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  • Unreported Judgment

R v Roberts

 

[2018] QCA 239

COURT OF APPEAL

FRASER JA

PHILIPPIDES JA

McMURDO JA

CA No 138 of 2018

SC No 174 of 2018

THE QUEEN

v

ROBERTS, Daniel Wayne John

Applicant

BRISBANE

THURSDAY, 27 SEPTEMBER 2018

JUDGMENT

PHILIPPIDES JA:  The applicant was sentenced on 28 May 2018 to six years imprisonment for trafficking in cocaine and MDMA, one year imprisonment on each of three counts of supplying cocaine and six months on one count of possession of cocaine.  All sentences were ordered to be served concurrently.  A period of 17 days custody was declared as time already served and a parole eligibility date was fixed at 10 May 2020, after two years was served.  The applicant seeks leave to appeal against his sentence on the grounds that the sentence imposed on the trafficking count was manifestly excessive.

The applicant was 27 to 28 years of age at the time of the offending.  The circumstances of the offending came to light as a result of telephone intercepts during a police investigation over a period of 18 months.  The intercepts revealed that the applicant had carried on the wholesale trafficking of cocaine and MDMA over a period of nine weeks.  He sold at least four ounces of cocaine in quantities ranging from 14 grams to 28 grams, and at least 2,500 MDMA pills, and had a customer base of up to 16 people.  He sometimes supplied the drugs on a credit basis.

Between 15 January 2015, the last day of the trafficking period, and 10 July 2015, the police did not intercept any of the applicant’s calls but, from 11 July 2015 to 30 September 2015, intercepted calls revealed that the applicant sold an ounce of cocaine on three occasions in July.  When the police searched his residence on 22 December 2015, they found him in possession of 0.066 grams of cocaine and some vials which contained steroids.

In imposing sentence, the sentencing judge had regard to the serious nature of the offending which involved the wholesale trafficking of cocaine and MDMA over a nine-week period to up to 16 people.  While there was no evidence of significant unsourced wealth, that did not detract from the fact that wholesale trafficking was involved, the drugs were sold on credit in large amounts, and the offending was engaged in for profit as a commercial operation by a person who, although a user, was not an addict trafficking to feed an addiction.

The sentencing judge also took into account the applicant’s early pleas of guilty as evidencing cooperation with the administration of justice.  His Honour also observed that the applicant failed to appear at sentence, resulting in a warrant being issued for his arrest, although he ultimately surrendered himself to the Court, and that did not sit comfortably with a cooperative stance.  Nevertheless, his Honour considered that the applicant should be sentenced on the basis of having cooperated in the administration of justice and that the sentence imposed should reflect the early pleas by providing for a parole eligibility date at the one-third mark.

His Honour also had regard to the applicant’s personal circumstances.  The applicant had a relevant but limited criminal history.  Factors in his favour were that the applicant had undertaken steps to rehabilitate himself.  He had a supportive family and friends, was in a relationship and had a child.

Before the sentencing judge, the respondent put forward a sentence of eight years, on the basis of authorities, as appropriate.  On behalf of the applicant, it was submitted that comparative authorities indicated a sentence as low as five years, suspended after a 12 month period could properly be imposed.

The sentencing judge did not accept that a sentence of five years sufficiently reflected the criminality of the applicant’s conduct, or that the applicant was, in any event, a suitable candidate for a suspended sentence.  In imposing the sentence of six years, his Honour set parole eligibility after one-third, that is 10 May 2020, as he indicated he would do.

On behalf of the applicant, it was submitted that trafficking in two schedule 1 drugs on a wholesale basis over a period as short as nine weeks did not warrant a sentence as long as six years imprisonment for a person who had a very minor criminal history.

It was submitted that a term of five years imprisonment should be imposed on the trafficking count, and that the parole eligibility sought be brought be forward to 10 January 2020, which would maintain the approach that the applicant serve one-third of the head sentence before being eligible to apply for parole.  In advancing those submissions, reliance was placed on Frith [2017] QCA 143, Wilson [2016] QCA 98 and C’Ward [2014] QCA 15.

In Frith, a term of six years imprisonment was said by this Court to be within the proper range for an offender who carried on wholesale business of trafficking in methylamphetamine over a period of 11 months to at least seven customers, with sales of up to 14 grams at a time.  With a total of 77 grams of substance, with a purity of about 58 grams, were sold and the offender was paid cash totalling $36,150.  His business was such that he had an employee.  The offender had a relevant history, being sentenced to four years imprisonment suspended after 15 months, for producing methylamphetamine, and three months imprisonment, wholly suspended, for producing cannabis.  It is to be observed that the sentence of six years reflected moderation to take into account that 80 per cent of the sentence would be required to be served in custody, and also steps that had been made towards rehabilitation.

That offender was an addict that sold in quantities that were larger than necessary, to satisfy his addiction.  This Court held that the sentencing judge erred in failing to recognise the offender’s successful rehabilitation from his drug addiction and varied the sentence to one of five years imprisonment.

The factor of addiction in respect of which there was successful rehabilitation was an important aspect of that case which distinguishes it from the present case.  Here, the sentencing judge expressed scepticism as to the rehabilitation undergone by the applicant.  His Honour also observed that the applicant had lied to the psychologist in respect of his rehabilitation.  Notwithstanding the supportive family environment, the applicant had continued to use drugs while on bail.

Wilson concerned a term of six years imprisonment imposed for trafficking in two schedule 1 drugs and cannabis over six months.  A concurrent sentence of 20 months was imposed for trafficking in methylamphetamine for one month, a year later.  The term of six years was imposed to reflect both the first period of trafficking and the second period which was committed whilst on bail for the first offence.  The first period of trafficking, while at a low level, involved sales to dealers, not just users.

The offender employed two people to sell for her.  There were at least 83 supplies or offers to supply.  The total quantities involved were 60 grams of methylamphetamine, about 500 grams of cannabis and an unknown quantity of MDMA.  The sentencing judge considered that absent the second offence, the first offence would have warranted a term of five years imprisonment, a view endorsed on appeal.  Unlike the present applicant, the offender’s heavy drug dependency and addiction to methylamphetamine was a factor relevant to the sentence imposed.

In C’Ward, an application to extend time to appeal against a term of five years imprisonment with parole eligibility after 20 months for trafficking in methylamphetamine, MDMA and cannabis over a period of six months, was refused.  Some younger co-offenders with lesser criminal histories, who had pleaded at an earlier time, were sentenced to lesser custodial periods.  The offender, a man of mature years, sold both to users and other vendors, and was prepared to threaten violence in order to enforce debts.  Almost $6,000 was found in his premises, as were records of debts, some of which were for as much a $15,000.  In refusing the application, it was observed that five years imprisonment was a moderate penalty for the offending.  That the setting of a parole eligibility date after one-third of the term had been served appropriately and generously recognised the mitigating features and that there was no error in ordering parole rather than suspension.

The moderate sentence imposed in C’Ward does not demonstrate that the sentence imposed in this case is excessive.  It cannot be said that the sentence of six years imprisonment imposed on the trafficking count was manifestly excessive.  On the contrary, the authorities demonstrate that it was within the sound exercise of a sentencing discretion.  However, it does not follow that a more lenient sentence would not have been also within range.  I would refuse the application for leave to appeal against sentence.

McMURDO JA:  I agree.

FRASER JA:  I agree.

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Editorial Notes

  • Published Case Name:

    R v Roberts

  • Shortened Case Name:

    R v Roberts

  • MNC:

    [2018] QCA 239

  • Court:

    QCA

  • Judge(s):

    FRASER JA, PHILIPPIDES JA, McMURDO JA

  • Date:

    27 Sep 2018

Litigation History

No Litigation History

Appeal Status

No Status