R v Whyte [2003] QCA 56

Court of Appeal (Qld)|2003-02-20|Before: McMurdo P, Mackenzie and Philippides JJ, Separate reasons for judgment of, each member of the Court, each concurring as to the order made

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Justice Philippides will give her reasons first.

PHILIPPIDES J: This is an application for leave to appeal against the sentence imposed on the applicant, on the ground that the sentence was manifestly excessive.

On 15 November 2002, the applicant pleaded guilty to one count of trafficking in cannabis, in respect of which he received a sentence of four years' imprisonment, suspended after 12 months, with an operational period of five years.

She was also convicted on her own plea, to one count of receiving property obtained from the trafficking and sentenced to 12 months' imprisonment, one count of possession of cannabis, in respect of which a sentence of six months' imprisonment was imposed, one count of permitting the use of a place for the commission of a crime, in respect of which a sentence of 12 months was imposed and one count of possession of things used for the commission of a crime, to which she was sentenced to six months' imprisonment.

The applicant was about 20 years at the time the offences were committed. The circumstances concerning the offences are as follows. As a result of information received on 25 March 2002, the police kept the residence of the applicant and her husband under observation and the following day, stopped and searched an individual who had attended at the residence.

They found cannabis on that person and subsequently, they stopped another individual who had been to the premises and found additional items that caused them to obtain a search warrant, which they executed on the applicant's residence on 30 March 2002.

Upon execution of the warrant, the police found the applicant, her husband and others seated in the lounge area around a table, on which there was a quantity of cannabis, some scales and a couple of water pipes. The police located 28.3 grams of cannabis.

The applicant took part in an interview, during which she told police she and her husband had been involved in selling cannabis, from approximately August 2001. She admitted selling amounts of between .3 of a gram to 7 grams, for amounts of between $5 to $90 and admitted that on a couple of occasions, she had sold as much as 14 grams for $170.

On a quiet day, the applicant indicated that she would sell to between five to 10 people and on a busy day, to between 20 to 30 people. Most transactions involved a sale of one and a half grams for $20.

The applicant told police that most of the people to whom the drugs were sold were friends or acquaintances, but as word had got around the Beenleigh area (where she resided) of the applicant and her husband's dealing in drugs, they sold to other people as well.

The applicant admitted that the turnover during the period of trafficking had been up to $20,000 and that she and her husband had hoped to commence a legitimate gardening business, to replace their illegal drug activity.

The applicant told police that she and her husband needed extra money to pay rent and other bills, because her husband had lost his Centrelink benefit. The applicant was not a cannabis user, although her husband was addicted to cannabis and amphetamines.

The applicant had a minor prior criminal history for possession of cannabis and utensils, in respect of which she was convicted on 1 November 2001 and fined $450, with no conviction being recorded. The applicant's husband had a more serious criminal history, with prior convictions for producing and possessing dangerous drugs, as well as a number of dishonesty offences.

The learned sentencing Judge, in imposing sentence, had regard to the seriousness of the offence of trafficking and the fact that the trafficking had taken place over a period of some eight months, during which the turnover generated from the sales, was some $20,000.

His Honour also had express regard to the applicant's plea, her youth and her cooperation.

His Honour considered that there was little to distinguish the criminality of the applicant from that of her husband. Unlike the applicant, he was a drug addict and had breached a probation order and a community service order in committing the traffic offence. Those were matters of distinction. The learned sentencing Judge sentenced the applicant's husband to four years' imprisonment, suspended after 18 months, for an operational period of five years.

The applicant submitted that the sentence imposed was manifestly excessive, because insufficient weight was given to the applicant's youth, cooperation and the circumstances of the offence. In particular, it was urged by counsel for the applicant that insufficient weight was given to the applicant's cooperation, involving her volunteering information which led to the present offences, the applicant's motives, which although financial ones relating to the circumstances in which she and her husband had found themselves. In addition, it was submitted that the nature of the trafficking, not being a sophisticated operation and involving sales primarily to the applicant's friends and acquaintances of small amounts of cannabis, was a factor which should also have been given more weight. Additionally, reference was made to the fact that the applicant had a five month old child.

It was submitted on behalf of the applicant, that a head sentence of four years was excessive and that the sentence which should have been imposed was a period of imprisonment, wholly suspended after three to six months and that this Court ought, in allowing leave to appeal, impose a sentence wholly suspended in lieu of the sentence imposed.

The applicant's counsel referred to a number of comparative cases, but in particularly, submitted that the case of Vellacott was the most appropriate comparative. In that case, a sentence of two years was imposed, suspended after nine months and for an operational period of three years, for an offence of trafficking. That case, however, is distinguishable, because the offending involved was of a much lesser nature than that in this case.

The respondent submitted that the sentence imposed by the learned sentencing Judge was within the appropriate sentencing range, given the serious nature of the offence of trafficking, the fact that the offence involved a considerable number of sales, the fact that the applicant was motivatd by purely commercial considerations, rather than the need to meet any drug dependency and the fact that the applicant had already been shown leniency during the period of offending.

The respondent referred to cases such as Haygarth and McFadden as more appropriate comparative cases. I consider that the case of Haygarth is an appropriate comparative case in this case. It was one where a sentence of four years' imprisonment was imposed, with a recommendation for parole after 12 months.

That case involved an offender who was older than the applicant and whose criminal history was more serious. However, that is balanced by the fact that the criminality in that case was of a lesser nature than here, involving trafficking over a shorter period and of lesser quantity. Taking into account the comparative cases referred to and in particular Haygarth and the circumstances of this case, I consider that the sentence imposed made appropriate allowance for matters of mitigation and was within the learned sentencing Judge's discretion. The sentence cannot be said to be manifestly excessive. I would refuse leave.

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