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R v Spark

 

[2018] QCA 231

SOFRONOFF P

McMURDO JA

HENRY J

CA No 209 of 2018

SC No 1838 of 2017

THE QUEEN

v

SPARK, Jamie Glen

Applicant

BRISBANE

MONDAY, 24 SEPTEMBER 2018

JUDGMENT

SOFRONOFF P:  The applicant pleaded guilty on 3 July 2018 to one count of trafficking in dangerous drugs and three counts of possessing dangerous drugs, being methylamphetamine, 3,4-methylenedioxymethamphetamine and cannabis, respectively.  He was sentenced to three and a half years imprisonment in relation to the trafficking charge.  This term of imprisonment was to be suspended after six months for an operational period of three and a half years.  In relation to the other charges, convictions were recorded but the applicant was not further punished.

The applicant now seeks leave to appeal his sentence on two grounds.  First, he contends that the sentence was manifestly excessive.  Second, he argues that the learned sentencing judge fettered her discretion by determining that the applicant’s age precluded her from imposing a sentence that did not involve a term of actual custody.  A third ground has been abandoned.

The applicant was 42 years old at the time of the offences.  He came to the attention of police who were intercepting the telephone communications made by one Fischer.  During the course of those interceptions it became clear that the applicant purchased drugs on numerous occasions from Fischer in quantities of “quarters” (7 grams), “fulls” (3.5 grams) and “halfs” (1.75 grams).  On one occasion the applicant discussed obtaining and storing “500 round jobs”, meaning MDMA tablets.  After obtaining drugs from Fischer, the applicant would then resell them in smaller quantities for his customers’ personal use.

Police found a mobile phone at the applicant’s house that contained tick sheets.  They also found just over two grams of a crystal powder containing 1.397 grams of methylamphetamine (count 2) and 198 tablets of MDMA packaged into clipseal bags (count 3) and approximately one gram of cannabis (count 4).

The applicant had a minor Queensland criminal history but these were offences that were committed after the charges the subject of the appeal and were not taken into account.  He also had a Victorian criminal history which included a bond for a charge of possessing and using cannabis, as well as a suspended sentence of nine months imprisonment for intentionally causing serious injury, criminal damage and making a threat to kill.

The learned sentencing judge, Mullins J, took into account that the applicant had become addicted to methamphetamine after an acrimonious separation from his wife that had resulted in his becoming estranged from his two children.  He engaged in trafficking in order to support his addiction.  Her Honour had accepted that he had made a timely plea of guilty.  She observed that both his employer and his new partner were supportive of him.

The Crown pointed to the quantities of drugs involved as the primary aggravating feature.  The Prosecutor relied upon two cases as comparable authorities.  The first of these was R v Blumke [2015] QCA 264.  Blumke had been convicted on his own plea of one count of trafficking in methylamphetamine, MDMA, cannabis and pyrovalerone, five counts of supplying methylamphetamine and one count of supplying pyrovalerone.  He was sentenced to four years imprisonment on the trafficking count and 18 months imprisonment on each of the supply counts.  The sentences were concurrent.  They were to be suspended after he had served one year with an operational period of four years.  The trafficking period was not long, being only about 10 weeks, but the quantities of methylamphetamine were substantial.  The applicant was 27 years old at the time of the offences and, like the present applicant, his offending appears to have been triggered by personal circumstances.  He had lost his employment and a relationship with his partner had broken down.  There are other similar mitigating factors.  The application was dismissed.

The second case relied upon by the Crown was R v Clark [2016] QCA 173.  In that case, the applicant had trafficked over a two and a half month period.  She did so for commercial gain and to feed her own methylamphetamine habit.  She was 24 and 25 at the time of offending.  She too had begun using drugs following emotional upheaval in her life.  She had been on probation for drug offences at the time of trafficking.  She was sentenced to three years imprisonment with an order that she be released on parole after she had served 80 per cent of her sentence.  She submitted that the sentence was manifestly excessive and that she ought to have been sentenced to three years imprisonment suspended after 12 months.  The sentence was not disturbed on appeal.

It is convenient to consider the applicant’s grounds in reverse order.  During the course of hearing submissions from the applicant’s counsel, the following exchange occurred.  Applicant’s counsel:

R v Blumke and R v Clark are of assistance.  Your Honour might consider that perhaps a head sentence of around the three-year mark might be appropriate, given – particularly given the offer to assist.  And then, your Honour, because of that again – because of that offer, your Honour would consider – would set a release date, whether it be a suspension or parole release date, of somewhat less than the one-third mark to recognise all of the features that mitigate in his favour.”

Her Honour:

“Yes, because I don’t think because of his age – I can’t structure the sentence so he doesn’t have any   

Applicant’s counsel:

“No.”

Her Honour:

   custody.”

Applicant’s counsel:

“It is very unfortunate and that was something that I discussed with him, your Honour.  But, that said, your Honour could recognise these features to perhaps just require him to serve the smallest component of time that your Honour could in the circumstances.”

The applicant’s counsel on this appeal seizes upon that exchange as evidencing that her Honour considered that her discretion was fettered.  This submission is misconceived.  Her Honour’s statement was nothing more than a reflection of the obvious circumstance that, having regard to the applicant’s mature age, consistency in sentencing for trafficking offences called for a period of actual custody to be served.  Cases like R v Dowel; Ex parte Attorney-General (Qld),[1] R v Connolly[2] and R v Engellenner[3] illustrate this point.  Those were cases involving youthful offenders.  In Dowel and Engellenner the applicants were 19 years old and 18 years old respectively.  Neither of them was required to serve an actual period of imprisonment.  In Dowel, Muir JA said that when sentencing a youthful offender who has shown a real determination to change their ways, a period of actual incarceration would fail to give “due acknowledgement to an offender’s unaided pre-detention reform when coupled with the undesirable influences to which a young offender is likely to be subjected in prison.”[4]

Even such youthful offenders might be obliged to serve a term of imprisonment.  Connolly, relied upon by the applicant, was such a case.  Connolly was sentenced to a term of imprisonment of four years to be suspended after six months.  The applicant has been unable to point to any cases in which a mature-aged offender who has trafficked in a way similar to the applicant has been sentenced on the basis that no actual custody was to be served.  Her Honour’s observations during argument merely reflected that state of affairs.  I would reject this ground.

Finally, as can be seen from my consideration of ground 1, it is hopeless to argue that the sentence imposed upon the applicant was so excessive as to reveal some inherent error in the exercise of her Honour’s discretion.  I would reject this ground as well and, for these reasons, I would dismiss the application.

McMURDO JA:  I agree.

HENRY J:  I agree.

SOFRONOFF P:  The order of the Court is that the application is dismissed.  I thank counsel for their assistance.

Footnotes

[1][2013] QCA 8.

[2][2016] QCA 132.

[3][2012] QCA 6.

[4]Supra at [26].

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Editorial Notes

  • Published Case Name:

    R v Spark

  • Shortened Case Name:

    R v Spark

  • MNC:

    [2018] QCA 231

  • Court:

    QCA

  • Judge(s):

    SOFRONOFF P, McMURDO JA, HENRY J

  • Date:

    24 Sep 2018

Litigation History

No Litigation History

Appeal Status

No Status