R v Everett[1999] QCA 14

COURT OF APPEAL

de JERSEY CJ

McMURDO P

McPHERSON JA

CA No 311 of 1998

THE QUEEN

v.

JIMMY EVERETTApplicant

BRISBANE

DATE 05/02/99

JUDGMENT

THE CHIEF JUSTICE:  The applicant, Mr Everett, was sentenced to nine years imprisonment for carrying on the business of trafficking in methylamphetamines with a recommendation that he be eligible for parole after serving three and a half years.

He was sentenced to concurrent terms for possession of dangerous drugs, possession of tainted property and things used in connection with drug crime and for attempting to enter premises with intent to commit an indictable offence.  He submits that the sentence imposed on him is manifestly excessive.

In his written submission to the Court he has urged that the sentence should have been in the range of five to seven years imprisonment with parole after two to two and a half years.

The sentencing Judge said that he regarded the trafficking offence as the top of the range and that it might have warranted imprisonment of up to 11 years, but he said he was guided by the Crown's suggestion of a seven to nine year range.  He selected nine years and then allowed what he considered a substantial reduction in terms of recommending early parole to take account of the applicant's co-operation with the authorities as well and his pleas of guilty.

When sentenced the applicant was 33 years of age.  He was sentenced last year.  He had a prior criminal history accumulated in the late 80's for attempting to procure murder, armed robbery in company, breaking and entering offences and receiving.  He was then imprisoned for six years.  He committed the instant offences four years after his release from prison.

It really suffices to focus for the moment on the trafficking count.  He carried on the business of selling methylamphetamines for the six months period prior to his arrest.  The Crown relied on 31 particularised acts of supply for a price exceeding $53,000, including five supplies to two police operatives involving a total of 28.167 grams of the drug included in 89.445 grams of powder for $13,800, two supplies to customers monitored by the police and 24 separate transactions on credit to various customers recorded in the applicant's note book. The prices involved in those sales totalled $39,290.

The applicant also admitted dealing for cash payment.  Those transactions were not recorded and he did not quantify the size of that part of his trade.  During his interview with the police customers continued to seek him out through his mobile telephone.  He told the police that his drug business returned about $2,000 a week, although during the sentencing process his counsel described that admission as a bravado throwaway line at the end of a very long interview process which was not consistent with reality.  The applicant, one should observe, was not a user.  His motivation in all of this was purely commercial. 

The Crown referred us to Chan, No 334 of 1992, and Jacobs, 523 and 444 of 1996, and the applicant added references to Walton, 257 of 1989, and to a number of single Judge decisions. Mrs Clare for the Crown referred us recently also to Vickery, 256 of 1994.

I think it clear that this conduct, with a purely commercial motivation carried out by a man of mature years with a substantial prior criminal history, warranted a head term within the range eight to 10 years and that the personal circumstances, the plea of guilty and the cooperation, were appropriately reflected by the one year credit allowed with respect to the recommendation as to parole.

There is another matter which I should finally mention and that concerns the offence of attempting to enter premises with intent which attracted the concurrent six months term.  That was quite a serious offence.  The applicant committed it while he was under police surveillance for the drug offences.  He was seen to drive a hire car to a hotel where he and another person changed the number plates on the vehicle.  The applicant then drove on alone to the airport at about 9 p.m.

Over a period of about 20 minutes he sought to gain access to a building through the Ansett international collection point and another door using a set of keys.  He left without gaining entry.  A collection of diamonds and jewellery were stored in a safe in a locked storeroom inside the building at that particular time.  During the subsequent search of the applicant's home, police found two Ansett key rings, photocopied pages of two safe combinations and another handwritten combination.  There was also the rental agreement for the hire car.

When questioned by the police the applicant said that another person had planned the offence with the expectation that diamonds, jewellery and cash would be in the safe.  He, the applicant, was to retain a third of the proceeds.  He was given keys for the building and the cash box.  The other person organised the hire car and the false plates.  The applicant said that he got assistance at the hotel to replace the registration plates in exchange for amphetamine.

That was quite a serious offence committed on an occasion quite separate from that involved in the trafficking and it does seem to me that the learned sentencing Judge would, in fact, have been entitled to impose a cumulative term with respect to that.  I mention that only to indicate by way of absolute confirmation, if it be necessary, that the overall punishment meted out to the applicant in this instance is perfectly within reasonable bounds.  I would refuse the application.

THE PRESIDENT:  I agree.

McPHERSON JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.