R v Whithouse [1998] QCA 148

Court of Appeal (Qld)|1998-03-26|Before: Davies JA, Pherson JA, Shepherdson J

The applicant is 37 years of age having been born on 5 January 1961. She has a substantial history of drug offences commencing in 1990, although none of them as serious as this one. The most serious of them appears to have been supply and production of a dangerous drug, presumably in each case marijuana for in respect of none of the offences in which she has previously been convicted has she been sent to prison. Generally she has been fined, in some cases converting those fines into community service. At the time of commission of these offences the applicant was herself addicted to methylamphetamines.

It appears that the police targeted a number of people in relation to production and sale of methylamphetamines. One of them was the applicant. In the course of their investigation they went to the applicant's house with a search warrant on 3 September 1996. There they found 6.652 grams of methylamphetamine of a purity varying between 68.2 per cent and 79 per cent. The learned sentencing Judge was told that the percentage of methylamphetamine normally found in quantities sold on the street varies from one to five per cent. During the course of a police interview the applicant admitted to trafficking in methylamphetamine. She said that she would buy eight grams at a time for $1,500 and would sell it in small amounts for $100 or $50 for a total sale price of $2,400. That indicates a substantial profit for each sale. She was initially buying from a friend but later bought directly from the manufacturer. She declined to identify either. The friend, as it turned out, was a woman called Robyn Comollatti who had pleaded guilty earlier and who was prepared to, and about to give, evidence for the Crown at the applicant's trial. The manufacturer, it seems, had also been identified by Comollatti and his trial was still pending at the date of the present sentence. Comollatti had indicated her willingness to give evidence against him also.

It may be accepted that the applicant was engaged in the business of trafficking in methylamphetamine mainly to satisfy her own habit. Nevertheless as I have said she made a substantial profit from it.

Like many criminals the applicant has had a sad personal life. She was abandoned by her parents as a young child and brought up in a children's home. She was educated only to grade 9 standard and has had only unskilled employment. It appears that she has worked as a prostitute. Nevertheless she has two children, both girls, aged 14 and 13, attending school and both excelling at it. She is their sole carer and supporter. She is undoubtedly concerned about their welfare. However the assertion on her behalf that she is remorseful seems inconsistent with her proceeding to trial and pleading guilty then only when some compromise was made about the number of charges she would face. The learned sentencing Judge was correct in saying that she should obtain credit for her plea of guilty, not that it should not be substantial.

It was put to the learned sentencing Judge on the applicant's behalf that with the help of the drug and alcohol rehabilitation centre the applicant had, by the time of sentence, overcome her addiction. This was not contradicted. The learned sentencing Judge was correct in saying that this offence was a serious one. It is also one in which deterrence, not only of the person sentenced but of like-minded persons, is a very important consideration.

The learned sentencing Judge was told of the sentence which had been imposed on Comollatti which was one of four years imprisonment for substantially the same offence, that is principally the same offence, with a recommendation after nine months. The magnitude of the trafficking involved in Comollatti's offence appears to be similar although over a slightly longer period. His Honour said that two factors made the applicant's situation more serious than that of Comollatti. The first was that Comollatti's previous criminal history was not as serious as that of the applicant. That is correct, although in neither case were their criminal histories substantial. The more important difference, in my view, is that Comollatti was prepared to identify both her supplier and the applicant as offenders and to give evidence

against them. This Court has in the past said that substantial discount should be given when that is so. Offences of this kind are difficult to detect and prosecute and there is often a personal danger involved in giving evidence. I note that Comollatti was subject to a witness protection program.

We have been referred to a number of earlier decisions in this Court dealing with trafficking in methylamphetamine. In Duggan (CA Nos 441 and 465 of 1995, 25 June 1996), this Court analysed a number of sentences for trafficking in amphetamine, including the cases of Dorey (CA No 274 of 1987, 2 February 1988), Cuddy (1988) 37 A Crim R 226 and White (CA No 56 of 1992, 11 June 1992), all of which tend to show that the sentence imposed here was high as does the sentence which was imposed in Duggan itself. However, I do not think that those cases show that the sentence imposed here was manifestly excessive and I do not think it is out of line with the sentence imposed in Comollatti given the willingness of the offender in that case and the unwillingness of the offender in this to identify and give evidence against her other offenders and, in particular, against her supplier.

This case is a very sad one especially for the applicant's daughters. That, unfortunately, is the price which people pay who deal in serious drugs. I would refuse the application.

SHEPHERDSON J: I agree. I should add, however, that I agree with the comments of the Judge who sentenced Comollatti that he regarded trafficking in methylamphetamine as a very serious offence. As I said I agree with those comments and I would not regard the sentence from which application for leave to appeal is brought as a high one. I think that probably the range of sentences for this type of offence may, if the offence continues to be prevalent, have to be reviewed upwards, but this is not the occasion to do that.

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