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R v Delander

 

[2019] QCA 69

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Delander [2019] QCA 69

PARTIES:

R
v
DELANDER, Matthew
(applicant)

FILE NO/S:

CA No 179 of 2018

SC No 1219 of 2017

SC No 572 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 June 2018 (Davis J)

DELIVERED ON:

26 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2019

JUDGES:

Morrison and McMurdo JJA and Brown J

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted and sentenced to nine years’ imprisonment with parole eligibility after four and a half years for 15 indictable offences including drug-related and weapons offences – where the applicant contends the sentence is manifestly excessive when regard is had to the parole eligibility date – where the applicant contends the sentence did not adequately reflect the mitigating factors in his case including cooperation with police which lead to the seizure of large stocks of explosives and weapons by police – where the sentencing judge expressly accounted for the mitigating factors by reducing the head sentence below 10 years to avoid the issue of a serious violent offence declaration – whether the sentence failed to adequately account for the mitigating factors, especially the applicant’s cooperation with police – whether reducing the parole eligibility date as well as the head sentence would amount to a “double benefit” for the applicant

Penalties and Sentences Act 1992 (Qld), Part 9A

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

R v Abbott [2017] QCA 57, considered

R v Boyd [2013] QCA 335, considered

R v Carlisle [2017] QCA 258, considered

R v Corbett [2018] QCA 341, considered

R v Feakes [2009] QCA 376, considered

R v MCT [2018] QCA 189, applied

R v Randall [2019] QCA 25, cited

R v Strutt [2017] QCA 195, considered

R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22, considered

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied

COUNSEL:

A Cappellano for the applicant

C N Marco for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Brown J and agree with those reasons and the order her Honour proposes.
  2. [2]
    McMURDO JA:  I agree with Brown J.
  3. [3]
    BROWN J:  The applicant was sentenced for multiple offences on 14 June 2018.  The sentencing judge determined that the sentence for unlawful trafficking in dangerous drugs, which was Count 1 of the indictment, would reflect the overall criminality of the applicant’s offending.  A sentence of nine years’ imprisonment was imposed in respect of Count 1, with a parole eligibility date fixed after four and a half years.
  4. [4]
    The applicant has sought leave to appeal that sentence on the basis that the sentence is manifestly excessive.  In this regard the applicant does not seek to challenge the head sentence of nine years but the time to be served in custody before being eligible for parole.

Nature of offences and sentences opposed

  1. [5]
    The applicant was sentenced in relation to 15 offences, most of which were drug related offences, but which included weapons offences as well as one count of possessing counterfeit money.  The indictable offences for which the applicant was sentenced are as follows:
  1. (1)
    Trafficking in a dangerous drug (methylamphetamine, MDMA) – 9 years’ imprisonment;
  2. (2)
    Unlawful supplying of a weapon (category H) with a circumstance of aggravation – 3 years’ imprisonment to be served wholly in a correctional facility;
  3. (3)
    Unlawful supplying of a weapon (category R) – 3 years’ imprisonment to be served wholly in a correctional facility;
  4. (4)
    Possessing a dangerous drug (methylamphetamine) in excess of 2.0 grams – 5 years’ imprisonment;
  5. (5)
    Possessing a dangerous drug (methylamphetamine) – 5 years’ imprisonment;
  6. (6)
    Possessing a dangerous drug (methylamphetamine in excess of 2.0 grams) – 5 years’ imprisonment;
  7. (7)
    Possessing a dangerous drug (testosterone) – 3 years’ imprisonment;
  8. (8)
    Possessing a thing (money) for use in connection with trafficking in a dangerous drug – 3 years’ imprisonment;
  9. (9)
    Possessing a weapon (category H) with a circumstance of aggravation – 3 years’ imprisonment;
  10. (10)
    Possessing a dangerous drug (MDMA) – 3 years’ imprisonment;
  11. (11)
    Possessing a dangerous drug (testosterone) – 3 years’ imprisonment;
  12. (12)
    Possessing a dangerous drug (testosterone) – 3 years’ imprisonment;
  13. (13)
    Possessing a weapon (category R) – 3 years’ imprisonment;
  14. (14)
    Possessing a weapon (category C) – 12 months’ imprisonment;
  15. (15)
    Possessing counterfeit money – 12 months’ imprisonment.  No recognizance release order.
  1. [6]
    The applicant was also sentenced in relation to 15 summary offences, which are not pertinent to the matters raised in this application.

Circumstances of offending

  1. [7]
    The circumstances of the offending were the subject of a schedule of facts, which was Exhibit 1 in the sentencing hearing.  The applicant was the subject of a police operation conducted between August 2015 and May 2016.
  2. [8]
    Count 1 of the indictment relates to unlawful trafficking of dangerous drugs, namely methylamphetamine and MDMA, which occurred over an eight month period from 26 August 2015 to 30 April 2016.  The applicant was a wholesale dealer who distributed methylamphetamine in ounce amounts.  He sold methylamphetamine for about $5,000 an ounce.  He supplied MDMA tablets up to hundreds of tablets at a time.  He engaged another, Kylie Gould, to sell and deliver drugs on his behalf.  There was evidence the applicant supplied drugs on 31 occasions to at least 18 customers.  The business was a sophisticated one.  He had also leased a large shed to store drugs, cash proceeds and weapons and he conducted his business from the Gold Coast.  There was evidence that the applicant was owed debts of $22,000 for five and a half ounces of methylamphetamine, $14,000 for 2000 MDMA tablets, $70,000 by another customer and, according to what he told an associate, $400,000 by another customer who was paying him $30,000 to $40,000 of the total debt.
  3. [9]
    A customer gave the applicant a Toyota Prado in satisfaction of a drug debt, which was later used in the commission of further offences.
  4. [10]
    The applicant took active steps to hide the commission of his crimes.  He had fashioned a secret compartment to hide drugs, cash and weapons in the Toyota Prado.
  5. [11]
    There was evidence that the applicant had spoken about inflicting violence on other persons and of the applicant charging interest and refusing to continue to supply drugs to those who did not repay him, but there was no evidence that any violence had in fact occurred.  There was also evidence the applicant stockpiled drugs.
  6. [12]
    The applicant was found to be in possession of drugs, cash and weapons on a number of occasions during the period of trafficking.  In particular, on 30 November 2015, he was found to be in possession of 9.147 grams of pure methylamphetamine within 12.385 grams of substance in his car.  On 3 March 2016, he was found to be in possession of 22.961 grams of pure methylamphetamine within 31.008 grams of substance secreted throughout three locations in his vehicle.  Police also found $18,450 in cash, 6.602 grams of liquid testosterone and a semiautomatic rim-fire pistol with ammunition.  According to the statement of facts, prior to the search of the vehicle, Gould had removed from it a quantity of methylamphetamine and $20,000 in cash.
  7. [13]
    The applicant was arrested on 29 April 2016.  A search of the shed leased by the applicant on that day revealed a rifle bag holding three rifle stocks, each of which was wrapped in camouflage tape and had the applicant’s fingerprints upon them, and, inside a sedan parked inside the shed, a pouch holding a set of digital scales, three glass vials of liquid labelled testosterone enanthate, one unlabelled glass vial of liquid and a firearm silencer.  In a van parked inside the shed, police found various items including a Bentley pump action shotgun and, hidden behind the wall lining in the rear of the van, a bundle of Australian $50 notes totalling $7,500, of which all but two were counterfeits.  According to police intercepts, the applicant had been recorded saying he had paid $20,000 Australian to “the boys in Sydney” for counterfeit bank notes totalling $50,000.
  8. [14]
    There was evidence that the applicant had generated significant proceeds from his drug trafficking, which enabled him to afford living expenses and luxury goods for himself and his partner, Gould.  He was not engaged in legitimate employment at the time.
  9. [15]
    While the majority of offending was drug related, counts 4 and 5 involved the unlawful supply of weapons, namely a 12-gauge military shotgun and a handgun.
  10. [16]
    The applicant surrendered himself to police on 29 April 2016.

Antecedents

  1. [17]
    The applicant entered a timely plea of guilty following a full hand up committal.  At the time of sentencing he had spent 776 days in pre-sentence custody, which was declared at the time of sentence as time served, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld).
  2. [18]
    The applicant provided significant cooperation to police identifying the locations of large amounts of explosives and weapons and encouraging another, Burrows, to also reveal the locations of explosives.[1]
  3. [19]
    The applicant had minor criminal histories in Queensland and the ACT, as well as a Queensland traffic history.  He was between 32 and 33 years of age at the time of the commission of the offences and 35 years old at the time of sentencing.
  4. [20]
    There was evidence that the applicant had a strong employment history, having previously held responsible positions in the building industry.

Parties’ contentions

  1. [21]
    The applicant accepts that the nine year sentence was an appropriate head sentence in the circumstances of the case.  However, he contends that the fixing of the parole eligibility date after four and a half years of imprisonment did not adequately reflect the mitigating factors in his case, namely his minor criminal history, timely plea of guilty, strong prospects of rehabilitation given his work history and positive progress while on remand in custody reflected by the prison case file notes,[2] and, particularly, his level of cooperation which led to the identification of explosives and weapons which were seized by the police between 3 July 2017 and 13 June 2018.[3]
  2. [22]
    The Crown contends that the sentencing judge had taken into account all relevant factors in assessing the appropriate sentence and, in particular, that the reduction afforded to the applicant for his cooperation was significant, given the sentence was reduced below 10 years to nine years.  This reduction was made in circumstances where had a 10 year sentence been imposed, the applicant would have had to serve 80 per cent of the sentence in custody by operation of Part 9A of the Penalties and Sentences Act 1992 (Qld). The Crown contends that it was open for the sentencing judge to craft the sentence in the way that his Honour did, noting that the authorities have recognised that sentencing judges should be afforded flexibility in the exercise of their discretion to craft sentences that they conclude are just in all of the circumstances of the case.[4]

Sentence of trial judge

  1. [23]
    The learned sentencing judge noted the sophistication of the business with respect to trafficking that had been conducted by the applicant.  His Honour also noted with particular concern that the applicant’s offending included possessing firearms and supplies of firearms to others on two occasions, which were the subject of Counts 4 and 5.  His Honour also noted that although the applicant had been intercepted by police on several occasions and charged, he persisted with his trafficking until late April 2016 when he surrendered to police.
  2. [24]
    His Honour had regard to the relevant antecedents as well as the applicant’s cooperation with the police which led them to seizing a very large quantity of explosives and ammunition.  His Honour stated that, while the applicant had not provided the names of people involved in the offending or other information, “Nonetheless, it is clearly very much in the public interest for large quantities of explosives and other illegal things to be taken out o undertaking (sic) of circulation”.[5]
  3. [25]
    His Honour acknowledged that the applicant had little relevant criminal history and that he had held responsible positions in companies involved in the building industry.  His Honour commented that those features made his offending very odd and to that extent he accepted that the applicant’s mother’s illness and subsequent death provided at least some explanation for his offending.  His Honour also took account of the applicant’s prison case file and the fact that since entering prison he had done well, completed programs and gone at least some way toward conquering his drug addiction.  His Honour accepted that the applicant had a drug addiction, which had been the subject of submissions by defence counsel and was not disputed by the Crown.
  4. [26]
    His Honour stated that he had been referred to a number of comparative cases which demonstrated a range of between 10 to 12 years for trafficking in Schedule 1 drugs on the scale in which the applicant had engaged, even on a plea of guilty, unless there were some special circumstances.  However, his Honour, also stated that the offending in this case involved not only trafficking, but weapons charges.  His Honour stated that but for the mitigating circumstances, the sentence would be above the 10 year mark.
  5. [27]
    His Honour also had regard to the sentences imposed on other offenders who were involved in various ways in the trafficking which the applicant had committed.  In particular, he noted that Cameron Trotter had been sentenced to nine years’ imprisonment with eligibility for parole after serving three and that, while Mr Trotter’s trafficking was at a higher level, the period of his offending was only three months.  His Honour considered that the applicant’s offending overall was worse than Mr Trotter’s and therefore his sentence had to be more severe than that of Mr Trotter.
  6. [28]
    His Honour considered that the circumstances which justified a sentence below 10 years were:
  1. (a)
    The evidence of the applicant’s rehabilitation while in custody;
  2. (b)
    That the period of offending was exceptional when regard was had to his history as a whole;
  3. (c)
    That there was what his Honour regarded as a “very valuable contribution to the safety of the public by identifying to the police the location of a significant stash of explosives and dangerous things”; and
  4. (d)
    His plea of guilty, which was a timely plea.
  1. [29]
    Relevantly, having sentenced the applicant in relation to the 15 summary offences, his Honour stated that:

“… I consider that … your offending is higher and worse that that (sic) of Trotter.  You will have noticed, though, that the head sentence that has been imposed upon you is the same as Trotter.  In order to reflect the added seriousness of your offending I do not intend to make an order that you be eligible for parole, so, you will, therefore by force of the legislation, be eligible for parole once you have served one half of your sentence.”[6]

  1. [30]
    His Honour subsequently did set the parole eligibility period at four and a half years, because by force of the legislation the applicant’s offence against the Bail Act 1980 (Qld), which was one of the summary offences of which the applicant was convicted, would have to be served cumulatively upon the nine year sentence on Count 1 of the indictment and the other sentences that were to be served concurrently with that sentence.  His Honour did not consider that the applicant should spend further time in custody prior to being eligible for parole as a result of his failure to appear in accordance with an undertaking, and set a parole eligibility date accordingly.

Consideration

  1. [31]
    In order to establish that a sentence is manifestly excessive, the Court of Appeal must be satisfied that there “must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.[7]  The High Court has noted, “appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.[8]
  2. [32]
    The statement of Morrison JA in R v MCT [2018] QCA 189 at [240] is apposite, namely:

“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”. Consistently with the accepted understanding that there is no single correct sentence, 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.” (footnotes omitted).

  1. [33]
    The applicant contends that the present case was not one like that considered in the decision of R v Tran; Ex parte Attorney-General (Qld).[9]  In that case, the Court found that the applicant’s mitigating circumstances did not justify a “double benefit” in the exercise of the sentencing discretion in which both the head sentence and period of parole would be reduced.
  2. [34]
    The Court of Appeal found that the sentencing judge had erred insofar as, having recognised that the respondent’s conduct in relation to trafficking of methylamphetamine and MDMA over a period of five and half months would have attracted a sentence of 10 years’ imprisonment, the sentencing judge reduced the 10 year sentence to nine years and six months, taking into account the plea of guilty, and then further ordered that the respondent be eligible for parole after serving one third of his sentence, namely three years and two months’ imprisonment.  Boddice J (with whom Philippides JA and McMurdo JA agreed) found that, having determined to reduce the head sentence from 10 years to nine and a half years, which meant that the respondent was no longer subject to an automatic declaration which would have required him to serve 80 per cent of the head sentence, there was no legitimate basis upon which to further ameliorate the sentence by fixing a parole eligibility date earlier than would be set pursuant to s 184(2) of the Corrective Services Act 2006 (Qld).  His Honour stated that to do so was to extend a double benefit to the respondent.[10]  Boddice J at paragraphs 41 and 42 stated:

[41] Whilst a double benefit may, in certain circumstances, be an appropriate exercise of the sentencing discretion, there was no proper basis for affording a double benefit in the present case.  The respondent’s plea of guilty was late.  He subsequently failed to appear at his initial sentence date.  He only appeared in court after being arrested pursuant to a warrant issued as a consequence of his failure to appear at his sentence.

[42] Usually, pleas of guilty generally only attract parole eligibility dates at around the one-third mark of a head sentence in circumstances where the plea of guilty is early and accompanied by genuine remorse.  There are also often other factors relevant to the exercise of such a discretion, including the youth of the offender and successful steps towards rehabilitation.”

  1. [35]
    In R v Tran, Boddice J considered that there was neither the existence of an early plea, nor evidence of genuine remorse, nor any other mitigating factors which could justify the reduction of the parole eligibility date as well as the head sentence.  His Honour therefore concluded that the fixing of a parole eligibility date at the one-third mark conferred on the respondent a double benefit for his plea of guilty, which was not justified having regard to the circumstances of his plea.  His Honour considered there was a misapplication of the principle resulting in a sentence which was manifestly inadequate.  The Court therefore concluded that a sentence of nine and a half years’ imprisonment with parole eligibility in accordance with s 184(2) of the Corrective Services Act 2006 (Qld) was the appropriate sentence.
  2. [36]
    While the applicant has mitigating circumstances that were not present in R v Tran, the applicant’s offending occurred over a longer period than the offender in that case and involved a significantly greater number of offences, although the offender’s trafficking in R v Tran was of greater intensity.  Although the offender in R v Tran had failed to appear for his sentence, the applicant in this case engaged in continual offending, notwithstanding having been arrested and charged by police on a number of occasions.  To the extent that the applicant sought to contend that R v Tran is not authority that there cannot be a double benefit in all cases, that is plainly correct.
  3. [37]
    The applicant’s counsel submitted that unlike R v Tran, in the present case there were factors other than a timely plea of guilty, which were mitigating circumstances and which therefore could allow a sentencing judge to further reduce the time spent in custody in addition to reducing the head sentence below 10 years.  While that may be true, that is not the relevant question for this Court.  There is no one sentence that can be imposed by a sentencing judge.  The question is whether the sentence imposed indicates that there has been a misapplication of principle by the sentencing judge.
  4. [38]
    The applicant’s counsel, faced with a difficult argument, contended that the mitigating factors of the applicant’s timely plea of guilty, his surrender to the police, the evidence of rehabilitation and good conduct in prison and the fact that he had been a drug addict during his offending were sufficient of themselves to justify the reduction of the sentence to nine years.  In those circumstances, she submitted that the additional factor of cooperation by way of identifying the locations of various explosives and weapons had not been adequately accounted for in the reduction of sentence, particularly the time to be spent in custody, which demonstrated that the sentencing judge had made an error in the exercise of his discretion.  In particular, she emphasised the exceptional nature of the applicant’s cooperation and the significant public benefit in ensuring those weapons and explosives were taken out of public circulation.  The applicant had also encouraged another individual, Mr Burrows, to identify the locations of explosives and weapons.  The applicant’s counsel submitted that such significant cooperation deserved a reduction in the time of custody, in particular, to encourage other people to similarly cooperate.  She contended that in this regard, it was an unusual, significant mitigating factor and even though it was not cooperation in the nature of s 13A or s 13B of the Penalties and Sentences Act 1992 (Qld), in relation to which it is accepted an offender may be the subject of likely reprisal, there was still an acknowledged significant public benefit in the items being taken out of the community.
  5. [39]
    While acknowledging it was a single judge decision, the applicant’s counsel referred to the sentence imposed upon Mr Burrows by Mullins J, given that it was the only case she could locate where cooperation was provided by way of identification of explosives.[11]
  6. [40]
    Her Honour in R v Burrows considered that the offender’s history and recidivist conduct exposed him to a sentence of 10 years, but having had regard to the mitigating circumstances, which consisted of the cooperation in relation to the explosives, an early plea of guilty, the offender having taken courses to address his addiction and the fact the offender had a heart condition, decided to impose a sentence of nine years with a parole eligibility date after three years and six months.
  7. [41]
    However, while in Burrows’ case the offending was serious, involving possession of large quantities of methylamphetamine and heroin which were found to be for a commercial purpose, that case did not involve offending as extensive as that engaged in by the applicant in relation to trafficking in dangerous drugs, nor did it involve additional weapons offences.
  8. [42]
    The applicant in this case had engaged in prolonged trafficking at a wholesale level, including after he had been arrested and charged by police on a number of occasions, which involved him employing another in the business, leasing a shed for the purpose at least in part of carrying on the business, modifying a vehicle to conceal the criminal activity and supplying methylamphetamine and MDMA of sufficient order that debts were owed to him of between $14,000 and $400,000, as revealed by police intercepts.  In my view, his offending was of a more serious level than Mr Burrows’, even though Mr Burrows had a far more serious criminal history than the applicant.  The applicant’s offending in supplying arms to others also warranted a heavier sentence.
  9. [43]
    The case of R v Burrows provides little assistance in determining whether the sentence imposed in the present case is inside the range within which the discretionary judgement of the sentencing judge could be properly exercised.  There is no question of parity applying and I do not consider the sentence in that case could give rise to a justifiable grievance in the present case.
  10. [44]
    There is no doubt that the cooperation of the applicant was significant and of an unusual nature.  While it did not identify other offenders, it did identify large amounts of explosives and arms which presented a significant potential danger to the community.
  11. [45]
    Although it was submitted that his Honour accepted that the applicant’s sentence would have been 10 years had it not been for the mitigating circumstances, his Honour in fact referred to comparative cases in which the sentences fell within a range of 10 to 12 years for trafficking on the scale of the applicant’s.  His Honour pointed out, however, that there was not only trafficking in the present case but also weapons charges.[12]  Those additional charges of themselves clearly warranted a heavier head sentence.
  12. [46]
    His Honour clearly was of the view that without mitigating circumstances the applicant would be sentenced to a period of imprisonment in excess of 10 years.  He did not identify what that particular sentence would have been.  Nor should it be assumed that his Honour was indicating by his remarks that 12 years was the upper limit.  As was pointed out by McMurdo JA (with whom Holmes CJ and A Lyons J agreed) in R v Cobb,[13] comparable cases do not define the numerical limits of the sentence that can be imposed in another case, nor does a decision of an appellate court establish even the range of sentences for the particular case which it is deciding.  The appellate court considers whether a sentence is within the range within which the discretionary judgement of the sentencing judge could be properly exercised.  It is not a range for which upper and lower limits are established.
  13. [47]
    A review of cases which to varying degrees are comparable to the present show that the sentence was within the range within which the discretionary judgement of the sentencing judge could be properly exercised.
  14. [48]
    In R v Strutt,[14] Flanagan J (with whom Sofronoff P and Morrison JA agreed) reviewed a number of authorities which demonstrated that a plea of guilty in relation to trafficking offences may result in the sentence that would otherwise be imposed only being reduced to 10 years.  In Strutt, there were some 21 offences involved, including two weapons offences.  A sentence of 10 years was imposed.  The period of trafficking was shorter than in the present case, being a period of some five months, and involved substantial quantities of methylamphetamine and relatively small quantities of cocaine and ecstasy, with the business being conducted at wholesale and retail level.  The trafficking in that case was arguably of a higher level than in the present and the offences had been committed in breach of suspended sentences which were reactivated, such that the applicant had to serve four months out of a possible period of 1,085 days.  There was evidence of rehabilitation in relation to the offender’s drug addiction and a plea of guilty, which were mitigating circumstances.  In the course of dismissing the appeal, Flanagan J noted that Fraser JA in R v McGiniss had identified that offenders “who have pleaded guilty (to trafficking) have commonly been sentenced to terms of imprisonment between 10 and 12 years” with an automatic declaration that the offence was a serious violent one, even though the offenders had mitigating circumstances.[15]
  15. [49]
    Similarly, in the case of R v Feakes,[16] the offender had trafficked in Schedule 1 and Schedule 2 drugs over a six month period, but had made significant efforts to rehabilitate himself, had pleaded guilty, had a dysfunctional upbringing, had not re-offended for three years whilst he had been on bail and had a good work history.  He had significant support in terms of favourable references.  His sentence of 10 years’ imprisonment was not overturned on appeal.  The offender was 30 to 31 years old at the time of offending and his trafficking was broadly comparable to the present case.  In that case, McMurdo P analysed a number of cases concluding that:[17]

“My analysis of the comparable cases relied on by Feakes and the respondent in this application demonstrate that, absent extraordinary circumstances, in cases of trafficking in sch 1 drugs on a scale like the present offence, the sentence imposed on mature offenders who have pleaded guilty is ordinarily in the range of 10 to 12 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to a slightly lesser term of imprisonment in the range of eight to nine years: see, for example, Assurson (aged 23) and Elizalde (aged 25). As I noted earlier in these reasons, the practical effect of a sentence of less than 10 years imprisonment where there is no declaration that the offence is a serious violent offence takes on disproportionate significance.” (footnotes omitted)

  1. [50]
    In R v Abbott,[18] Philippides JA (with whom Fraser JA and McMurdo JA agreed) considered that there was no error in the exercise of sentencing discretion where a 10 year sentence was imposed for trafficking.  In that case, the applicant had been charged with trafficking at a wholesale level in methylamphetamine and cocaine for a period of some 17 months, of which the active period was some six and a half months.[19]  He had continued to offend while on bail.[20]  The offender’s operation was a substantial one involving large amounts of money and drugs over a significant period.  The offender had a minor criminal history, pleaded guilty in a timely way, had succumbed to drug addiction after his mother had died, had a difficult background and had lost everything in the global financial crisis and fallen into depression.[21]  The Court of Appeal did not overturn the sentence of 10 years, notwithstanding the fact that he was declared a serious violent offender as a result of the 10 year sentence.
  2. [51]
    In R v Corbett,[22] the Court of Appeal considered that a sentence of nine years’ imprisonment for trafficking with no order as to parole, where the quantity of methylamphetamine was a significant aggravating feature, was not outside of the proper sentencing range so as to be manifestly excessive.  In that case, a significant amount of methylamphetamine was found, being in excess of 200 grams of pure methylamphetamine.  The period of trafficking, however, was just short of two months, and the Court found it was undertaken for profit and personal use.  There were significant mitigating factors including an offer to provide information, although it proved not to be of practical value, with an early plea of guilty.  The applicant in that case had a significantly more serious criminal history than the present applicant.  The majority of offences were drug related and there were no offences which involved the supply of weapons as in the present case.  He also had evidence of a significant drug addiction, had taken steps towards his rehabilitation while in custody, was a father of a three month old daughter and had remained in a relationship with her mother who was still supportive.  He had obtained a number of favourable references.  He had written a letter to the sentencing judge about his struggle with addiction and depression, particularly after witnessing a fatal car accident.[23]  The trial judge considered that the applicant may have expected imprisonment for a period of 11 years, which would have required the applicant to serve 80 per cent of the sentence but, having regard to his plea of guilty, remorse, his young child and support from those around him, the sentence was reduced to nine years.  The applicant was, however, required to serve four years and six months before eligibility for parole.
  3. [52]
    In the case of R v Carlisle [2017] QCA 258, the Court of Appeal substituted a sentence of nine years for a 10 year sentence, avoiding the automatic operation of the serious violent offender declaration provisions, although the nine year sentence took account of one year of undeclared pre-sentence custody, such that the applicant’s effective head sentence was 10 years.  A parole eligibility date was set at four years, for a similar period of trafficking to the present.[24]  However, the offender in that case was convicted of a lesser number of offences.  While the case of R v Boyd [2013] QCA 335 involved a lower head sentence of eight years which was not overturned by the Court of Appeal for being manifestly excessive,[25] that does not suggest any misapplication of principle in the present case.
  4. [53]
    The submission that the mitigating circumstances aside from the cooperation should of themselves have resulted in a sentence of nine years, such that the effect of the applicant’s cooperation should then have been taken into account by setting a shorter parole eligibility period, cannot be accepted.  An analysis of the above cases indicates that, given the level of offending in which the applicant had engaged, a sentence of 10 years would have been within the range, even taking into account the mitigating circumstances in terms of his plea of guilty, handing himself into police and steps towards rehabilitation.
  5. [54]
    Given the above, the reduction of the head sentence to nine years by reference to the mitigating circumstances including the cooperation with police was significant.  This Court has recognised the significant difference in terms of the consequences for a prisoner between a sentence of marginally less than 10 years and a sentence of 10 years in circumstances where, as would be the case here, an offender would automatically be declared a serious violent offender.  In the latter case, the prisoner must serve at least eight years before obtaining parole eligibility.[26]
  6. [55]
    The case of R v Trotter[27] referred to by his Honour concerned a related offender involved in trafficking in methylamphetamine at a wholesale level, which he was supplied by the applicant, but also the production of GHB.  His offending was arguably of a higher level than the applicant, but was over a much shorter period of three months.  While the weapons were found by the police when they executed a search warrant, the offender in that case was not charged with weapons offences, particularly supply of weapons, unlike in the present case, although he was involved in the production of GHB.  The offender was also younger than the applicant being 25 years old at the time of his offending.  He had no criminal history and had some medical evidence of early trauma.  He had also significant evidence of rehabilitation.  While he did not provide cooperation to police to the degree the applicant had in this case, he had made declarations in relation to weapons and the presence of drugs to police.  He was sentenced to nine years for trafficking with a parole eligibility period after three years.  As his Honour found, in this case Trotter’s offending was less serious than that of the applicant given the period of time involved and his age and he also had mitigating circumstances in his favour supporting the sentence.  The sentence imposed does not suggest any error in the exercise of the sentencing judge’s discretion.
  7. [56]
    His Honour considered the vast discrepancy between time served by an offender whose sentence was greater than 10 years and one whose sentence fell below that line, by virtue of the serious violent offender declaration provisions of the Penalties and Sentences Act 1992 (Qld), which would apply in the present case.  His Honour recognised that the head sentence would be above the 10 year mark but for the mitigating circumstances.  He considered the mitigating circumstances including the applicant’s cooperation warranted the head sentence being reduced below 10 years.  The reduction of the sentence to nine years involved a reduction of at least three and a half years from that which otherwise would have been served had a sentence of 10 years been imposed.
  8. [57]
    While the overall sentence is at the higher end and a more lenient sentence may have been open to a sentencing judge, the sentence was within the range within which the discretionary judgment of the sentencing judge could be properly exercised, particularly given the weapons offences involving supply which increased the overall criminality of the applicant.  The sentence does not indicate any misapplication of principle and is not manifestly excessive.
  9. [58]
    I would refuse the application for leave to appeal.

Footnotes

[1]  AB-101.

[2]  Ex 11.

[3]  AB-101.

[4] Markarian v The Queen (2005) 228 CLR 357 at 371; R v Randall [2019] QCA 25 at [31], [38] and [43].

[5]  AB-71.

[6]  AB-73-74.

[7] Wong v The Queen (2001) 207 CLR 584 at [58].

[8] Wong v The Queen (2001) 207 CLR 584 at [58].

[9]  [2018] QCA 22.

[10] R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22 at [40].

[11] R v Kenneth Patrick Burrows, 1 December 2017, Supreme Court of Queensland, Mullins J.

[12]  AB-71, 21-22.

[13]   [2016] QCA 333 at [30]-[31], referring to Barbaro v The Queen (2014) 253 CLR 58 at [27], [28] and [41].

[14]  [2017] QCA 195.

[15]  [2015] QCA 34 at [11].  In that case, the Court of Appeal did not overturn the sentence, where the offender was sentenced to 10 years for trafficking and eight years for possession of a dangerous drug in excess of 200 grams, to be served concurrently.  The offender was 26 years old when he offended and 28 at the time of sentencing, had made commendable efforts at rehabilitation and had entered an early plea of guilty.

[16]  [2009] QCA 376.

[17]  At [33].

[18]  [2017] QCA 57.

[19] R v Abbott [2017] QCA 57 at [4].

[20] R v Abbott [2017] QCA 57 at [7] and [8].

[21] R v Abbott [2017] QCA 57 at [11]-[12].

[22]  [2018] QCA 341 at [7].

[23] R v Abbott [2017] QCA 57 at [6] and [7].

[24]  At [110]-[112].

[25]  At [47].

[26] R v Randall [2019] QCA 25 at [31].

[27]  4 May 2018, Supreme Court of Queensland, A Lyons SJA.

Close

Editorial Notes

  • Published Case Name:

    R v Delander

  • Shortened Case Name:

    R v Delander

  • MNC:

    [2019] QCA 69

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Brown J

  • Date:

    26 Apr 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment SC1219/17; SC572/18 (No Citation) 14 Jun 2018 Date of Sentence (Davis J).
Appeal Determined (QCA) [2019] QCA 69 26 Apr 2019 Application for leave to appeal against sentence refused: Morrison and McMurdo JJA and Brown J.

Appeal Status

{solid} Appeal Determined (QCA)