was made under s 159A of the Penalties and Sentences Act 1992 (Qld) in respect of pre-sentence custody of 182 days. The non-parole period was fixed at two years and six months. The applicant applies for leave to appeal against the sentence on the ground that it was manifestly excessive.

The applicant was 52 years old when he committed the offence. He is an Australian citizen, but had been residing in the Philippines where he has a partner and a young child.

The applicant has a criminal history in New South Wales spanning the period 1987 to 2004. He committed the offence of knowingly taking part in the supply of the prohibited drug, LSD, in 1993 and was sentenced to a minimum term of two years.

The applicant arrived at Brisbane Airport from Manila on 31 July 2012. Customs officers took swabs from the applicant’s wallet and his mobile telephone which were positive for cocaine. The applicant admitted to them he had four packages secreted in his anus. He was admitted to hospital where he passed the packages. The contained a total of 158.7 grams of white powder which, on analysis, was 80.2 per cent pure cocaine (127.2 grams). The sentencing proceeded on the basis that the applicant intended to use some of the drug for himself and that he would receive money from friends for the rest of it.

The learned sentencing Judge noted that it was a very serious offence for which the maximum penalty was imprisonment for 25 years and/or a fine of $550,000. The applicant cooperated with the authorities from the time he was intercepted at the airport and the plea of guilty was a very timely one. The quantity that was imported was more than 60 times the prescribed marketable quantity. The sentencing Judge then stated, “Importation, even for personal use and for supply to friends in exchange for money, is a very serious offence. The potential harm which you might do to yourself and to the friends to whom you supplied the drug cannot be overlooked.” A sentence of actual imprisonment would have an impact upon the applicant’s partner and daughter, but the sentence could not be mitigated for that adverse effect. Reference was made to the health issue that the applicant had in the Philippines for which he was obtaining a second opinion in Australia.

The applicant had written a letter to the sentencing Judge from which the sentencing Judge quoted: “The incident for which I stand before you today was a significant momentary lapse in sanity. I had no intention to hurt anyone or to reap any substantial profits from my actions. It was purely to share with my friends. My error in judgment late into my life has hurt my loved ones and others and for that I feel very remorseful.” The sentencing Judge referred to the comparative sentences that had been the subject of submissions, including three single Judge decisions and Tran [2007] QCA 221 and Chong [2011] NSWCCA 182.

The applicant is self-represented. He relies on his family circumstances and that he will be kept apart from them during the imprisonment and during the non-parole period if he stays in Australia. It is a matter of conjecture as to whether the applicant will stay in Australia during the non-parole period. There was no error, however, in the sentencing Judge’s approach in concluding that the seriousness of the offence outweighed the applicant’s personal circumstances and, in particular, the hardship on his family caused by imprisonment for the offence.

The applicant’s criminality was less serious than that of a courier on behalf of others. On this application counsel for the respondent relied on De Bonde [2002] WASCA 251 and Bertilone [2009] 197 A Crim R 78. The offender in De Bonde who pleaded guilty to importing a quantity of ecstasy in excess of the trafficable quantity, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth), had imported 57.8 grams of ecstasy that contained pure amount of the drug of 30.7 grams. The offender had intended to use the ecstasy himself and share it with others for recreation, but not sell it. He had no relevant prior convictions. He was unsuccessful in applying for leave to appeal against a sentence of five years imprisonment with a non-parole period of two years and six months.

The offender in Bertilone was convicted of one count of importing a marketable quantity of methamphetamine, contrary to section 307.2(1) of the Code. He was carrying a packaging containing 27.7 grams that contained 21.4 grams of pure methamphetamine. He claimed that the methamphetamine was a personal amount, but he did not seek to prove that he did not intend to sell or supply any of it. He was sentenced to imprisonment of three years and nine months with a non-parole period of two years and six months.

These authorities, which were not referred to the sentencing Judge, also support the sentence imposed on the applicant as a sound exercise of the sentencing discretion. The applicant cannot succeed in showing that the sentence in manifestly excessive. The applicant for leave to appeal against sentence should be refused.

GOTTERSON JA: I agree.

MUIR JA: I agree. The order of the court is that the application for leave to appeal against sentence is refused.