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  • Unreported Judgment

R v Lowien

 

[2020] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lowien [2020] QCA 186

PARTIES:

R

v

LOWIEN, Gregory Leo

(applicant)

FILE NO/S:

CA No 240 of 2019

SC No 24 of 2019

SC No 74 of 2019

SC No 75 of 2019

SC No 77 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 16 August 2019 (Crow J)

DELIVERED ON:

4 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2020

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDERS:

  1. The application for leave to appeal against sentence is granted.
  2. The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced on his own pleas of guilty to trafficking in dangerous drugs, supplying dangerous drugs, burglary in the night and in company, assault occasioning bodily harm while armed and in company and four related summary charges – where the applicant was sentenced to concurrent terms of imprisonment of 10 years for the trafficking offence (with a serious violent offence declaration automatically made), three years for the burglary offence, two years for the assault occasioning bodily harm offence and convicted but not further punished for the supplying dangerous drugs and summary offences – where the trafficking operation extended over some 10 months, primarily in methylamphetamine and MDMA and involved the applicant supplying drugs in wholesale quantities to about 15 regular customers, who on-supplied them to their own customer base – where the trafficking operation was sophisticated and involved sourcing drugs from suppliers in Melbourne, Sydney and overseas and employed others in positions akin to employees – where both parties accept that the sentencing judge erred with regard to a fact relevant to sentence, namely that the commission of the trafficking occurred after the applicant had been released from serving a term of imprisonment, which was not the case – whether, despite that error, the sentence imposed was appropriate and just in all the circumstances of the case

Criminal Code (Qld), s 651

R v Abbott [2017] QCA 57, cited

R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited

R v Berns [2020] QCA 36, cited

R v Bost [2014] QCA 264, cited

R v Bradforth [2003] QCA 183, cited

R v Burrows [2004] QCA 306, cited

R v Carrall [2018] QCA 355, cited

R v Corbett [2018] QCA 341, cited

R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited

R v Dang [2018] QCA 331, cited

R v Delander [2019] QCA 69, cited

R v Elizalde [2006] QCA 330, cited

R v Feakes [2009] QCA 376, considered

R v Johnson [2014] QCA 79, cited

R v Kashton [2005] QCA 70, cited

R v Luu [2018] QCA 281, cited

R v McGinniss [2015] QCA 34, cited

R v Nunn [2019] QCA 100, cited

R v Powderham [2002] 2 Qd R 417; [2001] QCA 429, cited

R v Raciti [2004] QCA 359, cited

R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341, cited

R v Safi [2015] QCA 13, cited

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

R v Wainscott [2020] QCA 11, cited

COUNSEL:

B J Power for the applicant

J A Wooldridge for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Philippides JA.
  2. [2]
    FRASER JA:  I agree with the reasons for judgment of Philippides JA and the orders proposed by her Honour.
  3. [3]
    PHILIPPIDES JA:  The applicant was sentenced on 16 August 2019 on his pleas of guilty to the following offences:
  • trafficking in dangerous drugs between 30 April 2016 and 27 February 2017;
  • supplying a dangerous drug on 22 September 2015;
  • burglary in the night and in company and assault occasioning bodily harm while armed and in company on or about 27 January 2003; and
  • four summary charges heard with the indictable offences pursuant to s 651 of the Criminal Code (Qld).
  1. [4]
    The applicant was sentenced to concurrent terms of imprisonment of 10 years for the trafficking in dangerous drugs (with a serious violent offence declaration automatically made), three years for the burglary offence and two years for the assault occasioning bodily harm offence.  The applicant was convicted but not further punished for the supply of a dangerous drug and the summary offences.  A period of 781 days spent in presentence custody was declared to be time served under the sentence.
  2. [5]
    The applicant seeks leave to appeal against his sentence on the following grounds contained within the amended notice of appeal:
    1. (a)
      imposing a sentence of 10 years imprisonment for the trafficking offence to encompass all of the applicant’s criminality, including an offence which was not an offence to which an serious violent offence declaration could apply, was an error; and
    2. (b)
      the sentencing judge erred with regard to a fact relevant to sentence, namely that the commission of the trafficking occurred after the applicant had been released from serving a term of imprisonment.

Circumstances of the offending

  1. [6]
    The applicant and a co-offender, Lynch, were the head of a drug trafficking business trafficking in a number of dangerous drugs (methylamphetamine, MDMA, cocaine and cannabis) and responsible for the sourcing, purchasing and distribution of the drugs.  The period of the applicant’s trafficking extended over some 10 months from 30 April 2016 until 27 February 2017 and only ceased then because the applicant was taken into custody for possession of methylamphetamine, for which he had been on bail from 15 January 2016.
  2. [7]
    The applicant primarily trafficked in methylamphetamine and MDMA, while Lynch operated primarily in cocaine and cannabis, but each “referred” clients to the other.  Two others, Manitzky and Cooke, were involved in positions akin to employees. Manitzky acted as the courier, transporting drugs and cash from Sydney to Rockhampton and was paid about $100,000 for his role.  Cooke provided her house as a place to store the drugs and in return received her expenses paid and some methylamphetamine.
  3. [8]
    The operation supplied drugs in wholesale quantities to about 15 regular customers, who on-supplied them to their own customer base.  The telecommunications intercepts indicated arrangements were made to supply the customer base at least every second day during the relevant period.
  4. [9]
    The trafficking operation was sophisticated and involved sourcing drugs from suppliers in Melbourne, Sydney and overseas.  A customised vehicle was used by Manitzky to transport drugs from Sydney to Rockhampton.  Communications between those involved with the business and their customer base were often conducted over message services with auto delete functionality or coded in an attempt to prevent detection.
  5. [10]
    The sentencing judge found that 10 kilograms of methylamphetamine and 12 kilograms of cannabis were sourced from one Sydney supplier over a number of trips.  In addition, the business sourced cocaine in quantities of 150 grams for somewhere between $40,000 and $50,000.  Manitzky collected 150 gram packets from Sydney and received five to six 150 gram packages in the mail from the United States.
  6. [11]
    Between November 2016 and March 2017, police utilised a law enforcement participant who assumed the identity of Chris Thompson.  He contacted Lynch and purchased methylamphetamine and cocaine on six occasions.[1]  In November 2016, Thompson had met with the applicant who told him that he and Lynch were able to supply methylamphetamine, MDMA and cannabis and that he sold methylamphetamine in no less than 3.5 gram quantities and would supply 28 grams for $8,000.  Thompson subsequently purchased 3.44 grams total weight of methylamphetamine with a pure weight of 2.501 grams at 73.1 per cent purity.  In January 2017, Thompson purchased 3.490 grams of methylamphetamine with a pure weight of 2.554 grams for $1,000.  At the same time, Lynch offered to sell Thompson 3.5 grams of cocaine for $1,300, which he could purchase on 31 January 2016.  The cocaine would be coming from a source in Brisbane.  It was 87 per cent pure cocaine.
  7. [12]
    The sentencing judge found that the applicant’s profit from the trafficking in methylamphetamine was in the realm of $600,000 (about $60,000 per month) and that Lynch earned profits of about $230,000 to $270,000 (about $23,000 to $27,000 per month).  Having regard to the profit margins and costs outlined, including the payment of the employees, the turnover of the business was considerably greater than the profits found to have been made by the applicant and Lynch respectively.
  8. [13]
    In February 2017, Australian Border Force intercepted two packages addressed to Cooke, which together contained 417.321 grams of cocaine with a pure weight 212.578 grams.  In addition, on 2 February 2017, police intercepted a vehicle which the applicant was observed to be leaning up against, with his forearms resting on the vehicle.  After intercepting the vehicle, Police conducted a search of its occupant and located a clip seal bag containing 3.517 grams of methylamphetamine with a pure weight of 2.641 grams.

Supplying dangerous drugs offence

  1. [14]
    The offence of supplying a dangerous drug on 22 September 2015 concerned the deemed supply of an unknown dangerous drug based on text messages between the applicant and a man named Campbell and involved an offer or agreement to supply a quantity (“14 millilitres”) of drugs (“paint”).  The applicant was charged and arrested for this offence on 15 December 2015.  The Crown accepted that the supply charge was of relatively little consequence in comparison with the other offences, but it was relevant in that it meant that the applicant continued trafficking whilst he was on bail for this drug offence.

Burglary and assault offences

  1. [15]
    The burglary and the assault counts related to the entry into a house at night in 2003.  The applicant encountered the male resident and was involved in a struggle with him.  The resident pursued the applicant outside the house and onto the street, where the applicant and another man assaulted him.  The victim was struck in the head with a metal bar by the applicant’s co-offender while he was trying to apprehend the applicant.  The applicant hit the victim in the head with a torch, splitting his face open.  The applicant was linked to the offending by DNA testing after he was arrested for drug offences.

Summary offences

  1. [16]
    The four summary offences related to offences connected to the applicant’s arrest on 15 January 2016 and it was accepted by the Crown that they had no real significance to the sentence to be imposed.

Antecedents

  1. [17]
    The applicant was 62 years of age when sentenced.  He was 59 to 60 at the time of trafficking, 58 at the time of the supply of the dangerous drugs and 45 at the time of the burglary and assault.  The applicant had worked from the age of 15 and had an excellent work history prior to his involvement in criminal offending.  The applicant used drugs on a recreational basis during the course of the trafficking offence.  It was not suggested that he was drug dependant or that his offending was motivated by addiction.
  2. [18]
    The applicant’s criminal history included a prior relevant conviction on 27 February 2017 for possession of a dangerous drug in excess of the sch 3 quantity, committed on 15 January 2016.  That concerned possession of 10.996 grams of methylamphetamine containing 7.939 grams of pure methylamphetamine which was accepted to be for a commercial purpose.  The applicant was sentenced to two years imprisonment with a parole release date of 26 June 2017.  The applicant had committed no breaches while incarcerated.  He had numerous personal references in his favour.

Ground 2 – error as to custodial history

  1. [19]
    The respondent accepted that the error identified by the applicant in ground 2 was made out.  That is, the sentencing judge sentenced the applicant on an erroneous understanding of the applicant’s custodial history.  The error was that the sentencing judge proceeded on the stated basis that the applicant was released from custody on parole on 26 June 2017 in relation to the drug possession offence for which he was sentenced on 27 February 2017.  The applicant’s imprisonment on 27 February 2017 was the first time he had been imprisoned and he remained in custody thereafter up to the time of the present sentence hearing, as was apparent from the custody certificate tendered at sentence.
  2. [20]
    The error was reflected in the sentencing judge’s erroneous remarks that the applicant’s offending after having been imprisoned was “a serious matter”, demonstrating that he had “a chance to turn [his] back on drugs” but chose not to and did “precisely the opposite” by engaging in trafficking at a very high level.
  3. [21]
    Given the sentencing remarks, the respondent rightly conceded that leave to appeal should be granted as it could not be concluded that the misapprehension of the applicant’s custodial history did not have a material effect on the significance placed on personal deterrence in the exercise of the sentencing discretion, or in otherwise coming to the overall sentence.  However, the respondent urged that, in the independent exercise of its discretion, this Court would conclude that no different sentence should be passed and that the sentences imposed should not be varied.
  4. [22]
    Given the error made by the sentencing judge, the application for leave to appeal must be granted and the sentence imposed will be required to be set aside, unless, in reexercising the sentencing discretion, the Court considers the sentence imposed is appropriate in the circumstances of the case.

Re-exercise of the sentencing discretion

The applicant’s submissions

  1. [23]
    Before the sentencing judge, counsel for the applicant contended for a sentence of nine to nine and a half years for the trafficking offence and, in that regard, referred to R v Delander,[2] R v Corbett,[3] R v Luu,[4] R v Tran; Ex Parte Attorney-General (Qld),[5] R v Burrows[6] and R v Bost.[7]  It was submitted that concurrent sentences ought to be imposed for the other offences with parole eligibility after between one third to one half of the head sentence was served.  The Crown submission at sentence was that, in the circumstances of this case, a sentence of 10 to 11 years was warranted for the trafficking offence.  The decisions of R v McGinniss,[8] R v Dang[9] and R v Carrall[10] were referred to by way of comparatives.
  2. [24]
    Before this Court, counsel for the applicant urged that in re-exercising its sentencing discretion, this Court adopt an approach of imposing cumulative sentences.  In urging that approach, it was submitted that a sentence of nine years imprisonment was an appropriate sentence to reflect the trafficking offence and that, in addition, a cumulative sentence of 12 months imprisonment be imposed for the burglary offence (rather than the assault offence which was an offence that was able to attract a serious violent offence declaration).  The submission was that the sentence of nine years could also appropriately reflect the criminality for the assault offence.  The result would be an effective sentence of 10 years, but would avoid the result in R v Powderham[11] that, where the aggregate sentences for offences attracting serious violent offence declarations is 10 years or more, an automatic declaration follows.  In anticipation of an argument that to impose a sentence which separated the burglary and assault offences in such a manner was artificial, it was submitted that the burglary offence was the offence considered the more serious of the two by the sentencing judge.
  3. [25]
    In arguing that the trafficking offence itself ought not to attract a sentence of 10 years imprisonment, four points were made in oral submissions: the applicant by his plea had displayed cooperation in the administration of justice; the applicant had not been previously imprisoned prior to being arrested for the present offending; the applicant had many positive references; and a head sentence that marked the seriousness of the offending could be imposed, while still allowing him the opportunity to be released on parole within his 65th year, rather than his 68th year.  Counsel referred particularly to Tran and R v Safi[12] as relevant comparatives.
  4. [26]
    It was also submitted that if the Court considered a longer effective term of imprisonment was warranted, that is one of say 11 years, comprised of a cumulative term of two years imprisonment for the burglary offence, then instructions were held to waive the right to withdraw the application for leave to appeal.

The respondent’s submissions

  1. [27]
    Counsel for the respondent submitted that a term of imprisonment of 10 years was justified by the circumstances of the trafficking offence and when regard was had to R v Nunn[13] and R v Wainscott.[14]  In addition, reference was made to the decisions of R v Berns,[15] Dang and R v Abbott.[16]
  2. [28]
    The respondent argued against the approach urged by counsel for the applicant of structuring the sentences so as to impose cumulative sentences, with a term under 10 years for the trafficking offence and the cumulative sentence being imposed on the burglary offence that could not attract a serious violent offence declaration, as being improperly designed to circumvent the effect of the sentencing legislation.  Reliance was placed on Carrall.
  3. [29]
    In that case, the applicant was sentenced on his own plea to trafficking and possessing things used in connection with trafficking, as well as a charge of supplying a dangerous drug.  He was sentenced to 10 years imprisonment for the trafficking with no further sentences imposed on the other counts.  The trafficking in methylamphetamine and cocaine took place over a 19 month period.  The applicant had “a pivotal role in a very extensive and sophisticated drug distribution network”.  His activities “facilitated the greater use of these drugs at a very wide level throughout Queensland in the relevant period”.[17]  His practice was to fly to Sydney and arrange for an accomplice to drive there where the drugs were sourced and handed to the accomplice to transport to Brisbane, while the applicant flew back to Brisbane.  In imposing a 10 year sentence for the trafficking, the sentencing judge was guided by comparative authorities which included Abbott, R v Feakes[18] and R v Johnson.[19]  This Court upheld that the sentence imposed as within the sentencing discretion.[20]
  4. [30]
    Of significance to the present case is that, while it was accepted at sentence and on appeal that a 10 year sentence was appropriate, it was advocated on behalf of the applicant that the sentence be structured so as to impose cumulative terms of nine and a half years for the trafficking and six months on another offence.  Sofronoff P (with whom the other members of the Court agreed) described the application as “an invitation to the Court to structure a sentence to evade the consequence for parole that is mandated by the statute”[21] (an automatic declaration with the effect that the offender serve 80 per cent of the term in actual custody).  Referring to R v Crossley,[22] his Honour stated that that was not something in which the Court would engage.  That proposition was distinct from the requirement recognised in the authorities “to have regard to the mandatory non-parole period that is invoked by the operation of a declaration of a serious violent offence”.[23]  His Honour observed that such consideration may result in a decision to impose a sentence at the lower end of the range,[24] but that a sentencing judge is not obliged in such a case to sentence at the lower end of the range.[25]

Comparative authorities

  1. [31]
    Turning to the comparatives relied on by the applicant, Tran concerned an attorney’s appeal against a sentence of nine and a half years imprisonment imposed on a 33 year old offender with no criminal history who engaged in large scale wholesale trafficking in methylamphetamine and MDMA over a five and a half month period and other drug offences.  The head sentence imposed for the trafficking was not challenged, rather the focus of complaint was as to the setting of a parole release date at the one third mark.  This Court observed that the amelioration required for the pleas was taken into account in imposing the head sentence, which did not carry an automatic declaration of a serious violent offence.  It was held that to further ameliorate the sentence, by setting a parole release date at the one third mark, conferred a double benefit for the pleas which constituted error and, accordingly, the parole eligibility set by the sentencing judge was set aside with no other order made.
  2. [32]
    Tran does not indicate that a sentence under 10 years is appropriate in this case.  While Tran entered a late plea, and remained unlawfully at large for five months following his failure to appear on his sentence, his trafficking was for only about half the period of the applicant’s trafficking and as accepted by the applicant’s counsel, the amount of drugs in the present case was likely to have been double that proved against Tran.  Nor was Tran on bail when he committed the offences and unlike the applicant, Tran did not have other separate serious offences being dealt with.
  3. [33]
    Safi concerned pleas entered on two counts of trafficking in a dangerous drug (for periods of nine months and eight days respectively) and other drug and summary offences.  The second trafficking offence was committed whilst the applicant was on bail.  He was the “clear leader” of the syndicate and recruited numerous people for that purpose including courier, runners, debt collectors, or as suppliers themselves.  The value of the drugs trafficked was over $190,000 and there was evidence of threatened violence.  The offender had a relevant criminal history and a conviction for malicious wounding in company and had received a suspended prison sentence in the past.  A sentence of 10 years imprisonment was imposed for the first trafficking offence with a seven year concurrent term for the second.  The submission that the sentence of 10 years was manifestly excessive was rejected with the Court observing that, given the substantial trafficking, a sentence of no less than 10 years was warranted.  That decision does not indicate that the sentence imposed in the present case was inappropriate.
  4. [34]
    Nor do the comparatives relied on before the sentencing judge suggest that the sentence imposed was not one appropriate in the circumstances of the case.  In Delander, the offender was sentenced to nine years imprisonment for trafficking in methylamphetamine and MDMA over an eight month period and concurrent lesser terms for the other offences (mostly drug related offences but also weapons offences, and a count of possessing counterfeit money).  He trafficked as a “wholesale dealer” and distributed methylamphetamine in ounce amounts sold for about $5,000 per ounce of tablets and supplied drugs on 31 occasions to at least 18 customers.  The business was a “sophisticated” one, involving the leasing of a large shed to store drugs, cash and weapons.  One customer gave the applicant a Toyota Prado in satisfaction of a drug debt, which was later customised by the applicant with a secret compartment and used in the commission of offences.  The offender had a minor criminal history.  Mitigating factors included a timely plea and significant cooperation with police, which extended to identifying the locations of large amounts of explosives and weapons and encouraging another to reveal the locations of explosives.  He had a strong employment history.  The challenge to the sentence focused on the fixing of the parole eligibility date as not adequately reflecting the mitigating factors.  In refusing the application, it was held that the offender’s significant cooperation, which was “of an unusual nature”, was adequately reflected in the nine year head sentence which had the consequence that a serious violent offence declaration was not automatically made.  The present applicant’s mitigating circumstances did not include cooperation of the order in Delander.  It is also to be noted that the Court observed that, given the level of offending, a sentence of 10 years would have been within the sentencing range even taking into account the mitigating circumstances in terms of the applicant’s plea of guilty, handing himself into police and steps towards rehabilitation.
  5. [35]
    In Corbett, pleas were entered to various drug offences, including trafficking in methylamphetamine for which a sentence of nine years imprisonment was imposed, with no order as to parole.  The trafficking took place over a two month period, by an offender with a relevant criminal history.  He was a regular supplier and occasionally dealt in one ounce amounts.  He received sums as large as $20,000 and was found in possession of 287.46 grams of methylamphetamine, of which the pure content was 209.914 grams.  He trafficked for profit but also for personal use and had a significant addiction.  He offered to provide information which, although ultimately of no practical value, was an indicator of remorse and cooperation.  He had a three month old daughter and had remained in a relationship with her mother who remained supportive of him.  That case may be distinguished in that the present applicant trafficked over a longer period and unlike Corbett, his trafficking was not associated with his suffering from an addiction.
  6. [36]
    Luu concerned a count of trafficking over a period of three years and 10 months in heroin, cocaine, methylamphetamine, MDMA and cannabis and a number of other drug and fraud offences.  A sentence of nine years was imposed for the trafficking offence with concurrent sentences of two years imprisonment for the fraud offences ordered to be served cumulatively upon that sentence.  The challenge to the sentence concerned the setting of a parole eligibility date at five and a half years of the total 11 year sentence, which was dismissed.  Luu does not provide a useful guide, given the role played by the offender in the trafficking.  There was no allegation that the offender was engaged directly in the supply of drugs, rather she allowed her home to be used to warehouse drugs which were found there in large quantities, together with a very large quantity of cash of which she was found to be in possession.
  7. [37]
    In Burrows, an application for leave to appeal against a sentence of nine years imprisonment, with a serious violent offence declaration for trafficking in methylamphetamine over a three year period, was dismissed.  The 38 year old offender, who had a negligible criminal history, was also involved in the manufacture of that drug and convicted of other related offences.  The sentencing judge reduced what would otherwise have been a head sentence of 11 years to reflect the plea of guilty.  Burrows is to be approached with caution.  As noted in R v Kashton,[26] methylamphetamine was a sch 2 drug under the Drug Misuse Act 1986 (Qld) at the time of the offending in Burrows, unlike the position in relation to the present case.
  8. [38]
    In Bost, a sentence of nine years, with a declaration of a serious violent offence, was imposed for large scale trafficking over a period of more than two and a half years on an offender who was the head of a syndicate controlling a large quantity of drugs and a large amount of money, with a number of people working for him.  He had a relevant criminal history.  The offending had not involved violence, threats or the use of weapons and a high degree of cooperation was provided.  The “notional starting point” for the sentence imposed of 15 years imprisonment was not regarded as excessive by this Court, nor was the imposition of declaration of a serious violent offence, which was the focus of the challenge to the sentence.  The offender in that case was much younger at the time of offending (25 to 27 years old) than the present applicant.
  9. [39]
    In terms of comparative cases that provide useful yardsticks for an appropriate sentence in this matter, in Feakes, this Court upheld a sentence of 10 years imprisonment imposed on a plea to trafficking in sch 1 and two sch 2 drugs for a little over a seven month period.  The offender supplied significant quantities of cocaine (32.052 grams), MDMA (329.889 grams) and MDEA (109.744 grams) and lesser concurrent sentences for other drug offences.  His minimum benefit was approximately $56,000.  He had made significant efforts to rehabilitate himself, had a dysfunctional upbringing and had not reoffended for the three years he had been on bail.  McMurdo P reviewed Kashton; R v Assurson;[27] R v Rodd; Ex parte Attorney-General (Qld);[28] R v Elizalde;[29] R v Bradforth;[30] and R v Raciti.[31]  The latter concerned trafficking in MDMA, methylamphetamine and cocaine over a four month period by a 40 year old offender who continued his trafficking after being arrested and released on bail for a transaction involving $117,000.  In that case, this Court noted that such offending could attract sentences of between 10 to 12 years imprisonment and in reexercising the sentencing discretion, imposed a sentence of 11 years imprisonment.  Having considered those authorities, McMurdo P held that the 10 year sentence imposed was not manifestly excessive and adequately reflected matters of mitigation including the guilty plea.  Her Honour observed[32] that mature offenders who plead guilty to trafficking in significant quantities of sch 1 drugs can ordinarily expect to be sentenced to a term of imprisonment in the vicinity of 10 to 12 years.  Fryberg J agreed with McMurdo P, with the caveat that it was not necessary in deciding the case to identify a range of imprisonment ordinarily applied in serious trafficking cases, nor to set the boundaries of an appropriate range.  Fraser JA also agreed, subject to that caveat.[33]
  10. [40]
    In McGinniss, the offender was convicted on his pleas to trafficking in methylamphetamine over a seven month period for which he was sentenced to 10 years imprisonment, with an automatic serious violent offence declaration being made.  This had the effect of requiring him to serve eight years imprisonment before becoming eligible for parole.  He was also convicted of possessing a dangerous drug in excess of 200 grams for which he received a concurrent term of eight years imprisonment.  Leave to appeal against the sentence on the grounds that the sentence was manifestly excessive was refused.  The offender supplied drugs to regular customers using codes and supplied one customer with a total amount of at least 115 grams of methylamphetamine for the gross price of at least $54,000.  He also supplied to each of his other regular customers “multiple ounces” of methylamphetamine worth more than $10,000 and $20,000.  He was also employed by a syndicate, being paid $1,000 per week assisting in the distribution of drugs and transporting large amounts of drugs on six occasions, amounting to a total quantity of three kilograms.  He was found in possession of a total of 404.325 grams (72 per cent purity) of pure crystallised methylamphetamine, with an estimated wholesale value of more than $200,000 and had unsourced income for the part of the trafficking period of $27,290.  The offender (who was 26 years old at the time of the offending) was much younger than the applicant, had made commendable efforts to rehabilitate himself and had no relevant criminal history.
  11. [41]
    Of the recent authorities referred to by the respondent, Wainscott concerned an offender sentenced to nine years imprisonment for trafficking in methylamphetamine for about eight months at a wholesale level, for a profit of over $85,000.  Surveillance evidence established that, during the course of the trafficking period, the offender was, from time to time, owed tens of thousands of dollars by others, due to his ability to provide wholesale quantities on a “tick” basis.  Lesser concurrent sentences were imposed for other drug offences, a count of wilful damage and summary offences.  An important consideration in imposing sentence in that case (which is not relevant to the present case) was that there had been an inordinate delay in progressing the matter.  In upholding the nine year term of imprisonment for trafficking, this Court stated that the sentencing judge had rightly observed that, having regard to the serious aspects of the offending, and a consideration of relevant authority, a sentence of 10 years, even allowing for the applicant’s cooperation by reason of his pleas of guilty, would have been appropriate.
  12. [42]
    Berns concerned trafficking, mainly in methylamphetamine, over a period of 12 months.  Issues of totality arose (not relevant to the present case) because of the time the offender had served in prison under an earlier sentence of imprisonment for other drug offending, prior to being sentenced for trafficking and other offences, comprising drug related offences as well as weapon offences, and four summary charges.  The sentencing judge indicated that a sentence of 12 years imprisonment would have been imposed but for matters of totality and other factors.  This Court rejected the proposition that inadequate consideration was given to the factor of totality in reducing the notional sentence to 10 years.
  13. [43]
    In Nunn, a sentence of 10 years imprisonment was imposed on a plea to trafficking in methylamphetamine with lesser concurrent sentences imposed for other drug offences and one count of failing to answer a question before a CCC hearing.  The trafficking took place over a five month period and was conducted largely as a wholesale business, with many of the customers onsupplying the drugs to their own customers.  Intercepted telephone communications revealed that the business supplied 30 customers in all, of which about nine were regular customers.  The offender had a relevant criminal history.  In imposing the sentence for trafficking, the sentencing judge articulated as a sentencing “principle” that mature offenders who have pleaded guilty to trafficking in sch 1 drugs on a large scale can expect a sentence of at least 10 years imprisonment except in extraordinary circumstances.  This Court observed that what was described by the sentencing judge as a “principle” was derived from the statement by McMurdo P in Feakes 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”.[34]  It was held that, while it “was entirely appropriate” for the sentencing judge to use the past sentence decisions described and analysed in Feakes “for guidance as a yard stick in determining the sentence which was just for the particular circumstances of the subject offence and offender”,[35] the sentencing judge erred in that part of her reasoning in which her Honour “started from a predetermined range of sentences with fixed boundaries for a generally described kind of offence and offender”.[36]  Given the error, the application for leave to appeal was granted and the sentencing discretion was required to be exercised afresh.  The sentence was allowed to stand, it being considered a just sentence in all of the circumstances of the case.[37]  In so holding, it was observed:[38]

“A sentence of imprisonment of at least 10 years is suggested by sentences of 10 years imprisonment referred to in the comparable cases of Feakes, Johnson, McGuiness (sic), Abbott, Strutt, and Castner and with the sentence of nine years imprisonment imposed in Corbett, which (like Feakes, Abbott, and Strutt) was a less serious case because a smaller quantity of drug was trafficked, there were no threats of violence by the offender, and the offender did not engage employees to assist in the trafficking.”

  1. [44]
    Dang concerned trafficking in methylamphetamine and heroin over a period of approximately five months.  As well as the trafficking count, the applicant pleaded guilty to two offences of possession of drugs which effectively formed part of the trafficking.  He was sentenced to 10 years and six months imprisonment on the trafficking charge (with an automatic serious violent offence declaration) and was convicted but not further punished on the other counts.  The enterprise was largely conducted from Sydney but the applicant regularly came to Brisbane to control the operation, which was managed by a co-offender.  He would arrange for drugs to be stored inside cars which were transported to Brisbane, where they were removed by co-offenders and supplied to regular users on a wholesale basis.  The applicant arranged for two houses to be used by his co-offender, one being to store the drugs and cars and the other for his cooffender to live in as a reward.  His cooffender also received some cash and heroin to satisfy his own addiction.  Of the three challenges to the sentence, two concerned totality and parity considerations which are not pertinent in this matter.  In relation to the third challenge that the sentence was manifestly excessive, it was held that, while the appropriate sentence was to be determined with regard to the particular facts and circumstances of the case, given the large scale of the enterprise and the applicant’s position within it, a sentence of 10 and a half (or 11) years could not be said to be manifestly excessive by reference to the comparative authorities.[39]
  2. [45]
    In Abbott, a sentence of 10 years imprisonment was imposed for trafficking in methylamphetamine and cocaine (with a lesser concurrent term for a possession offence and convictions but no further punishment for other offences).  Although the period of trafficking was some 17 months, the active trafficking period was about six and a half months.  The trafficking was at a wholesale level.  The applicant was arrested and then released on bail.  He was intercepted by police in possession of methylamphetamine whilst he was in the process of delivering to a buyer for $25,000.  In refusing the application for leave to appeal against sentence, this Court noted the degree of involvement of the offender in the enterprise (as compared with his cooffender) and that his continued involvement in the enterprise whilst on bail was an aggravating factor and that the applicant’s trafficking “at a high level over a significant period of time clearly warranted a heavy, deterrent penalty”.[40]

Conclusion

  1. [46]
    The trafficking enterprise, in which the applicant, a man of mature years, played a key role was of a large scale and conducted at a wholesale level over a prolonged period, bringing a great deal of dangerous drugs into the Rockhampton area.  That the whole of that offending occurred whilst on bail is an aggravating feature.  Even allowing for the amelioration required to take into account the pleas, evident remorse and other matters of mitigation in the applicant’s favour, the offending warranted condign punishment.
  2. [47]
    The decisions of Delander, Corbett, Luu, Tran, Barrows or Bost referred to on behalf of the applicant at sentence and before this Court on appeal do not demonstrate that a sentence of less than 10 years is required in the present case to reflect a sentence that is just, bearing in mind all of the circumstances of the case.  Further, the decisions in McGinniss, Carrall, Nunn, Wainscott, Berns, Dang and Abbott support the view that, in the circumstances of this case, a sentence of 10 years imprisonment, with the consequential serious violence declaration, is an appropriate and just sentence.

Orders

  1. [48]
    Accordingly, the orders I propose are:
  1. The application for leave to appeal against sentence is granted.
  2. The appeal is dismissed.

Footnotes

[1]  AB at 70.

[2]  [2019] QCA 69.

[3]  [2018] QCA 341.

[4]  [2018] QCA 281.

[5]  [2018] QCA 22.

[6]  [2004] QCA 306.

[7]  [2014] QCA 264.

[8]  [2015] QCA 34.

[9]  [2018] QCA 331.

[10]  [2018] QCA 355.

[11]  [2002] 2 Qd R 417.

[12]  [2015] QCA 13.

[13]  [2019] QCA 100.

[14]  [2020] QCA 11.

[15]  [2020] QCA 36.

[16]  [2017] QCA 57.

[17] Carrall at [3].

[18]  [2009] QCA 376.

[19]  [2014] QCA 79.

[20] Carrall at [16].

[21] Carrall at [23].

[22]  (1999) 106 A Crim R 80 at [30] per McPherson JA.

[23] R v Herford (2001) 119 A Crim R 546 at [19] per Williams JA; R v Cowie [2005] 2 Qd R 533 at [19] per Keane JA and McMurdo J.

[24] R v BH; ex parte A-G (2000) 110 A Crim R 499 at [32] per Moynihan SJA and Atkinson J.

[25] Cowie at [20].

[26]  [2005] QCA 70.

[27]  (2007) 174 A Crim R 78.

[28]  [2008] QCA 341.

[29]  [2006] QCA 330.

[30]  [2003] QCA 183.

[31]  [2004] QCA 359.

[32] Feakes at [33].

[33]  See also Nunn at [10].

[34] Johnson at [45].

[35] Nunn at [14].

[36] Nunn at [14].

[37]  See s 668E(3) of the Code.

[38] Nunn at [18].

[39] Dang at [27].

[40] Abbott at [18].

Close

Editorial Notes

  • Published Case Name:

    R v Lowien

  • Shortened Case Name:

    R v Lowien

  • MNC:

    [2020] QCA 186

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Philippides JA

  • Date:

    04 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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