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R v Roach

 

[2017] QCA 240

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Roach [2017] QCA 240

PARTIES:

R
v
ROACH, Nicolas Mark
(applicant)

FILE NO/S:

CA No 355 of 2016

SC No 1048 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 December 2016 (Dalton J)

DELIVERED ON:

17 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2017

JUDGES:

Morrison and Philippides JJA and Brown J

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug and one count of unlawful possession of a dangerous drug – where the dangerous drugs were steroids – where the applicant was sentenced to three years’ imprisonment with a parole release date fixed after one year on the count of trafficking – where the applicant was sentenced to one years’ imprisonment on the count of unlawful possession – where the sentences were ordered to be served concurrently – where the applicant applied for leave to appeal against the sentence on the ground that the time ordered to be spent in custody was manifestly excessive – whether there was a misapplication of principle by the learned sentencing judge

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant applied for leave to appeal against the sentence on the ground that the learned sentencing judge erred by failing to take into account differences between steroids and other scheduled drugs – where the applicant submitted that steroids have different features from other Schedule 1 drugs by reference to quantity and potential financial benefits – where the applicant submitted that the different features of steroids should have been taken into account in the assessment of the scale of trafficking and any sentence imposed – where the applicant in addition submitted that the application for leave to appeal ought to be granted on the ground that the learned sentencing judge failed to give adequate weight to the applicant’s mitigating circumstances

Drugs Misuse Act 1986 (Qld)

Drugs Misuse Regulations 1987 (Qld)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited

Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15, considered

R v Blumke [2015] QCA 264, considered

R v Bradforth [2003] QCA 183, cited

R v Connolly [2016] QCA 132, considered

R v Elhusseini [1988] 2 Qd R 442, cited

R v Engellenner [2012] QCA 6, considered

R v Hill, Bakir, Gray and Broad; ex parte Cth DPP (2011) 212 A Crim R 359; [2011] QCA 306, cited

R v Johnson [2007] QCA 433, cited

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

R v Ritzau [2017] QCA 17, considered

R v Scott [2006] QCA 76, considered

R v Stamatov [2017] QCA 158, cited

COUNSEL:

A J Kimmins for the applicant

S J Hedge for the respondent

SOLICITORS:

Potts Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have read the reasons of Brown J and agree with those reasons and the order her Honour proposes.
  1. PHILIPPIDES JA:  I agree that the application for leave should be refused for the reasons given by Brown J.
  1. BROWN J:  The applicant, Nicolas Mark Roach seeks leave to appeal a sentence which was imposed following a plea of guilty on 16 September 2016 to:
  1. One count of trafficking in a dangerous drug, namely steroids between 4 January 2015 and 25 January 2015 at the Gold Coast and elsewhere in Queensland (“count one”); and
  1. One count of unlawful possession of the dangerous drugs Trenbolone and Stanozolol on the 23 January 2015 at the Gold Coast in the State of Queensland and that the quantity of the dangerous drugs exceeded 50 grams (“count two”).
  1. Sentencing took place on 16 December 2016. The Court imposed the following sentence:
  1. In relation to count one: three years imprisonment with a parole release date fixed at 12 months, namely 16 December 2017;
  1. In relation to count two: one year imprisonment which was to be concurrent with the first sentence that was imposed.
  1. The applicant seeks leave to appeal his sentence on the grounds:[1]
  1. the sentence imposed was manifestly excessive (“ground one”);
  1. the learned sentencing judge erred by failing to take into account relevant category differences between steroids and other scheduled drugs (“ground two”);
  1. That the learned sentencing judge failed to give adequate weight to the applicant’s relevant mitigating circumstances (“ground three”).
  1. In oral submissions, it was ultimately not submitted that the head sentence of three years was excessive but it was submitted that the period of actual custody imposed (12 months) was excessive.[2]

Circumstances of the offences in respect of which the appeal is brought

  1. At the sentencing hearing, an agreed Schedule of Facts was tendered.[3]  A summary of the factual matters is as follows.
  1. On 23 January 2015 police executed a search warrant at the applicant’s residence. The applicant advised police that he had steroids in his bedroom. Police located some 44 vials, nine of which were found to contain steroids which fell within Schedule 1 of the Drugs Misuse Regulations[4] (“the steroids”)There was a total of 54.383 grams of the steroids, consisting of the following:
  1. 1 x Trenabol 200 containing 7.333 grams of Trenbolone;
  1. 3 x Stanabol 50 containing 17.032 grams of Stanozolol;
  1. 5 x Trenabol 200 containing 30.018 grams of Trenbolone.
  1. A tick sheet was also seized by police. By reference to names and dollar amounts beside each name, it was inferred that the applicant was owed $3,275 for drugs supplied by him.
  1. The applicant had supplied or offered to supply steroids on at least 18 occasions to 12 persons over a period of some three weeks. The text messages on the applicant’s seized mobile phone showed that the applicant had at least 21 customers.
  1. The text messages on the applicant’s mobile phone also showed that:
  1. The applicant actually supplied steroids on five occasions which ranged from one vial to several vials at a time.
  1. The applicant quoted different prices to different customers.  To most customers, the price was $100 per vial (referred to as a “bot”).  For some it was $150 per vial.  For some he offered a discount of $60 per vial for the customer’s personal use, but only if they agreed to continue to on-sell his product on the basis that they on-sell for $90 per vial.  Assuming that $60 was at or near his cost price, the applicant was generally making a profit of between $30 and $90 per vial.
  1. The applicant engaged with his customers and potential customers about the quality of steroids, his own steroid use and advice about how to use steroids.
  1. The applicant would purchase up to 150 “bots” at a time.
  1. The applicant had two persons who would on-sell steroids on his behalf.
  1. The applicant did not participate in an interview with police.
  1. The applicant accepted that the aggravating features of the applicant’s offending were that the trafficking took place over 19 days.[5]
  1. In terms of the applicant’s personal circumstances:
  1. The applicant was 25 years old during the offending period and 27 years old at the time of sentence.  He has a partner and a baby girl.
  1. He had a minor Queensland criminal history and lengthy New South Wales traffic history.  It was conceded by the applicant that his traffic history was a factor which weighed against him and that her Honour had made no error in taking that traffic history into account.[6]  It was also accepted that his poor performance in relation to one of the sentences imposed was a relevant feature that weighed against the applicant.[7]
  1. The prosecutor at the sentencing hearing described the nature of the offending as “low-level retail trafficking, but not at the very bottom of the range”.[8]  The applicant did not cavil at that description.

Approach of the sentencing judge

  1. Her Honour took into account the following factors in determining the sentence that was to be imposed:[9]
  1. The circumstances of the offending;
  1. That the possession of two varieties of steroids drugs did not involve any extra criminality to the count of trafficking.  Her Honour regarded it a “stock in trade” of the business;
  1. The applicant’s personal history;
  1. Although she regarded the applicant’s criminal history in Queensland by itself as minor and irrelevant, the applicant had a repeated number of serious breaches for traffic offences in Queensland and in New South Wales and had continued to breach the traffic law while he was on bail in relation to the offences which are the subject of this appeal;
  1. A Court report about the applicant’s unsatisfactory behaviour on the community based order in New South Wales;
  1. That he had entered a timely plea;
  1. That there was no additional co-operation with police which would warrant consideration of AB v The Queen;[10]
  1. That he was conducting a busy retail business with a wholesale aspect in the sense that he had two people who were buying from him and who were on-selling for him and who in fact received a discount from him because they were on-selling;
  1. The value of the drugs he was turning over was less in monetary terms than amphetamine and methylamphetamine;
  1. That he was selling steroids for amounts in the mid-hundreds of dollars quite regularly but it was noted that the tick sheets referred to amounts into the thousands of dollars;
  1. That it was apparent from text messages he was buying on occasions amounts of $1,000 worth of steroids;
  1. That it was also apparent from the text messages that he was selling many hundreds of bottles of steroids;
  1. That there were 21 customers identified from the records and that it appeared he was making money from his activities;
  1. A report from the psychiatrist, Dr Hagan, which was taken into account insofar as his description of untreated ADHD might lead to impulsive behaviour which her Honour stated might account for some of the applicant’s traffic history and perhaps account in some way for his drug use or drug trafficking; the opinion of Dr Hagan that the applicant had anti-social behaviour was a matter which her Honour regarded as a negative factor for the applicant’s prospects of rehabilitation;
  1. That the absence of any reference to steroid use or trafficking in steroids in the report from Dr Hagan meant that it was not relevant to the charge of trafficking and the charge of possession, save indirectly given the reference to impulsive behaviour;
  1. That there was no evidence in support of the submission that he was drug free or had been drug free for a period, save a work reference that had some bearing on that matter;
  1. That he had a good work reference insofar as he had been working as a bricklayer for the last 12 months;
  1. That the submission that the applicant was just about to give all the drug trafficking away was quite inconsistent with the text message, relied upon by the prosecution, sent by the applicant on the very day of his arrest.
  1. Her Honour identified the fact that offences involving steroids are still unusual in this Court.[11]  However, her Honour considered that steroids had been made a Schedule 1 drug under the Drugs Misuse Regulations 1987 (Qld) by the legislature and determined that she ought to treat steroids as she treated other Schedule 1 drugs and not more leniently, and that in any case she did not have a factual basis for treating steroids more leniently.  Her Honour stated that the effect of putting steroids into Schedule 1 is that the legislature regarded, and so the Court is to regard, steroids as being a type of drug as serious and as dangerous as methylamphetamine or heroin.  She therefore regarded the cases which concern sentences for methamphetamine offences as directly comparable.
  1. Her Honour considered that R v Scott,[12] which was a case of trafficking in methylamphetamine, was the most comparable case to which she had been referred.  However, she noted that there were differences from the present case: the trafficking which Scott had engaged in was for a period twice the length of the period that the applicant had engaged in and that the trafficking was done by Scott while on bail which was worse than the applicant’s; Scott was 21 years old at the time of trafficking whereas the applicant was 25 years old which she considered was a fairly significant age difference and difference in terms of maturity; Scott was entitled to additional leniency on the basis of AB v The Queen[13] because of his cooperation with the police;  and Scott had a minor criminal history compared to the applicant’s history was slightly worse.  Scott was sentenced to a period of imprisonment for three years and six months to serve fifteen months.  That sentence was not interfered with upon appeal.
  1. Her Honour also had regard to the case of R v Engellenner.[14]  Her Honour noted that in that case the trafficking of MDMA (which was a Schedule 2 drug) was for a period of 26 days.  It involved admissions and cooperation with police which was not present in the applicant’s case.  Engellenner was considerably younger being 18 years old and did not traffic on his own account.  He was sentenced to a period of imprisonment of three years to serve six months.  The Court of Appeal overturned the latter part of the sentence to provide for immediate parole.
  1. Her Honour also had regard to five single judge decisions in the Supreme Court, each dealing with trafficking in steroids,[15] and assessed the similarities with and differences from the applicant’s situation.
  1. While Her Honour reached the view that Scott was the most comparable case she sentenced the applicant to a lesser sentence of three years with parole after 12 months.

Contentions of the applicant and respondent

  1. The applicant’s submission at the hearing of the appeal differed from his written submissions insofar as:
  1. In relation to ground one, the applicant did not contend the head sentence was manifestly excessive, but rather that the time ordered to be served in custody was excessive;[16]
  1. In relation to ground two, the applicant did not contend that the mere fact that a steroid was a different drug from methylamphetamine warranted different treatment but rather that steroids have different features in terms of quantity and potential financial benefits which should be taken into account in the assessment of the scale of trafficking and any sentence that should be imposed.[17]
  1. In support of ground two of his appeal, the applicant particularly drew upon the fact that for the circumstance of aggravation to arise in respect of possession of a dangerous drug in Schedule 1 under section 9 of the Drugs Misuse Act 1986 (“the Act”), the different quantities in Schedule 3 and Schedule 4 of the Regulations demonstrates that there are different statutory features relevant for steroids.  Schedule 3 provides that the amount possessed of a steroid must be 50 grams to constitute a circumstance of aggravation as opposed to, for example, two grams of methylamphetamine.  Schedule 4 of the Regulations provides that an amount of 500 grams of steroids must be in the party’s possession to constitute a circumstance of aggravation in contrast to the amount of methylamphetamines which is 200 grams.
  1. The applicant further submitted that the quantity of the drugs involved and the potential financial rewards are defining features for a drug such as steroids, a proposition said to be supported by the decision of the Court of Appeal in R v Hill, Bakir, Gray and Broad; ex parte Cth DPP.[18]
  1. The applicant contended that the usage of steroids does not have wide spread appeal across the general community, but rather involves those in a gym culture and particularly young men.[19]  This was in contrast to the Ice epidemic which is recognised to raise a real need for general deterrence.[20]  It was submitted that this feature should be taken into account as a subcategory of the quantity argument in the assessment of the trafficking and need for deterrence.[21]
  1. The applicant submitted that the features of the applicant’s case that the Court should have regard to in sentencing were:
  1. The applicant was in possession of 54.383 grams, which was just over the amount specified in Schedule 3 of the Regulations;
  1. That there was no evidence as to the form that the 54.383 grams took such as whether it was broken up into saleable quantities or what the expected return would be in relation to those quantities;[22]
  1. That there was no evidence of unsourced income;
  1. That there was no evidence provided of extravagant living;
  1. The applicant was a user of steroids;[23]
  1. There was no evidence that he had profited apart from his usage of steroids.  The applicant accepted that her Honour had noted that he had made money out of the venture but there was no evidence as to the level of that and had accepted that he used steroids.  The applicant however contended that the point was neutral as there was no evidence that he had used any money he had received other than to purchase drugs for his own use or that there was any actual profit.[24]
  1. The applicant contended that Scott[25] was a more serious case.  Counsel contended that it was significant that when Scott was decided there was no authority of the Court of Appeal accepting that sentences for trafficking could involve a wholly suspended sentence or immediate parole.[26]
  1. The applicant submitted that later cases of R v Blumke,[27] R v Connolly,[28] and particularly R v Ritzau[29] were more relevant cases to trafficking in Schedule 1 drugs than Scott.[30]  The applicant also submitted that a number of single judge decisions which had dealt with steroids, even when the steroids were Schedule 2 drugs in the Regulations, showed the level of sentencing appropriate for the type of offence although those decisions were not binding.[31]
  1. The applicant submitted that the period of twelve months in actual imprisonment imposed by her Honour was excessive.
  1. The respondent submitted that, even if the applicant’s argument was to be accepted, the Court’s reliance on Scott was actually consistent with the Court taking into account the differences in relative quantities of steroids and methylamphetamines which constitute a circumstance of aggravation in relation to charges of possession.  In Scott, the pure amount of methylamphetamine was just under two grams so if the relative comparison of the Schedule 3 amounts in the Regulations was made to steroids it would equate to slightly less than 50 grams of steroids and was therefore comparable to the present case.
  1. The respondent contended that the decision of Hill and Bakir[32] was not on point as it relevantly dealt with importation.  The respondent contended that the focus on the quantity and financial rewards is often all that is known in importation cases.
  1. In contrast to importation cases, there are a large range of factors that are relevant to assessing how serious drug trafficking is, of which stockpile is only one of the relevant factors.
  1. The respondent contends that there was no error by her Honour in approaching the question of general deterrence in same way as methylamphetamines or MDMA cases. In any event, the respondent contended that her Honour did not place any significant weight on general deterrence in her remarks and that there was no factual basis for the applicant’s characterisation.
  1. The respondent contended that Parliament has indicated how seriously steroids are to be taken by the Courts and the need for general deterrence by putting them in Schedule 1 of the Regulations.
  1. The respondent contended that the statements of the High Court at [10] of Adams v The Queen,[33] were applicable insofar as Parliament has made its judgment as to the appropriate penal response to involvement in the trade of illicit drugs and as such judges should not apply judicially constructed, harm based accreditation of penalties which could cut across the legislative intent.
  1. The respondent contended that in the present case the Court did not need to determine whether judges could never decide that a different level of deterrence was appropriate because the evidence was not present in this case to make such a determination.[34]
  1. In relation to the question of profit, the evidence was silent as to how the money was spent. According to the respondent, how the money made by the applicant from drug trafficking was spent was irrelevant other than in the case of addict.
  1. The respondent contended that the sentence imposed upon the applicant was not manifestly excessive.
  1. Given the relevant circumstances of each case, the respondent contended that Ritzau, Scott and Engellenner sit comfortably with present head sentence.  Further in relation to the time to be served by the applicant, the respondent contended that the applicant was not somebody who was very young, did not lack criminal history nor was there a lack of profit from trafficking.  The applicant did not make admissions nor was there an early plea of guilty and further he did not provide significant evidence of rehabilitation.  Five months of the present case was only one-seventh of the sentence of three years and none of the circumstances warranted such a short period of time served.
  1. The respondent also indicated that the single judge cases referred to by the applicant were of little assistance to the court. All except for Morris involved steroids when they were a Schedule 2 drug and it was unclear what cases had been provided to the particular sentencing judge.

Consideration

  1. The majority of the applicant’s submissions addressed ground two so I shall consider that ground first.

Ground Two

  1. The applicant abandoned the argument that steroids should be treated differently from those drugs specified in Part 1 of Schedule 1 of the Act by reason of the fact that they were placed in Part 2 of Schedule 1 or by reason of the fact that they were a different drug.[35]  In my view that is a proper course for the applicant to have taken given the High Court determination in Adams[36] considered by this Court in R v Stamatov.[37]  The Parliament has made a determination as to the level of seriousness that should attach to trafficking in steroids by amending Schedule 1 to add specified steroids and removing those steroids from Schedule 2.  The legislative intent as reflected in the explanatory notes is that the amendments to Schedule 1 are:

“[T]o strengthen penalties for offences involving anabolic-androgenic steroids similar to those applying to other dangerous drugs such as methamphetamine or ecstasy.”

  1. As was stated recently by this Court in R v Stamatov:[38]

[57] Where Parliament has stated that trafficking in certain drugs should attract the same or similar penalties (as well as be subject to the same maximum penalty) deference to legislative assessments of relevant harm is required.  In such a circumstance the Court should not proceed on the basis that one such drug is in some way less anti-social than another drug, since Parliament has indicated that offending conduct in respect of both drugs should attract the same or a similar penalty.

[58] In the present case, the intent of Parliament, as reflected in the enactment of the 2014 amendments which included numerous steroids in Schedule 1, and as reflected in the explanatory notes to the amending legislation, is that penalties for offences involving those steroids are to be ‘similar to those applying to other dangerous drugs such as methamphetamine and ecstasy’.”

  1. As set out above the applicant instead sought to rely on a distinction drawn in the legislation between the quantity of steroids required to constitute a circumstance of aggravation in Schedule 3 or 4 as opposed to the relatively small quantity of methylamphetamine required to constitute a circumstance of aggravation under those Schedules and the financial benefits that were able to be gained in relation to those quantities. This approach was said to be supported by the decision of Hill and Bakir.
  1. In Hill and Bakir, the Commonwealth DPP appealed a sentence for various drug offences which included the importation and possession of a commercial quantity of a border-controlled drug known as GBL from which GHB was manufactured.  It was argued that the sentencing judge had sentenced inconsistently with Adams by assessing the seriousness of the offending conduct by reference of the qualities of the subject drug rather than by reference to the legislative scheme and particularly placing reliance on the one case that had considered the same drug.[39]
  1. The majority of the Court of Appeal, Muir and White JJA, concluded that the sentencing judge did not err in looking for comparable sentences which related to the drug in respect of which the trial judge was sentencing even though there was only one decision. Muir JA noted however that his Honour did also consider the sentences in respect of similarly scheduled drugs.[40]  Nor did their Honours find it was erroneous of the sentencing judge to have regard to the quantity of the drug imported or the extent to which the respondents profited or stood to profit from the importation.[41]  White JA stated that the amount of the drug was important in ascertaining whether it would constitute a commercial quantity.  The selling value of the drug was relevant since one aspect of deterrence was to make the financial gain not worth the risk.[42]
  1. At [30] Muir JA stated that:

“A judge sentencing for Commonwealth offences is usually required to have regard to decisions concerning similar circumstances with a view to achieving reasonable consistency in penalties for like offences in like circumstances.”  (footnote omitted)

  1. The comments of Muir JA and White JA were made in the context of considering a charge of importation rather than trafficking in a dangerous drug. The decision does not stand as authority that the determination of the sentence should, as a general principle, be determined by reference to the quantity of drugs and relativity of financial return.
  1. In determining the question of seriousness of trafficking, the Court has regard to a broad range of factors and is not confined to considering the quantity of the drugs involved nor the value of such drugs upon sale. While those are relevant factors, they are not determinative. Nor do the features of relativity in Schedules 3 or 4 suggest that the considerations of relativity to other Schedule 1 drugs and the potential financial returns are determinative of the seriousness of the scale of trafficking in relation to steroids.
  1. While the difference in quantities between the drugs identified in Schedules 3 and 4 may give some guidance as to the relativity between the amount of drugs which Parliament considers to be an aggravating factor in terms of possession, that does not reflect a legislative intent that the quantity of steroids and the potential rewards are the principal features to be considered in assessing the scale of trafficking.
  1. As Applegarth J stated in R v Stamatov:[43]

“Where an offence, such as trafficking in a dangerous drug, contains no scheme of graduated penalties based on quantity, the quantity of the drug will be one of many factors taken into account in a particular case in determining an appropriate penalty.”

  1. The misconception in the applicant’s argument is apparent when one has regard to the fact that trafficking may be established without any actual quantity of drugs being identified as being in a party’s possession or as being the actual subject of the trafficking.[44]  Nor does the level of rewards or profits need to be established in order to successfully prove the offence of trafficking.
  1. In R v Johnson[45] Keane JA at [17] said that the variety of circumstances which may attend the trafficking of dangerous drugs meant it was not possible to categorise the degrees of seriousness of offending in particular cases with precision.
  1. Muir JA in R v Bradforth[46] (with whom Williams JA and Jerrard JA relevantly agreed) stated at [29]:

“Major determinants of penalty in trafficking cases include the type of drugs supplied, the quantity of the drugs, their value, the nature of the venture or undertaking, and whether the activities are commercial or are engaged in to feed a habit.  In all cases, however, regard must be had to the maximum penalties imposed by statute and the recognition by the Legislature and the courts that the purveying of drugs of the nature of those under consideration, however motivated, has the potential to cause much individual suffering, as well as social harm and decay.”  (emphasis added)

  1. In the sentencing remarks, her Honour had regard to both the quantity and value of the drugs involved insofar as text messages evidenced the amount being bought and sold. The amount of the steroids found to be in the applicant’s possession was treated by her Honour as “stock in trade” and not as giving rise to any additional criminality. Her Honour also had regard to the fact that he appeared to be making money from the activities and the other indicia of carrying on business.
  1. There was no error in her Honour’s approach. The provisions of the Act and Regulations do not support a legislative intent that in the case of steroids the factors of quantity of the drugs and their value is to be attributed greater weight in assessing the scale of trafficking or its deterrence than would be involved in considering trafficking of other Schedule 1 drugs.
  1. The applicant also contended that as a subcategory of the argument about quantity, it was relevant to general deterrence to have regard to the nature of those using steroids by reference to the five, single judge cases which were characterised as being young men involved in a gym culture. Those cases do not establish that it is in fact that demographic who use those drugs. As such, the evidence did not require or permit the court to engage in such a process.
  1. As was submitted by the respondent it would be inappropriate to make generalisations about who sells drugs and who uses them, as the applicant had sought to do in characterising the steroids as drugs used by young men for a part of a gym culture. The need for caution was referred to by the High Court in Adams[47] at [9]:

“Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution…”

  1. There was no error in her Honour not engaging in such a process.
  1. That is not to suggest such an exercise should be carried out by a sentencing judge. If the court were to engage in such an exercise, that could engage the court in an assessment of the harmfulness of the drug and potentially cut across the legislative scheme whereby the parliament has made steroids a Schedule 1 drug under the Act thus indicating that the parliament has assessed steroids as a drug for which general deterrence is needed.[48]  It is not however a question that this appeal requires the court to decide.

Ground One

  1. The applicant submitted that the cases to which her Honour was directed[49] involved more serious offending than the applicant’s and that the sentencing judge failed to make due allowance for that fact.  This is despite the fact that her Honour, while finding that the case of Scott was the most comparable, gave a lesser sentence than imposed in that case.
  1. The applicant submitted the sentence imposed was manifestly excessive having regard to the cases of Blumke,[50] Connolly[51] and Ritzau,[52] as well as five, single judge cases which involved steroids.
  1. In Blumke, the applicant had been convicted of one count of trafficking in MDMA, cannabis and Pyrovalerone for a period of some two and a half months, some five counts of supplying a dangerous drug methylamphetamine and one count of supplying a dangerous drug Pyrovalerone.  On the trafficking count, the applicant was sentenced to four years’ imprisonment to be suspended after one year with an operational period of four years.  The nature of the trafficking was described as involving multiple transactions and multiple drugs primarily at street level but on some occasions not at street level.  There were substantial quantities of methylamphetamine involved.  The defendant was an active participant in the trafficking business including negotiating prices with various customers.  The defendant was 27 years old at the time of offending and 29 years old at the time of sentence and had a minor criminal history involving four minor drug offences.  There were various mitigating circumstances in Mr Blumke’s favour.  In particular there had been significant steps taken by Mr Blumke to obtain employment, to resume his relationship with his partner and to remove himself from the influence of the social groups in which his offending had occurred.  The trial judge considered that there were significant prospects for rehabilitation.[53]  This Court held that the sentence imposed was not manifestly excessive.  While the offending in Blumke was more serious than in the present case, the applicant did not present evidence in this case which satisfied her Honour that he had ceased to use steroids or had engaged in significant rehabilitation.
  1. In Connolly, the defendant in question had trafficked drugs for four months and was generally a “street level dealer” in methylamphetamine, although he had access to large quantities of methylamphetamine at short notice and could also obtain large quantities of cannabis at short notice.  There was no evidence of the level of profit from sales.  When his premises was searched by police, 38 grams of cannabis as well as other utensils associated with drug use were found.  Text messages on the defendant’s mobile phone established that the defendant had used it to carry on the trafficking.  The applicant was 19 years old when the offences were committed and 22 years old when sentenced.  He had a minor criminal history.
  1. In Connolly, this Court in particular gave weight to the fact that the applicant had been compliant with his bail, had obtained full-time work and had succeeded in ridding himself of his previous drug addiction.[54]  In re-exercising the sentencing jurisdiction the Court did not consider it would be appropriate to require the applicant to serve the same period of actual custody as that imposed on the much older offender in Blumke.  In particular, the Court noted that the applicant had been an addict who had taken impressive steps towards rehabilitation such that even with the inherently serious crime of trafficking in Schedule 1 drugs that could be a mitigating circumstance, especially when “…there is genuine effort of rehabilitation which is bearing fruit.”[55]  On that basis the Court considered that those matters together with the applicant’s age, early plea, remorse and good references indicated that a sentence of four years imprisonment suspended after six months and for an operational for five years was one that was realistically a deterrent to the applicant and other young offenders while also giving due regard to the other matters.  The offending in that case was more serious but Mr Connolly was younger than the applicant and unlike the present case he had shown he had taken significant steps in terms of his successful rehabilitation.
  1. In Ritzau, the whole of the trafficking involved 47 pills actually supplied to police and 28 pills intended to be supplied over a period of 18 days.  Ritzau did not traffic drugs at a wholesale level, unlike the applicant in the present case who had two people selling on his behalf.  Ritzau was 21 years old as opposed to the applicant being 25 years old.  Ritzau had an early plea of guilty and there was significant delay on the part of the prosecution.  In the present case, the applicant’s plea of guilty was a timely one.  The overall period of trafficking in both cases was similar, although the evidence in Ritzau was that there were only four occasions in that period on which drugs were supplied and he was found in possession of drugs on the last occasion when arrested.[56]  Thus the offending conduct in fact occurred over five days in the trafficking period as opposed to the present case where the text messages showed continuous engagement by the applicant and an intention to continue to traffic.[57]  Ritzau had no relevant criminal history, had been in consistent employment for six years which continued after he was on trial.  References indicated he had otherwise been a worthwhile member of the community.  The Court of Appeal in that case considered that the sentence imposed for trafficking of two years and six months suspended after seven months for an operational period of two years and six months was not manifestly excessive.[58]  Given the different circumstances from the applicant’s case, a consideration of Ritzau does not suggest any misapplication of principle by her Honour in imposing the sentence in the present case.
  1. The five, single judge decisions to which the Court was also referred by the applicant are of limited assistance in terms of determining whether any misapplication of principle has occurred. The different circumstances of those cases do not point to any misapplication of principle such that the sentence is definitely outside the range that is definitely justified in the present case. In all cases bar one the relevant steroids were a Schedule 2 drug at the time.
  1. The cases referred to by the applicant above do not support a finding that the sentence is manifestly excessive. While the range of appropriate sentencing is something upon which reasonable minds may differ and some may have been more lenient, that is not enough to warrant the granting of leave.[59]  In R v Pham[60] French CJ, Keane and Nettle JJ stated:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle (citation omitted).”

  1. A review of the above cases does not support the submission that there has been a misapplication of principle. I do not consider that the sentence and particularly the determination that the applicant should serve twelve months in custody is one which is manifestly excessive.

Ground Three

  1. Her Honour did not fail to consider the mitigating factors in the applicant’s favour to the extent that they were established by the evidence. In terms of the medical evidence, her Honour took account of the medical evidence[61] but properly identified its deficiency in failing to address the applicant’s steroid use or address the fact that the applicant had been trafficking.[62]
  1. While her Honour did not explicitly refer to the letter from the General Practitioner it was a letter of referral to the psychiatrist and did provide any independent opinion that required additional consideration in her reasons.[63]  To the extent the letter of the General Practitioner referred to the applicant having ceased drug use in 2015 her Honour noted that there was no independent evidence supporting the fact that the applicant had not continued to use steroids,[64] save that the reference for his work as a bricklayer may have some bearing upon whether there was continued drug use which her Honour took into account.[65]
  1. There was no failure by her Honour to take account of the applicant’s mitigating circumstances to the extent that they were established on the evidence and I find no error.

Conclusion

  1. I would refuse the application for leave to appeal.

Footnotes

[1]  Leave was given to amend the grounds of appeal which was opposed by the respondent.

[2]  T1-25/45-6 and T1-26/1-2.

[3]  AB50.

[4]  AB50.

[5]  T1-3/15.

[6]  T1-4/14-19.

[7]  T1-4/20-21.

[8]  AB22/29-31.

[9]  AB 31-35.

[10]  (1999) 198 CLR 111.

[11]  AB 32.

[12]  [2006] QCA 76.

[13]  (1999) 198 CLR 111.

[14]  [2012] QCA 6.

[15]  AB33-35, R v Baker , R v Brennen, R v Tyler, R v Morris and a decision of Applegarth J of 10 July 2012.

[16] Cf Applicant’s submissions at [19] and concession at T1-25/45-46 and T1-26/1-2.

[17]  T1-8/14-23, T1-19/36-39 Cf Applicant’s submissions at [24]-[27].

[18]  [2011] QCA 306; (2011) 212 A Crim R 359.

[19]  T1-16/9-22.

[20]  T1-16/28-36.

[21]  T1-17/38-39.

[22]  T1-12/1-5.

[23]  T1-14/22-29.

[24]  T1-15/40-46.

[25]  [2006] QCA 76.

[26]  T1-20/25-30.

[27]  [2015] QCA 264.

[28]  [2016] QCA 132.

[29]  [2017] QCA 17.

[30]  T1-22/30-40.

[31]  T1-31-10-14.

[32]  [2011] QCA 306.

[33]  (2008) 234 CLR 143.

[34]  T1-35/1-6.

[35]  Applicant’s submissions at [24]-[27].

[36]  (2008) 234 CLR 143.

[37]  [2017] QCA 158.

[38]  [2017] QCA 158 at [57]-[58].

[39]  At [3]-[4].

[40]  At [8].

[41]  At [9] per Muir JA and [54] per White JA.

[42]  At [54].

[43]  [2017] QCA 158 at [42] with whom Gotterson JA and Atkinson J agreed.

[44]  In R v Elhusseini [1988] 2 Qd R 442, McPherson J pointed out the various indicia to which one has regard in determining whether a party was carrying on business.  Such factors are similarly relevant to the scale of the business being carried on the level of trafficking occurring.

[45]  [2007] QCA 433.

[46]  [2003] QCA 183.

[47]  (2008) 234 CLR 143.

[48] Adams v The Queen (2008) 234 CLR 143 at [10].  In this regard, I note the very useful discussion by Applegarth J in R v Stamatov at [70]-[83].

[49] R v Scott [2006] QCA 76 and R v Engellenner [2012] QCA 6.

[50]  [2015] QCA 264.

[51]  [2016] QCA 132.

[52]  [2017] QCA 17.

[53]  At [10].

[54]  At [35].

[55]  At [40].

[56]  At [5].

[57]  Although in Ritzau’s case he was looking to make extra cash; [2017] QCA 17 at [18].

[58]  At [43].

[59] R v Ritzau at [43].

[60]  [2015] HCA 39; (2015) 90 ALJR 13 at [28], (2015) 256 CLR 550 at 559.

[61]  AB 32 /30-34.

[62]  AB 32/35- 44; A matter conceded by Counsel for the Applicant T1-14/26.

[63]  AB 92-93.

[64]  AB 33/1-2.

[65]  AB 33/4-5.

Close

Editorial Notes

  • Published Case Name:

    R v Roach

  • Shortened Case Name:

    R v Roach

  • MNC:

    [2017] QCA 240

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Brown J

  • Date:

    17 Oct 2017

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment SC1048/15 (No Citation) 16 Dec 2016 Date of Sentence (Dalton J)
Appeal Determined (QCA) [2017] QCA 240 17 Oct 2017 -

Appeal Status

{solid} Appeal Determined (QCA)