R v Tytherleigh [2006] QCA 193

Director of Public Prosecutions (Queensland) for the respondent

HOLMES J: The applicant for leave to appeal against sentence was sentenced to four and a half years' imprisonment with a recommendation for eligibility for parole after 15 months on one count of trafficking in methylamphetamine over a three-month period, and two years' imprisonment in respect of one count of possession of heroin. In respect of other counts which were subsumed in the trafficking - supply and possess methylamphetamine, possess things used in connection with trafficking and possess a sum of money obtained from trafficking - no further punishment was imposed.

The circumstances in which the applicant was apprehended were these: police saw him on 7 February 2005 walking with two other men and stopped the group for a search. They saw the applicant attempt to conceal a small orange container in a drink he was holding. Inside the container were three

clip-seal plastic bags which respectively contained 8.764 grams of powder which proved to be 1.545 grams of methylamphetamine pure; 0.456 grams of a crystal substance which contained a pure weight of heroin of 0.103 grams; and in the third bag, another amount of heroin, 0.188 grams gross which was 0.041 grams pure. The police also found in a bag that the applicant carried a mobile phone, a set of scales, a quantity of unused clip-seal bags and $170 in cash. The applicant when interviewed told the police that the heroin was for his personal use and that he had been selling methylamphetamine for three months to support his heroin habit. He had bought between $500 and $1,000 worth of methylamphetamine every three or four days and cut it for sale. He had five or six customers who would telephone him and place orders and he could make anywhere between one and 10 sales per day; so, it was likely that over the previous three months he had engaged in at least 100 transactions. He must have been making, he agreed, about $5,200 per month from selling methylamphetamine. He had the previous day sold $100 worth of methylamphetamine to a customer. (That admission gave rise to the supply count on the indictment.) He was spending about $6,000 a month, which included all his takings, on heroin for his own use. The Crown accepted that the applicant was a street level dealer selling low purity drugs to other addicts to support his heroin addiction.

The applicant's committal had proceeded by way of a full hand up and a plea of guilty had been indicated soon after. The trafficking and supply counts were based solely on his admissions to police. He had registered with an opiate treatment program some two months before sentence, although it was not clear what progress he had made, and had a favourable reference from an employer for whom he had worked for nine weeks.

The applicant had a fairly lengthy criminal history, most of which consisted of minor drug offending dealt with by way of probation or fines in the Magistrates Court. But in November 2000 he was placed on a nine month wholly suspended sentence of imprisonment for offences of robbery with actual violence in company, breaking and entering, assault occasioning bodily harm in company and entering a dwelling with intent in company. Five months of that sentence was activated in January 2003 because of further drug offending. He had been

sentenced, on two separate occasions, to two months imprisonment for possession and eight months' imprisonment for supply and possession.

The learned sentencing Judge noted the applicant's cooperation by entering timely pleas of guilty and making full admissions, which warranted a reduction in sentence. He described the amounts of money involved as significant and the trafficking as "large scale", but at street level. He expressed the view that it was preferable not to reduce the head sentence but to recognise the mitigating features by a recommendation for parole so that the applicant would spend a longer time with the assistance of parole.

In a written submission, the applicant relied on the decision of this Court in R v Bagnall [2005] QCA 20 as demonstrating an appropriate sentence. In that case, the applicant who was 29 years old had been convicted of trafficking in methylinedioxymethylamphetamine and methylamphetamine over a 39 day period involving only five sales; and only one of those sales involved methylamphetamine.

The applicant there contended that he received no profit from selling the drugs but instead obtained MDMA for his own use. He had some minor drug history. He had pleaded guilty early and the matter had proceeded by way of an ex officio indictment. He was sentenced to three years' imprisonment suspended after nine months. This Court in refusing leave to appeal described that sentence as one which gave considerable weight to the factors in his favour.

Counsel for the applicant argued that a sentence of three years suspended after 12 months ought to have been imposed here. He also pointed out that the applicant would be required to serve at least 16 months of the two year sentence for possession of heroin before being eligible for release on licence with the potential effect of frustrating the recommendation for eligibility for parole at 15 months.

The Crown relied on R v Taylor [2005] QCA 379 in which the applicant had been sentenced to five years' imprisonment suspended after two years on a count of trafficking in methylamphetamine and methyldioxymethylamphetamine. Over a three months period he had had about a dozen regular customers to whom he sold Ecstasy tablets or, to a lesser extent, methylamphetamine. He admitted to selling the drugs to make money but at sentence said that he had used Ecstasy himself at a weekly cost of between $200 and $250. He was only 20 at the time of sentence. He had no previous convictions, had admitted his involvement and had pleaded guilty at the first opportunity. Nonetheless, this Court held that the sentence was not manifestly excessive, although it might well have been shorter, given the mitigating circumstances.

In my view, the same conclusion must be reached here as to the sentence for trafficking. There are points of distinction between this case and Bagnall, which involved a very limited number of sales over a much shorter period with methylamphetamine involved on only one occasion and, of course, Bagnall was an unsuccessful appeal against severity of sentence which by no means provides any indication of the upper end of an appropriate sentencing range.

In this case, the trafficking sentence was, in my view high but it could not be said to be outside the available range. However, a sentence of two years' imprisonment for possession with no commercial element of 0.144 grams of heroin by a person addicted to that drug was too high.

I would grant leave to appeal, set aside the sentence of two years' imprisonment on count four and substitute a sentence of six months' imprisonment. I would not otherwise disturb the sentence.

de JERSEY CJ: The orders are as indicated by Justice Holmes.