R v Taylor [2006] QCA 459

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] JERRARD JA: On 26 May 2006 Mr Taylor pleaded guilty to one count of carrying on the business of unlawfully trafficking in dangerous drugs, 11 counts of supplying dangerous drugs to another, and two counts of possession of dangerous drugs. He was sentenced to a total of seven years and four months imprisonment on the trafficking count, and has applied for leave to appeal, complaining that the sentence was rendered manifestly excessive because the learned sentencing judge had neither suspended it, nor recommended consideration for release on parole, at some point earlier than the halfway mark of that sentence.

[3]

[2] Mr Taylor pleaded guilty to trafficking in the dangerous drugs cocaine, methylamphetamine, 3,4-methylenedioxymethamphetamine (MDMA), and 3,4-methylenedioxyamphetamine (MDA). He admitted by his pleas supplying cocaine to an undercover police officer on nine separate occasions between 15 August 2004 and 27 November 2004. (The period of the trafficking charge was from 3 August 2004 to 27 November 2004). He also admitted to possessing the dangerous drugs methylamphetamine and ketamine on 25 February 2005, when police raided his residence. He was 21 when he offended, and 23 when sentenced; he had one prior finding against him of relevance, for possession of a dangerous drug on 19 June 2004.

[4]

[3] An agreed description of the relevant facts was placed before the learned sentencing judge. That included that on four separate occasions (24 August 2004, 4 September 2004, 9 September 2004, and 26 November 2004), Mr Taylor sold an ounce of cocaine to the undercover police officer, at prices ranging from $5,000 to $5,800 on each occasion. On four other occasions he sold half an ounce of cocaine of varying purity, at prices ranging from $2,500 to $3,600. On another occasion he sold the undercover officer 50 MDA tablets for $1,200, and on another occasion he sold 200 tablets containing MDMA for $4,400. The last act of supply was on 26 November 2004, and when Mr Taylor's home was searched by police on 25 February 2005 they found four clip seal bags with 10 pink tablets in each, and one clip seal bag with nine pink tablets. Those tablets contained a mixture of the drugs ketamine and methylamphetamine; they had a very low purity of the drug methylamphetamine. He had been paid a total of $38,500 by the covert police operative for dangerous drugs.

[5]

[4] Counsel for the Crown informed the learned sentencing judge without objection that Mr Taylor had been able to obtain drugs on each occasion when requested by the covert operative, at short notice, and on only two occasions was he unable to complete the transaction that day. On those two it was completed the next day. He was seen to obtain drugs from a co-accused at West End, from an address at Warner Street at Fortitude Valley, and from an address at New Farm, and he had admitted on 7 October 2004 that he was flying to Sydney to buy cocaine. He offered cocaine in both medium grade and pure, and offered to supply ecstasy tablets.

[6]

[5] 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.

[7]

[6] 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.

[8]

[7] 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.

[9]

[8] 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.

[10]

[9] 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").

[11]

[10] 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.

[12]

[11] 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.

[13]

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

[14]

[13] PHILIP McMURDO J: I agree with Jerrard JA.

[15]

[2] CA No 158 of 2006, 1 September 2006.

[16]

[3] Section 668E(3) of the Criminal Code 1899 (Qld).

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