R v Turner [2006] QCA 133

Court of Appeal (Qld)|2006-04-28|Before: Williams JA, Chesterman and Mullins JJSeparate, reasons for judgment of each member of the Court, each concurring as to the order made

Director of Public Prosecutions (Queensland) for the respondent

[1] WILLIAMS JA: The applicant pleaded guilty on 23 November 2005 in the Supreme Court at Townsville to four drug-related charges. Particulars of the charges are as follows:

i. between 1 September 1997 and 9 February 2005 carrying on the business of unlawfully trafficking in cannabis;

ii. between 1 January 1999 and 9 February 2005 carrying on the business of unlawfully trafficking in morphine;

iii. on 8 February 2005 had possession of a sum of money, namely $1,710, obtained from trafficking in dangerous drugs; and

iv. on 8 February 2005 had possession of a set of scales used in connection with the crime of trafficking in dangerous drugs.

Count 1 - five years imprisonment suspended after two years for an operational period of five years;

Count 2 - three years imprisonment suspended after nine months for an operational period of three years;

Count 3 - two years imprisonment suspended after nine months for an operational period of two years; and

Count 4 - two years imprisonment suspended after nine months for an operational period of two years.

[3] The applicant seeks leave to appeal against the sentences on the ground they were "manifestly excessive in all the circumstances".

[4] It appears that counts 1 and 2 were made separate charges because of the different periods involved in the trafficking. But for that, there could have been a single charge, namely trafficking in cannabis and morphine. In his sentencing remarks the judge described the trafficking in morphine as "the most serious . . . although it extended over a somewhat shorter period than the trafficking in cannabis sativa." But as already noted the higher sentence was imposed with respect to count 1, trafficking in cannabis. On the hearing in this Court it was accepted by both counsel that what the sentencing judge had done was fix a head sentence bearing in mind the overall criminality of the trafficking in cannabis and morphine; that sentence was then imposed with respect to count 1, and lesser, concurrent, sentences were imposed with respect to the other counts. In consequence the real issue is whether or not a sentence of five years' imprisonment, suspended after two years with an operational period of five years, is a manifestly excessive sentence for the totality of the applicant's offending.

[5] During a police investigation into the supply of drugs in the Townsville district, information came to light about the applicant's involvement in the drug trade. A controlled operation was carried out in February 2005 targeting the applicant. On 4 February an associate of the applicant telephoned her on behalf of the police and asked if she could supply two morphine tablets and a half an ounce of cannabis the following week. Subsequently the applicant telephoned back to say the drugs were available at the price of $240. On 8 February the informant and a covert police officer went to the applicant's address where the money and drugs were exchanged. Upon analysis the cannabis weighed 13.3 grams and the two morphine tablets weighed 0.407 grams and each contained 30 milligrams of morphine.

[6] Later the same day police executed a search warrant at the residence of the applicant and located, in addition to the $240 handed over earlier that day, an additional $1,470 in cash. The police also found four grams of cannabis, a set of scales, and a quantity of clip seal plastic bags similar to that in which the drug had been supplied earlier that day.

[7] As a result of what happened on 8 February the police had clear evidence for charging the applicant with supplying drugs, possessing drugs, possessing money obtained from trafficking in drugs, and possessing implements used in connection with trafficking in drugs.

[8] But in the course of a subsequent interview with police the applicant admitted selling cannabis from September 1997 on a regular basis. The applicant used cannabis herself and funded that use by selling to a group of people known to her. She admitted that the volume of sales increased over the years. It was conceded that in the two months prior to the search the applicant sold eight ounces of cannabis in 80 to 90 sales. That was returning about $340 per week, of which about $100 was profit.

[9] Further, the applicant told police that from early 1999 she began selling morphine which she obtained from a supplier down south. By February 2005 she was selling four tablets a week; it was not clear what profit she was making from the sales of morphine.

[10] The applicant was born on 19 February 1951 making her age 54 at the time of sentence. She was widowed in 1999.

[11] The applicant has a relevant criminal history. She was convicted and fined in the Townsville Magistrates Court on 6 August 1986 for possessing a pipe used in connection with smoking a dangerous drug. In the same court she was convicted and fined on 23 November 1993 for possessing a dangerous drug. There was a similar conviction in that court on 21 November 1994. Then in that court on 29 September 2003 she was fined for possession of dangerous drugs and possession of utensils used in connection with the use of drugs. In addition to those drug offences she had two convictions for stealing and one of driving a motor vehicle with a blood alcohol reading of 0.11 per cent.

[12] Counsel for the applicant placed a report from a psychologist before the sentencing judge. It expressed the opinion that the applicant was suffering from depression and that she was "clinically morbidly obese". She also had other health problems.

[13] In the course of his sentencing remarks the judge noted that the "dealings were at a low level" but it was established that the applicant was "making relatively small sums of money each week out of trafficking". The trafficking was on a "regular basis". He took into account the plea of guilty and "the co-operation which [she] had provided to the police, without which at least the full extent of [her] dealings would probably not have been known." He also had regard to the criminal history.

[14] The passages in the sentencing remarks, which counsel for the applicant submitted indicated that the sentencing discretion miscarried, were to the following effect:

"I take into account what has been said about your health and the fact that you have battled with poor health for many years, and that you have significant health problems now. I also take into account what has been said about the difficulties that you have had in your life, particularly associated with your relationships. It must, however, be pointed out that many people find life a battle without resorting to criminal activity of the kind which you have engaged in here. . . . I take into account that any term of imprisonment will be likely to be particularly burdensome to you given your health problems. Nonetheless, consistent with my duty to the community, it is unavoidable that significant terms of imprisonment must be imposed."

[15] Before this Court counsel for the applicant conceded that a head sentence of five years was within range. In the written outline he asserted that five years imprisonment "although high for a low level trafficking in cannabis is not out of range." That statement does not take account of the trafficking in morphine and in my view a head sentence of five years imprisonment is well within range when regard is had to the fact that the trafficking was over a lengthy period and involved both cannabis and morphine.

[16] The contention of counsel for the applicant which identifies the real issue on the hearing of this application, is whether adequate weight was given to the mitigating factors in determining that the head sentence should be suspended after serving two years.

[17] Counsel for the applicant submitted that the third sentence in the passage quoted above from the sentencing remarks established that the sentencing discretion had miscarried. The submission was to the following effect:

"This statement indicates that the learned sentencing judge did not give proper consideration to the psychological, physical and emotional difficulties suffered by the applicant. These are indeed mitigating factors which should be given far greater weight in the sentence and were not given the level of regard that they should otherwise have received. Further it is submitted that this error in the sentencing discretion has miscarried is further reiterated where [h]is Honour said it is unavoidable that significant terms of imprisonment must be imposed."

[18] In my view that third sentence in the quote is but a statement of fact. Many people in the community have had to face serious difficulties, including significant health problems, and yet they do not commit serious crimes. The fact that a person facing sentence can point to such matters does not mean that criminal conduct is thereby excused.

[19] It is clear in the present case that the sentencing judge did take the health problems, and other difficulties faced by the applicant, into account in determining the appropriate sentence. Those matters resulted in the moderate head sentence being suspended after two years had been served.

[20] Whilst the applicant was not a major player in the drug trade, she nevertheless traded in both cannabis and morphine over a significant period of time. In those circumstances the sentencing judge was correct in concluding that a significant term of imprisonment had to be imposed.

[21] Counsel for the applicant referred to the decisions of this court in R v Taylor [2005] QCA 379 and R v Oldfield [2004] QCA 435 in support of his submission that the head sentence should have been suspended at an earlier point of time than after serving two years. In each of those cases the head sentence was five years' imprisonment suspended after serving two years, and in each case the application for leave to appeal against sentence was dismissed. Taylor involved trafficking in methylamphetamine over a three month period. The offender there was aged 20 and had no prior convictions. Oldfield was 28 years of age at the time she trafficked in amphetamines. It was an early plea to trafficking at street level. The aggravating feature there was that at the time of the trafficking, she was on probation for an earlier drug offence. In the present case the trafficking was over a much longer period than was the situation in either of those matters, and the applicant's health problems arguably equated with Taylor's youth and lack of criminal history. In the circumstances I do not consider that the present sentence is out of step with that considered by this Court in those two cases.

[22] In my view the sentencing judge did not fail to give adequate weight to any relevant consideration and it cannot be said that the sentences imposed were manifestly excessive.

[23] I would dismiss the application for leave to appeal against sentence.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties