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R v Berns

 

[2020] QCA 36

[2020] QCA 36

COURT OF APPEAL

SOFRONOFF P

FRASER JA

BOWSKILL J

CA No 105 of 2019

SC No 84 of 2018

SC No 406 of 2019

THE QUEEN

v

BERNS, Scott William Applicant

BRISBANE

TUESDAY, 3 MARCH 2020

JUDGMENT

BOWSKILL J:  The applicant applies for leave to appeal against the sentence which was imposed on him on 3 April 2019, of 10 years imprisonment for the offence of trafficking in dangerous drugs.  He was convicted of that offence on his plea of guilty, as well as of a further 16 offences on the indictment, comprising drug-related offences as well as weapon offences, and four summary charges.  He contends the sentence imposed was manifestly excessive because the sentence does not give adequate weight to the mitigating factors, in particular, his timely plea of guilty and the totality issues that arise because of the time he served in prison, under an earlier sentence of imprisonment for other drug offending, prior to this sentence for trafficking.

The applicant does not contend the learned sentencing judge made any error of principle, rather, that her Honour failed to give sufficient weight to the particular factor of this socalled overlapping sentence.  To succeed he must show that the sentence imposed is so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion has miscarried.  See R v Ikin [2007] QCA 224 at page 6 and Hili v The Queen (2010) 242 CLR 520 at paragraphs 58 to 60.

The factual circumstances of the offending were set out in a lengthy and detailed agreed statement of facts.  He carried on the business of trafficking in multiple dangerous drugs, methylamphetamine, MDMA, cocaine and cannabis, over an 18 month period from February 2015 to August 2015, assisted by his then partner.  The business spanned the eastern coast of Queensland, extending to Toowoomba as well, and involved the sale of wholesale, commercial quantities of drugs to the applicant’s customer base of about 30 drug dealers, who purchased drugs from him for on-sale to their own customers.

It was accepted by the learned sentencing judge that the applicant mainly trafficked in methylamphetamine over the 12 months from August 2015 to August 2016, but that he was also selling MDMA in wholesale quantities in the six months prior to that.  He would purchase in bulk, up to half a kilogram of methylamphetamine, for tens of thousands of dollars, from suppliers on the Gold Coast, and then on-sell that to his customers.  Although he occasionally sold smaller quantities, he primarily dealt in multiple ounces of methylamphetamine at a time.

One of the applicant’s primary distributors admitted to police he had sold kilos of methylamphetamine and thousands of MDMA pills sourced from the applicant; and that was only one of his customers.  The applicant at times also sold cocaine in wholesale quantities, and also sold cannabis in substantial quantities.  The business was profitable, demonstrated by his possession of numerous vehicles and motorbikes and significant quantities of cash.  He had no legitimate employment at the time, but from his trafficking business was able to rent a beachfront house at Sunshine Beach and fund the operation of a barber shop at Noosa.

Other counts on the indictment concerned possession of methylamphetamine, cocaine, MDMA, cannabis and a cannabis plant found in the course of a search on 3 October 2015; and possession of a further substantial quantity of methylamphetamine, just over 291 grams pure, as well as cocaine, cannabis and MDMA and other things, including vehicles, following a search on 29 August 2016.  The applicant was also convicted, on counts 7 and 8, of the unlawful supply of handguns to one of his distributors on two occasions.

On any objective measure this was a serious example of the offence of trafficking, spanning a lengthy period of time, 18 months, involving the sale of significant wholesale quantities to a customer base of 30 drug dealers, insofar as the methylamphetamine is concerned, but also involving MDMA, cocaine and cannabis.  As the learned sentencing judge observed, the applicant was involved in a very extensive network that was highly successful in distributing drugs through South-East Queensland.  The evidence against the applicant came from a combination of police surveillance, telephone intercept evidence and evidence from associates or customers of the applicant.

There are further aggravating features arising from the applicant’s criminal history.  The applicant was aged 34 to 35 at the time of the offending and 37 at the time he was sentenced.  He had some minor irrelevant convictions in 2001 and 2002, and a conviction for possession of drugs from 2008.  However, on 16 February 2016 he was convicted and sentenced in the Supreme Court for two counts of aggravated possession of dangerous drugs on 3 October 2013, one involving cocaine, just under 4.5 grams, and the other involving methylamphetamine, just over 2.8 grams; as well as a further count of aggravated possession of methylamphetamine, just over 30 grams, as well as possession of cannabis, on 30 January 2014.  The applicant was on bail at the time of the second offences in January 2014.

The applicant was sentenced to two years and nine months imprisonment for the possession of just over 30 grams of methylamphetamine and 18 months imprisonment for the other offences.  He was given an immediate parole release date.  He had served about two and a half months in custody from January 2014, which was not declarable as time served, and so was taken off the head sentence and also, effectively, the bottom of the sentence.

The learned sentencing judge in that case noted that he was persuaded to fix immediate parole, having regard to that two and a half months the applicant had spent in custody, which his Honour considered would have had a personal deterrent effect, and also that the applicant had not further offended since that time.  His Honour was persuaded then that the applicant’s efforts at rehabilitation appeared to be reasonably successful.

Significantly, at the time of this sentence, the applicant had been engaging in his trafficking business for about a year, as the trafficking commenced in February 2015.  In that first six months it involved primarily selling MDMA; but from August 2015, and for the next six months after the sentence, it involved the significant business of selling methylamphetamine at a wholesale level, which has already been referred to.  That puts into sharp focus the false basis on which the sentence on 16 February 2016 proceeded, from the applicant’s perspective, in terms of the deterrent effect of his time spent in custody and his prospects of rehabilitation.

The applicant’s trafficking was, therefore, committed in breach of the bail he was on for that 2013/2014 offending and, after February 2016, in breach of his parole.

The applicant was returned to custody on 29 August 2016, when arrested for the offences the subject of the present matter, and his parole was suspended on 31 August 2016.  Up until 15 November 2018 he was serving the sentence imposed on him in February 2016.  He therefore served, in custody, about two years, two and a half months of the two year and nine month sentence previously imposed on him.

From 16 November 2018 to the date of the sentence in the present matter he was serving time on remand, which could be formally declared under s 159A of the Penalties and Sentences Act 1992.  Including the two days from his arrest, that amounted to 140 days which could be declared as time served.

The learned sentencing judge made reference in her sentencing remarks to the applicant’s background.  He completed grade 10 at school before obtaining a qualification as a concreter.  He had a good business, and life was going well.  He had a serious back injury requiring an operation in 2015, which was said to be the catalyst to him using drugs, which in turn was said to be the catalyst to his trafficking business.  The partner he was involved with at the time of the trafficking was also a heavy user of ice.  However, he was said to have come from a good family, who continued to support him, including his prior partner (not the co-offender in the trafficking) who was the mother of his three children, and to have made good use of his time in custody, including by no longer using drugs.

The learned sentencing judge considered the range of penalty for the trafficking offence to be between 12 to 13 years.  Her Honour said she would have sentenced the applicant to a period of 12 years imprisonment, but given the factors of totality and all of the other factors, considered a sentence of 10 years was appropriate.

The applicant concedes that 12 years was an appropriate starting point for the sentence, accepting that it is consistent with comparable authorities.  That is an appropriate concession, although a starting point at the upper end of the range identified by the learned sentencing judge, 13 years, would have been well-supported, having regard to cases such as R v Markovski [2009] QCA 299, noting the comments of Keane JA at paragraph 53, R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341, R v Kalaja [2012] QCA 329, R v Versac [2014] QCA 181 and R v Milos [2014] QCA 314.

The crux of the applicant’s submission is that by only reducing the sentence to 10 years, the learned sentencing judge did not give adequate weight to the totality issues that arise from the fact that he ended up serving the majority of the previous sentence imposed in February 2016.  Further, the applicant submits the reduction to 10 years did not adequately reflect his plea of guilty, lack of significant criminal history otherwise, positive personal circumstances and work history prior to developing a drug addiction in his early thirties, that he was drug dependent at the time of the offending, and positive efforts in custody.

The relevant principles, insofar as the application of the principle of totality in this case was concerned, are summarised in R v McAnally [2016] QCA 329 at paragraphs 41 to 43.  Relevantly, when a custodial sentence is to be imposed which will be cumulative upon or which will overlap with an existing custodial sentence, the sentencing judge is required to take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.  That principle is reflected in the requirement under s 9(1)(a) of the Penalties and Sentences Act, as one of the purposes for which a sentence may be imposed on an offender, that it be to punish the offender to an extent or in a way that is just in all the circumstances.

Although reference was made in the sentencing remarks to an overlapping sentence, this is really a case where the later sentence would be cumulative upon the earlier sentence, rather than overlap with it.  That is because the effect of the declaration of time served under s 159A was to backdate the commencement of the term to 16 November 2018, which was the day after the earlier term of imprisonment came to an end.

The totality principle does not require the later sentencing court to discount the sentence which is otherwise considered appropriate by, for example, reducing it by the precise amount of time the offender has already served under the existing sentence.  Time an offender is serving in custody under a previously imposed penalty of imprisonment is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not.

As a matter of policy, the reasons why that is so are clear.  Such an existing penalty of imprisonment represents the punishment regarded as just and appropriate for separate offending.  Where, as here, the offender finds themselves serving all or some of that term of imprisonment, because they have breached their parole or, for that matter, a suspended sentence, by their own further criminal offending, they should not expect the later sentencing court to factor that earlier sentence into account, in some precise mathematical way, by reducing the sentence for the later offending.  They are the masters of their own destiny; it is as a result of their continuing criminal offending that they find themselves in this position.

Nevertheless, the requirement to impose a penalty which is just in all the circumstances calls for some amelioration of the later sentence, having regard to the cumulative effect of the penalties imposed and the need to avoid a crushing sentence.

The total period of imprisonment imposed on the applicant for the combined offending the subject of his convictions in February 2016, on the most serious of which he was sentenced to two years and nine months imprisonment, and his convictions in April 2019, on the most serious of which he was sentenced to 10 years imprisonment, is 12 years and nine months.

An automatic declaration of conviction of a serious violent offence followed from his sentence of 10 years for trafficking, the effect of which is that the applicant must serve 80 per cent of that term, or eight years, before being eligible for parole.  He served two years, two and a half months of the earlier term.  For the combined offending he will, therefore, serve 10 years, two and a half months of a 12 years and nine month sentence, before being eligible for parole.

The applicant submits the sentence for trafficking ought to have been reduced to nine years, or nine years and six months.  Although that is not much less than the sentence actually imposed, the practical effect of this submission and, indeed, the main thrust of the application for leave to appeal, is that it would avoid the automatic declaration of a serious violent offence under s 161A of the Penalties and Sentences Act.  The applicant also submits his parole eligibility date should be fixed at the halfway point of that reduced sentence.

That submission involves an assumption that an appropriate penalty, even for the combined offending, would have been at a level which avoided the automatic serious violent offence declaration.  That assumption is incorrect.  On any view, the combined criminality involved in all of the applicant’s offending, including the aggravating features of continuing to offend whilst on bail and in breach of a parole order, having been sentenced in the Supreme Court in the middle of a lengthy and substantial period of trafficking, justly and appropriately attracts a period of around 13 years imprisonment, of which the applicant would be required to serve 10 years and just under five months, as 80 per cent.

That is, the starting point in considering whether the sentence imposed is unreasonable or plainly unjust in the circumstances, including the cumulative effect of it on the earlier sentence, is not a sentence which would not attract a serious violent offence declaration.  On the contrary, the starting point is that any such sentence for the offending involved in this case would have done so.  See R v Rodd at paragraph 24 in this regard.

In my respectful view, the reduction of the penalty imposed for the trafficking offence to 10 years imprisonment cannot be shown to be unjust or unreasonable.  It was manifestly fair and reasonable.  The learned sentencing judge appropriately took into account, in accordance with the relevant principles, the effect of the sentence her Honour was imposing on the overall time the applicant would serve because of the earlier term of imprisonment he found himself serving in custody, by reducing the penalty to 10 years.  That penalty, likewise, adequately reflected the applicant’s plea of guilty and such other mitigating factors as there were.  I would refuse leave to appeal the sentence imposed.

SOFRONOFF P:  I agree.

FRASER JA:  To her Honour’s reasons I would add only my own opinion that my agreement with those reasons does not imply that a more severe sentence necessarily would have been manifestly excessive.  I agree with the proposed order.

SOFRONOFF P:  The order of the Court is that the application for leave to appeal is refused.

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Editorial Notes

  • Published Case Name:

    R v Berns

  • Shortened Case Name:

    R v Berns

  • MNC:

    [2020] QCA 36

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Bowskill J

  • Date:

    03 Mar 2020

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC84/18; SC406/19 (No Citation)03 Apr 2019Date of Sentence.
Appeal Determined (QCA)[2020] QCA 3603 Mar 2020Application for leave to appeal against sentence refused: Sofronoff P, Fraser JA and Bowskill J.

Appeal Status

Appeal Determined (QCA)
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