The Queen v Grima[2000] QCA 105

COURT OF APPEAL

McMURDO P

THOMAS JA

ATKINSON J

CA No 429 of 1999

THE QUEEN

v.

GERALD JOSEPH GRIMA   Applicant

BRISBANE

DATE 30/03/2000

JUDGMENT

THE PRESIDENT:  Justice Atkinson will deliver her reasons first.

ATKINSON J:  The applicant pleaded guilty on 25 November 1999 to one count of trafficking in a dangerous drug and one count of possessing a dangerous drug as well as a summary charge of possession of a dangerous drug.

The first count related to trafficking in methylamphetamines between 31 January 1999 and 11 March 1999.  The second count related to the possession of cannabis sativa on 24 March 1999 and the summary offence to possession of cannabis sativa on 5 June 1999.

The applicant was sentenced to four years' imprisonment on count 1 and six months' imprisonment on count 2 and the summary charge.  All sentences were made concurrent, a pecuniary penalty order was made for the sum of $15,200 and a forfeiture order for four mobile telephones and a set of scales. 

The applicant seeks leave to appeal against the sentence of four years' imprisonment imposed for trafficking in a dangerous drug.

The circumstances of the trafficking offence were that police conducted an undercover drug operation, Operation Grenade, in the Mackay and Moranbah areas from July 1998 until March 1999. 

Twenty-four people were arrested and five people including the applicant were charged with unlawfully trafficking in dangerous drugs. 

Two covert police operatives were involved in a number of drug transactions with the applicant and others.  They paid the applicant $15,200 for five drug deals in methylamphetamines over several weeks in Mackay. 

The first transaction was on 1 February 1999 when the applicant was introduced to the cover police operatives.  He sold the undercover agents 13.372 grams of white powder containing 4.279 grams of methylamphetamine being 32 per cent purity for a payment of $3,000.  After the transaction the applicant said he always made the amphetamines a bit overweight.

The second transaction was on 10 February 1999.  The applicant said that it was "good shit".  A further 13.076 grams of white powder were sold for $3,000 to the police operatives.  This powder contained 6.799 grams of methylamphetamine being 52 per cent pure.

The third transaction took place on 17 February 1999 when the applicant sold 12.884 grams of white powder to the agents for $3,000.  The powder was 30.1 per cent pure and the weight of methylamphetamine was 3.878 grams.  The applicant asked if they liked the quality of the previous drugs and said he could get more of the same.

The fourth transaction was on 3 March 1999 when the applicant sold a further 13.342 grams of white powder for the payment of $3,200.  The powder contained 6.097 grams of methylamphetamine at a purity of 45.7 per cent.  The applicant told the operatives that things might be a bit slow in Mackay because of all the police in town for the trials over the bikie shooting.  He also said that he only needed to make a couple of deals like this one to make enough money to leave Mackay.

The final transaction was on 10 March 1999 when the two agents purchased 13.620 grams of powder for $3,000.  The powder contained 3.759 grams of methylamphetamine at 27.6 per cent purity.  The applicant said he bought a pound of the drug for $60,000 - $30,000 in cash and $30,000 on credit.  He said he would sell it within a week and that if he wanted to be greedy he could make $40,000 profit but he would go crazy if he did as he could not handle what he was currently doing and he had sold two half ounces already.  He said, "You get to this level, you can offload it a bit cheaper."  He said it would not take him long to pay off the $30,000 debt and that he only wanted to sell it in big lots.  He also said that the drug was from Sydney not his usual source in Brisbane.  He told the police operatives that he could get heroin if they wanted it. 

The total weight of powder sold was 66.294 grams and the total of methylamphetamine contained in the powder was 24.812 grams.  The total amount of money spent by the police operatives was $15,200.  I will not pause to detail the circumstances of the possession charges as they are not relevant to the application for leave to appeal against the sentence on the trafficking charge.

Of the four other persons charged with unlawful trafficking in methylamphetamines the person closest to the applicant in terms of the amount sold and the money received was Brett Ian Edmonds.  He also sold methylamphetamine to the two police agents on five occasions over a six-week period.

The amount sold was similar being 23.125 grams of methylamphetamine for a total price of $9,300 which was about $6,000 less. 

He had a previous conviction for trafficking for which he had been sentenced to four years' imprisonment with a recommendation for parole after 18 months.  Edmonds was sentenced to imprisonment for four and a half years for unlawful trafficking on this occasion to be served cumulatively upon a sentence of nine months for other drug offences and an assault imposed by a Magistrate in the previous week.  No doubt the fact that the sentence was cumulative was taken into account by the sentencing Judge.  He was addicted to drugs himself.  No recommendation regarding his release on parole was made.  In my view the applicant can have no justifiable sense of grievance by comparing his sentence to that of Edmonds.

The applicant's counsel also referred today to the case of Fry, CA No 397 of 1999 and 17 of 2000 which was heard in this Court on 21 March 2000.  In that case the Court of Appeal refused leave with regard to a sentence for George Fry who was the person who, on the facts before the learned sentencing Judge in this case, introduced the applicant to the covert police operatives.  It was said by the applicant's counsel that Mr Fry was higher up the distribution chain but there was no evidence before the Court of Appeal to suggest that he played a greater role.

The basis of Fry's sentence was that he was involved in fewer transactions being only the amount of amphetamine changing hands being 16.8 grams and less money changed hands.  However, it was accepted that this was only a small part of his business. 

He was, however, a drug-addicted person although he was in the business of selling methylamphetamine for money and making his living out of doing so.  His sentence of five years' imprisonment with no recommendation for parole was not upset on appeal.  It appears that he had no relevant criminal history.

The learned sentencing judge took into account that Mr Grima had no previous criminal convictions, that he was in financial difficulties resulting from the operation of his business, and that a demand had been sent to him by a bank and that he owed money to his parents who were experiencing difficulties as a result of loaning him that money.

The applicant was recruited into the operation by, as I have said, George Fry.  He said he made a loss out of the drug transactions and that he pleaded guilty to all the charges.  He was, however, not a drug-addicted person so, presumably, was selling drugs purely for the purpose of making money.

Prior to his involvement in drug dealing he had a consistent work record owning and operating his own business.

The applicant's counsel argued that the sentence was manifestly excessive and that the sentence which should have been imposed was four years' imprisonment with a recommendation for parole after 15 months.  It can be seen that the only area of disagreement between the applicant and the Crown is as to whether or not a recommendation for early release on parole should have been made in the circumstances.

The learned sentencing judge decided to impose a head sentence which reflected all of the circumstances, including the personal circumstances in the applicant's case, his guilty plea, his criminality and the sentence given to Edmonds, without any recommendation as to parole rather than to impose a head sentence which would therefore, presumably, have been longer and make a recommendation that he be eligible to be released on parole somewhat earlier than he would otherwise have been.

The process of sentencing uses, this Court held in The Queen v. Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999 at [31], an integrated process rather than a series of discrete steps.  As part of that process, where the defendant has pleaded guilty the Court is obliged to take the guilty plea into account under section 13 of the Penalties and Sentences Act 1992 and may reduce the sentence that would have been imposed had the offender not pleaded guilty.

It was held by this Court in The Queen v. Corrigan [1994] 2 QdR 415 that it was open to a sentencing Court to reduce a sentence within the meaning of this section by making an ameliorating accompanying order.  The recommendation for consideration for early release on parole was included in the definition of "sentence" in section 4 and qualified as the reduction of sentence within section 13. 

That does not mean, however, that it is necessary to make such an accompanying order.  The judge, in the exercise of his or her discretion, may properly reduce the head sentence that might have been imposed had the guilty plea not been taken into account, rather than make a recommendation with regard to parole. 

The sentence given in this case may be compared to the sentences imposed in a number of cases to which we were referred.  The most similar is The Queen v. Duggan CA No 441 and 465 of 1995, 25 June 1996, where the prisoner was sentenced to four years' imprisonment for trafficking in methylamphetamine and cannabis sativa and cocaine relating to seven occasions.

The covert police officer paid $7,450 for five ounces of amphetamines, two weights of cocaine and one pound of marijuana.  The offender offered to sell one pound of amphetamine for $10,000 but that transaction was not completed.  Duggan was a drug user without previous convictions and a good work record until his business failed.  He pleaded guilty after a voir dire.  No parole recommendation was made.

In The Queen v. Vickery CA No 256 of 1994, 21 August 1995 the prisoner was sentenced to eight and a half years' imprisonment for trafficking amphetamines, cumulative on an existing sentence for perjury.  He sold 15 grams over three months to an undercover agent.  Listening devices showed that he was in the business of dealing in amphetamines.  He had previous convictions for drug offences including four counts of supplying.

The applicant's counsel also referred to the case of Liddicoat, CA No 357 of 1996, 24 October 1996, where he had been sentenced to five years' imprisonment for trafficking.  The court held that because he pleaded to an ex officio indictment and co-operated extensively with police there should have been a recommendation for parole after 12 months.  This was conceded by the Crown.  However, the reasons are brief and do not disclose the whole of the reasons for this recommendation.  The concession by the Crown really makes this a case on which it is difficult to base any comparison with another case and is a case which appears to be related solely to its own facts. 

The most useful sentence in terms of comparative sentences appears to be that of Duggan.  There is no reason suggested by that sentence which would make this sentence outside the proper sentencing range.  In all of the circumstances it could not be said, in my opinion, that the applicant's sentence was manifestly excessive and, accordingly, application for leave to appeal against sentence should be refused.

THE PRESIDENT:  I agree.

THOMAS JA:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.