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R v Baker

 

[2018] QCA 209

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Baker [2018] QCA 209

PARTIES:

R
v
BAKER, David Stanley
(applicant)

FILE NO/S:

CA No 354 of 2016

SC No 471 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 23 November 2016 (Atkinson J)

DELIVERED ON:

7 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2017

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDER:

Refuse the application.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his plea of guilty to trafficking in a dangerous drug over a period of 14 months and sentenced to four years imprisonment – where the applicant was also convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs, possessing a dangerous drug exceeding 50 grams, possessing a thing used in connection with trafficking in a dangerous drug, possession of weapons (Category R), possessing a dangerous drug exceeding 5,000 grams and possessing a dangerous drug – where section 5 Drugs Misuse Act 1986 (Qld) meant the applicant will not be eligible for parole until after he has served 80 per cent of the four year term of imprisonment for the trafficking offence – whether the primary judge erred in not partly suspending the sentence in order to avoid the effect of section 5 – whether this failure rendered the sentence manifestly excessive – whether comparable sentences revealed the sentence to be manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty to trafficking in a dangerous drug over a period of 14 months and sentenced to four years imprisonment – where the applicant was also convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs, possessing a dangerous drug exceeding 50 grams, possessing a thing using in connection with trafficking in a dangerous drug, possession of weapons (Category R), possessing a dangerous drug exceeding 5,000 grams and possessing a dangerous drug – where the drugs were initially in schedule 2 but were moved to schedule 1 during the period of trafficking – where the sentencing judge assumed the maximum penalty applicable was the penalty for trafficking in schedule 2 drugs – where the applicant argued that the sentence of imprisonment was excessive having regard to comparable cases – whether the sentence is manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5(2), s 5(3)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

R v Borowicz (2016) 260 A Crim R 590; [2016] QCA 211, cited

R v Connolly [2016] QCA 132, applied

R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116, cited

R v Hughes [2017] QCA 178, distinguished

R v Kalaja [2017] QCA 123, distinguished

R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited

R v Stamatov [2018] 2 Qd R 1; [2017] QCA 158, cited

COUNSEL:

B J Power for the applicant

J A Wooldridge for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  The applicant was convicted on his plea of guilty and sentenced to four years imprisonment for trafficking in a dangerous drug between 6 May 2014 and 10 June 2015 (count 1).  He was convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs on diverse dates between 9 May 2014 and 6 June 2015 (counts 2 – 10), possessing a dangerous drug exceeding 50 grams on 7 June 2015 (count 11), possessing a thing used in connection with trafficking in a dangerous drug on 7 June 2015 (count 12), possession of weapons (Category R) on 7 June 2015 (count 13), possessing a dangerous drug exceeding 5,000 grams on 9 June 2015 (count 14) and possessing a dangerous drug on 9 June 2015 (count 15).  The effect of s 5(2) of the Drugs Misuse Act 1986 (Qld) in the form it was in at the time of sentence is that the applicant will not be eligible for parole until after he has served 80 per cent of the four year term of imprisonment for the trafficking offence.
  2. [2]
    The applicant has applied for leave to appeal against his sentence on three grounds:-
  1. (1)
    The sentence imposed was manifestly excessive;
  2. (2)
    The sentencing discretion miscarried due to an error in the learned sentencing judge’s consideration whether to impose a partially suspended sentence; and
  3. (3)
    The learned sentencing judge erred in considering that in the circumstances of this case she was only permitted to give a single sentence for the totality of the offending.
  1. [3]
    The applicant’s main argument is that the sentencing judge erred by not ordering that part of the imprisonment for the trafficking offence be suspended and not imposing a concurrent term of imprisonment, with provision for release on parole, upon one of the other counts.  The argument raises issues about the application of s 5 of the Drugs Misuse Act, which has since been replaced by a very different provision.  At the relevant time the section provided as follows:

5 Trafficking in dangerous drugs

  1. (1)
    A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

Maximum penalty –

  1. (a)
    if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1–25 years imprisonment; or
  2. (b)
    if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2–20 years imprisonment.
  1. (2)
    If a court sentences a person to a term of imprisonment for an offence against subsection (1), the court must make an order that the person must not be released from imprisonment until the person has served a minimum of 80% of the prisoner’s terms of imprisonment for the offence.
  2. (3)
    Subsection (2) does not apply if the court sentences the person to a term of imprisonment and makes either of the following orders under the Penalties and Sentences Act 1992 for the person –
    1. an intensive correction order;
    2. an order that the whole or part of the term of imprisonment be suspended.”
  1. [4]
    The applicant was 41 to 43 years old when he committed the offences and he was 44 when he was sentenced.  He had a criminal history which the sentencing judge characterised as “relatively minor”.  In 2002 he was given 12 months’ probation for offences including a common assault and in June 2005 the same order was made for the breach of an earlier order.  He was fined in September 2005 for breaching the June 2005 probation order, and for dangerous operation of a vehicle, possession of a knife in a public place and obstructing police officers.  He was also found to have breached a bail condition in 2006.  That related to the present matter.
  2. [5]
    In the most serious offence, count 1, the applicant trafficked in steroids during a 14 month period.  The applicant was an active bodybuilder and often participated in online forums about the use and success of different steroids.  He purchased various kinds of steroids over the internet and resold them for profit.  The applicant’s supply of dangerous drugs in counts 2 – 10 were particulars of part of the trafficking charged in count 1.  He had many usernames on a secure messaging service pursuant to which his messages concerning the trafficking were automatically deleted after a period of time.  He bought steroids in bulk and messaged his customers about the stock he had on hand and the price.  The applicant used a “safe” phone number to avoid detection.  The applicant told his customers that he could order other steroids if they wanted anything else.
  3. [6]
    The extent of the trafficking between May 2014 and March 2015 could be inferred only from exchanges of messages and emails that had been saved as screen shots on the applicant’s phone or the phone of one of the applicant’s associates.  The “snapshot” of drug trafficking in the period up to March 2015 lists a series of exchanges of messages relied upon in support of counts 2 – 8, in each case concerning some hundreds of dollars as the stated price for various steroids.  Those messages were between the applicant and one Thompson, who is suggested by the messages to be on-supplying the drugs to others.  The schedule of facts with reference to which the applicant was sentenced stated that the trafficking must have involved more quantities of drugs and money than were identified by the individual transactions in the screen shots, given the scale to which the business developed and the quantity of drugs he had available for purchase.
  4. [7]
    The schedule stated that the scale of the trafficking from March to June 2015 was more readily discernible.  Count 9 relates to an exchange on 5 June 2015 between a customer and the applicant about the supply of forms of Testosterone.  Count 10 relates to an exchange between the applicant and Thompson about the supply on credit of Anastrozole tablets and Testosterone.  On a search of the applicant’s residence on 7 June 2015 police found 128.367 grams of steroids (count 11) worth at least $2,490.  The applicant cooperated with police in the search.  The steroids were illegally manufactured through underground labs and the value of many of them could not be quantified.  Police also found two mobile phones used in the trafficking (count 12) and a capsicum spray (count 13).  The applicant said that he had bought the capsicum spray for his partner to use for protection because she worked away.  One of the phones contained screen shots of messages with five different customers, including customers enquiring about steroids and placing orders, and a message from one of the applicant’s suppliers with an exhaustive list of steroids for sale with prices.  The other mobile phone contained screen shots of conversations with two customers arranging the supply of various steroids between 3 and 7 June 2015.
  5. [8]
    On 9 June 2015 police searched a storage unit the applicant had rented on 27 March 2015.  The storage facility records revealed that the applicant attended the storage unit on 38 different days between March and June, sometimes more than once in one day.  On 30 March 2015 the applicant accessed the storage unit three separate times over a five hour period.  CCTV footage from 14 April to 3 June 2015 inclusive showed the applicant entering the storage facility empty handed and leaving with a full plastic bag on seven different occasions.  On four different occasions he attended the storage unit carrying bags and left empty handed.  On 11 different occasions he attended the storage unit carrying a bag or multiple bags and left with only one bag.  On 24 April 2015 he entered carrying a bag and left carrying an Australia Post Express Post satchel.  Police cut the padlocks of cases in the storage unit and found 869 vials containing liquid steroids, 38 bottles containing 20 ml of anabolic steroids (powder/tablets) and 1850 steroid tablets.  They also found ten bottles containing 30 ml of Clenbuterol (schedule 2) (count 15).  Sample vials were tested.  A total weight of 1947.9 grams of substance was analysed and found to contain steroids.  The total combined whole weight, inclusive of the calculated content weight of the untested vials, was 8897.5 grams (count 14).
  6. [9]
    The applicant admitted he sometimes bought large quantities of steroids with a group of two or three friends because it was cheaper, and he would then post to his friends their shares of the steroids.  He admitted he sent the steroids around the country.  He admitted he had sold steroids to Thompson on one or two occasions and had received money into his account from Thompson twice.  The applicant gave an incorrect password when he was asked to provide the password to his internet account through which he trafficked the drugs.  The Crown did not accept a version the applicant gave about the nature of his business.  The nature of the messages found by police and the applicant’s possession of over 800 vials of steroids in a storage unit indicated the applicant was a regular supplier of an assortment of anabolic steroids to his own customer base.  No money was recovered.  A review of his bank accounts did not evidence any unexpected cash deposits.  The applicant‘s trafficking business must have involved supplying drugs to others at least every few days and in large quantities.  The sentencing judge found that the clear inference from the evidence was that the applicant’s business had grown significantly to the point where he had sufficient cash flow to stockpile substantially more than $110,000 worth of steroids and prescription drugs; the applicant was a wholesale dealer in a large amount of anabolic steroid drugs over a long period.
  7. [10]
    At the sentence hearing counsel for the applicant submitted that Thompson, to whom the applicant supplied steroids, was the applicant’s friend, but conceded that the applicant’s supplies to him resulted in profit.  It was submitted that drugs found by police in June 2015 had been received by the applicant on a credit basis and he expected to make a profit of about $20,000 by selling them.  The applicant was a well-paid worker in the mines for a number of years and none of the items of property seen by police had been paid for using the proceeds of trafficking.  The sentencing judge found that the applicant did not need to engage in the business of trafficking of drugs because he was in need of money; he lived a comfortable lifestyle in an affluent area with a large well-furnished dwelling, a late model car and other assets.
  8. [11]
    The applicant suffered a serious car accident in December 2014, and did not return to work until August 2015.  The applicant’s counsel submitted that the period of unemployment coincided with an increase in the level of applicant’s trafficking.  A medical report advised that the applicant was left with extensive abdominal injuries which left him open to severe disabling injuries or death in the event of assault or accident.  The doctor opined that the applicant would have a far harder time in prison as a result of his injuries.  Other reports referred to the applicant’s addictive behaviour, depression and suicide ideation.  The sentencing judge accepted that the applicant had been injured in the car accident and remarked that it resulted from him driving his car on the wrong side of the road and running into another vehicle, two passengers in which were injured.  The sentencing judge also accepted that the applicant found it difficult to cope physically and emotionally after his injury and he had continuing medical problems, physical and psychological, which would have to be treated in prison.
  9. [12]
    The applicant’s counsel submitted that the applicant had engaged in trafficking to support his own habit and meet his living expenses.  In a letter written by the applicant and tendered at the sentence hearing, however, he referred to his “stupid action just for greed”.  The sentencing judge did not accept that the offending was motivated by drug addiction.
  10. [13]
    Two pathology test reports, dated in September and November 2016, were submitted to indicate that the samples taken on those dates revealed a normal range of Testosterone.  The material did not comment upon the significance of the test results or reveal whether the applicant had undergone any other tests.  The applicant expressed remorse for his actions.  A letter from the applicant’s partner suggested that she had been informed that the applicant’s use of steroids was heavily associated with his car accident in December 2014 and resulting injuries, whereas the applicant had been selling anabolic steroids for months before the car accident and the applicant’s counsel informed the court that the applicant had been interested in anabolic steroids since he was 19 years old.  The Crown tendered printouts of posts made by the applicant in online body building forums whilst he was on bail for the offending.  The sentencing judge observed that she was greatly assisted by the print outs.  Nine days before the sentence hearing the applicant appeared to give advice to a user about how to inject anabolic steroids.  There are other posts giving advice to users of anabolic steroids and revealing that the applicant was aware of the bad side effects of the use of the anabolic steroids on himself and other people.  The sentencing judge found that the posts were not consistent with the applicant having learned his lesson by being arrested.
  11. [14]
    At the commencement of the charged period of trafficking steroids were in schedule 2 of the Drugs Misuse Regulation 1987 (Qld) and they were moved to schedule 1 about four months later.[1]  At the sentence hearing the Crown submitted that the maximum penalty for count 1 was 20 years imprisonment because for some of the charged period of trafficking the steroids were within schedule 2 rather than schedule 1 of the Drugs Misuse Regulation 1987.
  12. [15]
    The sentencing judge’s reasons for the sentences include statements to the following effect.  The maximum penalty for count 14, which involved the possession of almost nine kilograms of steroids, was 25 years imprisonment.  Counts 2 – 12, 14 and 15 were incidents of the trafficking charged in count 1.  That was so even for the possession of the large amount of drugs in count 14 because the possession was for use in the trafficking.  In the circumstances the sentencing judge could only give the applicant, in her view, a sentence which took into account the totality of his offending on the trafficking offence.  Had it not been for the difficulty that the applicant was required to serve 80 per cent of that sentence, the sentencing judge would have given the applicant “what I regard as the appropriate period of imprisonment” with a parole eligibility date after serving one third of that.  Because that was not possible, the head sentence was reduced.  The head sentence would not be suspended and no other ameliorating order would be made because that had been involved in the reduction of the head sentence.  The sentencing judge observed that if the law were to be changed so that it was no longer necessary to serve 80 per cent of the head sentence and there was a request for a resentencing, it should be made perfectly clear that she had taken into account in reducing the head sentence that the applicant would and should spend 80 per cent of that time in custody before being released on parole.

Ground 2

  1. [16]
    It is apparent that were it not for the effect of s 5 of the Drugs Misuse Act the sentencing judge would have imposed a sentence for the trafficking offence under which the period of imprisonment exceeded five years, with a parole eligibility date after one-third of that period.  The applicant argued that the sentencing judge erred by not replicating what was considered to be the appropriate period of imprisonment and parole eligibility as closely as the restrictions of the applicable sentencing regime permitted; an error in the exercise of the sentencing discretion was revealed by the omission by the sentencing judge “to use the full possibilities of the sentencing regime to achieve the sentence that most closely approximated the sentence considered by the sentencing judge to be ‘just in all the circumstance’”.[2]  In support of this argument the applicant relied upon s 9 of the Penalties and Sentences Act 1992 (Qld) and the principle which was confirmed by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen that “judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[3]
  2. [17]
    Section 9 of the Penalties and Sentences Act prescribes, amongst other matters, the purposes for which sentences may be imposed and matters to which a court must have regard when imposing a sentence.  As the respondent submitted, the matters to which a court must have regard when sentencing an offender include the maximum and minimum penalty prescribed for the offence: s 9(2)(b).  The statutory provisions concerning penalty also qualify as a “relevant circumstance” to which a court must have regard when sentencing: s 9(2)(r).  In any event, judges are bound to do justice according to law.  The applicable statutory provisions must be taken into account when imposing sentence, including in determining the sentence which should be imposed “to punish the offender to an extent or in a way that is just in all the circumstances”: s 9(1)(a).  The sentencing remarks unequivocally convey that the sentencing judge imposed the sentence that she thought was the appropriate and just sentence under the applicable statutory regime, including s 5 of the Drugs Misuse Act; the mitigating circumstances were taken into account in fixing the term at four years imprisonment rather than a lengthier term, with parole eligibility arising after the applicant has served 80 per cent of that term, and the sentencing judge observed that “I make it perfectly clear that I have taken into account in reducing the head sentence that you will and should spend 80 per cent of that time in custody before you are released on parole.”  The circumstance that the sentencing judge would have imposed a different sentence under a different statutory regime does not support the applicant’s argument that the same or a similar sentence should have been imposed under the statutory regime which was in force.
  3. [18]
    At the sentence hearing, the applicant’s counsel initially advocated a sentence of five years imprisonment, suspended after an unstated period for the trafficking offence, and a concurrent term of imprisonment for possession of the capsicum spray with release on parole after the commencement of the suspension.  When the sentencing judge remarked that one wouldn’t normally impose a long period of imprisonment for possession of a capsicum spray, the applicant’s counsel observed that the sentence could be imposed on any of the other offences.  The applicant’s counsel mentioned count 14, the possession charge, which did not carry with it the requirement to serve 80 per cent of the term.  The respondent argued that it was inappropriate to suspend the sentence on count 1 in light of the applicant’s lack of honesty to the police and in his letter, his lack of remorse or proof of rehabilitation, and his risk of reoffending.  The respondent submitted that the applicant required supervision and that his drug use might be deterred by the possibility of drug tests which would occur on parole.  In submissions in reply for the applicant, counsel accepted that all of the offences apart from the possession of the capsicum spray were involved in the trafficking and he explained that was why he had initially suggested that a sentence be imposed on count 13.  The applicant’s counsel appeared not to maintain his alternative submission that a concurrent sentence should be imposed on a different count.
  4. [19]
    The sentence structure initially and ultimately proposed by the applicant’s counsel at the sentence hearing implied that a sentence of the order of five years imprisonment might be imposed for count 13.  The maximum penalty for count 13 was seven years imprisonment and this example of the offence was very much at the lower end of the range of seriousness of such offences.  It was plainly within the sentencing judge’s discretion to conclude that a sentence of the severity required to render efficacious the sentence structure suggested for the applicant was not just or appropriate in the circumstances.
  5. [20]
    In this application, the applicant’s counsel (who did not appear at sentence) argued that the sentencing judge instead could and should have imposed a partly suspended sentence of imprisonment upon count 1 together with a sentence upon count 14 of imprisonment of, say, four years with parole eligibility after two years.  Reference was made to the fact that the maximum penalty for count 14, possessing a dangerous drug exceeding 5,000 grams, is 25 years imprisonment, whereas the sentence hearing proceeded upon the basis of the Crown’s contention that the applicant should be sentenced upon count 1 on the premise that the applicable maximum penalty was 20 years imprisonment.  In a case (such as this) where the Crown relies upon specific counts of supplying or possessing the drug which was trafficked as a particular of that trafficking and the applicant is sentenced for the trafficking count upon that basis, it has been held that it is an error to impose a concurrent term of imprisonment for the supply or possession counts.[4]  If the imposition of such a concurrent term of imprisonment in a case of this kind might in some circumstances be regarded as appropriate, no basis appears for thinking that the sentencing judge was obliged to adopt that approach.  The sentencing judge adopted a conventional approach by imposing the most severe penalty upon the most serious offence.
  6. [21]
    Suspension or partial suspension of the sentence for trafficking is an essential element of the sentence structure advocated for by the applicant.  A court may order that a term of imprisonment be wholly or partly suspended if the term is five years or less, but only if the court is satisfied that it is appropriate to do so in the circumstances.[5]  The sentencing judge was not satisfied that it was appropriate to suspend any part of the sentence of imprisonment in this case.  The applicant pointed out that there was no express finding by the sentencing judge that the applicant was not a suitable candidate for a partially suspended sentence where a concurrent parole order was available.  The question is instead whether the sentencing judge erred in not being satisfied that suspension was appropriate in the circumstances.  I am not satisfied there was any error.  Although the applicant’s counsel at the sentence hearing had sought an order partly suspending the imprisonment to give effect to the sentence structure he advocated, he did not submit that there was any circumstances that made the suggested suspension of the imprisonment appropriate.  It was not necessary for the sentencing judge to say any more about that point in those circumstances and where the sentence structure proposed by the applicant’s counsel assumed that supervision on parole was necessary, the applicant’s counsel did not contradict the submission by the respondent that the case was an inappropriate one for suspension, and the matters to which the sentencing judge referred when imposing sentence justified not suspending the sentence.
  7. [22]
    In R v Clark,[6] Morrison JA (with whose reasons in this respect Margaret McMurdo P and North J agreed) described the applicability and effect of s 5(2):

Section 5(2) is engaged where an offence of trafficking in a Schedule 1 drug results in a sentence to a term of imprisonment, no part of which is suspended.  By its plain words s 5(2) does not depend on issues of parole or probation.  Only suspension to some extent will suffice to prevent its application.  In that way one can discern the policy behind the enactment.  The legislature has evidently taken the view that offenders who traffick in Schedule 1 drugs and receive a sentence to a term of imprisonment, must serve a minimum of 80 per cent of that term unless the offender is a candidate for a suspended sentence.”

  1. [23]
    That case endorses the sentencing approach of considering the sentence appropriate to the level of offending, including by reference to the matters stipulated by s 9(2) of the Penalties and Sentences Act, and as an integral part of that consideration having regard to the impact of s 5(2) of the Drugs Misuse Act.[7]  Adopting that integrated approach to the sentencing exercise was held to be consistent with the required “instinctive synthesis” approach to the process of sentencing referred to in Markarian v The Queen.[8]  Morrison JA also found to be appropriate the sentencing judge’s exercise of considering whether suspending the sentence, in whole or in part, was appropriate with reference to an assessment of the matters central to the issue of suspension (in that case, “the offender’s prospects of rehabilitation as evidenced by matters such as demonstrated remorse, steps to rehabilitation prior to the sentencing, and the likelihood of adherence to self-disciplined rehabilitation in the future”).[9]
  2. [24]
    The sentencing judge adopted the approach sanctioned in R v Clark.  There are occasions in which a sentence of imprisonment may be imposed for one offence which is inflated because it takes into account the criminality in other offences also charged against the defendant,[10] but no authority sanctions the making of an order suspending a sentence (or the imposition of what the sentencing judge considers is an inappropriately severe sentence) for an offence for the purpose of evading the policy expressed in an applicable statutory provisionTo adopt the sentence structure proposed by the applicant for the sole purpose of avoiding the application of the statutory provisions in s 5 of the Drugs Misuse Act would be subvert to the legislative purpose.  That is something a sentencing judge should not do.[11]
  3. [25]
    In R v Borowicz[12] (which was  not cited by either party), Gotterson JA (with whose reasons Holmes CJ and McMurdo JA agreed) made four observations which were intended to complement those made in Clark concerning s 5(2) and parole-based sentences: enactment of the section did not express or imply a preference for parole eligibility or parole release over suspension; it was a relevant consideration in deciding whether to suspend a sentence that the opportunity for parole to achieve a beneficial effect might be significantly truncated where s 5(2) would apply to a sentence of modest duration; the section did not reveal a legislative intention that, if a sentencing judge suspended a sentence, its duration or the period after which it was to be suspended must be such as to ensure that the offender was sentenced to a period of actual custody that was comparable with that which would have been served under s 5(2) before parole eligibility or release; and it was legitimate for a sentencing judge to reason that where a suspended sentence was imposed a longer head sentence might be imposed than for a sentence providing for parole “in recognition of the fact that the period to be served in actual custody before the suspension operates will be less than which would to be [sic] served before parole eligibility or release would arise under s 5(2).”
  4. [26]
    Nothing in my reasons is intended to cast any doubt upon those observations.  I note that in R v Hughes,[13] Morrison JA pointed out that Borowicz was the only case put before the court where an offence of trafficking while s 5(2) was operational resulted in a suspended sentence and that the factors which led to the sentencing judge to suspend the sentence in that case were the offender’s limited criminal history, family support, and prospects for rehabilitation.  It was open to the sentencing judge to conclude in this different case that suspension was not appropriate.  Borowicz does not support the applicant’s argument that the sentencing judge committed an error in the exercise of the sentencing discretion which is susceptible of appellate correction.
  5. [27]
    For these reasons ground 2 of the application should not be accepted.

Ground 3

  1. [28]
    Ground 3 is based upon the sentencing judge’s observation that, “[i]n all of the circumstances, I can only give you, in my view, a sentence which takes account of the totality of your offending on count 1, the trafficking.”  That was an expression of the sentencing judge’s view of the course she felt obliged to adopt in all of the circumstances.  Understood in the context of the issues agitated at the sentence hearing and the sentencing remarks as a whole, the observation did not convey any self-imposed restriction upon the breadth of the sentencing discretion reposed in the sentencing judge.  Ground 3 also should not be accepted.

Ground 1

  1. [29]
    The applicant argued that, bearing in mind that the Crown proceeded upon the footing that count 1 should be regarded as attracting a maximum term of imprisonment of twenty years, the sentence imposed upon count 1 is shown to be excessive by reference to comparable sentencing decisions: R v Kalaja [2017] QCA 123; R v Lambert, Dick SC DCJ, District Court, Mackay, 9.12.15; R v Tyler, Ind. 19, 561 and 797 of 2016, Mullins J, Supreme Court, Brisbane, 21.7.16; R v Morris, Ind. 2 of 2016, McMeekin J, Supreme Court, Rockhampton, 16.11.16.  The applicant argued that even if the appropriate maximum penalty was 25 years imprisonment the non-parole period of three years and two and half months rendered the sentence imposed manifestly excessive.
  2. [30]
    The respondent accepted that the sentencing judge proceeded upon a basis which was consistent with the submissions of the Crown Prosecutor that the maximum penalty for count 1 should be regarded as 20 years imprisonment.  The respondent argued that the sentencing judge was nevertheless entitled to take into account that for the majority of the period of time during which the applicant offended, in particular when he committed the offences in counts 11 and 14, steroids were schedule 1 drugs.  The respondent referred to the sentencing judge’s identification of the need for the sentence to include a component for general deterrence, having regard to the growing problem that such drugs were presenting to society.  The respondent also referred to authority for the propositions that comparable cases do not mark with numerical precision the outer bounds of a sentencing judge’s permissible discretion in sentencing an offender in a different case,[14] it was not enough for an applicant to establish that the sentence imposed was even markedly different from examples of sentences imposed in other matters,[15] and it was necessary to demonstrate that the difference was such that there must have been a misapplication of principle, or that the sentence was “unreasonable or plainly unjust”.[16]  In relation to count 1, the respondent referred to R v Stamatov,[17] R v Roach,[18] R v Hughes,[19] R v McAway,[20] R v Laidlaw,[21] and R v Ikin.[22]  In relation to counts 11 and 14, the respondent referred to R v Duong,[23] R v Phillips,[24] R v Cooney,[25] R v Tran,[26] R v Hesketh; ex parte Attorney-General (Qld),[27] and R v Power.[28]
  3. [31]
    The sentencing judge was not referred to R v Ianculescu,[29] the reasoning in which suggests that the maximum penalty for the trafficking offences in these circumstances was 25 years imprisonment, but for the following reasons the sentence imposed upon the applicant is not manifestly excessive even upon the assumption that the maximum penalty should be regarded as being 20 years imprisonment.
  4. [32]
    In Stamatov (a sentence of three years imprisonment with a parole release date after six months for trafficking in dangerous drugs which were mainly steroids) and Roach (three years imprisonment with a parole release date after 12 months for trafficking in steroids and a concurrent term of one year imprisonment for possession of the dangerous drugs Trenbolone and Stanozolol) the offences were markedly less serious than those of which the applicant was convicted.  It is necessary to refer only to a statement of principle in Stamatov[30] which was endorsed in Roach:[31]

[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”.

Neither party submitted that a different approach should be adopted in this application.

  1. [33]
    In Kalaja a sentence for trafficking in cannabis (a schedule 2 drug) of seven years imprisonment with parole eligibility after 20 months was varied by substituting a sentence of imprisonment of five years and ten months with the same parole eligibility date.  A sentence of six years imprisonment with parole eligibility after one third of that term, would have been imposed but for a period of 115 days pre-sentence custody which was taken into account in fixing the parole eligibility date and a further period of 50 days during which the offender was held on remand in respect of the trafficking charge.  That offence was less serious than the applicant’s offence in that the trafficking was for a period of only two and a half months, whereas the applicant trafficked in a schedule 2 drug for about 14 months.  It is difficult to compare the amount of cannabis trafficked with the amount of the drug trafficked by the applicant.  Although the offender acquired cannabis on credit for $132,250 and delivered approximately 100 pounds of cannabis, only the former (smaller) portion of the cannabis was trafficked on his own account, the balance being trafficked by him as a courier for a large enterprise run by one Ta.  The offender’s personal circumstances were less favourable, in so far as he had a criminal history involving drug offences and he was on bail for serious assaults when he committed the trafficking offence.  On the other hand, that offender was found to be genuinely contrite for his offences.  In the applicant’s case, it is also necessary to bear in mind the applicability of s 5(2) of the Drugs Misuse Act which required that 80 per cent of the term of the sentence upon the trafficking count be served in prison.  When all of the circumstances are taken into account, the sentence of four years imprisonment with parole eligibility after 80 per cent of that term is reconcilable with the more severe head sentence and more favourable parole eligibility date in Kalaja.
  2. [34]
    In Tyler, Mullins J imposed a wholly suspended sentence of two years and six months on one count of trafficking in dangerous drugs.  The sentencing remarks indicate that the dangerous drugs were, or largely comprised, steroids and that they were schedule 2 drugs at the time.  Convictions were recorded and no further punishment was imposed for a second trafficking offence for a period of one month after steroids had become a schedule 1 drug, one count of possessing dangerous drugs in excess of 50 grams (a schedule 1 drug), and one count of possessing a dangerous drug (a schedule 2 drug).  Non-custodial sentences were imposed upon two counts of Commonwealth offences of importing tier 1 goods.  That decision is of little value in this case as a comparable sentencing decision for a number of reasons: the amount of drugs trafficked cannot be discerned from the sentencing remarks but it may have been very much less than in the present case because the total amount of the drugs involved in importation and possession counts was far less than the total amount of the drugs involved in the possession counts in the present case; Mullins J did not find that the offender’s trafficking was motivated by greed; in addition to the mitigating factor of an early indication of a plea of guilty, that offender had engaged in counselling sessions with a psychologist once he realised he had a problem; the sentencing judge also took into account that the offender worked in the corrections system and a custodial sentence would impact upon how he would be treated in prison; the offender had no criminal history; and the sentencing judge found upon the evidence in that case that the offender was not a person who needed supervision necessarily, so that it was appropriate to wholly suspend the sentence.
  3. [35]
    In Morris, the offender was given a wholly suspended sentence of two years imprisonment on one count of trafficking steroids for a two month period.  He was convicted and not further punished on six other counts, including counts of possession, which were treated merely as particulars of the trafficking charge.  Although the quantity of the drug involved may have been broadly comparable with the quantity involved in the applicant’s trafficking offence, an important point of distinction is that the offender had not supplied any person with the drug.  The trafficking charge was based upon that offender’s importation of 10 kg of steroids and emails he had sent seeking to purchase drugs.  That offender had more favourable personal circumstances, including substantial contributions to the community and various charities and other activities, and his cooperation with the police appears not to have been qualified in the way described by the sentencing judge in the present case.  McMeekin J referred to a report suggesting that the offender had learned a very strong lesson, and he referred to feeling reasonably comfortable that the offender would not re-offend.  Those and other favourable personal circumstances explain the order for suspension.  For all of these reasons, although the sentence in Morris may seem relatively lenient, Morris does not support a conclusion that the applicant’s sentence is manifestly excessive.
  4. [36]
    The sentencing remarks in Lambert, upon which the applicant also relied, contain insufficient information about the trafficking offence to render the head sentence of imprisonment for three years, suspended after 374 days declared as pre-sentence custody, to be of value as a comparable sentence.  The order suspending the sentence appears to be explicable by matters including the suggestion of a causal link between that offender’s anxiety and his use of steroids, the offender consulting a psychologist at around the time of the offending, and medical evidence that he was addicted to steroids at the time of the offending and had been seeking treatment.
  5. [37]
    It is necessary to refer only to three of the decisions cited by the respondent as support for the sentence.
  6. [38]
    In Hesketh, a sentence of 12 months imprisonment to be served by way of an intensive correction order for a charge of possession of methylamphetamine with the circumstance of aggravation that the quantity of the drug exceeded two grams was set aside and the offender was re-sentenced on the Attorney-General’s appeal to two and half years imprisonment suspended after nine months with an operational period of five years.  The amount of the drug was about 57 grams, contained in one bag of powder with a pure weight of about 50 grams, with the balance spread over eight bags.  The offender was also found in possession of $3,550 in cash.  The sentencing judge indicated that a person in the offender’s position ordinarily would be sent to jail “for a couple of years” but imposed the non-custodial sentence despite a bad criminal record, mainly because of evidence of the applicant’s efforts at rehabilitation and early plea of guilty.  The sentence was found to be manifestly inadequate.  One of the cases relied upon in support of that conclusion was Campbell,[32] which involved 120 grams of methylamphetamine, in which the sentence was four years imprisonment with parole after 18 months.  A custodial sentence was found to be necessary in Hesketh having regard to the fact that methylamphetamine was a schedule 1 drug and a large quantity of pure methylamphetamine was involved in the commission of the offence.  There was “at least a commercial element to the possession”.[33]  The partial suspension of the sentence on appeal was explained by personal matters referred to by the sentencing judge, particularly attempts by the offender at rehabilitation and her caring for a five year old child and an ailing mother.  Williams JA, who wrote the principal judgment, observed that, “[t]he broad range of imprisonment for an offence such as that involved here would be from about two and a half years to about four years imprisonment”.[34]
  7. [39]
    Although it is difficult to relate the quantity of methylamphetamine possessed in that case to the amount of the steroids trafficked and possessed by the applicant in this case, and although (unlike the possession offence) the sentence for trafficking in this case was imposed upon the assumption that the maximum penalty was 20 years rather than 25 years, the four year term of imprisonment imposed upon the applicant after taking into account the mitigating factors in this case is consistent with the sentence in Hesketh.
  8. [40]
    A sentence of five years imprisonment with an 18 month non-parole period for one count of trafficking in dangerous drugs and two counts of possessing MDMA and MDEA (ecstasy) was found to be not manifestly excessive in McAway.  That offender was only 19 and 20 years old at the time of her offence and she had no prior convictions.  She was found in possession of 500 ecstasy tablets contained in bags of 50 tablets, for which she had found a buyer at an agreed price between $7,000 and $7,500.  She had been selling ecstasy tablets for about six months, sold an estimated quantity of about 500 tablets with about 100 tablets per month at a monthly turnover of about $3,000 of which she made about $1,500 profit per month, and over the six month trafficking period she had turned over $18,000 with a $9,000 profit.  The maximum penalty for her offending was 20 years imprisonment, the relevant drugs then being in schedule 2.  McMurdo P found that the sentence of five years imprisonment with parole eligibility after 18 months was at the top end of the range but within it.  It was a heavy penalty to impose on a 20 year old young woman who had otherwise led a commendable life and had promising prospects of returning to a law abiding life on her release from prison.  The sentencing factors of personal and general deterrence were emphasised.  That decision supplies some support for the head sentence imposed in this case.
  9. [41]
    In Hughes, the offender was sentenced to imprisonment for four years, with the order required under s 5(2) of the Drugs Misuse Act that she serve 80 per cent of her sentence before being released, for trafficking in methylamphetamine over almost eight weeks.  She was given lesser, concurrent sentences of imprisonment for five supply offences, a production offence, and some possession offences, and she was convicted and not further punished for other supply offences which were particulars of the trafficking.  There were 19 supply counts and the trafficking consistently involved the supply of 3.5 grams of methylamphetamine.  The sentencing judge accepted that the offender had a long-standing addiction to drugs, as was reflected in her significant and relevant criminal history from when she was 17 years old, and that she trafficked to service her habit rather than for commercial purposes.  Her offending was made more serious by her extensive criminal history, which revealed that with only one exception she had consistently breached every opportunity given by the courts to support and encourage her rehabilitation.  She was not an appropriate candidate for a suspended sentence.  Whilst the sentence in that case proceeded upon the basis that the trafficking was in schedule 1 drugs and the personal circumstances of that offender were far less favourable than those of the applicant, the effective sentence of four years imprisonment with a requirement to serve 80 per cent of that sentence for trafficking over a period of only eight weeks is reconcilable with the same sentence imposed upon the applicant, who trafficked during a 14 month period and was found to be a wholesale dealer in a large amount of anabolic steroid drugs.
  10. [42]
    The applicant’s argument that the sentence was manifestly excessive emphasised the substantial period of imprisonment required to be served before parole eligibility.  A lengthier head sentence could have been imposed and all of the mitigating factors were taken into account in fixing the term of imprisonment of four years.  The minimum custodial period was dictated by s 5(2) of the Drugs Misuse Act.  In R v Frith,[35] to which the respondent referred, Boddice J (with whose reasons Morrison and McMurdo JJA agreed) observed that the operation of s 5(2) of the Drugs Misuse Act “cannot of itself render a sentence manifestly excessive if the sentence is otherwise a proper exercise of the sentencing discretion”, the operation of the provision being the consequence of the Parliament’s legislative intention.
  11. [43]
    The sentence was a proper exercise of the sentencing discretion.  In my opinion it is not manifestly excessive.

Proposed Order

  1. [44]
    I would refuse the application.
  2. [45]
    PHILIPPIDES JA:  I agree with the reasons given by Fraser JA and with the order proposed by his Honour.
  3. [46]
    McMURDO JA:  I agree with Fraser JA.

Footnotes

[1] Safe Night Out Legislation Amendment Act 2014 (Qld), ss 23 and 24 (with effect on 5 September 2014).

[2]  Applicant’s Outline of Submissions, para 9.19.

[3]  (2005) 228 CLR 357 at 371 [27].  See also Nguyen v The Queen (2016) 256 CLR 656 at 669-670 [37]; R v Clark [2016] QCA 173 at [68]; R v Hood [2005] 2 Qd R 54 at 67 [47].

[4] R v Connolly [2016] QCA 132 at [16]-[17]; R v Thompson (2016) 260 A Crim R 242 at [30]; R v Chan [2017] QCA 8 at [4] (which concerned counts of possession as well as of a supply).

[5] Penalties and Sentences Act 1992 (Qld), ss 144(1), (2).

[6]  [2016] QCA 173 at [54].

[7]  [2016] QCA 173 at [49]-[50].

[8]  (2005) 228 CLR 357 at 373-375, referred to in [2016] QCA 173 at [51].

[9]  [2016] QCA 173 at [52].

[10]  See R v Nagy [2004] 1 Qd R 63.

[11] R v Clark [2016] QCA 173 at [53].

[12]  (2016) 260 A Crim R 590 at [43]-[46].

[13]  [2017] QCA 178 at [38]-[39].

[14] Barbaro v The Queen (2014) 253 CLR 58 at 74 [41]; Hili v The Queen (2010) 242 CLR 520 at 537 [54]; R v Heckendorf [2017] QCA 59 at [21].

[15] Hili v The Queen (2010) 242 CLR 520 at 538-539, citing Wong v The Queen (2001) 207 CLR 584.

[16] R v Tout [2012] QCA 296 at [8], citing Hili v The Queen (2010) 242 CLR 520 at 538-539.

[17]  [2017] QCA 158.

[18]  [2017] QCA 240.

[19]  [2017] QCA 178.

[20]  (2008) 191 A Crim R 475.

[21]  [2016] QCA 290.

[22]  [2007] QCA 224.

[23]  (2015) 255 A Crim R 57.

[24]  [2017] QCA 41.

[25]  [2004] QCA 244.

[26]  [2014] QCA 90.

[27]  [2004] QCA 116.

[28]  [2013] QCA 351.

[29]  [2000] 2 Qd R 521 at [30]-[44].

[30]  [2017] QCA 158 at [57]-[58].

[31]  [2017] QCA 240 at [43].

[32]  [2002] QCA 109.

[33]  [2004] QCA 116 at [14].

[34]  [2004] QCA 116 at [17].

[35]  [2017] QCA 143 at [36].

Close

Editorial Notes

  • Published Case Name:

    R v Baker

  • Shortened Case Name:

    R v Baker

  • MNC:

    [2018] QCA 209

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Philippides JA, McMurdo JA

  • Date:

    07 Sep 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment SC471/16 (No Citation) 23 Nov 2016 Date of Sentence (Atkinson J).
Appeal Determined (QCA) [2018] QCA 209 07 Sep 2018 Application for leave to appeal against sentence refused: Fraser and Philippides and McMurdo JJA.

Appeal Status

{solid} Appeal Determined (QCA)