R v Taylor [2006] QCA 459

Counsel for the Crown submitted to the learned judge that the most useful comparative sentence was the one imposed in the matter of R v Bradforth [2003] QCA 183,¹ and that the appropriate range of head sentence was between eight to 10 years imprisonment. Mr Taylor’s counsel informed the learned judge that that counsel did not argue with the range suggested by the prosecution, but suggested that eight years was appropriate, and that post-prison community-based release might be recommended after one third of that term, reflecting the plea of guilty to an ex-officio indictment. In Bradforth that offender had a head sentence reduced from 12 years imprisonment to 10 years imprisonment, after pleading to one count of trafficking in cocaine, MDMA and methylamphetamine in the 12 months between 1 August 2000 and 3 August 2001, and a further count of possession of a variety of drugs including cocaine and MDMA on 2 August 2001.

That applicant was 26 years of age when sentenced and had no prior drug related convictions, but had prior convictions for dishonesty. He had been found on 2 August 2001 in possession of 1,386 tablets of MDMA containing 62.086 grams of that drug, and also in possession of 63.398 grams of cocaine and 7.379 grams of methylamphetamine. The drugs were in 82 clip seal plastic bags, and the tablets had a street value of $48,000. He had five mobile phones in his possession when apprehended, and when on bail for that offence his car was stopped by the police and he was found in possession of another 0.448 grams of cocaine and 22 grams of MDMA. That offender had possessed cocaine (63.398 grams) of approximately the same amount as that which Mr Taylor supplied over time to the covert police operative (64.871 grams in toto). That offender possessed that cocaine right at the end of his 12 months of trafficking, whereas Mr Taylor distributed his during his four months of trafficking, and presumably Mr Bradforth distributed other cocaine during his trafficking. He also had many more MDMA tablets than the 200 Mr Taylor supplied. However, Mr Taylor was supplying cocaine in one ounce and half ounce amounts to the covert operative, as well as other drugs, and so was a significant dealer in cocaine. He has accordingly been realistic in not seeking to challenge the head sentence, which the learned judge would have fixed at eight years in accordance with the submission of both counsel, but had reduced to seven years four months to take account of the period already spent in custody, which for various reasons could not be declared as time already served.

On the appeal the Director particularly relied on the decision in R v Elizalde [2006] QCA 330,² where this Court dismissed an application for leave to appeal a sentence of nine years imprisonment imposed for trafficking in the dangerous drugs MDMA, methylamphetamine, and cocaine between 13 June 2002 and 29 October 2002. There were also offences of possession of cocaine. That offender’s behaviour in trafficking in those drugs for four and a half months is very similar to Mr Taylor’s; that applicant was 28 when sentenced, and entered a guilty plea at an early stage after a full hand up committal. He had one prior conviction for minor drug offences, and after his arrest had worked to overcome his substantial addiction to methylamphetamine and had obtained and held regular employment. He also put forward a number of favourable personal and employment references on his sentence.

So far that case seems on all fours with this one, but that offender was sentenced on the basis that he had been prepared to sell very large amounts of MDMA, up to 5,000 tablets at a time, for a total turn over of about $100,000. He had offered to sell a kilogram of methylamphetamine for $70,000, to supply ecstasy tablets in quantities of $10,000, and a summary of the particulars the prosecution relied on revealed that he was a person who was contacted by others when they were looking for sizeable quantities of MDMA (usually 1,000 tables or more), or cocaine, and entered into transactions involving crystal methylamphetamine. His trafficking focused much more on MDMA than on cocaine, and was on a level of larger transactions. That difference justifies a considerable disparity in the head sentences imposed on that offender and on Mr Taylor.

That leaves only the complaint that there was no recommendation for consideration for post-prison community-based release after less than one half had been served; if that complaint is upheld, this Court should fix a parole eligibility date, under s 160C(5) of the Penalties and Sentences Act 1992 (Qld) (“the Act”).

The applicant relies in particular on his conduct after his arrest as showing his willingness to rehabilitate himself and his genuine attempts to do that. His written outline describes his having spent a period in custody attending a drug therapy unit, and when given bail in January 2006, he began a full time job, working five days a week, within a week of release. He has contended that he was regularly tested for drugs, and the results were all negative, and he has a baby son. In summary he says that he went from being a drug addict and abuser who was not working, and who had done nothing constructive or positive in the four years prior to his arrest, to a person who was working full time from his release on bail until three days prior to being sentenced, and who had ceased all drug usage and moved back in with his family. A reference from his employer, dated 19 May 2006, describes Mr Taylor as demonstrating a strong work ethic; that reference was exhibited to the learned sentencing judge, as were the results of urine screens in March and April 2006. Those documents support the submissions Mr Taylor advanced on his own behalf.

The learned sentencing judge summarised, when passing sentence, the contents of a report on Mr Taylor prepared by a psychologist, which showed that he was an obviously intelligent young man with prospects of rehabilitation; but the learned judge did not specifically refer to any steps taken by Mr Taylor since his arrest. That is understandable; no specific submissions were made about that matter, although the judge was given the reference from Mr Taylor’s 2006 employer, which confirmed employment for a period of five months. In those circumstances, although the error was not that of the learned judge, the sentence was passed on Mr Taylor without a matter relevant to his prospects of rehabilitation being sufficiently placed before the learned judge, and the judge was not assisted with submissions on that matter, as this Court has been. It follows that without error on the part of the learned judge, insufficient weight was given to that matter, since Mr Taylor was a young man who had taken important steps towards rehabilitation. Prospects of rehabilitation are relevant to the exercise of the sentencing discretion (s 9(1)(b)(f) of the Act). That post-arrest behaviour is appropriately reflected by fixing a parole eligibility date earlier than the halfway point, that being the sentence which should have been passed,³ and accordingly I would vary the sentence imposed by fixing a parole eligibility date, on the sentence of seven years and four months imprisonment, of 26 November 2008.

KEANE JA: I respectfully agree with the reasons prepared by Jerrard JA, and with the other orders proposed by his Honour.

PHILIP McMURDO J: I agree with Jerrard JA.