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  • {solid} Appeal Determined (QCA)

R v Little

 

[2020] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v Little [2020] QCA 30

PARTIES:

R
v
LITTLE, Dallas Troy
(applicant)

FILE NO/S:

CA No 154 of 2019
SC No 821 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 15 May 2019 (Jackson J)

DELIVERED ON:

28 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2020

JUDGE:

Fraser and Morrison JJA and Boddice J

ORDER:

The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of attempting to import a marketable quantity of a border controlled drug, one count of producing dangerous drugs, one count of possessing anything used in the commission of a crime defined in Part 2, one count of possessing instructions for producing dangerous drugs and one count of possessing dangerous drugs – where the applicant was sentenced to imprisonment for three years and six months on each count of attempting to import and lesser periods of imprisonment for each of the remaining counts – where all sentences of imprisonment were ordered to be served concurrently – where a non-parole period was fixed at 20 months for each count of attempting to import – where the applicant appeals the sentences imposed in respect of each count of attempting to import on the ground that the sentences imposed are manifestly excessive – where the applicant had a prior criminal history including convictions for drug offences – where the applicant had previously been sentenced to actual imprisonment –whether the sentences imposed reflected a proper application of sentencing principles – whether the sentences imposed were manifestly excessive

Crimes Act 1914 (Cth), s 16A
Criminal Code (Cth), s 11.1

Bertilone v The Queen (2009) 197 A Crim R 78; [2009] WASCA 149, cited
Di Tommaso v R [2010] VSCA 178, cited
R v McLachlan, unreported, Daubney J, SC No 333 of 2016, 13 December 2016, cited
R v Robbie, unreported, Henry J, SC No 15 of 2015, 12 August 2015, cited
R v Sutton [2013] QCA 151, cited
R v Tout [2012] QCA 296, cited
Sintat v R [2018] NSWCCA 165, cited

COUNSEL:

The applicant appeared on his own behalf
S J Cartledge for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.
  2. [2]
    MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
  3. [3]
    BODDICE J:  On 15 May 2019, the applicant pleaded guilty to two counts of attempting to import a marketable quantity of a border controlled drug, one count of producing dangerous drugs, one count of possessing anything used in the commission of a crime defined in Part 2, one count of possessing instructions for producing dangerous drugs and one count of possessing dangerous drugs.
  4. [4]
    The applicant was sentenced to imprisonment for three years and six months on each count of attempting to import and lesser periods of imprisonment for each of the remaining counts.  All sentences of imprisonment were ordered to be served concurrently.  A non-parole period was fixed at 20 months for each count of attempting to import.
  5. [5]
    The applicant seeks leave to appeal the sentences imposed in respect of each attempting to import count.  The sole ground of appeal, should leave be granted, is that the sentence imposed for each count was manifestly excessive.

Background

  1. [6]
    The applicant was born on 26 October 1982.  He was aged 33 at the time of the commission of the offences the subject of this application and 36 at the time of sentence.
  2. [7]
    The applicant had a prior criminal history.  That history contained convictions for drug offences, including both possession and production of dangerous drugs.  The applicant had been previously sentenced to actual imprisonment, as well as suspended sentences which were breached by the commission of further offences.

Offences

  1. [8]
    The counts of attempting to import related to two packages sent from the United States in August 2016.  Each package bore the applicant’s name and a final destination address at West End.  The address was for a storage unit at a self-storage centre.  That storage unit had been rented in the applicant’s name.
  2. [9]
    On 2 November 2016, police executed search warrants at that storage centre and the applicant’s residence.  A number of items were seized, including a mobile telephone.  A subsequent examination of that mobile telephone revealed a number of photographs and emails regarding the tracking of consignments in respect of the two packages.  There were also debit transactions relevant to those packages.
  3. [10]
    An analysis of the contents of the packages revealed that package one contained 27.926 grams of methamphetamine hydrochloride, with a purity of 100 per cent, while the other contained within it two bags, one comprising 12.875 grams of methamphetamine hydrochloride, with a purity of 98.1 per cent and the other comprising 14.64 grams of methamphetamine hydrochloride, with a purity of 89.6 per cent.
  4. [11]
    The applicant participated in an interview with police.  He admitted to being a regular user of drugs but said he had never used the services of the mail re-directory company through which the two packages had been sent and said he held no account with that organisation.  The applicant refused to comment on who was the leaseholder for the storage unit at West End.
  5. [12]
    Subsequent enquiries revealed the applicant had signed an agreement to rent the storage unit.  There were also a number of receipts for storage located on the applicant’s electronic devices, and evidence of a payment for storage from the applicant’s bank records.  CCTV footage depicted the applicant entering and leaving the storage facility.
  6. [13]
    The remaining counts on the indictment related to items seized during the execution of the search warrants.  Those items included paraphernalia used in connection with the manufacture of the drug methylamphetamine, an instruction manual in relation to the production of drugs and a clip seal bag containing pure methylamphetamine of 2.57 grams.

Sentencing remarks

  1. [14]
    The sentencing Judge had regard to the applicant’s age, relevant past criminal history and the circumstances of his offending.  The sentencing Judge observed that the applicant’s criminal history showed some consistency of offending and a failure to take advantage of earlier opportunities.
  2. [15]
    The sentencing Judge accepted that at the time of the commission of the offences the applicant was a heavy user of methylamphetamine and not engaged in any commercial operation of trafficking in drugs.  The applicant was sentenced on the basis he intended to use some of the imported drugs himself and sell the rest to friends and acquaintances with an intention to make some profit.
  3. [16]
    The sentencing Judge accepted the applicant’s pleas of guilty were timely.  Other relevant mitigating factors were that, since his arrest, the applicant had shown a significant process of rehabilitation, returning home to live with his family and ceasing the use of illicit drugs.  The applicant had numerous drug screen certificates, evidencing that he was free from drugs.  The applicant also had the strong support of family and friends, evidenced by the numerous references tendered on sentence.
  4. [17]
    The sentencing Judge had regard to the factors set out in section 16A of the Crimes Act 1914 (Cth), as well as a number of comparable authorities.  Although those authorities dealt with offences of importing, and the applicant was charged with attempting to import, the applicant was punishable as if the offence of importing had been committed.[1]
  5. [18]
    After noting that the applicant’s counsel had submitted that an appropriate sentence for the counts of attempting to import was a sentence of four years imprisonment, with a non-parole period of 18 months, and recording that the applicant had shown contrition and had good rehabilitation prospects, the sentencing Judge imposed periods of imprisonment of three years and six months in respect of each count of attempting to import.  A non-parole period was fixed at 20 months.

Applicant’s submissions

  1. [19]
    The applicant submits that the sentences imposed for the attempting to import counts were manifestly excessive by reason of errors on the part of the sentencing Judge.  Those errors were: attempting to attach the correct weight to rehabilitation when the then defence representatives did not address or support the advantages of a non-custodial sentence; the length of time since the applicant’s last offence; the applicant’s drug addiction; the applicant’s reduced mental capacity due to that addiction and the break-up of a relationship; the failure to reduce the charges to importation of a border controlled drug having regard to the sentencing Judge’s acceptance that the commercialism was low; and the failure to have regard to the lack of truly comparable cases.
  2. [20]
    Notwithstanding that the only ground of appeal is that the sentence imposed was manifestly excessive, the applicant also submits that there was a lack of competency by his then legal representatives.  A number of matters are relied upon in support of that contention, including making submissions in respect of matters contrary to instructions and a failure to properly address matters in mitigation and by way of distinguishing comparable decisions.
  3. [21]
    The applicant submits that a consideration of comparable authority supports a conclusion that the sentence imposed was manifestly excessive.  There should be substituted for each count of attempting to import, a sentence of two years’ imprisonment with an order that the applicant be released on recognizance after serving 12 months.

Respondent’s submissions

  1. [22]
    The respondent submits that nothing on the face of the material supports a finding that the applicant’s legal representatives acted inappropriately.  Further, the sentence imposed in respect of each count of attempting to import was more favourable than that contended for by the applicant’s counsel.
  2. [23]
    The respondent submits that reference to comparable authorities demonstrates that the sentences were not manifestly excessive.  Many of the sentences sought to be relied upon by the applicant did not constitute appropriate yard sticks for consideration.  Those that properly constituted comparable sentences[2] involved offenders who were younger, with minor criminal histories, who engaged in unsophisticated importations.

Consideration

  1. [24]
    The applicant’s contentions in relation to the actions of his legal representatives are not supported by any evidential material.  Those contentions also do not find support in a consideration of the transcript of the sentencing hearing.  In any event, the sole ground of appeal relied upon by the applicant is manifest excess.  His contentions in relation to the adequacy of his legal representation have no relevance to that proposed ground of appeal, except to the extent that it may support a conclusion that the sentencing Judge misapplied relevant principles in exercising the sentencing discretion or that the sentence imposed is unreasonable or plainly unjust.[3]
  2. [25]
    The applicant was a mature offender with a not insignificant past criminal history.  That history included previous convictions for drug offences.  The applicant had in the past breached court orders.  He had also been ordered to serve actual periods of imprisonment.
  3. [26]
    The applicant’s offending involved a level of sophistication.  Whilst that offending occurred in the context of a significant drug dependency and involved drugs intended to be used by the applicant, there was a commercial aspect to the attempting to import counts, namely, that the applicant would sell some to friends and acquaintances for profit.
  4. [27]
    Having regard to those circumstances, the applicant’s offending warranted a sentence which included deterrence, both general and personal. Further, whilst the applicant’s subsequent conduct was consistent with contrition and a genuine wish to rehabilitate and the applicant had good prospects of rehabilitation, such serious criminal conduct engaged in by a mature offender warranted the imposition of a substantial period of imprisonment.
  5. [28]
    A consideration of comparable authority[4] supports a conclusion that sentences of imprisonment of three years six months in respect of each count of attempting to import, even allowing for the applicant’s significant mitigating factors, fell within a sound exercise of the sentencing discretion.
  6. [29]
    In Bertilone, a slightly higher head sentence, together with a longer non-parole period was imposed on a mature offender with no prior drug convictions who pleaded guilty to a single count of importing a marketable quantity of methylamphetamine.  That offender also was an addict, had cooperated and had good prospects of rehabilitation.
  7. [30]
    In Di Tommaso lesser periods of imprisonment by way of both head sentence and non-parole were imposed but that offender was younger, had no criminal history and had low intelligence.  Sutton involved the imposition of a substantially longer period of imprisonment for the importation of a significantly greater amount of a border control drug.
  8. [31]
    In Sintat, a sentence of three years imprisonment, with release after two years on recognizance for one count of importing a marketable quantity of a border control drug was not disturbed on appeal.  That offender had a number of distinguishing characteristics, including a lack of prior criminal history and a diagnosed anxiety disorder.
  9. [32]
    A consideration of the single Judge decisions of McLachlan and Robbie do not alter that conclusion.  Each concerned an offender who was younger, with minor and largely irrelevant criminal histories.

Conclusions

  1. [33]
    The sentences imposed for the applicant’s offending reflected a proper application of sentencing principles.  Those sentences had appropriate regard for rehabilitation, the applicant’s addiction, the consequences of his addiction, the nature of the charge and all of the surrounding circumstances, including the applicant’s good prospects of rehabilitation and cooperation with the authorities by his timely pleas of guilty.
  2. [34]
    Once it is accepted that three years six months’ imprisonment for each count fell within a sound exercise of the sentencing discretion, there is no basis to conclude that the fixing of a non-parole period at 20 months, being a little under 50 per cent, was itself outside a proper exercise of the sentencing discretion.
  3. [35]
    There is no basis upon which to conclude that the sentencing Judge misapplied any sentencing principles.  Further, the sentences imposed were neither unreasonable nor plainly unjust.
  4. [36]
    The sentences imposed were not manifestly excessive.

Orders

  1. [37]
    I would order that the application for leave to appeal against sentence be refused.

Footnotes

[1]Criminal Code (Cth), section 11.1.

[2]R v McLachlan, unreported, Daubney J, SC No 333 of 2016, 13 December 2016; R v McLachlan, unreported, Daubney J, SC No 333 of 2016, 13 December 2016.

[3]R v Tout [2012] QCA 296.

[4]Bertilone v The Queen (2009) 197 A Crim R 78; Di Tommaso v R [2010] VSCA 178; R v Sutton [2013] QCA 151; Sintat v R [2018] NSWCCA 165.

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Editorial Notes

  • Published Case Name:

    R v Little

  • Shortened Case Name:

    R v Little

  • MNC:

    [2020] QCA 30

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Boddice J

  • Date:

    28 Feb 2020

Litigation History

Event Citation or File Date Notes
Primary Judgment SC821/18 (No Citation) 15 May 2019 Date of Sentence (Jackson J).
Appeal Determined (QCA) [2020] QCA 30 28 Feb 2020 Application for leave to appeal against sentence refused: Fraser and Morrison JJA and Boddice J.

Appeal Status

{solid} Appeal Determined (QCA)